Dalson Leschalle James v. State

In The Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-11-00019-CR ______________________________

DALSON LESCHALLE JAMES, Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 114th Judicial District Court

Smith County, Texas Trial Court No. 114-0913-10

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Dalson Leschalle James received a probated sentence in Smith County1 for possession of a controlled substance and was placed on community supervision. Among the conditions of community supervision, James was ordered to reimburse the Texas Department of Public Safety for ―$140 for the testing of the drugs in this case.‖ Now, on the State’s motion, the trial court has revoked James’ community supervision, because James possessed marihuana, used or consumed marihuana, used or consumed opiates, and possessed opiates. At the revocation hearing, James pled ―true‖ to the State’s allegations. The trial court revoked James’ community supervision and assessed his punishment at two years’ confinement.

In two points of error on appeal, James attacks only that part of the trial court’s original order2 placing him on community supervision that ordered James to pay restitution.

We affirm the trial court’s judgment because James failed to timely appeal any issue concerning restitution.

Issues related to the original conviction are not generally cognizable on an appeal from the revocation of community supervision. Gossett v. State, 282 S.W.2d 59, 62 (1955); King v. State, 161 S.W.3d 264, 266 (Tex. App.—Texarkana 2005, pet. ref’d); see Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999) (applying general rule to deferred adjudication). James does not allege that any exception to the general rule applies in this case. See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001); cf. Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001). ―An appeal from an order revoking community supervision is limited to the propriety of the revocation.‖ Stafford v. State, 63 S.W.3d 502, 511 (Tex. App.—Texarkana 2001, pet. ref’d). The time for appeal begins when the sentence is imposed or suspended in open court.3 Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (unprobated fine properly included in judgment revoking community supervision).

Any error in the restitution order should have been appealed when James was convicted and placed on community supervision. At the time of the original judgment and sentencing, James failed to object to any restitution error or file a motion for new trial or an appeal from that judgment. Thus, this appeal fails.

We affirm the judgment of the trial court.

Josh R. Morriss, III Chief Justice

Date Submitted: July 11, 2011 Date Decided: July 12, 2011 Do Not Publish