                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00318-CR


JAMES CODY JARVIS                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1292950D

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                           MEMORANDUM OPINION1

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      In a single point, James Cody Jarvis contends that his eight-year sentence

for burglary of a habitation violated his due process rights under the Fourteenth

Amendment. U.S. Const. amend XIV. We affirm.

      In 2012, appellant pled guilty to burglary of a habitation pursuant to a plea

bargain. In accordance with the State’s recommendation, the trial court placed


      1
          See Tex. R. App. P. 47.4.
appellant on deferred adjudication community supervision for five years. In 2015,

the State filed a motion to revoke appellant’s community supervision and

adjudicate him guilty of burglary. Appellant pled true to the allegations in the

motion to adjudicate, and the trial court adjudicated him guilty. The trial court

sentenced appellant to eight years’ confinement. Appellant’s trial counsel did not

object to the sentence, nor did his appellate counsel raise a due process

complaint about the sentence in the timely-filed motion for new trial.

      The State first contends that appellant waived his right to appeal the trial

court’s judgment adjudicating him guilty because appellant agreed to such a

waiver when he was initially placed on deferred adjudication community

supervision pursuant to a plea bargain. But the court of criminal appeals has

held that

      in a plea-bargain case for deferred adjudication community
      supervision, the plea bargain is complete at the time the defendant
      enters his plea of guilty in exchange for deferred adjudication
      community supervision. Rule 25.2(a)(2) will restrict appeal only
      when the defendant appeals his placement on deferred adjudication
      community supervision pursuant to the original plea.

Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App. 2006) (emphasis

added). Appellant is not appealing the original plea-bargained judgment placing

him on deferred adjudication community supervision, and nothing in the record

indicates that he pled true to the allegations in the subsequent motion to

adjudicate as a result of an agreement with the State. Therefore, the cases cited

by the State are inapposite; they do not involve an unbargained-for open plea of



                                         2
true to the allegations in a motion to revoke community supervision and

adjudicate guilt. See Jones v. State, 488 S.W.3d 801, 802–03 (Tex. Crim. App.

2016) (concluding that bargained-for waiver can preclude appeal even if

agreement between State and defendant is not “plea bargain” as that term is

defined in rule 25.2); Ex parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App.

2009) (holding, in postconviction habeas appeal challenging bargained-for open

plea, that defendant can validly waive entire appeal as a result of that bargain

even if the bargain does not include a recommendation of punishment).

Therefore, we hold that the waiver of appeal that appellant agreed to in the initial

plea bargain for deferred adjudication community supervision does not bar this

subsequent appeal of the trial court’s unbargained-for judgment adjudicating him

guilty of the offense. See Ex parte Cruzata, 220 S.W.3d 518, 520 & n.1 (Tex.

Crim. App. 2007) (noting that trial court was correct that appellant did not need its

permission to appeal after entering open plea of true to allegations in motion to

adjudicate).

      In his sole point, appellant contends that the eight-year sentence imposed

by the trial court violates his due process rights under the Fourteenth

Amendment. But because appellant did not raise this complaint in the trial court,

we overrule his point. See Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim.

App. 1986); Laboriel-Guity v. State, 336 S.W.3d 754, 756 (Tex. App.––Fort

Worth 2011, pet. ref’d).




                                         3
      We affirm the trial court’s judgment.




                                              TERRIE LIVINGSTON
                                              CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DAUPHINOT, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 29, 2016




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