Opinion
NO. 01-10-00981-CRNO. 01-10-00982-CR
04-12-2012
RICHARD DUNSMORE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Case Nos. 56909 and 56910
MEMORANDUM OPINION
Appellant Richard Dunsmore appeals from his convictions for sexual assault and attempted sexual assault. In a single point of error, Dunsmore contends that the trial court erred in denying his motion to withdraw his guilty pleas because his pleas were not voluntary due to his health and mental condition. We dismiss for want of jurisdiction.
Background
In July 2008, Dunsmore pleaded guilty to sexual assault and attempted sexual assault. In accord with the terms of his plea agreement with the State, the trial court assessed punishment at ten years' deferred-adjudication community supervision for each offense. During the plea proceedings, the trial court admonished Dunsmore concerning his desire to plead guilty. Dunsmore told the trial court that no one had promised him anything, threatened him, or coerced him to persuade him to plead guilty, and he stated that he was pleading guilty only because he was guilty of the offenses. He also told the trial court that he believed that he was competent to go forward with the plea proceedings and that he had a clear understanding of the proceedings.
In addition to receiving the oral admonishments provided by the trial court, Dunsmore acknowledged that he had received the written admonishments from his attorney "hours ago" and that he had read and signed them after discussing them with his attorney. The written admonishments include a paragraph that stated that he was mentally competent, which Dunsmore initialed.
In May 2010, nearly two years later, the State moved to adjudicate guilt, alleging that Dunsmore had violated the terms of his community supervision. Dunsmore responded by filing a pro se motion to withdraw his guilty pleas to both offenses, arguing that his guilty pleas in July 2008 were involuntary due to his health and mental condition. After a hearing on October 8, 2010, the trial court denied Dunsmore's motion to withdraw. The court adjudicated guilt and assessed punishment at seven years' confinement, with the sentences to run concurrently.
Dunsmore contends on appeal that the trial court erred in denying his motion to withdraw his guilty pleas because his pleas were not voluntary due to his health and mental condition.
Discussion
A defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding in an appeal taken when the deferred adjudication community supervision is first imposed. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); Guillory v. State, 99 S.W.3d 735, 738 (Tex. App.—Houston [1st Dist.] 2003, pet. refd). Issues relating to the original plea proceeding may not be raised after community supervision is revoked and the trial court adjudicates guilt. Manuel, 994 S.W.2d at 661-62 ("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"). Because Dunsmore did not appeal the trial court's refusal of his request to withdraw his guilty pleas when the trial court first imposed the deferred adjudication order, his appeals are untimely, and we lack jurisdiction to consider them. Arreola v. State, 207 S.W.3d 387, 389 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Citing to Labib v. State, 239 S.W.3d. 322, 330 (Tex. App.—Houston [1st Dist.] 2007, no pet.), Dunsmore argues that he can move to withdraw his guilty pleas at any time after he was placed on deferred adjudication. Labib is factually distinguishable. Unlike Dunsmore, the defendant in Labib timely filed a notice of appeal within thirty days of being placed on deferred-adjudication community supervision.
As we explained in Arreola, our court has jurisdiction over a trial court order granting or denying a pre-adjudication application for writ of habeas corpus. See Arreola, 207 S.W.3d at 389; see also TEX. R. APP. P. 25.2(a)(2)(B); Cooper v. State, 45 S.W.3d 77, 81, 81-83 (Tex. Crim. App. 2001) (stating proper avenue for attacking voluntariness of negotiated plea is by application for writ of habeas corpus).
Conclusion
We dismiss for want of jurisdiction.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Bland. Do not publish. TEX. R. APP. P. 47.2(b).