                                     NO. 07-02-0406-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                    FEBRUARY 27, 2004

                           ______________________________


                       TIMOTHY LEE PHILLIPS, JR., APPELLANT

                                               V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

              FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                  NO. 39,434-B; HONORABLE JOHN BOARD, JUDGE

                          _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                 MEMORANDUM OPINION


       Following appellant Timothy Lee Phillips, Jr.’s guilty plea pursuant to a plea bargain

to the state jail felony offense of burglary of a building, the trial court deferred a finding of

guilt and placed him on community supervision for six years. When the State filed a

Motion to Proceed with Adjudication of Guilt, appellant, this time without the benefit of a
plea bargain, pleaded true to a number of the allegations contained in the motion. The trial

court then found the allegations to be true, adjudicated appellant guilty, and assessed as

punishment a sentence of two years confinement. Presenting three issues, appellant

maintains he was harmed by the imposition of a probationary period that exceeded the

range authorized by law, and the trial court ‘s failure to admonish him properly rendered

his plea involuntary and violative of his due process rights. We dismiss for want of

jurisdiction.


       On February 8, 1999, appellant pleaded guilty to the charge in this case, along with

another for aggravated assault.1 The trial court heard the pleas simultaneously with

another criminal defendant’s guilty plea to a state jail felony offense of possession of a

controlled substance. During the plea proceedings, the trial court jointly admonished the

two defendants about the range of punishment for a state jail felony, including the potential

for the imposition of a probationary period ranging from two to five years. The Court also

supplied appellant with written plea admonishments reflecting the same range. Addressing

the aggravated assault charge, the trial court advised appellant that the range of

punishment for a second degree felony was from two to twenty years imprisonment and

up to a $10,000 fine. After appellant acknowledged his understanding of the punishment

range applicable to each of his cases, the trial court, following the plea bargain



       1
       This Court dismissed for want of jurisdiction the appeal from the aggravated assault
charge in August of 2003. Thus, the only case before us today is the one involving
appellant’s conviction for burglary of a building.

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recommended by the State, placed appellant on six years deferred adjudication community

supervision on each case. Appellant did not appeal from the imposition of that deferred

adjudication.


       For the first time, appellant, having now been adjudicated guilty and sentenced to

a term in state jail, presents three issues challenging the length of the underlying deferred

adjudication and the voluntariness of his guilty plea. In response, the State maintains this

Court lacks jurisdiction to consider the issues. We agree. When the adjudication of an

accused's guilt is deferred and the individual is placed on community supervision,

complaints involving the original plea proceeding must be raised on appeal immediately

after deferred adjudication is imposed. Nix v. State, 65 S.W.3d 664, 667 (Tex.Cr.App.

2001). The only exception to that rule is in the very rare situation in which the original order

deferring adjudication is void. Id. at 667-68. A judgment may be void when: (1) the

charging instrument is fundamentally defective; (2) the trial court lacks subject matter

jurisdiction over the offense charged; (3) the record reflects there is no evidence to support

the conviction; or (4) an indigent defendant is required to face criminal trial proceedings

without appointed counsel, when he did not waive his right to the appointment of counsel.

Id. at 668. Here, appellant has failed to allege an error that could render the original order

deferring adjudication void. Thus, the “void judgment” exception to the general rule

regarding appeals from deferred adjudication community supervision does not apply.




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       Regarding appellant’s assertion under issue one, we observe that he did not

challenge the length of community supervision at the time the trial court deferred the

adjudication of his guilt. As a result, we have no jurisdiction to entertain his complaint in

that regard at this point. See Bounharith v. State, 28 S.W.3d 51, 52 (Tex.App.–Texarkana

2000, no pet.) (where defendant failed to challenge the length of his probation immediately

after the imposition of probation, appellate court had no jurisdiction to hear his complaint

on appeal following adjudication that the original probation order was void), citing Speth

v. State, 6 S.W.3d 530 (Tex.Cr.App. 1999). Additionally, as to appellant’s assertion that

the trial court’s failure to admonish him properly on the range of punishment rendered his

plea involuntary, we note that the voluntariness of a negotiated guilty plea may no longer

be appealed. See Cooper v. State, 45 S.W.3d 77, 81 (Tex.Cr.App. 2001). Finally,

assuming arguendo that the trial court improperly admonished appellant about the range

of punishment, that error is nonconstitutional and, therefore, does not implicate due

process considerations. See Aguirre-Mata v. State, No. 2115-00, slip op. at 2, 2003 WL

21077447, at *1 (Tex.Cr.App. May 14, 2003). Hence, we have no authority to consider any

of appellant’s three issues.


       Accordingly, the appeal is dismissed for want of jurisdiction.



                                           Don H. Reavis
                                             Justice

Do not publish.


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