NO. 07-01-0075-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D JANUARY 16, 2002

______________________________ MARY KATHLEEN GALLAGHER, APPELL ANT V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 5 0TH DIST RICT COURT OF KING COUN TY; NO. 200; HON ORABLE CLYD E WHITESIDE, JUDGE

_______________________________ Before BOYD, C.J., and QUINN and REAVIS , JJ.
Pursua nt to a pl ea bargain, a ppellant Mar y Kathleen Ga llagher pl ead guilty for possession of a controlled su bstance and on January 4, 1996, wasgranted deferr ed adjudication and placed on community supervis ion for three years and assess ed a $10,000 fine. Upon the State’ s amended motion to adj udicate guil t a hearing was held o n December

7, 2000. After hearing evi dence th at appella nt had viol ated the conditi ons of her community

supervis ion, she was adjudicated g uilty and on January 20 , 2001, she was1 At th e time briefs w ere filed counsel did not have the benefit of recent d ecision s 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). Asan intermediate appellate court, we our bound to recogni ze and acq uiesce in decisi ons 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 i n the hands of our L egislatur

e, Congress , and higher courts. Id

. 2 sentenced to two years confinement. By her brief, appel lant presentstwo points of error contending (1) the trial court erred in denying her motion for new tria l because she w as denied effective assi stance of counsel du ring the ent ry of her g uilty pl ea, and (2)the trial courterred in de nying h er mo tion for n ew t rial bec ause she wa s den ied e ff ecti ve assistance of counsel during her ad judication hearing. Based upon the rationale expressed h erein, wedismiss for w ant of jurisdic

tion. By its brief, theState contends thi s Court doesnot have jurisdiction ov er this appeal. We agree for the following reasons. 1 Article 42.1 2, sect ion 5(b) of the Tex as Code of Criminal Procedure expresslydenies a d efendant the right to appeal from a trial court’s determination to adjudicate g uilt. C onn olly v . State, 983 S.W.2d 738, 741 (Tex.C r.App. 1999); Phynes v . State, 8 28 S.W.2d 1, 2 (Tex.Cr.App. 199 2); Olowosuko v. State, 826 S.W.2d 940, 941-42 (Tex.Cr. App. 1992). Alt hough an appeal of al l proceeding s after an adjudication of guilt is

not foreclosed by

article 42. 12, sec tion 5(b) ( i.e . assessment of punishment, pronouncement of sentence), appellant co ntends she wa s den ied e ff ecti ve assistance of coun sel at the adjud ication heari ng.3

Appellant

argues that Cooper v. State, 45 S.W.3d 77 ( Tex.Cr.Ap p. 2001), which does not permit voluntariness of a plea to be raised on appeal, is not applicable because she is not chall enging the voluntariness of her plea, but rather asserts trial court error in the denial of her

motion for new trial based on inef fective assistance of coun sel. However, appellant’s amended notice ofappeal specifically recites “this appeal challen ges a jurisdict ional de fects [sic]: the v oluntariness of Ms. Gallag her’s init ial plea as w ell as the denial of ineffect ive [sic] assistance of counsel in connection w ith the entry of her plea

. . . .” There is no doubt that appell ant is chall enging the voluntari ness of her pleawhich is no lo nger p ermi tted by Cooper

. See id . at 83 (holdi ng that Flower s v. State, 935 S.W.2d 131 (Tex.Cr. App. 1996) w ill not be applied to Texas Rule of Ap pellate Procedure 25.2(b) in a plea-bargained felony case). Moreover, in Manuel v . State, 994 S.W .2d 658 (Tex.Cr.App. 1999), th e Courtheld thata defendant placed on deferred adjudication community supervis ion may raiseissues relating to the original plea proceeding only in appeals taken when deferred adjudicat ion
co mmuni ty

supervis ion is ori ginally imposed. Id . at 6 61-6 2. Th us, a ppe llan t cou ld ha ve raised her contentions regarding her original plea only in an appeal f rom the January 4, 1996 a djudica tion he aring.
The Court of Criminal Ap peals has recognized t he void judg ment exception to the general rule that matters relating to the original plea cannot be raised on app eal from revocatio n. See Nix v . State, No. 793- 00, 2001Tex.Cr .App. LEXIS 52, __ S.W.3d __ (June4

27, 2001). However, the Court noted that a judgment is void in very rare situations and is usuallydue to a lack of juri sdiction. Id . at *6. On the same day that Nix was deci ded, the Courtdel ivered Jo rdan v. State, 54 S.W.3d 783 (Tex.Cr.App. 2 001). In Jordan , the defendanthad been granted deferred adjudication an d after th e trial court revoked his community

supervis ion, he filed a motion for new trial alleging that his plea was invo lunt ary. The trial cour

t denied the motion for new tri al and on appeal, the court refused to add ress the merits of

his point of err

or based on Manuel . In his peti tion for discr etionary r

eview, the defendantalleged a fundamental error exception to the general rule that matter s relating to the origi nal plea cannot beraised on appeal from revocati on. In finding that the court of appeals had not erred in refusing to ad dress the meri ts of Jordan’s c laim, the Cour t of Criminal Appeals held tha t involuntariness of a plea“does not constitute one of those rare situations”of the void j udgment excep tion reaffirmed in Nix

. Id . at 785.
More ove r, Rule 25.2(b)(3) of the Texas Rules ofAppellate Procedure specif ica ll y providesthe requir

ements for

perfecting an appeal from a plea- bargained con viction. The Courtof Criminal Ap peals recentl y decided that the limitations of Rule 25.2(b)(3) apply to
an appea l challen gi ng a co nvi ction. See Vidaurri v . State, 49 S.W.3d 880, 884 (Tex.Cr.A pp. 2001). A notice of appeal filed purs uant 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 appea l th at an appeal is for a jurisdi ctional defect w ithout raisi ng a jurisdic tional issuedoes not confer ju risdicti on. See generally State v. R iewe, 13 S.W.3d 408, 413-14 (Tex. Cr.App. 2000)(holding that an amended notice of appeal does not confer5

jurisdict ion where none o riginal ly exi sted). In other word s, altho ugh appellant amended her notice of appeal to reflect that she was appealing a jurisdictional def ect–voluntariness of her initial pl ea and a claim of ineffective ass istance of counsel in connection with her initia l plea, it did not confer jurisdiction with this Court. As explai ned in Jordan and Nix , in voluntariness of a plea is not fund amental error. For the foregoing reasons, we mus t dismiss this appeal. Accordingl y, this ap peal is dismi ssed for want of jurisdict ion.

Don H. Reavis Justice Do not publish

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