Mills, Paul Eugene v. State

Affirmed and Memorandum Opinion filed January 5, 2006 Affirmed and Memorandum Opinion filed January 5, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00374-CR ____________ PAUL EUGENE MILLS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 176th District Court Harris County, Texas Trial Court Cause No. 991,921 M E M O R A N D U M  O P I N I O N Appellant, Paul Eugene Mills, was indicted for the offense of indecency with a child. On October 18, 2004, appellant pled guilty and entered into a plea bargain in which the State recommended deferred adjudication with six years of community supervision. On November 5, 20045, the trial court signed an order deferring adjudication of guilt and placing appellant on community supervision for six years. The State subsequently moved to adjudicate and, on March 3, 2005, appellant signed a stipulation of evidence, agreeing that he had committed a violation of the conditions of his community supervision. On March 3, 2005, the trial judge entered a judgment of conviction and sentenced appellant to six years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant raises six issues. We affirm. The clerk=s record was filed on April 27, 2005. The record containsed the trial court=s certification of appellant=s right to appeal, which indicated that this was a plea bargain case and that appellant had no right of appeal. The Court of Criminal Appeals has held there is a limited right of appeal in cases such as this. In Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001), the court held 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 where the issue raised on appeal is unrelated to the conviction. Furthermore, in Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005), the Court of Criminal Appeals held that an agreed recommendation in return for a plea of true on revocation does not fall within the language of Rule 25.2, and is therefore, not a plea bargain under Rule 25.2. Accordingly, we found the trial court=s certification to be incorrect and we asked the trial judge to file a corrected certification of the appellant=s right to appeal. On May 24, 2005, a supplemental clerk=s record was filed, containing a new certification, which indicated that appellant had waived the right of appeal. In its brief, the State asserts that we must dismiss this appeal because the trial court has certified that appellant waived his right of appeal. We disagree. The record shows that appellant pled guilty in return for the State=s recommendation of deferred adjudication community service. When the defendant waived the right to appeal in the initial plea bargain for deferred adjudication, he could not have known with certainty the punishment that would be assessed upon adjudication of guilt. Accordingly, the waiver of the right to appeal in this case is not binding. See Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim. App. 1977).[1] Additionally, the defendant did not waive the right to appeal when he pled true to the State=s stipulation of evidence during adjudication of guilt. Accordingly, there is no valid waiver of the right to appeal. Because we find the trial court=s certification of appellant=s right of appeal is incorrect, we address the complaints raised in appellant=s brief. In points of error one and two, appellant claims the trial court=s judgment and sentence violate appellant=s constitutional right to compulsory process because, after the trial court accepteding appellant=s plea, the State was required to produce evidence of appellant=s guilt and appellant was not entitled to put on any evidence. In points of error three and four, appellant claims the trial court erred in proceeding to judgment where the record is silent as to waiver of appellant=s constitutional right to compulsory process. Points of error one and two, and possibly, three and four, concern appellant=s plea of guilty before he was placed on deferred adjudication probation. Appellant did not appeal the order placing him on deferred adjudication. 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, 662 (Tex. Crim. App. 1999). Because appellant did not appeal the original plea proceeding in which[???] deferred adjudication community supervision was first imposed, he may not raise these issues now. To the extent points of error three and four concern the adjudication of guilt, appellant may not raise them. In Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001), the court held 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 where the issue raised on appeal is unrelated to the conviction. In Vidaurri, the issue raised on appeal concerned the process by which the defendant was sentenced and the court found this issue was unrelated to his conviction. Appellant=s complaints are related to his conviction, not to the process by which defendant was sentenced. Accordingly, appellant does not have the right to raise these claims. We overrule points of error one through four. In points of error five and six, appellant claims the punishment imposed was not proportional to the offense committed and therefore, violated the Eighth and Fourteenth Amendments= ban against cruel and unusual punishment and the Texas Constitution=s ban against cruel and unusual punishment. The Austin Court of Appeals has held that a claim of cruel and unusual punishment is an issue relating to the conviction and is outside the scope of issues a plea-bargaining defendant may raise after adjudication of guilt. Kahookele v. State, 165 S.W.3d 440, 444 (Tex. App.BAustin 2005, pet. filed). The majority of courts of appeals, however, have either not discussed whether this issue is within the scope of appealable issues, or have found this issue to be unrelated to the conviction. See, e.g., Finister v. State, 2003 WL 1922588, at *2 (Tex. App.BHouston [14th Dist.] Apr. 28, 2003, pet. ref=d)(addressing issue of cruel and unusual punishment in deferred adjudication case because no clear authority supports assertion that this issue is related to the conviction); Foy v. State, 2002 WL 31682219, at *1 (Tex. App.BHouston [1st Dist.] Nov. 27, 2002, no pet.)(complaint of cruel and unusual punishment concerns a matter unrelated to conviction)(not designated for publication); Nunez v. State, 110 S.W.3d 681, 682 (Tex. App.BCorpus Christi 2003, no pet.)(addressing issue of cruel and unusual punishment without noting whether it is an issue related to the conviction). Accordingly, we address the merits of this issue. Appellant failed to raise an objection in the trial court that the sentence was cruel and unusual and thus, has failed to preserve error. See Tex. R. App. P. 33.1(a), Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983). Furthermore, punishment is not cruel and unusual if it falls within the statutorily prescribed limits. McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. 1978). The offense of which appellant was convicted is a third degree felony. Tex. Pen. Code Ann. ' 21.11(d) (Vernon 2003). The statutory range of punishment for a third degree felony is not more than ten years or less than two years. Tex. Pen. Code Ann. ' 12.34(a) (Vernon 2003). Appellant=s sentence falls within the statutory range of punishment. Accordingly, we overrule appellant=s fifth and sixth points of error. We affirm the judgment of the trial court. PER CURIAM Judgment rendered and Memorandum Opinion filed January 5, 2006. Panel consists of Justices Hudson, Frost, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The Texarkana Court of Appeals held in Littleton v. State, 33 S.W.3d 41, 43 (Tex. App.BTexarkana 2000, pet ref=d) that Thomas was overruled by Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000), however, that is not correct. The Blanco court merely found Thomas factually distinguishable. Blanco, 18 S.W.3d at 219-20. In Blanco, the appellant knew what his punishment would be when the trial court accepted his plea. Id. at 219. That is not true in our case. Furthermore, the Court of Criminal Appeals has observed that, in determining whether defendants are bound by their waivers of appeal, a court first must first determine whether the waiver is valid, which requires finding that the waiver was knowingly, voluntarily, and intelligently made. Monreal v. State, 99 S.W.3d 615, 621 (Tex. Crim. App. 2003). Because appellant in this case was not aware of the sentence that would be imposed after adjudication of guilt, his waiver of appeal could not have been knowingly and intelligently made.