Charles Ray Chew v. State

Opinion issued August 12, 2010 In The Court of Appeals For The First District of Texas NO. 01-08-00698-CR CHARLES RAY CHEW, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1147949 MEMORANDUM OPINION In one issue, appellant Charles Ray Chew contests the voluntariness of his decision not to appeal an order deferring adjudication because of an allegedly erroneous certification of his right to appeal. Because the trial court later adjudicated Chew guilty of the offense, Chew has waived his right to challenge the original plea proceeding. We dismiss Chew’s appeal for want of jurisdiction. Background Chew pleaded guilty, without an agreed recommendation, to possession with intent to deliver cocaine weighing between 4 and 200 grams. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(a), (d) (Vernon 2010). Chew also pleaded true to one prior felony conviction for possession of a controlled substance. The trial court ordered deferred adjudication with 10 years’ community supervision. The trial court’s certification of Chew’s right to appeal stated that this was “a plea bargain case, and the defendant has NO right of appeal.” Approximately three months later, the State filed a motion to adjudicate, alleging that Chew failed to comply with certain conditions of community supervision: specifically, Chew was discharged from a residential substance-abuse-treatment program for failure to follow the rules. Chew pleaded not true to the motion to adjudicate. The trial court adjudicated Chew guilty of possession with intent to deliver cocaine weighing between 4 and 200 grams and sentenced him to 25 years’ confinement. The trial court certified that this was not a plea-bargain case and that Chew had the right to appeal. Chew filed a motion for new trial, alleging that he had failed in his substance-abuse-treatment program because he was denied anxiety medication and was thus incompetent. This motion was overruled by operation of law. Chew filed a notice of appeal. Appeal Relating to Order Deferring Adjudication In his sole issue, Chew complains that his failure to appeal the order deferring adjudication and the specific conditions imposed was involuntary because the trial court’s certification of his right to appeal erroneously stated that his case was a plea-bargain case and he had no right to appeal. Chew argues that but for the trial court’s erroneous certification of his right to appeal, he could have challenged the drug-treatment condition of his community supervision. (Chew wanted to go to a different drug-treatment program instead of the one from which he was discharged, leading to his adjudication on the drug possession offense.) Chew now appeals from the judgment adjudicating his guilt; he has waived any complaints arising from the original plea proceeding. We lack jurisdiction to consider the voluntariness of Chew’s inaction in failing to appeal from the original plea proceeding. See Guillory v. State, 99 S.W.3d 735, 738 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). “[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.” Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999); Guillory, 99 S.W.3d at 738. Manuel has been construed as obliging a defendant to appeal any issue relating to the original plea hearing at the time he is placed on deferred adjudication. Webb v. State, 20 S.W.3d 834, 836 (Tex. App.—Amarillo 2000, no pet.). Chew argues that because there was no agreed recommendation as to punishment at the original plea proceeding, he did not waive his right to appeal. We agree that the trial court’s certification to the contrary was erroneous. Nevertheless, Chew could have appealed from the order placing him on deferred adjudication and sought an amendment to the trial court’s certification of his right to appeal. See Wilkerson v. State, 264 S.W.3d 102, 103 (Tex. App.—Houston [1st Dist.] 2007) (memorandum order) (requiring trial court to correct defective certification that erroneously denied defendant’s right to appeal). Indeed, the Rules of Appellate Procedure contemplate that mistakes may occur when a trial court certifies a defendant’s right to appeal and allow for amendment of such a certification. Tex. R. App. P. 25.2(f) (“An amended notice of appeal or trial court’s certification of the defendant’s right of appeal correcting a defect or omission in an earlier filed notice or certification, including a defect in the notification of the defendant’s appellate rights, may be filed in the appellate court in accordance with Rule 37.1, or at any time before the appealing party’s brief is filed if the court of appeals has not used Rule 37.1.”). Chew did not challenge the order deferring adjudication or the community-supervision conditions it imposed, and he may not do so now. See Manuel, 994 S.W.2d at 661–62; Guillory, 99 S.W.3d at 738. We dismiss Chew’s sole issue for lack of jurisdiction. Conclusion We dismiss this appeal for lack of jurisdiction. Michael Massengale Justice Panel consists of Justices Keyes, Sharp, and Massengale. Do not publish. Tex. R. App. P. 47.2(b).