MARTIN FELIPE CZERNY v. THE STATE OF TEXAS (2010)

CONCURRING MEMORANDUM OPINION

I concur in the opinion of the Court, but write separately to note that a defendant on deferred adjudication community supervision need not be adjudicated guilty before a trial court can consider a motion to exempt him from the sex offender registration requirement or consider a motion to withdraw his plea.

Article 62.301 of the Texas Code of Criminal Procedure specifically provides that an eligible person placed on deferred adjudication community supervision “may petition the court having jurisdiction over the case for an order exempting the person from registration [as a sex offender] under this chapter at any time after the person's sentencing or after the person is placed on deferred adjudication community supervision.”  Tex.Code Crim. Proc. Ann. art. 62.301(a) (Vernon 2006) (emphasis added).   Therefore, there is no need for a defendant on deferred adjudication to be adjudicated guilty in order to make this request of the trial court.

Likewise, it is not necessary for a defendant to have his guilt adjudicated before the trial court can consider a motion to withdraw his plea of guilty.   As we explained in Labib v. State, a defendant may properly file a motion to withdraw a guilty plea while he is on deferred adjudication.   See Labib v. State, 239 S.W.3d 322, 330-32 (Tex.App.-Houston [1st Dist.] 2007, no pet.).

Thus, the law permitted Czerny to make both of his post-plea requests to the trial court without jeopardizing his status on deferred adjudication.   However, whether failing to do so and instead filing a motion to adjudicate constitutes ineffective assistance of counsel in this particular case is not for us to determine.   No allegation of ineffective assistance of counsel has been raised on appeal as to that question;  moreover, the record before us is inadequate to review such an issue.   However, I note that Czerny may still raise a complaint of ineffective assistance of counsel in a post-conviction writ of habeas corpus where he may also create a record pertaining to that failure.

Jim Sharp Justice