

          











 
 
 
 
 
 
                                   NUMBER 13-01-177-CR
 
                             COURT OF APPEALS
 
                   THIRTEENTH DISTRICT OF TEXAS
 
                                CORPUS CHRISTI
 

 
EYO
EBIANA,                                                                       Appellant,
 
                                                   v.
 
THE STATE OF TEXAS,                                                          Appellee.
 
 

                         On appeal from the 25th District Court
                                 of Gonzales County, Texas.
 

 
                                   O P I N I O N
 
                    Before Justices Dorsey, Yañez, and Rodriguez
                                  Opinion by Justice Dorsey  
 




Pursuant to a
plea-bargain agreement appellant, Eyo Ebiana, pleaded guilty to one count of aggravated sexual
assault and two counts of indecency with a child.  The court deferred adjudication of guilt and
sentenced him to ten years' deferred adjudication community supervision.  The State filed a motion to adjudicate guilt,
alleging that appellant violated terms and conditions of probation.  After a hearing the trial court adjudicated
appellant=s guilt and
sentenced him to prison for twenty-five years on the aggravated sexual assault
count and twenty years on each of the indecency with a child counts.  Appellant attempts to appeal after his guilt
was adjudicated and bases his complaints on errors occurring in his original
plea.  He argues that the trial court
erred in failing to find that a conflict of interest existed between him and
his trial counsel when he originally pleaded guilty.  We dismiss the appeal for want of
jurisdiction.  
                                                  I. Background
Attorney
Forrest Penney was appointed to represent Carolyn Ussery
on a motion to revoke her probation.  On
October 29, 1998, while representing Ussery, he was
appointed to represent appellant on one count of aggravated sexual assault and
two counts of indecency with a child. 
The victims of these crimes are Ussery=s children.
On April 8,
1999, the trial court signed an order dismissing the motion to revoke Ussery=s
probation.  And, on April 13, 1999,
appellant pleaded guilty to the offenses of aggravated sexual assault and
indecency with a child.  Penney
represented appellant in his plea of guilty and later at the hearing on the
revocation of his probation.  After
appellant was adjudicated guilty and sentenced to prison,  Penney filed a motion for new trial.
 




Penney withdrew
as appellant=s counsel, and
the trial court appointed attorney Martin Clauder to
represent appellant.  Clauder
filed an Amended Motion for New Trial and Motion to Set Aside Plea, alleging
ineffective assistance of counsel. 
Specifically, appellant alleged that his former attorney, Forrest
Penney, had an unwaived conflict of interest because
he simultaneously represented appellant and Carolyn Ussery,
who was the mother of the children on whom appellant is alleged to have
committed the sexual assaults.  Appellant
argued that the trial court should set aside his plea because this conflict
existed prior to his original plea of guilty, when Penney had the duty to
appellant of investigating Ussery, his other client.
                                              Hearing
On Motion For
                                                       New
Trial
 
Appellant
called Forrest Penney to testify at this hearing.  Penney testified that while representing
Carolyn Ussery he discovered that she was going to be
the chief witness against appellant.  He
disclosed this fact to appellant and asked him if he wanted him to withdraw as
counsel from appellant=s case.  Appellant did not want him to withdraw.  The trial court denied the motion for new
trial.  
                                                  II. Jurisdiction




Appellant
complains that the trial court erred in failing to find that a conflict of
interest existed between appellant and trial counsel, which adversely affected
appellant prior to and at the time of his plea of guilty.  Specifically, his complaint is that he
received ineffective assistance of counsel, because trial counsel (1) actively
represented Ussery and appellant simultaneously, (2)
failed to alert the trial court of the conflict with the result that no hearing
was held, and (3) advised appellant to accept the plea bargain, which avoided
the necessity of cross-examining Ussery.
In Manuel v.
State, 994 S.W.2d 658 (Tex. Crim. App. 1999) the
issue was whether a defendant, who pleaded guilty to a felony offense, was
placed on deferred adjudication community supervision, and was later
adjudicated guilty, could then, on appeal, complain of error in the original
plea proceeding.  In Manuel, the
accused argued that the evidence adduced at the original plea proceeding was
insufficient to prove his guilt.  The
court of criminal appeals stated that:
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. 
 
Id. at 661-62.
The court of
criminal appeals has recognized an exception to the above-mentioned rule; if
the original judgment imposing probation was void, then the accused could
appeal, because Athe trial court
would have no authority to revoke probation, since, with no judgment imposing
probation (because it is a nullity), there is nothing to revoke.@  Nix v. State, 65 S.W.3d 664, 667 (Tex.
Crim. App. 2001). 
The Nix court said that a judgment is void only in very rare
situations‑‑usually due to a lack of jurisdiction.  Id. 
The court of criminal appeals has ruled that claims of ineffective
assistance of counsel are non-jurisdictional. 
Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim.
App. 1994) (citing Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. 
 




App.
1981)).  Thus the void judgment
exception does not apply to the case before this Court.      
Here, appellant
pleaded guilty and received deferred adjudication community supervision.  Any appeal would have arisen from the order
placing him on deferred adjudication. 
Based on the holding in Manuel, appellant=s failure to do
so precludes us from now hearing the merits of his complaint.  Accordingly we are without jurisdiction to
consider the point of error.  See Nix
v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001); Jordan
v. State, 54 S.W.2d 783 (Tex. Crim. App. 2001); Manuel,
994 S.W.2d at 661-62.    
We DISMISS the
appeal for want of jurisdiction.
______________________________
J. BONNER
DORSEY,
Justice
 
Publish.
Tex. R. App. P. 47.3(b).
 
Opinion delivered and filed
this 16th day of
May, 2002.
 

