IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. 1612-99

FREDERICK DANIELS, Appellant


v.



THE STATE OF TEXAS



ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

DALLAS COUNTY

 Johnson, J., filed a dissenting opinion, in which Meyers, Price and Holland, JJ., joined.



D I S S E N T I N G  O P I N I O N



I respectfully dissent. This court held in Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999), that a defendant must raise issues "relating to the original plea proceeding, including evidentiary sufficiency," in an appeal taken when deferred-adjudication community supervision is first imposed. The appellant in Manuel raised a claim of insufficiency, a non-jurisdictional issue. Here, appellant raises the voluntariness of his plea, a jurisdictional issue.

We have consistently treated jurisdictional and non-jurisdictional issues differently. In Sankey v. State, 3 S.W.3d 43, 44 (Tex. Crim. App. 1999), the appellant attempted to complain on appeal that the record from his original plea had been either lost or destroyed. The court of appeals held that because the defendant's notice of appeal did not comply with the applicable rule, it could consider only jurisdictional defects, and since the appellant had not raised any jurisdictional defects, the Court affirmed the conviction. Id. This Court reversed the court of appeals and held that "without the record, it is impossible for an appellant, and particularly the appellant's attorney, to determine whether there are any potential jurisdictional issues or defects in the plea proceeding which would render the plea involuntary." Id. at 44-45. Sankey was decided after Manuel, and we left open the effect of Manuel upon a "lost record" case in which the issue of voluntariness of a plea was raised. Id. at 45; see also Doubrava v. State, 6 S.W.3d 287, 288 n.1 (Tex. Crim. App. 1999).

The instant case raises that very issue of a lost record on a claim of involuntary plea. Yet, the majority holds, without discussion, that Manuel applies not only to the non-jurisdictional issue raised there, but to the jurisdictional issue raised in this case. That is, "appellant cannot now appeal any issues relating to the original deferred adjudication proceeding." Ante, at ___ (slip op. at 3) (emphasis added). Such an extension of the holding in Manuel without discussion or explanation does not serve well the jurisprudence of this state.

I dissent.



Johnson, J.







Date Delivered: October 11, 2000



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