Eduardo Canino v. State ( 2006 )

Affirmed and Memorandum Opinion filed December 19, 2006

Affirmed and Memorandum Opinion filed December 19, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-01044-CR

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EDUARDO CANINO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1026225

M E M O R A N D U M   O P I N I O N

Challenging his sentence and conviction for unlawful possession of a controlled substance, appellant Eduardo Canino essentially asserts, in four issues, that article 1.15 of the Texas Code of Criminal Procedure is unconstitutional as it denies him the rights to compulsory process. We affirm.

I.  Factual and Procedural Background

On May 7, 2005, appellant Eduardo Canino was charged by information with the offense of unlawful possession of a controlled substance. This charge was enhanced with two prior felony convictions.  Appellant waived his right to trial by jury, and entered a plea of guilty without an agreed recommendation, and also pleaded true to the enhancement paragraphs.  On June 2, 2005, the trial court found that the evidence supported appellant=s guilt, deferred proceedings without entering an adjudication of guilt, and placed appellant on community supervision for six years, and assessed a fine in the amount of $500.

On June 17, 2005, the State filed a motion to adjudicate, and an amended motion to adjudicate on August 22, 2005.  In response, appellant pleaded not true to the first allegation in the motion, but true to the second allegation in the motion.  Following a hearing, the trial court found both allegations true, found appellant guilty of the charged offense, and sentenced appellant to twenty years= confinement in the Texas Department of Criminal Justice, Institutional Division.

II. Analysis

Appellant raises four points of error challenging the constitutionality of article 1.15 of the Texas Code of Criminal Procedure on the grounds that it operates to deprive appellant of his right to compulsory process.  See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2005) (setting forth the statutory procedure for entering and accepting a plea of guilty or nolo contendere to a felony offense).  Specifically, he asserts the statutory procedure permits only the State to produce evidence of a defendant=s guilt, in violation of both his state and federal constitutional rights to compulsory process.  Appellant also asserts that both the state and federal constitutions require an express waiver of the right to compulsory process.  In response, the State asserts this court lacks jurisdiction to consider appellant=s issues on appeal.  The State also argues, in the alternative, that article 1.15 of the Texas Code of Criminal Procedure is not unconstitutional and that appellant=s constitutional rights to offer evidence were not violated.  As a threshold issue, we determine whether we have jurisdiction to consider the merits of appellant=s issues on appeal.

A defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed.  See Manuel v. State, 994 S.W.2d 658, 660 (Tex. Crim. App. 1999) (holding that complaints that conviction was obtained in violation of Article 1.15 and Texas Constitution article I, ' 19, because the evidence adduced at the original plea proceeding been insufficient to prove his guilt were untimely).  There are two exceptions to the general rule stated in Manuel: the Avoid judgment@ exception and the Ahabeas corpus@  exception.  See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001) (discussing the possibility of a Avoid judgment@ claim); Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001) (reaffirming the void judgment exception and noting the Ahabeas corpus@ exception to the prohibition against attacking the original conviction upon revocation).  

Appellant=s complaint arises from his conviction and punishment, not the revocation of his community supervision. Therefore, he was required to appeal within thirty days after he was placed on community supervision on June 2, 2005.  See Tex. R. App. P. 26.2(a)(1) (where no motion for new trial is filed, defendant must appeal within 30 days after sentence is imposed or suspended); Tex. Code Crim. Proc. Ann. art. 42.12, ' 23(b) (Vernon Supp. 2005) (concluding that defendant=s right to appeal conviction and punishment accrues when defendant is placed on community supervision).  Appellant=s community supervision was revoked on September 15, 2005.  Appellant did not bring this appeal until October 4, 2005.  Appellant did not appeal his conviction and sentence within thirty days of the date his community service was imposed and, therefore, his appeal is untimely.

Because the issues raised in this appeal relate to the original cause in which appellant received deferred adjudication community supervision, this court lacks jurisdiction over this appeal.  See Hargesheimer v. State, 182 S.W.3d 906, 910B12 (Tex. Crim. App. 2006) (endorsing the general rule set forth in Manuel that a defendant can raise appeals relating to original conviction only when first placed on deferred adjudication);  Watson v. State, No. 14-03-01156-CR, 2004 WL 1440668, at *1B2 (Tex. App.CHouston [14th Dist.] Jun. 29, 2004, pet. ref=d) (concluding that court of appeals lacked jurisdiction to entertain defendant=s claims challenging the constitutionality of article 1.15 of the Texas Code of Criminal Procedure on the grounds that it operates to deprive appellant of his right to compulsory process pertaining to plea proceedings, where defendant did not appeal from trial court=s order placing defendant on community supervision but brought claims only after his community supervision was revoked).  Accordingly, we dismiss the appeal for lack of jurisdiction.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed December 19, 2006.

Panel consists of Justices Fowler, Edelman, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).