NO. 07-01-0075-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JANUARY16, 2002

______________________________

MARY KATHLEEN GALLAGHER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 50TH DISTRICT COURT OF KING COUNTY;

NO. 200; HONORABLE CLYDE WHITESIDE, JUDGE

_______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.

Pursuant to a plea bargain, appellant Mary Kathleen Gallagher plead guilty for

possession of a controlled substance and on January 4, 1996, was granted deferred

adjudication and placed on community supervision for three years and assessed a $10,000

fine. Upon the State’s amended motion to adjudicate guilt a hearing was held on

December 7, 2000. After hearing evidence that appellant had violated the conditions of

her community supervision, she was adjudicated guilty and on January 20, 2001, she was
1At the time briefs were filed counsel did not have the benefit of recent decisions

from the Court of Criminal Appeals. See Viduarri v. State, 49 S.W.3d 880 (Tex.Cr.App.

2001); Jordan v. State, 54 S.W.3d 783 (Tex.Cr.App. 2001); Nix v. State, No. 793-00,

2001Tex.Cr.App. LEXIS 52, __ S.W.3d __ (June 27, 2001). As an intermediate appellate

court, we our bound to recognize and acquiesce in decisions from a higher court that

determine the law. Brumley v. State, 804 S.W.2d 659, 661 (Tex.App.–Amarillo 1991, no

pet.). Law making functions lie in the hands of our Legislature, Congress, and higher

courts. Id.

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sentenced to two years confinement. By her brief, appellant presents two points of error

contending (1) the trial court erred in denying her motion for new trial because she was

denied effective assistance of counsel during the entry of her guilty plea, and (2) the trial

court erred in denying her motion for new trial because she was denied effective

assistance of counsel during her adjudication hearing. Based upon the rationale

expressed herein, we dismiss for want of jurisdiction.

By its brief, the State contends this Court does not have jurisdiction over this appeal.

We agree for the following reasons.1

 Article 42.12, section 5(b) of the Texas Code of

Criminal Procedure expressly denies a defendant the right to appeal from a trial court’s

determination to adjudicate guilt. Connolly v. State, 983 S.W.2d 738, 741 (Tex.Cr.App.

1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Cr.App. 1992); Olowosuko v. State, 826

S.W.2d 940, 941-42 (Tex.Cr.App. 1992). Although an appeal of all proceedings after an

adjudication of guilt is not foreclosed by article 42.12, section 5(b) (i.e. assessment of

punishment, pronouncement of sentence), appellant contends she was denied effective

assistance of counsel at the adjudication hearing. 
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Appellant argues that Cooper v. State, 45 S.W.3d 77 (Tex.Cr.App. 2001), which

does not permit voluntariness of a plea to be raised on appeal, is not applicable because

she is not challenging the voluntariness of her plea, but rather asserts trial court error in

the denial of her motion for new trial based on ineffective assistance of counsel. However,

appellant’s amended notice of appeal specifically recites “this appeal challenges a

jurisdictional defects [sic]: the voluntariness of Ms. Gallagher’s initial plea as well as the

denial of ineffective [sic] assistance of counsel in connection with the entry of her plea

. . . .” There is no doubt that appellant is challenging the voluntariness of her plea which

is no longer permitted by Cooper. See id. at 83 (holding that Flowers v. State, 935 S.W.2d

131 (Tex.Cr.App. 1996) will not be applied to Texas Rule of Appellate Procedure 25.2(b)

in a plea-bargained felony case).

Moreover, in Manuel v. State, 994 S.W.2d 658 (Tex.Cr.App. 1999), the Court held

that a defendant placed on deferred adjudication community supervision may raise issues

relating to the original plea proceeding only in appeals taken when deferred adjudication

community supervision is originally imposed. Id. at 661-62. Thus, appellant could have

raised her contentions regarding her original plea only in an appeal from the January 4,

1996 adjudication hearing.

The Court of Criminal Appeals has recognized the void judgment exception to the

general rule that matters relating to the original plea cannot be raised on appeal from

revocation. See Nix v. State, No. 793-00, 2001Tex.Cr.App. LEXIS 52, __ S.W.3d __ (June
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27, 2001). However, the Court noted that a judgment is void in very rare situations and is

usually due to a lack of jurisdiction. Id. at *6. On the same day that Nix was decided, the

Court delivered Jordan v. State, 54 S.W.3d 783 (Tex.Cr.App. 2001). In Jordan, the

defendant had been granted deferred adjudication and after the trial court revoked his

community supervision, he filed a motion for new trial alleging that his plea was involuntary.

The trial court denied the motion for new trial and on appeal, the court refused to address

the merits of his point of error based on Manuel. In his petition for discretionary review, the

defendant alleged a fundamental error exception to the general rule that matters relating

to the original plea cannot be raised on appeal from revocation. In finding that the court

of appeals had not erred in refusing to address the merits of Jordan’s claim, the Court of

Criminal Appeals held that involuntariness of a plea “does not constitute one of those rare

situations” of the void judgment exception reaffirmed in Nix. Id. at 785.

Moreover, Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure specifically

provides the requirements for perfecting an appeal from a plea-bargained conviction. The

Court of Criminal Appeals recently decided that the limitations of Rule 25.2(b)(3) apply to

an appeal challenging a conviction. See Vidaurri v. State, 49 S.W.3d 880, 884

(Tex.Cr.App. 2001). A notice of appeal filed pursuant to Rule 25.2(b)(3)(A) that specifies

the appeal is for a jurisdictional defect invokes this Court’s jurisdiction. However, a mere

recitation in a notice of appeal that an appeal is for a jurisdictional defect without raising

a jurisdictional issue does not confer jurisdiction. See generally State v. Riewe, 13 S.W.3d

408, 413-14 (Tex.Cr.App. 2000) (holding that an amended notice of appeal does not confer
5

jurisdiction where none originally existed). In other words, although appellant amended her

notice of appeal to reflect that she was appealing a jurisdictional defect–voluntariness of

her initial plea and a claim of ineffective assistance of counsel in connection with her initial

plea, it did not confer jurisdiction with this Court. As explained in Jordan and Nix,

involuntariness of a plea is not fundamental error. For the foregoing reasons, we must

dismiss this appeal.

Accordingly, this appeal is dismissed for want of jurisdiction.

Don H. Reavis

 Justice

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