Roland Fuentez v. State ( 2000 )

NUMBER 13-99-339-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ROLAND FUENTEZ

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 214th District Court of Nueces County, Texas.

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OPINION ON MOTION FOR REHEARING

Before Chief Justice Seerden and Justices Hinojosa and Kennedy⁽¹⁾ Opinion by Justice Kennedy

This court, in a prior opinion, held that it was without jurisdiction to hear this appeal because the appeal was based upon ineffective assistance of counsel, which is non-jurisdictional, and that the record shows no permission by the trial court to appeal. Appellant has now filed a motion for rehearing in which he encloses a statement by the trial judge which states that the trial judge granted his permission for the appellant to exercise his rights of appeal.

We grant the motion for rehearing, withdraw the opinion heretofore entered, and substitute this opinion in its place. In so doing, we dispose of the case without rebriefing or oral argument.

Appellant was indicted for aggravated sexual assault of a child. He pleaded guilty and was assessed ten years deferred adjudication. Subsequently, his deferred adjudication was revoked and he was sentenced to eight years confinement.

The single issue in this appeal alleges ineffective assistance of counsel. Specifically, in his summary of the argument on behalf of this issue, appellant says:

But for trial counsel's deficient performance before and during the original proceedings, appellant would have had the benefit of some of the following:

(i) signed and ordered pretrial motions, (ii) a trial motion for a continuance, or its functional equivalent, in order to allow the state an opportunity to clarify its position, at a minimum, of not having the ability to prosecute its case but for a plea bargain agreement.

This argument, and all the other arguments in appellant's brief refer to actions taken, and decisions made by trial counsel prior to, and during, the original proceeding wherein appellant pleaded guilty and was granted deferred adjudication.

A defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication community supervision is first imposed. Manuel v. State 994 S.W.2d 658, 661-662 (Tex. Crim. App. 1999). In the case at bar, appellant could have appealed from the order placing him on deferred adjudication community supervision, and could have argued at that time ineffective assistance of counsel.⁽²⁾ Id. at 662. He may not raise these issues at this stage of the proceeding.

We AFFIRM the judgment of the trial court.

Noah Kennedy

Retired Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 4th day of May, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. §74.003 (Vernon 1998).

2. As indicated, this not a direct quote. In Manuel, the court used the words "that the evidence was insufficient to sustantiate his guilt" where we use the words "ineffective assistance of counsel."