Daniels v. State

30 S.W.3d 407

Tex. Crim. App.

2000

Check Treatment

Frederick DANIELS, Appellant, v. The STATE of Texas.

No. 1612-99

Court of Criminal Appeals of Texas, En Banc.

Oct. 11, 2000.

15 S.W.3d 407

harmed Curry, and we did not grant review of that issue. We therefore affirm the court of appeals’ holding which grants Curry a new trial.

We also find that Curry‘s hypothetically correct jury charge would have included the “deadly force” phrase, and that the evidence was sufficient to convict Curry under such a charge. We affirm, albeit for different reasons, the court of appeals’ holding that the evidence was sufficient to convict.

JOHNSON, J., delivered a dissenting opinion in which MEYERS, J., joined.

JOHNSON, J., dissenting in which MEYERS, J., joined.

I agree with the majority that once the state alleged aggravated kidnapping “by using and threatening to use deadly force namely, a firearm,” it was required to prove that allegation. I also agree that the sufficiency of the evidence must be analyzed using this allegation. However, I respectfully dissent from the final disposition

In the instant case, the court of appeals concluded that the hypothetically-correct jury charge did not include the phrase “by using and threatening to use deadly force namely, a firearm, on the Complainant.”

Curry v. State, 1 S.W.3d 175, 180-81 (Tex. App.—El Paso 1999). The majority finds that this was error, and that the hypothetically-correct jury charge would include this phrase. Ante, at 404-405. Thus, the court of appeals is found to have applied the wrong standard in its sufficiency analysis. The majority then performs its own sufficiency analysis using the proper hypothetically-correct jury charge. Ante, at 406-407.

Such action is inconsistent with our precedents See, e.g.,

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (judgment of court of appeals vacated and cause remanded for that court to apply correct standard of review in analyzing sufficiency of the evidence); (judgment of court of appeals vacated and cause remanded for reconsideration of defendant‘s sufficiency claim in light of Malik); (judgment of court of appeals vacated and cause remanded for reconsideration in light of Malik). As we have previously stated, our jurisdiction is limited to review of decisions by the courts of appeals. ; see also TEX. CODE CRIM. PROC. 4.04, § 2; TEX. R. APP. P. 66.1. Because the court of appeals did not apply the appropriate sufficiency analysis, the majority‘s application of the appropriate standard is not a review of the court of appeals’ decision; it is an application of that standard in the first instance. We should remand this cause and allow the court of appeals to conduct the appropriate sufficiency analysis. To do otherwise is beyond our authority.

Robert P. Abbott, Coppell, for appellant.

John R. Rolater, Jr., Asst. Dist. Atty., Dallas, Matthew Paul, State‘s Atty., Austin, for State.

OPINION

McCORMICK, P.J., delivered the opinion of the Court in which MANSFIELD, KELLER, WOMACK and KEASLER, JJ., joined.

When a defendant‘s deferred adjudication “probation” for a felony offense is revoked and he is adjudicated guilty of that offense and he wants to raise appellate issues relating to the original deferred adjudication proceeding, can that defendant obtain an appellate reversal of his conviction and a new trial because the reporter‘s record from the original deferred adjudication proceeding has been lost?

The trial court adjudicated appellant guilty of an aggravated robbery felony offense four years after appellant had been placed on deferred adjudication “probation” for that offense. On direct appeal, appellant claimed that he was entitled to a reversal of his aggravated robbery conviction and a new trial solely because the reporter‘s record from the original deferred adjudication proceeding was lost. Appellant claimed that the lost reporter‘s record from the original deferred adjudication proceeding prevented him from “examining or challenging the voluntariness of his original plea or any rulings on pretrial motions.”

The Court of Appeals decided it had no jurisdiction over appellant‘s lost reporter‘s record claim because appellant had to appeal any issues relating to the original deferred adjudication proceeding at the time he was placed on deferred adjudication. We exercised our discretionary authority to review this decision.

Our appellate rules provide that a defendant is entitled to a reversal of his conviction and a new trial if, among other things, a lost or destroyed reporter‘s record is “necessary to the appeal‘s resolution.” See Tex. R. App. Proc. 34.6(f)(3). In Manuel v. State, we decided that a defendant placed on deferred adjudication has to appeal issues relating to the original deferred adjudication proceeding when deferred adjudication is first imposed.

Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); see also .

Pursuant to

Manuel, the reporter‘s record from the original deferred adjudication proceeding is not necessary to this appeal‘s resolution since appellant cannot now appeal any issues relating to the original deferred adjudication proceeding. The Court of Appeals, therefore, correctly decided that it had no jurisdiction over appellant‘s lost reporter‘s record claim.

The judgment of the Court of Appeals is affirmed.

JOHNSON, J., filed a dissenting opinion in which MEYERS, PRICE and HOLLAND, JJ., joined.

JOHNSON, J., dissenting in which MEYERS, PRICE and HOLLAND, JJ., joined.

I respectfully dissent. This court held in

Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999), that a defendant must raise issues “relating to the original plea proceeding, including evidentiary sufficiency,” in an appeal taken when deferred-adjudication community supervision is first imposed. The appellant in raised a claim of insufficiency, a non-jurisdictional issue. Here, appellant raises the voluntariness of his plea, a jurisdictional issue.

We have consistently treated jurisdictional and non-jurisdictional issues differently. In

Sankey v. State, 3 S.W.3d 43, 44 (Tex. Crim. App. 1999), the appellant attempted to complain on appeal that the record from his original plea had been either lost or destroyed. The court of appeals held that because the defendant‘s notice of appeal did not comply with the applicable rule, it could consider only jurisdictional defects, and since the appellant had not raised any jurisdictional defects, the Court affirmed the conviction. Id. This Court reversed the court of appeals and held that “without the record, it is impossible for an appellant, and particularly the appellant‘s attorney, to determine whether there are any potential jurisdictional issues or defects in the plea proceeding which would render the plea involuntary.” Id. at 44-45. was decided after , and we left open the effect of upon a “lost record” case in which the issue of voluntariness of a plea was raised. Id. at 45; see also .

The instant case raises that very issue of a lost record on a claim of involuntary plea. Yet, the majority holds, without discussion, that

Manuel applies not only to the non-jurisdictional issue raised there, but to the jurisdictional issue raised in this case. That is, “appellant cannot now appeal any issues relating to the original deferred adjudication proceeding.” Ante, at 408 (emphasis added). Such an extension of the holding in without discussion or explanation does not serve well the jurisprudence of this state.

I dissent.