Perry Stewart Snider v. State

NUMBER 13-05-369-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG PERRY STEWART SNIDER, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 24th District Court of Goliad County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Rodriguez, and Garza Memorandum Opinion by Justice Garza Appellant, Perry Stewart Snider, was charged by indictment of indecency with a child. Appellant originally entered a plea of Anot guilty.@ The next day, pursuant to a plea bargain, appellant changed his plea and entered a plea of Aguilty.@ The trial court deferred a finding of guilt and placed appellant on the recommended ten years= community supervision. On December 10, 2003, the State filed a Motion to Adjudicate Guilt & Petition for Revocation of Probated Sentence. A hearing on the motion was held on February 22, 2005, at which time the trial court adjudicated appellant=s guilt and sentenced him to ten years= confinement. With the permission of the trial court, appellant appeals his conviction by three issues contending that: the State failed to disclose evidence favorable to appellant at trial and as a result of this failure, appellant=s plea of guilty was not voluntarily, knowingly, or intelligently entered. I. Jurisdiction Because appellant was placed on deferred adjudication for the original offense, we must consider the threshold issue of whether this Court has jurisdiction to consider this appeal. A defendant placed on deferred adjudication may raise issues relating to the original plea proceedings, 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, 661‑62 (Tex. Crim. App. 1999); see also Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001) (stating that even when a defendant has pled guilty pursuant to a plea bargain and received deferred adjudication, there is a limited right of appeal after adjudication of guilt where the issue raised on appeal is unrelated to the conviction).[1] We note that because appellant=s complaints arise from his original plea proceeding in 1995, rather than from proceedings associated with the revocation of his community supervision in 2005, he was required to raise the complaints in an appeal from the trial court=s order placing him on deferred adjudication. See Manuel, 994 S.W.2d at 660-62. However, appellant did not file a notice of appeal until June 22, 2005, following the court=s revocation of his community supervision. Appellant=s failure to file a timely notice of appeal from the trial court=s order in accordance with rule 26.2(a) deprives us of jurisdiction over his appeal. Tex. R. App. P. 26.2(a).[2] Therefore, we dismiss appellant=s appeal for want of jurisdiction. _______________________ DORI CONTRERAS GARZA, Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 29th day of June, 2006. [1] In Manuel, the court of criminal appeals, in its discussion of the deferred adjudication statute, reiterates that "if a defendant is dissatisfied with the decision to defer adjudication with the terms and conditions of the order, his proper remedy is to move for final adjudication as provided in Art. 42.12, Sec. [5(a)]. After adjudication of guilt, a defendant's normal appellate remedies are available to him." Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999) (citing McDougal v. State, 610 S.W.2d 509, 509 (Tex. Crim. App. 1981)); see Tex. Code. Crim. Proc. Ann. art. 42.12, ' 5(a) (Vernon Supp. 2005). [2] We note that although, pursuant to rule 25.2(a)(2), the trial court granted appellant permission to appeal, the trial court=s ability to do so does not give this Court jurisdiction to consider untimely appeals. See Tex. R. App. P. 25.2(a)(2), 25.2(b) (appeal is perfected by timely filing a sufficient notice of appeal) (emphasis added), 26.2(a).