Jerry Winford v. State ( 2009 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-07-00524-CR ____________________

JERRY WINFORD, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 95892

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MEMORANDUM OPINION

Pursuant to a plea bargain agreement, appellant Jerry Winford pled guilty to indecency with a child. See Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003). The trial court found the evidence sufficient to find Winford guilty, but deferred further proceedings, placed Winford on community supervision for eight years, and assessed a fine of $1000. The State subsequently filed a motion to revoke Winford's unadjudicated community supervision. Winford pled "true" to five violations of the conditions of his community supervision. The trial court found that Winford violated the conditions of his community supervision, found Winford guilty of indecency with a child, and assessed punishment at nineteen years of confinement. Winford then filed this appeal, in which he raises one issue for our consideration. We affirm.

In his sole issue on appeal, Winford asserts that the trial court's written plea admonishments incorrectly advised him regarding the degree of offense of which he was accused and the applicable punishment range, which rendered his guilty plea involuntary and affected his substantial rights. The trial court's written plea admonishments incorrectly advised Winford that the charge to which he pled guilty was a state jail felony that carried a punishment range of six months to two years of confinement in a state jail facility. Indecency with a child is a second-degree felony that carries a punishment range of two to twenty years of confinement. See Tex. Pen. Code Ann. §§ 12.33, 21.11(a)(1), (d) (Vernon 2003).

Winford acknowledges in his brief that he did not appeal the trial court's decision when the trial court placed him on deferred adjudication community supervision. A defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding only in an appeal taken when the trial court first imposed deferred adjudication community supervision. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). Winford's complaint arises from his conviction and punishment, not the revocation of his community supervision. Therefore, he had to appeal within thirty days of November 27, 2006, which was the date on which the trial court placed him on community supervision. See Tex. R. App. P. 26.2(a)(1) (When no motion for new trial is filed, a defendant must appeal within thirty days after sentence is imposed or suspended.). Winford did not timely appeal the trial court's order placing him on deferred adjudication community supervision; therefore, he may not raise an issue in this appeal regarding the sufficiency of the trial court's admonishments during the original plea proceeding or the voluntariness of his guilty plea. See id.; Manuel, 994 S.W.2d at 661-62. Accordingly, we affirm the trial court's judgment.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted on July 29, 2008

Opinion Delivered January 14, 2009

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Before McKeithen, C.J., Kreger and Horton, JJ.