David Wayne Bennett v. State of Texas ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-139 CR ____________________

DAVID WAYNE BENNETT, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252^nd District Court Jefferson County, Texas Trial Court Cause No. 76812

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O P I N I O N

   This is an appeal following the trial court's revocation of David Wayne Bennett's deferred adjudication community supervision and the adjudication of his guilt.   

Pursuant to a plea bargain, Bennett pleaded guilty to the second degree felony offense of burglary of a habitation. See Tex. Pen. Code Ann. § 30.02(a)(3), (c)(2) (Vernon Supp. 2002); see also Tex. Pen. Code Ann. § 12.33 (Vernon 1994). In December 1998, the trial court deferred adjudication of guilt and placed Bennett on community supervision for five years. Subsequently, the State filed a motion to revoke, and Bennett pleaded "true" to allegations that he committed the offenses of unlawfully carrying a weapon, driving while his license was suspended, and failing to perform his community service hours. In February 2001 the trial court revoked Bennett's community supervision, adjudicated him guilty, and sentenced him to eight years in the Institutional Division of the Texas Department of Criminal Justice.

Included in the record is Bennett's "Notice of Filing Notice of Appeal" and a "Request for Permission to Appeal." Pursuant to Tex. R. App. P. 25.2(b)(2), the "[n]otice [of appeal] is sufficient if it shows the party's desire to appeal from the judgment or other appealable order . . . ." We conclude the two documents evidence Bennett's desire to appeal from the order adjudicating his guilt and sentencing him to prison.

Also in the record is the trial judge's order denying Bennett's request for permission to appeal. The trial court's order expressly states that Bennett does not need permission to appeal because no plea bargain existed, and that Tex. R. App. P. 25.2(b)(3) does not apply. A further review of the record, however, reveals there was a plea bargain in this case. The plea papers, signed by the prosecutor, Bennett's counsel, and Bennett himself, establish that the State and Bennett expressly agreed that Bennett's punishment would be "deferred adjudication," rather than the adjudication of his guilt on the second degree felony offense, and a $750 fine. The "unagreed" part of the recommendation was the specific number of years of community supervision. At the guilty plea hearing, the following exchange occurred:

THE COURT: Mr. Bennett, under our law this offense is classified as a second degree felony, which means that the possible punishment you could receive is from 2 to 20 years in the penitentiary, and in addition, a fine of up to $10,000. Do you understand the punishment range?

DEFENDANT: Yes, sir.

THE COURT: Now, your attorney and The State of Texas are going to make a recommendation to the Court regarding punishment. Do you understand that I'm not bound by any recommendations they make?

DEFENDANT: Yes, sir.

THE COURT: If I reject the plea bargain agreement, then you'd have a right to withdraw your plea. Do you understand that?

DEFENDANT: Yes, sir.

THE COURT: On the other hand, if I follow the plea bargain agreement, the only way you can appeal this case is that you have to come get my permission. Do you understand?

DEFENDANT: Yes, sir.

THE COURT: In your case the recommendation is that I defer the adjudication of guilt, place you on probation for five years and assess a fine of $750.00. Do you agree with that recommendation?

DEFENDANT: Yes, sir.

The record clearly demonstrates there was a plea bargain agreement. The fact that there was an agreed portion of the plea bargain and an "unagreed" recommendation does not nullify the existence of the plea bargain. Plea bargaining consists of the State's making concessions regarding punishment in exchange for a defendant's promise to enter a plea of guilty. See Freeman v. State, 913 S.W.2d 714, 717 (Tex. App.--Amarillo 1995, no pet.). Here such an exchange took place, and a plea bargain was entered into and followed. As a result, Rule 25.2(b)(3) is applicable to this appeal. The trial court admonished Bennett that if he wanted to appeal, he needed the trial court's permission. Having failed, for whatever reason, to obtain permission and having failed to meet the other requirements of the rule, Bennett cannot appeal his conviction, at least to the extent explained herein.

After Bennett perfected his appeal, appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). The brief concludes the record presents no arguable error which would support an appeal. This Court gave Bennett an extension of time in which to file a pro se brief if he so desired.   

In his pro se brief, Bennett complains of the following: (1) the involuntariness of his original guilty plea; (2) his inability (because of his incarceration) to request the trial court's permission to appeal from the order deferring adjudication of guilt; (3) ineffective assistance of counsel at the sentencing hearing following adjudication of guilt; and (4) ineffective assistance of counsel on appeal. As we appreciate Bennett's complaints, two of his issues relate to the original plea hearing and the deferred adjudication of his guilt in late 1998. The latter two points relate to matters after adjudication of guilt. We have jurisdiction to consider only points of error three and four.

The general notice of appeal filed by Bennett does not comply with Tex. R. App. P. 25.2(b)(3), as it must in order for Bennett to pursue his appeal regarding his guilty plea and the trial court's deferred adjudication of his guilt. See Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001). The notice does not specify that the appeal is for a jurisdictional defect or that the substance of the appeal was raised by written motion and ruled on before trial; nor does the notice specify that the trial court granted permission to appeal. Absent compliance with Rule 25.2(b)(3), we lack jurisdiction to consider those points of error pertaining to the original plea proceeding, including the claim that Bennett's guilty plea was involuntary. See Cooper, 45 S.W.3d at 78. We dismiss the appeal as to points of error one and two. ⁽¹⁾

In his third point of error, Bennett claims his trial counsel was ineffective ⁽²⁾ during the sentencing hearing following his plea of true to the allegations of violations of the conditions of community supervision. We note that Bennett's point of error does not challenge the trial court's determination to adjudicate guilt, a challenge that is prohibited by statute. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2002); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Instead, his point of error focuses on trial counsel's performance during the "process by which he was sentenced." See Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001). Complaints concerning the sentencing process of an adjudication proceeding are appealable, because they do not involve the trial court's decision to adjudicate guilt. See Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001); Vidaurri, 49 S.W.3d at 885. Therefore, we have jurisdiction to address his third issue.

Bennett claims that during the sentence hearing his trial counsel incorrectly asked that Bennett be sentenced to a restitution center as punishment for the burglary offense; he argues that a competent counsel would have known that Bennett could not receive such punishment. He bases his contention on a 1985 Attorney General's opinion, which, in turn, is based on old law. Initially, we note that Bennett mistakenly assumes the February 26, 2001, hearing was a hearing deferring the adjudication of his guilt; in actuality, the purpose of that hearing was to adjudicate guilt, since he had already pleaded true to community supervision violations, and to assess his punishment. As to his claim that, under the facts of the case, community supervision in a restitution center is not a sentence allowed by law, we find neither statute nor case law to support such a claim. Under the burglary of a habitation and community supervision statutes, a trial judge has the authority to adjudicate the defendant guilty of burglary of a habitation, impose sentence, suspend the imposition of sentence, and place the defendant on community supervision in a "community corrections facility," which includes a restitution center. See Tex. Pen. Code Ann. § 30.02(a), (c)(2) (Vernon Supp. 2002); Tex. Code Crim. Proc. Ann. art. 42.12 §§ 3, 3g, 11, 18 (Vernon Supp. 2002); Tex. Gov't Code Ann. § 509.001(1)(A) (Vernon 1998). The punishment requested by both trial counsel and Bennett himself was one authorized by law. Even had it not been, there was no harm in the request, since the trial court did not assess such punishment. There was no ineffective assistance of counsel. Issue three is overruled.

Finally, Bennett complains of the Anders brief filed by appellate counsel. Appellate counsel was correct in his conclusion that there is no reversible error. After the Anders brief was filed, Bennett was given the opportunity to raise any points of error in a pro se brief. He has done so. We have reviewed the clerk's record and the reporter's record and find no arguable error requiring us to order appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Issue four is overruled.

We have no jurisdiction to consider points of error one and two; the appeal is dismissed as to them. We overrule issues three and four. The judgment of conviction is affirmed.

APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED.

PER CURIAM

Submitted on November 29, 2001

Delivered on January 9, 2002

Do not publish

Before Walker, C.J., Burgess, and Gaultney, JJ.

1.

Bennett's second point of error references the original plea hearing in November 1998 at which the trial court told him he (Bennett) had to obtain the trial court's permission in order to appeal. Bennett maintains he could not satisfy that requirement because he was incarcerated and in lockdown without any means of typing what he needed to present to the court. Even if Rule 25.2(b)(3) allowed us to consider this issue, it has no merit. There is no requirement that a pleading, including a request for permission for appeal, must be typewritten. Further, Bennett does not state that he is unable to send material by mail while he is in lockdown.

2.

To establish ineffective assistance of counsel, Bennett must show that (a) his counsel's performance was deficient and (b) the deficient performance prejudiced his case. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).