Michael Wayne Johnson v. State ( 2006 )

                                                NO. 12-06-00183-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MICHAEL WAYNE JOHNSON,     §                      APPEAL FROM THE THIRD

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

            Michael Wayne Johnson appeals his conviction for indecency with a child.  Appellant raises one issue on appeal.  We affirm.

Background

            Appellant was indicted for the felony offenses of aggravated sexual assault of a child and indecency with a child.  Pursuant to a plea agreement, Appellant pleaded guilty to the second degree felony of indecency with a child.  The trial court deferred adjudication and placed Appellant on community supervision for eight years.  Subsequently, the State filed a motion to revoke Appellant’s community supervision.  Specifically, the State alleged that Appellant had used marijuana and cocaine and failed to meet his commitments for community service and the payment of fees. Following a hearing, the trial court found the allegations in the State’s motion to be true, revoked Appellant’s community supervision, found Appellant guilty of indecency with a child, and assessed punishment at twenty years of imprisonment.  This appeal followed.

Requisites of Brief

            In a single issue, Appellant argues that the trial court should have informed him of his right to return and request a “determined” sentence and that his plea was therefore involuntary.  For ease of reference, the headings and arguments from Appellant’s brief are set forth in their entirety as follows:

Point of Error Numbered One Restated

Defendant was not fully informed at the time of plea of right to determine [sic] sentencing, revocation is a violation of Defendant [sic] rights.

Summary of Argument

The trial court should have informed Defendant of his right to return and request a determined [sic] sentence of years thereby not leaving him the exposure of 5 to 99 or life upon revocation.

Argument

Courts are required to insure that Defendants understand, and are freely and voluntarily pleaing [sic] when a plea is taken.  This includes Defendant’s rights with deferred adjudication.  No evidence is of record that the Court made defendant aware of his right when accessing [sic] deferred adjudication.  Texas Constitution.  U.S. Constitution.

Prayer

WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable Court sustain the point of error raised hereinabove, and vacate the commitment to the Texas Department of Corrections Institution Division and remand the Motion to Revoke for a hearing trial [sic].

            The rules of appellate procedure require that an appellant’s brief contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.  See Tex. R. App. P. 38.1(h).  Moreover, in order to adequately brief a constitutional issue, an appellant must proffer specific arguments and authorities supporting his constitutional arguments.  See Brooks v. State, 990 S.W.2d 278, 288 (Tex. Crim. App. 1999); Narvaiz v. State, 840 S.W.2d 415, 430 (Tex. Crim. App. 1992).  Failure to adequately brief an issue waives the issue on appeal.  See Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003).

            Appellant failed to proffer any authorities or argument to support his constitutional contentions.¹  As such, we hold that Appellant has waived this issue by failing to adequately brief it.  Appellant’s sole issue is overruled.

Disposition

We affirm the judgment of the trial court.

                                                                                                    BRIAN HOYLE  

                                                                                                               Justice

Opinion delivered October 25, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ The State has interpreted Appellant’s argument to be that he was not advised at the original plea hearing that he had the right to return to court within thirty days of his plea and be finally adjudicated.  See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(a) (Vernon Supp. 2006).  We cannot determine if Appellant was so advised because the original plea hearing is not included in the record.  Even if it were part of the record, we lack jurisdiction to consider such a claim because Appellant did not appeal from the original plea proceeding.  See Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App. 2000).