In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-13-00203-CR 

TOMMY ISREAL CASTRO, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 251st District Court 

Potter County, Texas 

Trial Court No. 58,861-C, Honorable Ana Estevez, Presiding 

 

September 18, 2014 

 

MEMORANDUM OPINION 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

At a May 2009 hearing, appellant plead guilty to two counts of aggravated 

assault with a deadly weapon.1 Following the terms of a plea-bargain agreement, the 

trial court placed appellant on deferred adjudication community supervision. The State 

later moved to proceed with adjudication of guilt based on appellant’s alleged violation 

of community supervision. The trial court granted the State’s motion, adjudicated 

 

1 See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2012). This is a second degree 

felony. TEX. PENAL CODE ANN. § 12.33 (West 2012).
2

appellant guilty, and sentenced him to ten years’ confinement in prison on each count. 

The sentences run consecutive to a life sentence imposed for a Wilbarger County, 

Texas conviction for murder. 

The two issues appellant brings challenge matters arising in the 2009 plea 

hearing. Finding we have no jurisdiction to consider these untimely complaints, we 

dismiss the appeal for want of jurisdiction. 

Background

At the May 2009 plea hearing, after the court accepted appellant’s plea and 

imposed deferred adjudication community supervision, the reporter’s record contains 

the following:

THE COURT: All right. Well, then, in a little while you will be 

meeting with Probation to make sure that you 

understand all your conditions and set your time for 

your first time to meet with them. All right? And you 

will be meeting with the lady in green.

All right, at this time I will ask the Court Reporter to 

stop recording, and we will have the victim impact 

statement.

(Thereupon, the reporter stopped the recording and the victim impact 

statement was had.)

THE COURT: All right, Mr. Castro, you need to meet with Probation. 

And, [defense counsel], you may be dismissed.

(Proceedings adjourned.)

The clerk’s record contains the trial court’s certification, signed by appellant and his trial 

counsel, that the case was a plea-bargain case and appellant retained no right of 

appeal. 
3

In June 2013 the trial court heard the State’s motion to adjudicate guilt. 

Appellant contested the hearing and immediately before presentation of the State’s 

evidence orally moved for a new trial of the 2009 plea hearing. He argued that during 

the victim impact statement he unsuccessfully attempted to withdraw his guilty pleas. 

The court denied the motion for new trial and proceeded with a hearing of the State’s 

motion. Appellant testified that during the victim impact statement at the 2009 plea 

hearing he attempted to withdraw his guilty pleas but was told by the court and his 

counsel not to speak. Nothing in the record of the 2009 plea hearing supports 

appellant’s claim. 

Analysis

Appellant raises two issues. First he asserts a denial of due process because 

the trial court did not direct the court reporter to record the attempted withdrawal of his 

guilty pleas during the 2009 plea hearing.2 Second, appellant contends his counsel at 

the 2009 plea hearing rendered ineffective assistance by not requesting the court 

reporter to record the withdrawal of his guilty pleas. We will discuss these issues jointly.

Within the allotted time following the 2009 hearing appellant did not file a formal 

bill of exception.3 Nor did he file a notice of appeal. 

 

2 Code of Criminal Procedure article 42.03 prohibits the court reporter from 

recording victim-allocution statements. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(b) 

(West Supp. 2014); Johnson v. State, 286 S.W.3d 346, 348 (Tex. Crim. App. 2009). It 

appears appellant’s assertion is the trial court was obligated to ensure that his plea 

withdrawal issue was placed on the record.

3 See Donovan v. State, 68 S.W.3d 633, 636 (Tex. Crim. App. 2002) (a motion 

for new trial is unavailable for a defendant receiving deferred adjudication community 

supervision).
4

A defendant placed on deferred adjudication community supervision must timely 

appeal issues relating to that proceeding when the deferred adjudication is imposed. 

Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999) (a defendant placed 

on deferred adjudication community supervision may raise issues relating to an original 

plea proceeding only by an appeal taken when deferred adjudication community 

supervision is first imposed); Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App. 

2000) (en banc) (finding in subsequent appeal from adjudication of guilt and imposition 

of sentence, defendant could not appeal any issues relating to his original deferred 

adjudication proceeding); cf. Cibrian v. State, 09-08-00170-CR, 2009 Tex. App. LEXIS 

1637 (Tex. App.—Beaumont Mar. 4, 2009, no pet.) (mem. op., not designated for 

publication) (issues involving trial court’s refusal to allow withdrawal of guilty plea and 

ineffective assistance of counsel, each arising from conduct of original plea hearing, 

could not be raised in appeal from subsequent adjudication of guilt). 

The two complaints appellant brings in this appeal should have been raised in an 

appeal filed within thirty days of his placement under an order of deferred adjudication 

community supervision. We therefore lack jurisdiction to consider their merits. See 

York v. State, 2011 Tex. App. LEXIS 10127, at *2-3 (Tex. App.—Austin Dec. 23, 2011, 

no pet.) (mem. op., not designated for publication) (so finding). 

Accordingly, we dismiss the appeal for want of jurisdiction. 

James T. Campbell

 Justice

Do not publish.