Carlock, Tiffany M. v. State ( 2000 )

NUMBER 13-99-041-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

TIFFANY M. CARLOCK, Appellant,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________________

On appeal from the 36th District Court of San Patricio County, Texas.

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O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa

This is an appeal from the trial court's order revoking community supervision and adjudicating guilt. By two points of error, appellant, Tiffany Carlock, contends the trial court erred in denying her motion for new trial because: (1) she received ineffective assistance of counsel and (2) her counsel had an actual conflict of interest. We dismiss this appeal for want of jurisdiction.

As part of a plea agreement, appellant pleaded guilty on May 3, 1996 to the offense of possession of more than four grams but less than two hundred grams of a controlled substance.⁽¹⁾ On June 21, 1996, the trial court deferred the adjudication of guilt and placed appellant on community supervision for a term of four years.

On September 24, 1998, the State filed a motion to revoke appellant's community supervision based on appellant's alleged use and possession of a controlled substance.⁽²⁾ The trial court heard the motion on January 11, 1999, and appellant pleaded "not true" to the allegations. The court found the allegations to be true, and proceeded to adjudicate guilt. The trial court assessed appellant's punishment at five years in the Institutional Division of the Texas Department of Criminal Justice. The court then suspended the sentence and placed appellant on community supervision for a term of five years. Appellant filed a general notice of appeal on January 20, 1999. On February 8, 1999, appellant filed a motion for new trial and a motion for permission to appeal. On February 24, 1999, appellant filed amended motions for new trial and permission to appeal. In her motion for new trial, appellant alleged that: (1) her trial counsel had a conflict of interest and (2) she received ineffective assistance of counsel. The trial court heard these motions on March 12, 1999. Neither motion was completely ruled on by the trial court.⁽³⁾

Because appellant was placed on deferred adjudication for the original offense, we must consider the threshold issue of whether this Court has jurisdiction to consider this appeal. A defendant placed on deferred adjudication may raise issues relating to the original plea proceedings only in appeals taken when deferred adjudication community supervision is first imposed. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999).

In this case, appellant could have appealed from the trial court's original order placing her on deferred adjudication community supervision and then asserted her complaints of conflict of interest and ineffective assistance of counsel. However, appellant did not appeal from the trial court's order first imposing deferred adjudication community supervision.⁽⁴⁾ Instead, she chose to appeal the trial court's order revoking her deferred adjudication community supervision and adjudicating guilt. Accordingly, we conclude this Court does not have jurisdiction to address appellant's complaints.

Further, appellant contends the trial court erred by refusing to grant her motion for new trial.⁽⁵⁾ The record shows appellant's motion for new trial was filed more than two years after the original judgment of deferred adjudication community supervision was signed. In accordance with Manuel, we conclude appellant's motion for new trial was not timely filed because it was not filed immediately after the trial court first imposed deferred adjudication community supervision.

As in Manuel, appellant's general notice of appeal, even assuming it was timely filed, did not comply with Texas Rule of Appellate Procedure 25.2(b)(3) because it did not state that the trial court had given appellant permission to appeal. See Tex. R. App. P. 25.2(b)(3).⁽⁶⁾ We, therefore, conclude this Court lacks jurisdiction to consider this appeal.

We DISMISS this appeal for want of jurisdiction.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 8th day of June, 2000.

1. Tex. Health & Safety Code Ann. § 481.115 (Vernon Supp. 2000).

2. On December 15, 1998, the State filed an amended motion to revoke and adjudicate guilt, but at the hearing on January 11, 1999, it elected to proceed with the original motion.

3. At the end of the hearing, the trial judge stated:

I'm not going to -- I'm going to overrule your Motion for New Trial to the extent of your argument concerning the double jeopardy filing and refiling of the Motion to Revoke.

I'm not going to rule on your ineffective assistance of Counsel unless -- I will give you an opportunity, if you have any cases, to furnish the Court with some cases or case law on it. And after you have done that and given the State an opportunity to respond, then I will rule on that, as well as your motion for out-of-time appeal, which I'm holding in abeyance until I make a final ruling on your Motion for New Trial.

There is no ruling in the record on appellant's motion for new trial and/or motion for permission to appeal. When a motion for new trial is not timely ruled on by written order, the motion will be deemed denied when the period for the court to rule expires. See Tex. R. App. P. 21.8.

4. In Manuel, the court of criminal appeals, in its discussion of the deferred adjudication statute, reiterates that "if a defendant is dissatisfied with the decision to defer adjudication with the terms and conditions of the order, his proper remedy is to move for final adjudication as provided in Art. 42.12, Sec. [5(a)]. After adjudication of guilt, a defendant's normal appellate remedies are available to him." Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999) (quoting McDougal v. State, 610 S.W.2d 509, 509 (Tex. Crim. App. 1981)); see Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2000).

5. At the hearing on the motion for new trial, appellant testified that when she pleaded guilty, she did not do so voluntarily. If appellant had appealed from the trial court's original order placing her on deferred adjudication community supervision, and sufficiently argued a voluntariness issue, we would have had jurisdiction to consider her appeal, even though she filed a general notice of appeal. See Flowers v. State, 935 S.W.2d 131 (Tex. Crim. App. 1996); Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999).

6. Texas Rule of Appellate Procedure 25.2(b)(3) provides that, when appealing from a guilty plea where punishment does not exceed the plea agreement, the defendant's notice of appeal must:

(A) specify that the appeal is for a jurisdictional defect;

(B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or

(C) state that the trial court granted permission to appeal.

Tex. R. App. P. 25.2(b)(3).