Opinion
No. 14-03-01156-CR
Memorandum Opinion filed June 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 830,876. Dismissed.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
MEMORANDUM OPINION
Appellant, James Watson, entered a plea of guilty to the offense of aggravated sexual assault of a child. On July 26, 2000, the trial court deferred a finding of guilt and placed appellant on deferred adjudication community supervision for ten years. The State filed a motion to adjudicate appellant's guilt on June 20, 2003. Appellant entered a plea of true to the allegations in the motion. After a hearing, on October 3, 2003, the trial court adjudicated appellant's guilt and sentenced him to confinement for eight years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal. We dismiss the appeal for want of jurisdiction. Appellant's appointed counsel filed a brief commonly referred to as a "Vanderburg brief." See Vanderburg v. State, 681 S.W.2d 713 (Tex. App.-Houston [14th Dist.] 1984, pet. ref'd). Appellant raises four points of error challenging the constitutionality of article 1.15 of the Texas Code of Criminal Procedure on the grounds that it operates to deprive appellant of his right to compulsory process. See TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon Supp. 2004) (setting forth the statutory procedure for entering and accepting a plea of guilty or nolo contendere to a felony offense). Specifically, he asserts the statutory procedure permits only the State to produce evidence of a defendant's guilt, in violation of both his state and federal constitutional rights to compulsory process. He also asserts that both the state and federal constitutions require an express waiver of the right to compulsory process. In Vanderburg, this court rejected identical claims. 681 S.W.2d at 717-18. We have repeatedly followed Vanderburg in a series of unpublished opinions. See, e.g., Allen v. State, No. 14-02-00542-CR, 2003 WL 548692 (Tex. App.-Houston [14th Dist.] Feb. 27, 2003, pet. ref'd) (not designated for publication); Marinelli v. State, No. 14-00-01479-CR, 2001 WL 1590526 (Tex. App.-Houston [14th Dist.] Dec. 13, 2001, no pet.) (not designated for publication); Morrison v. State, No. 14-00-00111-CR, 2000 WL 1785017 (Tex. App.-Houston [14th Dist.] Dec. 7, 2000, pet. ref'd) (not designated for publication). The First Court of Appeals also has rejected the same arguments. See Lyles v. State, 745 S.W.2d 567, 567-68 (Tex. App.-Houston [1st Dist.] 1988, pet. ref'd). We find it unnecessary to discuss appellant's issues, however, because we lack jurisdiction over the appeal. A defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication community supervision is first imposed. Manuel v. State, 994 S.W.2d 658, 659 (Tex.Crim.App. 1999) (emphasis supplied). Appellant did not appeal from the trial court's order deferring a finding of guilt and placing him on community supervision. Therefore, appellant may not challenge a purported lack of compulsory process afforded during the plea proceedings. See Daniels v. State, 30 S.W.2d 407, 408 (Tex.Crim.App. 2000) (holding defendant could not appeal any issues relating to original deferred adjudication proceeding, including the voluntariness of his plea, in appeal from adjudication proceeding). Accordingly, the appeal is ordered dismissed.
Because these issues have been rejected numerous times by several courts, the State suggests that this court consider ordering appellant's counsel to file an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). We find it unnecessary to order re-briefing in this case, however, because the record demonstrates we lack jurisdiction.
While a defendant appealing from deferred adjudication may raise an issue unrelated to his conviction, such as a complaint concerning the punishment imposed, an objection is required to preserve error. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim. App. 2001). No error unrelated to the conviction was preserved below or raised on appeal in this case.