Allen v. State
Allen v. State
Opinion of the Court
OPINION
Appellant Tremayne L. Allen appeals from the trial court’s judgment adjudicating his guilt for the offense of possession of less than one gram of cocaine, a state jail felony. We dismiss the appeal for want of jurisdiction.
On May 19, 2000, pursuant to a plea bargain agreement, appellant pleaded guilty to the offense, and the trial court placed him on deferred adjudication community supervision for two years. Subsequently, the State filed a petition to proceed to an adjudication of guilt, alleging appellant had violated certain conditions of his community supervision. On August 8, 2001, also pursuant to a plea bargain agreement, appellant pleaded true to paragraph one of the State’s petition, and the trial court adjudicated appellant guilty of the offense and assessed his punishment at six months’ confinement in a state jail facility. Following the adjudication proceeding, appellant filed a pro se notice of appeal complaining of ineffective assistance of counsel at the proceeding adjudicating his guilt.
Because appellant’s notice of appeal did not appear to invoke our appellate jurisdiction, we sent a letter to appellant’s counsel directing her to submit a letter brief identifying the issues or points to be raised on appeal and explain why those issues or points warrant continuation of the appeal. No letter brief was received within the time allowed.
Appellate Jurisdiction
Jurisdiction concerns the power of a court to hear and determine a case. State v. Riewe, 13 S.W.3d 408, 410 (Tex.Crim.App. 2000); Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). Appellate jurisdiction is invoked by giving timely and proper notice of appeal. White v. State, 61 S.W.3d 424, 428 (Tex.Crim.App. 2001); Riewe, 13 S.W.3d at 410; Lemmons v. State, 818 S.W.2d 58, 60 (Tex. Crim.App. 1991). Dismissal of an issue or the entire matter is appropriate unless the form of the notice of appeal is proper to perfect appeal as to the issue or matter. White, 61 S.W.3d at 428.
To invoke this court’s jurisdiction over an appeal from a negotiated, felony guilty plea, a notice of appeal must conform to the mandatory notice requirements of rule 25.2(b)(3). Tex.R.App. P. 25.2(b)(3); White, 61 S.W.3d at 429. These requirements apply equally to appeals from a judgment adjudicating guilt when the parties agreed to deferred adjudication community supervision pursuant to a plea bargain agreement at the original plea proceeding and the appellant is later adjudicated guilty, unless he raises an issue or issues unrelated to his conviction. Woods v. State, 68 S.W.3d 667, 669 (Tex.Crim.App. 2002); Vidaurri v. State, 49 S.W.3d 880, 884-85 (Tex.Crim.App. 2001).
Because appellant’s notice of appeal does not satisfy rule 25.2(b)(3) and the appeal does not raise an issue unrelated to his conviction, his notice fails to confer jurisdiction on this court. Absent appellate jurisdiction, we can take no action other than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo, 918 S.W.2d at 523-25. Accordingly, we dismiss the appeal for want of jurisdiction. See Tex.R.App. P. 43.2(f).
DAUPHINOT, J. filed a dissenting opinion.
Dissenting Opinion
dissenting.
I respectfully dissent from the majority’s holding that when an appellant appeals under a general notice of appeal after adjudication of deferred adjudication community supervision, we must dismiss for want of jurisdiction pursuant to rule 25.2(b)(3) of the Texas Rules of Appellate Procedure unless the appellant shows this court, before receiving the record and be
There are two kinds of community supervision. “Regular” community supervision means placing a defendant under a continuum of programs and sanctions for a specified period after conviction and sentencing, during which period imposition of sentence is suspended in whole or in part. “Deferred adjudication” community supervision means placing a defendant under a continuum of programs and sanctions for a specified period before adjudicating guilt and, consequently, before sentencing.
APPEALS FROM THE GRANTING OF PLEA-BARGAINED COMMUNITY SUPERVISION
A defendant who appeals from the trial court’s granting of regular community supervision pursuant to a plea bargain must give the special notice of appeal required by rule 25.2(b)(3).
Similarly, a defendant who appeals from the granting of deferred adjudication community supervision pursuant to a plea bargain must also give the special notice of appeal required by rule 25.2(b)(3).
APPEALS FROM THE REVOCATION OF PLEA-BARGAINED COMMUNITY SUPERVISION
When, however, a defendant appeals from revocation of regular community supervision, he does not appeal from a judgment rendered on his plea of guilty or nolo contendere under Texas Code of Criminal Procedure article 1.15. Such an appeal would be untimely.
Article 42.12, section 23(b) affords a defendant an unrestricted right to appeal from an order revoking regular community supervision, even if that community supervision was a result of a plea bargain.
Rule 40(b)(1) [now rule 25.2(b)(3) ] is ... inapplicable to appeals attacking the propriety of orders revoking probation .... See also Corley v. State, 782 S.W.2d 859 (Tex.Crim.App. 1989) (pointing out that a defendant may appeal from the trial court’s order revoking probation, with the time for filing notice of such appeal beginning to run from the revocation rather than from the original plea hearing).11
Because rule 25.2(b)(3) is inapplicable to appeals from revocation of regular community supervision, a general notice of appeal is sufficient to vest an appellate court with jurisdiction.
Similarly, I respectfully submit, when a defendant appeals from revocation of deferred adjudication community supervision, he does not appeal from a judgment rendered on his plea of guilty or nolo contendere under Texas Code of Criminal Procedure article 1.15.
Other rational reasons that rule 25.2(b)(3) does not apply appear in the subsections of the rule.
Article 42.12, section 5 of the Texas Code of Criminal Procedure does govern appeals from revocation of deferred adjudication community supervision.
Article 42.12, section 5 also addresses issues on appeal that a defendant may still bring after his deferred adjudication community supervision is revoked: “After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.”
In summary, I believe that the law requires that we allow Appellant to request and review the clerk’s record and the reporter’s record and brief his issues. If, on appeal, he challenges the trial court’s decision to adjudicate, he should lose on the merits; that is, we should affirm his conviction, because this challenge is an issue on which he cannot succeed, just as he cannot succeed on a complaint that was not preserved for appeal.
. TexCode Crim. Proc. Ann. art. 42.12, § 2(2) (Vernon Supp. 2002).
. Tex R.App.P. 25.2(b)(3).
. Tex.Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2002).
. Tex R.App.P. 25.2(b)(3).
. See id.
. See Tex.R.App. P. 26.2.
. See Feagin v. State, 967 S.W.2d 417, 419 (Tex.Crim.App. 1998).
. Tex.Code Crim. Proc. Ann. art. 42.12 § 23(b).
. Id.; see Feagin, 967 S.W.2d at 419.
. Tex.Code Crim. Proc. Ann. art. 42.12, § 23(b).
. Feagin, 967 S.W.2d at 419.
. TexR.App. P. 25.2(b)(2); see Feagin, 967 S.W.2d at 419.
. See Tex.R.App. P. 25.2(b)(3).
. See Tex.R.App. P. 26.2.
. Tex.R.App. P. 25.2(b)(3)(A), (B), (C).
. Id.
. Woods v. State, 68 S.W.3d 667, 670 (Tex.Crim.App. 2002).
. See Tex. Fam.Code Ann. §§ 51.04(a), 54.02(j) (Vernon Supp. 2002); In re N.J.A., 997 S.W.2d 554, 555 (Tex. 1999); see also Ex parte Trahan, 591 S.W.2d 837, 841 (Tex.Crim.App. 1979) (holding that waiver and transfer from the juvenile court are essential to the district court’s jurisdiction); Whytus v. State, 624 S.W.2d 290, 291 (Tex.App.-Dallas 1981, no pet.) (same).
. Woods, 68 S.W.3d at 670 (Womack, J., concurring).
. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999); Northington v. State, 76 S.W.3d 203, 206 (Tex.App.-Fort Worth 2002, no pet.); Williams v. State, 76 S.W.3d 207, 209 (Tex.App.-Fort Worth 2002, no pet.).
. See Woods, 68 S.W.3d at 671 (Womack, J., concurring); Vidauni v. State, 49 S.W.3d 880, 887 (Tex.Crim.App. 2001) (Womack, J., concurring).
. See Woods, 68 S.W.3d at 669.
. Tex.R.App. P. 25.2(b)(2).
. Tex.Code Crim. Proc. Ann. art. 42.12 § 5(b).
. Id.
. Id.
. See Tex.R.App P. 33.1(a) ("As a prerequisite to presenting a complaint for appellate review, the record must show that ... the complaint was made to the trial court by a timely request, objection, or motion.”).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.