James Cody Jarvis v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00318-CR
JAMES CODY JARVIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 1292950D
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MEMORANDUM OPINION1
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In a single point, James Cody Jarvis contends that his eight-year sentence
for burglary of a habitation violated his due process rights under the Fourteenth
Amendment. U.S. Const. amend XIV. We affirm.
In 2012, appellant pled guilty to burglary of a habitation pursuant to a plea
bargain. In accordance with the State’s recommendation, the trial court placed
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See Tex. R. App. P. 47.4.
appellant on deferred adjudication community supervision for five years. In 2015,
the State filed a motion to revoke appellant’s community supervision and
adjudicate him guilty of burglary. Appellant pled true to the allegations in the
motion to adjudicate, and the trial court adjudicated him guilty. The trial court
sentenced appellant to eight years’ confinement. Appellant’s trial counsel did not
object to the sentence, nor did his appellate counsel raise a due process
complaint about the sentence in the timely-filed motion for new trial.
The State first contends that appellant waived his right to appeal the trial
court’s judgment adjudicating him guilty because appellant agreed to such a
waiver when he was initially placed on deferred adjudication community
supervision pursuant to a plea bargain. But the court of criminal appeals has
held that
in a plea-bargain case for deferred adjudication community
supervision, the plea bargain is complete at the time the defendant
enters his plea of guilty in exchange for deferred adjudication
community supervision. Rule 25.2(a)(2) will restrict appeal only
when the defendant appeals his placement on deferred adjudication
community supervision pursuant to the original plea.
Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006) (emphasis
added). Appellant is not appealing the original plea-bargained judgment placing
him on deferred adjudication community supervision, and nothing in the record
indicates that he pled true to the allegations in the subsequent motion to
adjudicate as a result of an agreement with the State. Therefore, the cases cited
by the State are inapposite; they do not involve an unbargained-for open plea of
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true to the allegations in a motion to revoke community supervision and
adjudicate guilt. See Jones v. State, 488 S.W.3d 801, 802–03 (Tex. Crim. App.
2016) (concluding that bargained-for waiver can preclude appeal even if
agreement between State and defendant is not “plea bargain” as that term is
defined in rule 25.2); Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App.
2009) (holding, in postconviction habeas appeal challenging bargained-for open
plea, that defendant can validly waive entire appeal as a result of that bargain
even if the bargain does not include a recommendation of punishment).
Therefore, we hold that the waiver of appeal that appellant agreed to in the initial
plea bargain for deferred adjudication community supervision does not bar this
subsequent appeal of the trial court’s unbargained-for judgment adjudicating him
guilty of the offense. See Ex parte Cruzata, 220 S.W.3d 518, 520 & n.1 (Tex.
Crim. App. 2007) (noting that trial court was correct that appellant did not need its
permission to appeal after entering open plea of true to allegations in motion to
adjudicate).
In his sole point, appellant contends that the eight-year sentence imposed
by the trial court violates his due process rights under the Fourteenth
Amendment. But because appellant did not raise this complaint in the trial court,
we overrule his point. See Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim.
App. 1986); Laboriel-Guity v. State, 336 S.W.3d 754, 756 (Tex. App.––Fort
Worth 2011, pet. ref’d).
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We affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DAUPHINOT, J., concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 29, 2016
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