author: W. FRANK CRAWFORD, P.J., W.S.,

text:
    Edmund R. BRILEY, et al. v. Gary W. CHAPMAN, et al.
    Court of Appeals of Tennessee, Western Section, at Nashville.
    July 13, 2005 Session.
    Aug. 5, 2005.
    Permission to Appeal Denied by Supreme Court Dec. 5, 2005.
    Frank M. Fly of Murfreesboro, Tennessee for Appellants, Edmund R. Briley and Margaret Coleman Briley.
    No appearance by Appellees.
   OPINION

W. FRANK CRAWFORD, P.J., W.S.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J. and HOLLY M. KIRBY, J., joined.

This appeal involves the question of the statute of limitation for an action for libel of title. The trial court granted summary judgment to the defendants, holding that the proper statute of limitation was found at T.C.A. § 28-8-105. Without reaching a decision on the merits, an examination of the record indicates that the notice of appeal was not timely. Therefore, this Court does not have jurisdiction, and the appeal must be dismissed.

By deed dated May 27,1981, of record in Deed Book 302 at page 828, in the Register’s Office of Rutherford County, Tennessee, Laudis Hartman Briley conveyed a 60.55 acre tract of land in Rutherford County (the “Edmund Briley Tract”) to her son Edmund R. Briley and his wife Margaret Briley (together the “Brileys,” “Plaintiffs,” or “Appellants.”) The Brileys’ deed reads, in pertinent part, as follows:

Included in this conveyance is a right-of-way 50 feet wide and leading from the NE corner of this tract through the remaining lands of grantor to the end of Briley Lane. Exact route of said right-of-way to be determined later.

The Brileys have owned the Edmund Bri-ley Tract from the date of the conveyance.

By separate deed, also dated May 27, 1981, of record in Deed Book 302 at page 826 in the Register’s Office of Rutherford County, Tennessee (the “Marvin Briley Deed”), Laudis Hartman Briley granted an adjoining 60.55 acre tract (the “Marvin Briley Tract”) to her other son Marvin L. Briley and his wife Thelma T. Briley. The Marvin Briley Deed reads, in relevant part, as follows:

The tract herein described is subject to a 50-foot right-of-way for ingress and egress to a 60.55 acre tract deeded to Edmund R. Briley. Included with this conveyance is a right-of-way, 50 feet wide and leading from the NE corner of this tract through the remaining lands of Mrs. Charles L. Briley to the west end of Briley Lane. Exact route of said right-of-way to be determined later.

By Warranty Deed dated July 12, 1985, of record in Deed Book 347 at page 741 in the Register’s Office of Rutherford County, Tennessee (the “Brown Deed”), Marvin Briley and his wife conveyed the Marvin Briley Tract to Edmond Brown and his wife Sandra Dee Brown. The last paragraph of the description in the Brown Deed recites verbatim the language from the Marvin Briley Deed as set out above.

By Warranty Deed dated March 1, 1988, of record in Deed Book 400 at page 411 in the Register’s Office of Rutherford County, Tennessee (the “Nunn Deed”), Edmund E. Brown and his wife conveyed the Marvin Briley Tract to Ronald S. Nunn and his wife Joyce E. Nunn (the “Nunns,” or “Ap-pellees”). The Nunn Deed was prepared by Ronald Nunn, who is not a licensed attorney in Tennessee. The Nunn Deed omits the right-of-way language contained in both the Marvin Briley Deed and the Brown Deed.

Although no plat was ever recorded in the Register’s Office, the Nunns constructed Laura Ridge Road as a private road 50 feet in width from the west end of Briley Road to just past the center of the Marvin Briley Tract and divided the Marvin Briley Tract into seven lots ranging in size from 6 acres to 14.69 acres. The seven lots were subsequently conveyed as follows:

• Gary Chapman and his wife Mary Chapman (the “Chapmans”) are the present owners of an 8.52 acre lot. This lot was deed directly from the Nunns to the Chapmans by deed dated February 6,1991 of record in Deed Book 457 at page 152 in the Register’s Office of Rutherford County (the “Chapman Deed”). The Chapman Deed omits the right-of-way language set out in the Marvin Briley Deed, supra.
• Arthur S. Hickman (“Hickman”) is the current owner of a 6.0 acre lot. Hickman purchased this property from Jane P. Holley by deed dated March 31, 1994, of record in Deed Book 522 at page 580 in the Register’s Office of Rutherford County (the “Hickman Deed”). This tract was previously conveyed from the Nunns to Murray to Holley. None of these deed, including the Hickman Deed, contain the right-of-way language set out in the Marvin Briley Deed, supra.
• Darrell Bruce Wardlaw (“Wardlaw”) is the current owner of a 6.01 acre lot. Wardlaw purchased his lot from Sharon Turcotte by deed dated March 9, 1992, of record in Deed Book 477 at page 687 in the Register’s Office of Rutherford County (the ‘Wardlaw Deed”). This tract was previously conveyed by the Nunns to Ms. Tur-cotte. Neither the deed from the Nunns to Ms. Turcotte, nor the Ward-law Deed, contains the right-of-way language set out in the Marvin Briley Deed, supra.
• Richard L. Johnson and his wife Jennifer A. Johnson (the “Richard John-sons”) are the present owners of a 9.01 acre tract. The Richard John-sons purchased said tract from the Nunns by deed dated January 10, 1990, of record in Deed Book 437 at page 770 in the Register’s Office of Rutherford County (the “Richard Johnson Deed”). The Richard Johnson Deed omits the right-of-way language set out in the Marvin Briley Deed, supra.
• Jeffrey L. Adcock (“Adcock”) is the present owner of an 8.05 acre tract. Adcock purchased said property from Daniel Fringer and his wife Brenda Harden Fringer by deed dated November 30, 1995, of record in Deed Book 562 at page 602 int eh Register’s Office of Rutherford County (the “Ad-cock Deed”). This tract was previously conveyed from the Nunns to Whitaker to Fringer. All of these deeds, including the Adcock Deed, omit the right-of-way language set out in the Marvin Briley Deed, supra.
• Timothy M. Milliken (“Milliken”) is the present owner of an 8.61 acre lot. Milliken purchased said property from the Nunns by deed dated October 26, 1988, of record in Deed Book 415 at page 429 in the Register’s Office of Rutherford County (the “Milliken Deed”). The Milliken Deed omits the right-of-way language set out in the Marvin Briley Deed, supra.
• Roy A. Johnson and his wife Karyn V. Johnson (the “Roy Johnsons”) are the current owners of a 14.69 acre tract. The Roy Johnsons purchased said tract from the Nunns by deed dated May 17, 1990, of record in Deed Book 444 at page 297 in the Register’s Office of Rutherford County (“the Roy Johnson Deed”). The Roy Johnson Deed also omits the right-of-way language. set out in the Marvin Briley Deed, supra.

On May 1, 1988, the Nunns executed a document entitled “Land Owners Association and Private Roadway Easement for Laura Ridge Estates,” of record in Deed Book 404 at page 178 in the Register’s Office of Rutherford County. This document contains a declaration of restrictive covenants for Laura Ridge Estates Landowners’ Association (the “LRE Association,” and together with the Nunns, the Chapmans, Hickman, Wardlaw, the Richard Johnsons, Adcock, Milliken, and the Roy Johnsons, “Defendants”). The primary purpose of the instrument filed by the Nunns appears to be the creation of a right-of-way easement for ingress and egress for the use and benefit of all residents of Laura Ridge Estates, and to provide a funding mechanism for the maintenance of this road by the members of the LRE Association. Said right-of-way is presently a gravel road known as Laura Ridge Road that connects to Briley Road on the east and dead-ends at a cul-de-sac on the west.

On September 7, 1999, the Brileys executed a document entitled “Establishment of Definite Right-of-Way,” of record in Deed Book 660 at page 674 in the Register’s Office of Rutherford County. The purpose of this instrument was to record a survey description and plat of where the Brileys wished to establish their easement across the lands of Defendants as provided in the Brileys’ Deed as set out above.

On October 25, 1999, Mr. Nunn sent a letter to the Brileys’ attorney. This letter reads, in pertinent part, as follows:

... the Briley deed said a right of way “to be determined”. This was not done by any one until June of 1999. Before I purchased this property I attempted to get Mr. Edmund Briley to determine this right of way which by survey for Laudis Hartman Briley starts at the end of Briley Lane in the Gary N. Patton property- Mr. Edmund Briley informed me that he had a right of way out to Independant [sic] Hill Road and did not want or need a right of way out over the tract in question or across Mr. Patton. Mr. Patton would not grant or allow a right of way without going to court and neither Mrs. Laudis Briley nor Edmund Briley would help “to determine” the right of way now claimed. I purchased other land to gain access to the Briley tract now known as Laura Ridge and took title to the Marvin Bri-ley tract on 7th of March, 1988 without any right of way “determined” and with hostile intent to foreclose any rights Mr. Edmund Briley might have to a right of way across the purchased tract.
Mr. Edmund Briley gave up his right to any right of way by his failure “to determine” his right of way in a timely manner nor was there any long used right of way in use across the tract I have purchased. I claim adverse rights to any right of way he may have had the rights to in his deed. I filed a deed claiming the land without any right of way and developed it with his full knowledge without any right of way to his tract.

On or about March 6, 2002, the Brileys filed suit against the Defendants to enforce an express easement as contained in the Brileys’ Deed. In the alternative, the Bri-leys claimed an easement by necessity. The Brileys also sought compensatory and punitive damages against the Nunns due to the Nunns’ omitting the right-of-way language from the deeds the Nunns prepared, which necessitated the Brileys’ suit. On or about March 27, 2002, the Nunns filed a Motion to Dismiss and Memorandum in Support thereof. On April 26, 2002, the Brileys’ filed a Response to the Nunns’ Motion to Dismiss. By Order of August 2, 2002, the trial court denied the Nunns’ Motion to Dismiss, indefinitely stayed the Brileys’ cause of action to establish an easement by necessity pending a determination by the trial court on the Brileys’ claim concerning enforcement of an express easement, and granted the Bri-leys’ motion to amend their pleadings.

On March 13, 2003, the Brileys filed “Plaintiffs’ Amended Complaint against Defendants Nunn” seeking compensatory and punitive damages against the Nunns on a “slander of title” claim. Specifically, the Brileys assert that the Nunns’ omission of the Brileys’ right-of-way in the deeds prepared by the Nunns and filed in the Register’s Office of Rutherford County, see supra, amounted to the Nunns claiming that the Brileys did not own any easement or right-of-way across the Marvin Briley Tract when, in fact, as evinced by the Brileys’ Deed and the Marvin Bri-ley Deed, such right exists. On March 27, 2003, the Nunns filed an Answer to the Amended Complaint in which they raised as one of their affirmative defenses that the Brileys’ “claims are barred in whole by the applicable statute of limitations.” On June 23, 2003, the Brileys filed “Plaintiffs Motion for Summary Judgment against Defendant Nunn,” along with a statement of undisputed material fact, memorandum of law, and the Affidavit of Edmund Briley in support thereof. On July 25, 2003, the Nunns also filed a motion for summary judgment, again asserting that the Brileys’ claims are barred by the applicable statute of limitations. The Nunns’ motion was supported by the Affidavit of Ronald S. Nunn, a statement of material fact, and a memorandum of law. On the same date, the Nunns filed responses to the Brileys’ motion for summary judgment.

On August 12, 2003, the trial court entered an “Agreed Order” wherein the Bri-leys’ easement over the respective properties of the Chapmans, Hickman, Wardlaw, the Richard Johnsons, Adcock, Milliken and the Roy Johnsons was established. On August 21, 2003, the Brileys filed a Response to the Nunns’ motion for summary judgment, in which the Brileys assert that the ten-year statute of limitations found at T.C.A. § 28-3-110 is applicable to their libel of title claim against the Nunns.

A hearing on the cross-motions for summary judgment was held on August 28, 2003. On November 7, 2003, the trial court entered its interim “Order” denying the Brileys’ motion for summary judgment and granting the Nunns’ motion for summary judgment upon the court’s finding “that the three year statute of limitations in T.C.A. § 23-3-105 bars [the Brileys’] complaint against Defendants Nunn.... ” The trial court’s Memorandum Opinion dated August 4, 2003, which is incorporated by reference into the Order, reads, in relevant part, as follows:

... [T]he central issue is whether the Plaintiffs libel of title claim, if proved, is barred by statutes of limitation applicable to personal or property torts, or whether a longer statute of limitation applies. After due consideration, we must respectfully find that the Plaintiffs claim is barred by statute of limitation, for the reasons stated below.
In the case at bar, we find that the Brileys’ libel of title claim arises from the same transaction and common set of operative facts, in which the Brileys were Plaintiffs in a related matter, heard by this Court on July 30, 2003. The cause heard on that date was essentially one concerning injury to the Bri-leys’ property rights. Likewise, we find that the gravamen of the Brileys’ current complaint essentially concerns injury by the Nunns to the Brileys’ property interest because the basis for which the Brileys seek damages is injury to the value of and rights in their property. In light thereof, and in light of our reading of Swauger v. Hdury & Smith Contractors, Inc., we are not persuaded by the Brileys’ argument that the limitation period in this case extends to the ten (10) year statute of limitation under Tennessee Code Annotated § 2[8]-3-110[ (3)]. Thus, we think that the three (3) year statute of limitation under Tennessee Code Annotated § 2[8] — 3—105 is appropriate in this case....

On May 7, 2004, the trial court entered an “Agreed Final Order.” The Brileys filed a notice of appeal from this Order on May 19, 2004 and raise one issue for review as stated in their brief: Which statute of limitation should be applied to libel of title actions?

However, we do not reach consideration of the issue presented by Plaintiffs/Appellants, because the review of the record in this case reveals that the notice of appeal was not timely. As noted previously, on August 12, 2003, an Order was entered granting partial summary judgments to all of the defendants, except the Nunns; and, on November 7, 2003, the trial court entered an Order granting summary judgment to the Nunns against the Brileys. From the record before us, we have determined that this Order disposed of all of the claims against all of the parties in this case. However, on May 7, 2004, the trial court entered an “Agreed Final Order,” which reflected on its face that all matters between the parties had been finally disposed of by an Order dated April 7, 2004. Unfortunately, the record does not contain such an Order and apparently the court was referring to the Order entered November 7, 2003, disposing of the claim by the Brileys against the Nunns, and to the previous Order of August 2003 that disposed of the claims against all other Defendants.

As this Court stated in Arfken & Associates v. Simpson Bridge Co., 85 S.W.3d 789 (Tenn.Ct.App.2002):

A notice of appeal must “be filed with and received by the clerk of the trial court within thirty days after the date of entry of the judgment appealed from.” Tenn. R.App. P. 3(a) (emphasis added). “Entry of a judgment or an order of final disposition is effective when [the] judgment ... is marked on the face by the clerk as filed for entry.” Tenn. R. Civ. P. 58 (emphasis added).
An appellate court is not authorized to extend the time for filing a notice of appeal. Tenn. RApp. P. 2. By the same token, an appellate court cannot “enlarge the time for filing a notice of appeal prescribed in [Tenn. R.App. P.] 4.” Tenn. R.App. P. 21(b).
In civil cases, the failure to timely file a notice of appeal deprives the appellate court of jurisdiction to hear the appeal. McGaugh v. Galbreath, 996 S.W.2d 186, 189 (Tenn.Ct.App.1998); American Steinwinter Investor Group v. American Steinwinter, Inc., 964 S.W.2d 569, 571 (Tenn.Ct.App.1997). If the notice of appeal is not timely filed, the appellate court is required to dismiss the appeal. Id.

Id. at 791.

In the instant case, the entry of the Order granting the Nunns summary judgment against the Brileys disposed of the only remaining claims in the case and, therefore, constituted the final order. The “Agreed Final Order,” which purports to be the final order in the case was entered by the trial court after the expiration of the trial court’s jurisdiction. The adjudication by the court of the final claim existing in the case — that of the Brileys against the Nunns for libel of title — constituted the final judgment, and the notice of appeal filed more than 30 days after the entry of that judgment is a nullity.

Accordingly, the appeal is dismissed, and the costs of the appeal are assessed against the Plaintiffs, Edmund R. Briley and Margaret Coleman Briley, and their surety.


source: Caselaw Access Project

author: DAVID R. FARMER, J.,

license: Public Domain

text:
    In re M.L.D.
    Court of Appeals of Tennessee, at Jackson.
    Submitted on Brief May 18, 2005.
    June 8, 2005.
    Application for Permission to Appeal Denied by Supreme Court Sept. 12, 2005.

      Larry E. Parrish, Memphis, Tennessee, for the appellants, J.M.T. and D.C.T.
    William T. Winchester, Memphis, Tennessee, for the appellee, M.A.D.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S. and HOLLY M. KIRBY, J., joined.

Petitioners, Mother and her husband, brought a petition to terminate Father’s parental rights on the grounds of abandonment. The trial court found that clear and convincing evidence did not support a finding a willful abandonment and dismissed the petition. We affirm.

This is a parental rights termination case. In April 2003, J.M.T. (“Mother”), the natural mother of M.L.D., a minor child born June 1998 in Knoxville, and her husband, D.C.T (“Husband;” collectively, “Petitioners”) filed a petition in the Chancery Court of Shelby County to terminate the parental rights of M.A.D. (“Father”), M.L.D.’s natural father, and for Husband to adopt M.L.D. In their petition, Petitioners alleged that Husband had acquired custody of M.L.D. upon his marriage to Mother in August 2002 and that M.L.D. had resided continuously in Petitioners’ home since that date. They further alleged that Father was a resident of Florida and that he had willfully abandoned M.L.D. for more than four consecutive months preceding the petition. They also petitioned the court to legally change the surname of M.L.D. from Father’s surname to Husband’s.

Father filed a petition for specific visitation on May 5, 2003, and an answer on May 6, 2003. In his petition for visitation, Father asserted that he was the biological father of M.L.D.; that he and Mother had entered into a written agreement that he would have custody of M.L.D. one-half the time; and that he had exercised his right to custody until he moved to Florida and Mother denied visitation despite Father’s willingness to assume all costs thereof. Father further asserted that Mother moved abruptly a number of times and willfully refused to allow him to visit or have contact with M.L.D. He alleged that M.L.D.’s paternal and maternal grandmothers have maintained contact with each other, and that he has only been able to speak to M.L.D. on the telephone when her paternal grandmother learns that M.L.D. is visiting her maternal grandmother and Father telephones at the maternal grandmother’s home. Father asserted that M.L.D.’s maternal grandmother denied information about Mother’s whereabouts or contact information. Father further asserted he had not been allowed contact with M.L.D. since February 2001, and that he had not spoken to M.L.D. since June 2002. In his answer, Father denied that he had willfully abandoned M.L.D. and asserted he had not known her whereabouts since Mother moved from East Tennessee without his knowledge.

Petitioners responded to Father’s petition on May 16, 2003. In their response, they admitted Father was the biological father of M.L.D. and that Mother and Father had entered into a written agreement concerning custody and visitation upon their separation in 1999. They asserted, however, that Father had visited M.L.D. only sporadically and that he had failed to adhere to the terms of the agreement. They further asserted that Mother had not secreted the child and denied that M.L.D.’s grandmothers maintain contact. Mother also asserted that Father resided with his mother in Virginia before moving to Florida; that Mother brought M.L.D. to Virginia to visit for Christmas shortly after Mother and Father separated; and that Father did not “show-up” in Virginia but asked Mother to allow the child to remain in Virginia with his mother for one week so that he could visit there. Mother further asserted that she agreed to allow M.L.D. to remain in Virginia for one week and that Father took M.L.D. to Florida and refused to return her to Mother. She asserted that she spent five weeks attempting to get M.L.D. back until an F.B.I. agent finally convinced Father to return M.L.D. She submitted Father then returned M.L.D. to Virginia and that Father had not attempted to make further contact. Mother also asserted she did not move secretly; that her telephone number is available in the public telephone book; that she did not deny Father access to M.L.D.; and that Father made no attempt to visit M.L.D.

Following a hearing on August 9 and 10, 2004, and based on the record as a whole, the trial court determined that Petitioners had failed to prove by clear and convincing evidence that Father had willfully abandoned M.L.D. It accordingly refused to terminate Father’s parental rights, ordered Father to pay child support, ordered the guardian ad litem to prepare a parenting plan, and ordered visitation. The trial court entered a consent order allowing Petitioners to substitute counsel and, on September 24, 2004, Petitioners filed a petition to alter or amend the judgment pursuant to Rule 59.04 of the Tennessee Rules of Civil Procedure. The trial court denied the petition on November 10, 2004, and Petitioners filed a timely notice of appeal to this Court. We affirm.

Issues Presented

Petitioners have raised eighteen issues for our review. The issue as we perceive it is whether the trial court erred by refusing to terminate Father’s parental rights based on abandonment where Father and Mother were not married at the time of M.L.D.’s birth and where Father had not visited or supported M.L.D. in over four months preceding the filing of the petition. Additionally, Father requests attorneys fees on appeal.

Standard of Review

Our standard of review of a trial court sitting without a jury is de novo upon the record. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995). There is a presumption of correctness as to the trial court’s findings of fact, unless the preponderance of evidence is otherwise. Tenn. R.App. P. 13(d). When no transcript or statement of the evidence is included in the record on appeal, we conclusively presume that the findings of fact made by the trial court are supported by the evidence and are correct. J.C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d 586, 587 (Tenn.1979). However, no presumption of correctness attaches to a trial court’s conclusions on issues of law. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000); Tenn. R.App. P. 13(d).

Tennessee Code Annotated § 36-1-113 governs the termination of parental rights. The code provides, in pertinent part:

(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that the grounds for termination or parental or guardianship rights have been established; and
(2) That termination of the parent’s or guardian’s rights is in the best interests of the child.

Tenn.Code Ann. § 36-l-113(c)(2001). This section also provides the grounds on which parental rights may be terminated. The existence of any statutory basis for termination of parental rights will support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn.Ct.App.2000).

A finding of grounds to terminate parental rights must be supported by clear and convincing evidence. Id. at 474. The “clear and convincing evidence” standard is more exacting than the “preponderance of the evidence” standard, although it does not demand the certainty required by the “beyond a reasonable doubt” standard. Id. To be clear and convincing, the evidence must eliminate any substantial doubt and produce in the fact-finder’s mind a firm conviction as to the truth. Id. Insofar as the trial court’s determinations are based on its assessment of witness credibility, this Court will not reevaluate that assessment absent evidence of clear and convincing evidence to the contrary. See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.1999).

Analysis

We begin our analysis by noting that the appellant has the burden to demonstrate that the evidence preponderates against the judgment of the trial court. Capital City Bank v. Baker, 59 Tenn.App. 477, 442 S.W.2d 259, 266 (1969). Additionally, under Rule 24 of the Tennessee Rules of Appellate Procedure, the appellant has the duty to prepare the record which conveys a fair, accurate, and complete account of what transpired in the trial court regarding the issues which form the basis of the appeal. The appellant also has the burden to provide this Court with a transcript of the evidence or a statement of the evidence from which we can determine whether the evidence preponderates for or against the findings of the trial court. Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn.Ct.App.1992). In the absence of a transcript or statement of the evidence, we conclusively presume that the findings of fact made by the trial court are supported by the evidence and are correct. J.C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d 586, 587 (Tenn.1979). In the present case, Petitioners have filed no transcript or statement of the evidence in this Court. Accordingly, we presume the findings of the trial court to be correct.

Second, we note that Petitioners devote considerable attention in their brief to this Court to the question of whether Father is, in fact, the legal parent of M.L.D. where Father and Mother were not married at the time of M.L.D.’s birth or at any time thereafter. A party may not raise an issue for the first time upon appeal. Cantrell v. Walker Die Casting, Inc., 121 S.W.3d 391, 396 (Tenn.Ct.App.2003). Upon review of the technical record, we find the issue whether Father is M.L.D.’s legal parent was not raised during the course of proceedings before the trial court but was raised for the first time in Petitioners’s Rule 59 motion to alter or amend the judgment. The trial court denied this motion.

The purpose of a Rule 59.04 motion to alter or amend a judgment is to provide the trial court with an opportunity to correct errors before the judgment becomes final. Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn.Ct.App.l998)(overruled in part on other grounds by Harris v. Chern, 33 S.W.3d 741 (Tenn.2000)). The motion should be granted when the controlling law changes before the judgment becomes final; when previously unavailable evidence becomes available; or to correct a clear error of law or to prevent injustice. Id. A Rule 59 motion should not be used to raise or present new, previously untried or unasserted theories or legal arguments. Local Union 760 of Intern. Broth. of Elec. Workers v. City of Harriman, No. E2000-00367-COA-R3CV, 2000 WL 1801856, at *4 (Tenn.Ct.App. Dec.8, 2000) perm. app. denied (Tenn. May 14, 2001), see Bradley, 984 S.W.2d at 933 (holding: a Rule 59 motion should not be used to raise new legal theories where motion for summary judgment is pending). We review a trial court’s determination of whether to grant a Rule 59.04 motion to alter or' amend a judgment under an abuse of discretion standard. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn.2003).

In this case, the parties do not dispute that Father is the biological father of M.L.D. or that Mother and Father lived together at the time of M.L.D.’s birth a,nd for a period of time thereafter. Neither Mother nor Father dispute that they entered into an agreement for custody and support of M.L.D. when they separated, and this agreement is in record. Further, it is undisputed that Father exercised some of his parental rights and obligations after the birth of M.L.D., although the parties dispute the nature and extent of Father’s desire to assume his parental obligations. Moreover, Father asserts he was prevented from continuing his relationship with M.L.D. by Mother’s refusal to allow him access to the child.

Under these circumstances, we cannot say any injustice results from the trial court’s refusal to grant Petitioners’ Rule 59 motion to allow consideration of the question of whether Father is M.L.D.’s legal parent. Petitioners waived this issue by failing to raise it during the trial proceedings. Likewise Petitioners waived the issue, raised for the first time on appeal, of whether Evan Nahmias was properly named the guardian ad litem in this case by order of the court. Accordingly, we will not consider these issues here.

We next turn to whether the trial court erred in determining that the proof did not support a finding by clear and convincing evidence that Father willfully abandoned M.L.D. The Tennessee Code provides, in pertinent part:

“Abandonment” means, for purposes of terminating the parental or guardian rights of parent(s) or guardian(s) of a child to that child in order to make that child available for adoption, that:
(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child[.]

TenmCode Ann. § 36-l-102(l)(A)(I)(2001 & Supp.2004).

The element of willfulness is central to the determination of abandonment. See In re Swanson, 2 S.W.3d 180, 188 (Tenn.1999). This Court recently has noted that, “[fjailure to support a child is ‘willful’ when a person is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing the support.” In re Adoption of T.A.M., No. M2003-02247-COA-R3-PT, 2004 WL 1085228, at *4 (Tenn.Ct.App. May 12, 2004) (no perm. app. filed). A custodial parent’s or third party’s conduct does not excuse a biological parent’s willful failure to support or visit unless that conduct actually prevents or significantly hinders the parent from doing so. In re DMD, No. W2003-00987-COA-R3-PT, 2004 WL 1359046, at *3 (Tenn.Ct.App. June 17, 2004). Further, interference with a parent’s attempts at visitation does not excuse the parent from his obligation to support the child financially. Id.

The Tennessee Supreme Court examined the element of willfulness in In re Swanson, 2 S.W.3d 180. In that case, Brittany Swanson (Brittany) was born to Harry and Brigitte Swanson (Mr. Swanson and Ms. Swanson, respectively) in 1990. Mr. and Ms. Swanson separated in 1991, and Mr. Swanson relocated first to Mississippi and then, in 1991, to Missouri. He remained in Missouri at all times relevant to the lawsuit. Brittany remained with Ms. Swanson, with whom she moved from Tipton County to various places in Shelby County and Mississippi. In re Swanson, 2 S.W.3d at 182.

In 1993, Brittany was placed in the legal care and custody of the Department of Human Services (“DHS”) following a determination of dependency and neglect. She was placed in foster care through the Baptist Children’s Home and, in 1994, the goal of foster care and reunification with her parents was changed to adoption. Id. In 1995, the Baptist Children’s Home obtained custody of Brittany and, in January 1996, filed a petition to terminate the parental rights of Ms. Swanson and Mr. Swanson. Id. at 183. Ms. Swanson died in October 1996. Id. at 182 n. 1. DHS made no attempt to contact Mr. Swanson, and Mr. Swanson learned of the termination proceedings from friends who had seen published notice in the newspaper. Id. at 183.

Mr. Swanson testified that he had attempted to maintain contact with Brittany, but that Ms. Swanson refused to allow visitation. Id. at 182. He further testified that he did not know the whereabouts of Brittany or Ms. Swanson following then-several moves, and that he had attempted to learn of their whereabouts through Ms. Swanson’s father, who refused to provide any information. The In re Swanson Court held that the Tennessee Code provision as it then existed was unconstitutional insofar as it did not require a finding of willfulness to support termination based on abandonment and that the proof did not support a finding of willful abandonment by clear and convincing evidence. It accordingly ordered custody of Brittany to be returned to Mr. Swanson. Id. at 181.

In the present case, the trial court considered affidavits and, we assume, testimony regarding whether Mother had refused to allow Father access to M.L.D. and whether she had refused to allow Father to know M.L.D.’s whereabouts. The trial court determined the proof did not support a finding of willful abandonment. Insofar as the trial court’s findings are based on witness credibility, we give great deference to the trial court’s findings and will not disturb those findings absent clear and convincing evidence to the contrary. Sullivan v. Sullivan, 107 S.W.3d 507, 510 (Tenn.Ct.App.2002). Moreover, as noted above, in the absence of a trial transcript or statement of the evidence, we conclusively presume the findings of the trial court to be correct. Accordingly, we affirm the trial court’s determination that clear and convincing evidence did not support a finding of abandonment in this case.

We next address Petitioners’ assertion that, after the trial court dismissed their petition for adoption on August 17, 2004, it lost subject matter jurisdiction to enter a parenting plan on November 2, 2004. Petitioners rely on In re DMD, No. W2003-00987-COA-R3-PT, 2004 WL 1359046 (Tenn.Ct.App. June 17, 2004), for the proposition that once the trial court dismissed their petition for adoption, it lost subject matter jurisdiction to entertain further questions of custody or to enter a parenting plan. We disagree with Petitioners’ reading of In re DMD

In In re DMD, we held that, upon dismissal of the petition to terminate parental rights and for adoption, the chancery court did not have subject matter jurisdiction to adjudicate matters of custody because subject matter jurisdiction over issues of custody reverted to the juvenile court, which retained continuing exclusive subject matter jurisdiction over its prior custody order. In re DMD, 2004 WL 1359046, at *5. In that case, the chancery court had no subject matter jurisdiction to alter a custody order previously entered in the juvenile court. In the case now before us, however, the parties agree that no court has adjudicated the matter of custody or entered an order pertaining to custody, visitation, or support. Thus, In re DMD is inapplicable to this case.

We turn finally to Father’s contention that this is a frivolous appeal and to his request for attorney’s fees. Father asserts he is entitled to attorneys fees under Tennessee Code Annotated § 36-5-103(c). We disagree. Under § 36-5-103(c), the prevailing party may recover attorney fees incurred in enforcing a child support or custody decree. This is not such a case. However, when it appears to the reviewing court that an appeal from a court of record was frivolous or taken solely for delay, the court may, either upon motion of a party or on its own motion, award just damages against the appellant, which may include, but need not be limited to, costs, interest on the judgment, and expenses incurred by the appellee as a result of the appeal. Tenn.Code Ann. § 27-1-122 (2000). Courts construe this section of the Code strictly in an effort not to discourage legitimate appeals. Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn.1977). A frivolous appeal is one that is “devoid of merit” and which cannot reasonably succeed. Id. It is one completely “lacking in justiciable issues.” Id.

The determination of whether a parent’s rights to his/her child should be terminated is the most serious and grave issue to be addressed by this Court. Accordingly, we are loathe to consider an appeal of a trial court’s judgment terminating a parent’s rights to be frivolous. In this case, however, Petitioners appeal from the trial court’s determination not to terminate Father’s parental rights and do so without benefit of an adequate record for our review. As stated by this Court in Young v. Barrow, 130 S.W.3d 59, 67 (Tenn.Ct.App.2003):

Thus, an appeal in which the reviewing court’s ability to address the issues raised is undermined by the appellant’s failure to provide an adequate record is deemed frivolous because it has no reasonable chance of succeeding.

Additionally, Petitioners have attempted to insert new, previously untried issues into this matter at every post-judgement stage of litigation. Petitioners are not acting pro se, moreover, but have the benefit of legal counsel who is presumed versed in the rules of civil and appellate procedure. They have raised eighteen issues in their brief for review by this Court, all of which are without merit. Under these circumstances, we find this appeal to be frivolous. This cause is remanded to the trial court for the assessment of damages in accordance with Tennessee Code Annotated § 27-1-122 and for any further proceedings which may be required.

Holding

In light of the foregoing, the judgment of the trial court is affirmed. Costs of this appeal are taxed to the Appellants, J.M.T. and D.C.T., and to their surety, for which execution may issue if necessary.

      .Petitioners have attached a document which they submit is a statement of the evidence to their brief to this Court. However, a document attached to a brief is not a part of the official record before this Court on appeal. Hunt v. Shaw, 946 S.W.2d 306, 309 (Tenn.Ct.App.1996).

      . Nine of the eighteen issues Petitioners enumerate in their brief are predicated on this issue.

      . This agreement was never entered as an order of any court.

      . We note that Petitioners did not raise this issue in either their motion to alter or amend the judgment or in their motion to strike the report of the guardian ad litem. Additionally, in their motion for rehearing on temporary visitation, Petitioners stated, "Evan Nahmias has been appointed as Guardian Ad Litem in this matter and has filed a report.”


author:
JOHNSON, J.,
      MEYERS, J., HOLCOMB, J.,

text:
    Jeffrey TORRES, Appellant, v. The STATE of Texas.
    No. PD-1322-04.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 7, 2005.

      Brian W. Wice, Ross Palmie, Houston, for appellant.
    Robinson C. Ramsey, Asst. D.A., San Antonio, Matthew Paul, State’s Attorney, Austin, for state.
   OPINION

JOHNSON, J.,

delivered the opinion of the Court,

in which PRICE, WOMACK, KEASLER, HERVEY and COCHRAN, JJ., joined.

In the early morning hours of October 5, 2000, appellant drove his vehicle off the road and into the porch of a house located in rural Wharton County. After the accident, Department of Public Safety (DPS) Trooper William Sulak arrested appellant for driving while intoxicated (DWI) in violation of Tex. Penal Code § 49.04. After his motion to suppress evidence was denied, appellant plead guilty pursuant to a plea agreement, and the trial court sentenced him to 180 days in jail, probated for one year. Appellant appealed, asserting that the trial court had erroneously denied his motion to suppress evidence. Appellant argued that his custodial interrogation violated both the Fifth Amendment of the United States Constitution and Tex.Code Crim. Proc. art. 38.22 and that probable cause sufficient to justify his warrantless arrest for DWI did not exist.

The court of appeals, relying on Berkemer v. McCarty, 468 U.S. 420, 438-39, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), found that appellant’s responses to Trooper Sulak’s initial questions were admissible because appellant was not in custody for Miranda purposes and that Trooper Sulak had failed to articulate sufficient facts to support probable cause to arrest appellant. Woodward v. State, 668 S.W.2d 337, 345 (Tex.Crim.App.1982). The court of appeals reversed the judgment and sentence and remanded the cause to the trial court. Torres v. State, 2004 WL 2336088, 2004 Tex.App. LEXIS 5351, No. 13-02-070-CR (Tex.App.-Corpus Christi [13th Dist.], delivered June 17, 2004, unpublished). The state petitioned for discretionary review, contending in its sole ground for review that the court of appeals erred in concluding that Trooper Sulak lacked the probable cause necessary to arrest appellant. We affirm the judgment of the court of appeals.

The record from the suppression hearing indicates that Trooper Sulak was awakened at 2:38 a.m. to investigate the accident in which appellant was involved. Although two county sheriffs deputies were first on the scene, DPS investigates all accidents in rural areas in Wharton County. Trooper Sulak arrived at 3:07 a.m. and noted that appellant’s vehicle had left the public roadway and traveled approximately 150 feet before crashing into the porch. The two sheriffs deputies told Trooper Sulak only that they believed that appellant was intoxicated. Trooper Sulak spoke to the homeowners and questioned appellant, who explained that he was unfamiliar with the road and had made a wrong turn. Trooper Sulak did not ask appellant if he had been drinking nor did he administer any field sobriety tests to confirm or dispel the deputies’ suspicions, even though he was certified to administer such tests. Trooper Sulak simply arrested appellant and took him to the hospital after he noticed that appellant was favoring one arm. Appellant was treated at the hospital for a broken arm and a cracked rib and was then transported to the sheriffs office for a breath test, which appellant refused.

Generally, a warrantless arrest is, pursuant to the Fourth Amendment, unreasonable per se unless the arrest fits into one of a “few specifically defined and well delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). A police officer may arrest an individual without a warrant only if probable cause exists with respect to the individual in question and the arrest falls within one of the exceptions set out in TexCode CRIM. PROC. art. 14.01-14.04. Lunde v. State, 736 S.W.2d 665, 666 (1987). In Castillo v. State, 818 S.W.2d 803 (Tex.Crim.App.1991), we said that probable cause for a warrantless arrest exists when facts and circumstances within the officer’s knowledge and about which he or she has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense was or is being committed. Id. at 805 n. 4 (emphasis added). However, a probable-cause standard which requires an officer to have both personal knowledge and facts or circumstances about which the officer has trustworthy information is unreasonable. This Court has previously held in separate cases that a warrantless arrest is permitted by Texas Code Crim. PROC. 14.01(b) if officers possess personal knowledge and if they have information from reasonably trustworthy sources that an offense was or is being committed. Because Castillo may be interpreted to require both personal knowledge and trustworthy information, we overrule it and its progeny only to the extent that it requires both kinds of information to support probable cause.

A trial judge is the sole trier of fact at a suppression hearing and thus evaluates witness testimony and credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002)(citing Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App.1991)). When we review a trial court’s ruling on a motion to suppress, we give great deference to the trial court’s determination of historical facts while reviewing the court’s application of the law de novo. Maxwell, 73 S.W.3d at 281 (citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000)). The appellate court must view the evidence in a light most favorable to the trial court’s ruling when the trial court does not file any findings of fact. Id. When, as here, no such findings of fact were made, the appellate court will assume that the trial court made implicit findings of fact that support its ruling, as long as the findings are supported by the record. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The initial burden of proof on a motion to suppress evidence on the basis of a Fourth Amendment violation rests with the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.l986)(citing Mattei v. State, 455 S.W.2d 761, 765-66 (Tex.Crim.App.1970)). The defendant meets this burden by demonstrating that the search occurred without a warrant. Id. Thereafter, the burden shifts to the state to prove the reasonableness of the warrantless search. Id. at 10 (citing Lalande v. State, 676 S.W.2d 115, 116 (Tex.Crim.App.1984)). The state may satisfy this burden by showing that one of the statutory exceptions to the warrant requirement is met. McGee, 105 S.W.3d at 613. An unarticulated “hunch,” a suspicion, or the good faith of the arresting officer is insufficient to support probable cause to justify a warrant-less arrest. McDougald v. State, 547 S.W.2d 40, 42 (Tex.Crim.App.1977). The “totality of the circumstances” test applies in Texas for determining probable cause for a warrantless search. Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.l991)(citing Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex.Crim.App.1988)).

After reviewing de novo the determination of probable cause for a warrantless search and seizure in this case, we conclude that, given the totality of the circumstances, the state failed to carry its burden to justify the warrantless arrest of appellant. Probable cause for a warrantless arrest requires that the officer have a reasonable belief that, based on facts and circumstances within the officer’s personal knowledge, McGee at 614, or of which the officer has reasonably trustworthy information, an offense has been committed, Brother at 257-58. The state argues that this Court must examine the cumulative information known by the arresting officers in determining whether probable cause existed for the arrest. Although the state correctly cites this proposition of law, it overlooks the requirement that probable cause must be based on facts, not opinions. See Ford v. State, 158 S.W.3d 488, 493-94 (Tex.Crim.App.2005)(“Mere opinions are ineffective substitutes for specific, articula-ble facts.... ”).

The evidence in this case indicates that facts establishing probable cause to arrest appellant were not shown. The arrest was based on opinions expressed to Trooper Sulak by the county sheriffs deputies who were at the scene. The deputies’ unexplained opinions about whether appellant was intoxicated did not give Trooper Sulak personal knowledge of, or reliable information about, facts or circumstances sufficient to justify appellant’s arrest. Id. at 494 (“It is true that law enforcement training or experience may factor into a reasonable-suspicion analy-sis_But rebanee on this special training is insufficient to estabbsh reasonable suspicion absent objective factual support.”). The sheriffs deputies did not articulate supporting facts upon which their opinions were based. Rather, the deputies merely asserted that appellant appeared to them to be intoxicated. The deputies did not testify at the suppression hearing and, therefore, we would have to speculate about what information (e.g., appellant’s physical appearance, behavior, responses to questions, etc.) led the deputies to this conclusion.

Trooper Sulak also lacked any personal knowledge about the accident or the circumstances surrounding it. He did not testify that he asked appellant whether he had been drinking or that he had administered any field sobriety tests to confirm the sheriffs deputies’ suspicions, nor did he testify that he smelled the odor of alcoholic beverages on appellant’s breath or that he observed common signs of intoxication such as slurred speech or- problems with balance. The only question posed by Trooper Sulak to appellant was to inquire how the accident occurred, and appebant responded that he was unfamiliar with the road and had made a wrong turn. This one question and answer is insufficient to show probable cause to bebeve that appellant was intoxicated.

The state also argues that, according to Marquez v. State, 725 S.W.2d 217 (Tex.Crim.App.1987), the probable-cause requirement is met here because pobce officers are inherently rebable. However, opinions, even those of pobce officers, cannot be transformed into facts without supporting evidence.

The probable-cause requirement is grounded on a factual examination of the totality of the circumstances. In Marquez, the presumption of rebabibty was based on the facts stated in probable-cause affidavits, not the bare conclusions and opinions of pobce officers. Marquez, 725 S.W.2d at 233. We recognize that, generaby, pobce officers are a reliable source of information. However, Marquez should not be interpreted to mean that the opinions of pobce officers are rebable even if those opinions are expressed without articulation of supporting facts and circumstances. Considering the facts and circumstances that were known personally to Trooper Sulak or which had been conveyed to him by reasonably trustworthy sources, probable cause to arrest appebant did not exist.

We affirm the judgment of the court of appeals.

MEYERS, J., filed a dissenting opinion.

HOLCOMB, J., filed a dissenting opinion, in which KELLER, P.J., joined.

MEYERS, J.,

dissenting.

Because I feel that the officer in this case had probable cause to arrest the appellant, I respectfully dissent.

HOLCOMB, J.,

dissenting, in which KELLER, P.J., joined.

I respectfully dissent. In my view, the court of appeals erred in holding that the trial court erred in denying appellant’s motion to suppress. I would reverse the judgment of the court of appeals and affirm the judgment of the trial court.

The record reflects the following relevant facts. On October 23, 2000, appellant was charged by information with driving while intoxicated. On May 17, 2001, appellant filed a boilerplate pretrial motion to suppress “any and all evidence seized or obtained as a result of illegal acts.” Appellant did not specify in the motion what evidence he wanted suppressed, but, citing the Fourth Amendment, he asserted that the evidence in question was the fruit of a warrantless arrest made without probable cause.

On November 28, 2001, the trial court held a hearing on appellant’s motion to suppress. Trooper William E. Sulak of the Department of Public Safety (DPS) was the only witness who testified at that hearing. According to Trooper Sulak, the DPS dispatcher for Wharton County contacted him at 2:38 a.m. on October 5, 2000, and directed him to investigate an accident that had occurred just off a county road in a rural part of the county. Sulak proceeded to the scene of the accident in his patrol car, and, upon arriving at the scene at 3:07 a.m., he found evidence of a one-car traffic accident. From the evidence at the scene, it appeared to Sulak that a car had left the public roadway, traveled approximately 150 feet toward a private residence, and had then collided with the porch of the residence, damaging it. Sulak also found appellant, the apparent driver of the car involved in the accident, sitting in the back seat of a deputy sheriffs patrol car. Two deputy sheriffs, who had arrived at the scene earlier, told Sulak that appellant was, in their opinion, “very intoxicated.” After speaking with the deputy sheriffs and the owner of the residence, Sulak asked appellant what had happened, and appellant responded that he had just come from “Lucky’s,” that he “was not familiar with the road,” and that he had “made a wrong turn.” Shortly thereafter, Sulak placed appellant under arrest. At the conclusion of the evidentiary portion of the suppression hearing, appellant argued to the trial court that it should suppress “everything that happened out there that evening and subsequently” because the State had failed to prove that Sulak had had probable cause to support his warrantless arrest of appellant. The trial court denied appellant’s motion.

On December 6, 2001, appellant pled guilty, pursuant to a plea bargain, to the offense alleged in the information. The trial court assessed appellant’s punishment at incarceration for 180 days, probated for one year. The trial court also gave appellant permission to appeal from the denial of his pretrial motion to suppress.

On direct appeal to the Thirteenth Court of Appeals, appellant reiterated his argument that the State had failed to prove that Sulak had had probable cause to support the arrest. On June 17, 2004, that court, in an unpublished opinion, accepted appellant’s argument and reversed the judgment of the trial court:

Sulak testified that at some point after arriving at the scene of the accident, the deputies told him that Torres was very intoxicated. The record does not reflect how the deputies came to this conclusion. Sulak did not remember whether the occupants of the residence also mentioned Torres’s condition. At the scene, Sulak did not ask Torres whether he had been drinking and did not otherwise administer any field sobriety tests. There was no testimony concerning Torres’s physical appearance at the scene....
We hold that the trooper did not articulate sufficient facts to support probable cause to arrest appellant. His warrant-less arrest was therefore illegal. We hold that the trial court erred in denying appellant’s motion to suppress.

Torres v. State, No. 13-02-070-CR, slip op. at 6 & 9, 2004 WL 2336088 (Tex.App.Corpus Christi 2004).

On February 9, 2005, we granted the State’s petition for discretionary review in order to determine whether the court of appeals erred in its Fourth Amendment probable cause analysis. The majority of this Court now holds that the court of appeals did not err.

Under the Fourth Amendment, “[p]rob-able cause [to arrest] exists where the facts and circumstances within ... the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (some internal punctuation omitted). In my view, given the evidence adduced at the suppression hearing, the trial court could have properly concluded that, at the moment Trooper Sulak arrested appellant, Sulak had probable cause to support that arrest.

According to Sulak’s testimony, at the moment he arrested appellant, he knew (1) that appellant, in the wee hours of the morning, had just left an establishment known as “Lucky’s”; (2) that appellant had driven his vehicle off the public roadway 150 feet and had then collided with a house; (3) that appellant’s only explanation for this bizarre circumstance was his “unfamiliarity” with the public roadway and his accidental “wrong turn” off that roadway; and (4) that two deputy sheriffs at the scene, who had obviously been talking with appellant, had concluded that he was “very intoxicated.” Given this information, a reasonable law enforcement officer could scarcely have come to any conclusion other than that appellant had probably been driving while intoxicated. Indeed, even in the absence of the deputy sheriffs’ opinions regarding appellant, Su-lak could have reasonably concluded that, more likely than not, appellant’s explanation for the accident was less than completely truthful and that appellant, had he had the normal use of his mental and physical faculties, would not have turned off the county road as he did, would not have driven 150 feet toward a private residence as he did, and would not have crashed into that residence as he did.

I respectfully dissent.

      . “Whether the court of appeals erroneously ruled that an officer did not have probable cause to arrest a defendant who had crashed his car onto the front porch of a residence at an early morning hour when two other officers, who had personally observed the defendant at the scene, informed the arresting officer that, in their opinions, the defendant was intoxicated.”

      . Tex.Code Crim. Proc. arts. 14.01-14.04 delineates the limited circumstances in which a police officer may effect a warrantless arrest. These circumstances include public intoxication, commission of an offense within view of a police officer or magistrate, and commission of a felony offense upon representation of a credible person.

      . McGee v. State, 105 S.W.3d 609, 614 (Tex.Crim.App.2003)

      . Brother v. State, 166 S.W.3d 255, 257-58 (Tex.Crim.App.2005).

      . At the time of the suppression hearing, Trooper Sulak was retired and had no independent recollection of the incident. His field notes had been lost. His official report, written "probably about a week” after the event, reflected that he had also asked appellant where appellant had been coming from and that appellant had answered that he had come from "Lucky’s.” The record does not include information about "Lucky's.”

      .Texas Penal Code § 49.04 provides that “[a] person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.” Texas Penal Code § 49.01 (2)(A) defines "intoxicated” as "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.”

      . Any arrest must, of course, be supported by probable cause. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

      . Since appellant never specified in the trial court what evidence he wanted suppressed, it may be that the trial court could have properly denied his motion to suppress on that basis alone. See Johnson v. State, 548 S.W.2d 700, 706 (Tex.Crim.App.1977) (appellate court perceives no error in trial court's denial of motion to suppress “[s]ince the appellant fails to state what evidence, if any, was obtained as a result of the alleged unlawful arrest and what evidence, if any, obtained incident to the alleged unlawful arrest was introduced [at trial]”); W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.2(a) at 35 (4th ed.2004) (a motion to suppress "must of course identify the items which the defendant seeks to suppress”).


author: MEYERS, J., JOHNSON, J.,

text:
    Ronald Thacker HARGESHEIMER, Appellant, v. The STATE of Texas.
    No. PD-1610-04.
    Court of Criminal Appeals of Texas.
    Jan. 18, 2006.

      Donald F. Schofield, Amarillo, for Appellant.
    John L. Owen, Asst. District Attorney, Amarillo, Matthew Paul, State’s Attorney, Austin, for State.
   MEYERS, J.,

delivered the opinion of a unanimous Court.

In 1999, Appellant Ronald Thacker Har-gesheimer was charged with indecency with a child. In exchange for his guilty plea, the trial court deferred adjudication of his guilt, and he received ten years of community supervision. In 2003, the State filed a motion to proceed with adjudication of guilt, claiming nine violations of his community supervision. At the hearing on the motion to adjudicate, Appellant pled true to each of the nine allegations, including failure to pay court costs, publication fees, sex-offender fees, probation fees, and costs associated with sex-offender treatment; failure to obtain a GED; failure to report; having contact with his minor daughter; and frequenting adult bookstores. Appellant was represented by appointed counsel at the hearing, but neither his attorney nor the State’s counsel made a recommendation as to punishment. During the proceeding, the trial court revoked Appellant’s probation, convicted him of the original charge, and sentenced him to 16 years in prison. The trial court certified that Appellant had waived his right to appeal. Appellant filed a pro se general notice of appeal of the trial court’s revocation proceeding.

Court of Appeals

The Seventh Court of Appeals rejected the contention that Appellant had waived his right to appeal, concluding that the waiver was invalid as a matter of law. Hargesheimer v. State, 126 S.W.3d 658, 659 (Tex.App.-Amarillo 2004, pet. denied). It denied the State’s motion to dismiss and directed the lower court to re-certify whether Appellant had a right to appeal. Id. The trial court then issued its “Findings of Facts and Conclusions of Law” in which it certified that “no appeal exists by reason of a plea bargain.” In its subsequent opinion, the court of appeals agreed that the appeal was subject to the restrictions of Texas Rule of Appellate Procedure 25.2(a)(2) because Appellant had received deferred adjudication community supervision pursuant to a plea bargain and his punishment upon conviction did not exceed the range allowed by law. Hargesheimer v. State, 140 S.W.3d 443, 444 (Tex.App.-Amarillo 2004, pet. granted). Notwithstanding his expressed intent to present for review complaints unrelated to his conviction, the court of appeals concluded that Appellant had no right to appeal because he had failed to secure the trial court’s permission in accordance with the requirements of Rule 25.2(a)(2)(B). Id. at 445. The court also explained that Appellant could no longer appeal from an adverse ruling upon a written pretrial motion under Rule' 25.2(a)(2)(A) because he had failed to appeal immediately after the trial court deferred adjudication of his guilt and placed him on community supervision. Id. The court of appeals affirmed the trial court’s finding and dismissed the appeal pursuant to Rule 25.2(d), which requires dismissal if the record does not contain a certification evidencing the defendant’s right of appeal. We will reverse.

Issue Granted

We granted Appellant’s petition for discretionary review to determine whether the court of appeals erred in dismissing the appeal pursuant to Rule 25.2. We will clarify the relationship between Rule 25.2(a)(2) and Article 42.12 § 5(b) of the Texas Code of Criminal Procedure and resolve when a defendant in a plea-bargain case on deferred adjudication community supervision has the right to appeal after a violation of the conditions of his community supervision and the adjudication of guilt.

Appellant argues that Article 42.12 § 5(b) and cases such as Vidaurri v. State, 49 S.W.3d 880 (Tex.Crim.App.2001), and Kirtley v. State, 56 S.W.3d 48 (Tex.Crim.App.2001), guarantee him the right to appeal, from the revocation proceeding, issues unrelated to his conviction. He cites language from Article 42.12 § 5(b) to support his position:

The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred, (emphasis added)

In contrast, the State submits that even if Appellant’s appeal is separate from his conviction and claimed under the provisions of Article 42.12 § 5(b), he must still satisfy the additional special notice requirements of Rule 25.2(a)(2). Rule 25.2(a)(2) allows a defendant in a plea-bargain case to appeal only “those matters that were raised by written motion filed and ruled on before trial, or after getting the trial court’s permission to appeal.” We will explain the relationship between Rule 25.2(a)(2), which restricts a defendant’s right to appeal from a plea-bargain case, and Article 42.12 § 5(b), which allows a plea-bargain defendant on deferred adjudication community supervision to appeal after a violation of community supervision and adjudication of guilt.

Evolution of the Caselaw

It is well settled that a defendant on deferred adjudication community supervision may not appeal from the trial court’s determination to proceed with an adjudication of guilt on the original charge. This result is clear from the language of Article 42.12 § 5(b), which expressly provides that “no appeal may be taken from this determination.” This Court has consistently upheld the plain meaning of the statute, going so far as to say that “the trial court’s decision to proceed with an adjudication of guilt, is one of absolute discretion and not reviewable by this Court.” Williams v. State, 592 S.W.2d 931, 932 (Tex.Crim.App.1979); see also Olowosuko v. State, 826 S.W.2d 940 (Tex.Crim.App.1992); Ex Parte Hernandez, 705 S.W.2d 700 (Tex.Crim.App.1986); Wright v. State, 592 S.W.2d 604 (Tex.Crim.App.1980); McIntyre v. State, 587 S.W.2d 413 (Tex.Crim.App.1979).

Although a defendant on deferred adjudication community supervision may not appeal the court’s determination to adjudicate guilt, he may challenge the court’s decision to defer adjudication in the first place. In Dillehey v. State, we held that a defendant had the right to appeal from deferred adjudication community supervision under Article 44.02. 815 S.W.2d 623, 626 (Tex.Crim.App.1991). We concluded that the passage of Article 44.01(j), stipulating that “nothing in this article is to interfere with the defendant’s right to appeal under the procedures of Article 44.02,” evidenced the legislature’s intention to give defendants on deferred adjudication community supervision the same appeal rights as defendants on “regular” community supervision, even though they had not been adjudicated guilty. Id. In the case of Dillehey, this meant that defendants on deferred adjudication community supervision could immediately appeal rulings on pre-trial motions. M

In Watson v. State, we held that deferred adjudication orders were not only appealable, but “by implication,” restricted by the requirements of former Rule 40(b)(1), now Rule 25.2(a)(2). 924 S.W.2d 711, 714 (Tex.Crim.App.1996). We established that an order of deferred adjudication was considered punishment in plea bargain cases and that a defendant’s initial plea of guilty in exchange for deferred adjudication triggered the application of former Rule 40(b)(l)’s limitations to his appeal. See Vidaurri, 49 S.W.3d at 882. We also explained that “when a prosecutor recommends deferred adjudication in exchange for a defendant’s plea of guilty or nolo contendere, the trial judge does not exceed that recommendation if, upon proceeding to an adjudication of guilt, he later assesses.any punishment within the range allowed by law.” Id. With this holding, we applied the restrictions of former Rule 40(b)(1) to situations of deferred adjudication even where there was no explicit arrangement for a certain term of years of punishment in exchange for a particular plea. We reasoned that, because the prosecutor had made no recommendation regarding the term of years to be assessed in the event of a violation of community supervision, the defendant necessarily accepted that his sentence could reach the maximum authorized by law. In effect, Watson treated a plea bargain for deferred adjudication the same as a plea bargain for the purposes of punishment and subjected a defendant whose deferred adjudication had been the result of a plea bargain to the restrictions of former Rule 40(b)(1).

In Vidaurri, we departed from Watson’s expansive holding that “when a defendant pleads guilty or nolo contendere and is sentenced in accordance with a plea-bargain agreement, appeal from his subsequent adjudication of guilt is subject to the restrictions of former Rule 40(b)(1).” 49 S.W.3d at 884. Vidaurri involved an appellant whose claim on appeal — that he was denied a separate punishment hearing at the proceeding where the court revoked his probation and convicted him — did not challenge his conviction. We held that former Rule 25.2(b)(3), now Rule 25.2(a)(2), did not limit the appellant’s right to appeal even though he was a plea-bargain defendant on deferred adjudication community supervision whose punishment did not surpass the range allowed by law. Id. at 885.

In making this determination, we relied on a probation case not involving deferred adjudication, in which we held that an appeal unrelated to the propriety of conviction was not subject to the restrictions of former Rule 40(b)(1). Feagin v. State, 967 S.W.2d 417, 419 (Tex.Crim.App.1998) (citing Whetstone v. State, 786 S.W.2d 361, 363 (Tex.Crim.App.1990)). In addition, we cited Manuel v. State, in which we extended to the context of deferred adjudication the longstanding rule allowing defendants on “regular” community supervision to raise appeals relating to conviction only when community supervision was originally imposed. 994 S.W.2d 658, 661 (Tex.Crim.App.1999) (citing Whetstone, 786 S.W.2d at 363; Traylor v. State, 561 S.W.2d 492, 494 (Tex.Crim.App.1978); Patterson v. State, 487 S.W.2d 736, 737 (Tex.Crim.App.1972); Pitts v. State, 442 S.W.2d 389, 390 (Tex.Crim.App.1969); Gossett v. State, 162 Tex.Crim. 52, 282 S.W.2d 59, 62 (1955)). With Vidaurri, we disavowed Watson to the extent it conflicted with subsequent cases like Feagin and Manuel, and endorsed the proposition that the restrictions of former Rule 40(b)(1) did not apply to appeals unrelated to a defendant’s conviction in cases of deferred adjudication community supervision.

In decisions following Vidaurri, we have affirmed that the limitations of Rule 25.2(a)(2) do not apply to appeals separate from a defendant’s conviction. In Kirtley, we determined that a claim of ineffective assistance of counsel at the punishment hearing after adjudication of guilt was independent of the conviction. 56 S.W.3d at 51. We explained that “although an appellant cannot appeal the trial court’s decision to adjudicate guilt, an appellant sentenced under a guilty plea agreement can appeal aspects of the ‘second phase to determine punishment.’ ” Id. Similarly, in Woods v. State, we reiterated that former Rule 25.2(b)(3)’s notice provisions applied to a defendant placed on deferred adjudication community supervision pursuant to a plea bargain, stating: “Rule 25.2(b)(3) controls an appeal, made either before or after adjudication of guilt, by a defendant placed on deferred adjudication who challenges an issue relating to his conviction.” 68 S.W.3d 667, 669 (Tex.Crim.App.2002) (citing Tex.R.App. P. 25.2(b)(3); Tex.Code CRiM. PROC. art. 44.010); Vidaurri, 49 S.W.3d at 884-85; Kirk v. State, 942 S.W.2d 624, 625 (Tex.Crim.App.1997); Watson, 924 S.W.2d at 713-15)). In Woods, we concluded that since the appellant’s sentence fell within the punishment range for the offense to which he had pleaded guilty in exchange for deferred adjudication, the trial court had followed the plea bargain, and he was required to comply with the notice provisions of former Rule 25.2(b)(3) in order to appeal an issue related to his conviction. Id. at 670.

The caselaw has evolved from cases like McDougal and Hernandez, in which we stated that deferred adjudication was not punishment and there could be no appeal until adjudication of guilt, to Dillehey and Watson, in which we deemed that deferred adjudication orders were not only punishment but appealable and subject to the constraints of former Rule 40(b)(1). Finally, in Feagin, Manuel, and the Vidaurri line of cases, we carved out an exception to the application of Rule 25.2(a)(2)’s limitations on appeal for plea-bargain defendants on deferred adjudication community supervision whose claims after adjudication of guilt were “unrelated to conviction.”

Analysis

The progression of the caselaw, in combination with the introduction of the certification process, has created confusion among the lower courts about the applicability of Rule 25.2(a)(2) to plea-bargain deferred adjudication cases that have moved to final adjudication. In such cases, rather than continue down the road of applying the restrictions of Rule 25.2(a)(2) to appeals that are related to conviction and maintaining an exception for claims that are unrelated to conviction, we hold that Rule 25.2(a)(2) extends only to appeals from the initial plea of guilty in exchange for deferred adjudication, and not to appeals from the proceeding on the motion to adjudicate guilt. We believe that keeping the final adjudication of guilt distinct from the plea bargain better represents the actual substance of the plea bargain and reduces the potential for confusion in the certification process.

Effective January 2003, Rule 25.2(a)(2) requires the trial judge to certify a defendant’s right of appeal by selecting the appropriate box on the certification form contained in the appendix to the Texas Rules of Appellate Procedure. The choices on the form include the following: not a plea-bargain case and the defendant has the right of appeal; a plea-bargain case in which the defendant has the right of appeal because he satisfied the requirements of Rule 25.2(a)(2)(A) or (a)(2)(B); a plea-bargain case in which the defendant has no right of appeal; or a case in which the defendant waived his right of appeal. In Carroll v. State, the court of appeals explained that the certification form could be modified to allow a plea-bargain defendant on deferred adjudication community supervision to challenge an issue separate from conviction. 119 S.W.3d 838, 841 (Tex. App.-San Antonio 2003, no pet.) (holding that the trial court could modify the form in the event that “a defendant has a limited right to appeal to which Rule 25.2 does not apply.”). Since then, some courts of appeals have followed the holding in Carroll to allow plea-bargain defendants on deferred adjudication to pursue a conditional right of appeal after final adjudication of guilt pursuant to Rule 25.2(a)(2).

In the instant case, Appellant would have to file a brief on the merits to explain the grounds on which he seeks review in order for the trial court to determine whether his claims are unrelated to his conviction and thus immune from the restrictions of Rule 25.2(a)(2). This result would lead to a complex and lengthy certification process because trial courts would have to obtain briefs in every plea-bargain deferred adjudication case that moved to final adjudication in which the defendant claimed to have an appeal unrelated to conviction. The purpose of the certification requirement is to efficiently sort ap-pealable cases from non-appealable cases so that appealable cases can “move through the system unhindered while eliminating, at an early stage, the time and expense associated with non-appealable cases.” Greenwell v. Court of Appeals for the Thirteenth Judicial District, 159 S.W.3d 645, 649 (Tex.Crim.App.2005). Rather than complicating the certification process by maintaining an exception to Rule 25.2(a)(2) for certain appeals from plea-bargain deferred adjudication community supervision cases that have been finally adjudicated, we believe that the better course is to treat the final adjudication hearing as distinct from the underlying plea bargain to the original charge. In holding that a defendant’s underlying plea bargain for deferred adjudication community supervision will no longer trigger the application of Rule 25.2(a)(2)’s restrictions to his appeal of the revocation proceeding, we overrule Watson and eliminate the need for the Vidaurri exception. Now once a defendant who enters into a plea bargain for deferred adjudication community supervision decides not to appeal the order deferring adjudication, the restrictions of Rule 25.2(a)(2) are no longer applicable. After adjudication of guilt, the defendant’s appeal will be restricted only by Article 42.12 § 5(b), which prevents him from appealing the trial court’s decision to adjudicate guilt in the first place.

The State argues that Dears v. State, 154 S.W.3d 610 (Tex.Crim.App.2005), requires an affirmance of the judgment of the lower court because the trial judge’s certification of the case as non-appealable was not defective. In Dears, we clarified that a defective certification included one that was correct in form but contrary to the record. Id. at 614. In that case, we determined that the court of appeals should have obtained a new certification from the trial court because the trial court had inaccurately characterized the cases as plea bargains. We explained that Rule 25.2(a)(2)’s limitations on appeal applied only to plea bargains with regard to guilty pleas and not to pleas of true on revocation motions. Id. at 613. In the instant case, the State posits that the trial court’s certification was not defective because it was supported by the record before the court of appeals. We disagree. Although the trial court did not discover any issue that would be cognizable on appeal, it based its conclusion on the fact that this was a plea-bargain case and “the Court heard the punishment evidence Defendant wished to advance, and the punishment assessed was within the applicable statutory range.” Based on our holding here, the trial judge’s designation of the case as a plea bargain was incorrect because the plea bargain related to the exchange of a guilty plea for deferred adjudication, and not to the subsequent adjudication hearing. There was no second plea bargain with regard to punishment, and even if there had been, Rule 25.2(a)(2) would not apply to restrict appeal because of our holding in Dears. See also Gutierrez v. State, 108 S.W.3d 304, 309-10 (Tex.Crim.App.2003) (“In the context of revocation proceedings, the legislature has not authorized binding plea agreements, has not required the court to inquire into the existence of a plea agreement or admonish the defendant pursuant to [Article] 26.13, and has not provided for withdrawal of a plea after sentencing.”)

Conclusion

In sum, in a plea-bargain case for deferred adjudication community supervision, the plea bargain is complete at the time the defendant enters his plea of guilty in exchange for deferred adjudication community supervision. Rule 25.2(a)(2) will restrict appeal only when the defendant appeals his placement on deferred adjudication community supervision pursuant to the original plea. Under this circumstance, the trial judge certifying the defendant’s right of appeal may designate the case on the certification form as “a plea-bargain case, and the defendant has NO right of appeal.” It is important to note, however, that if the defendant filed written motions that were ruled on before his placement on deferred adjudication community supervision pursuant to Rule 25.2(a)(2)(A), or obtained the permission of the trial court for the appeal of his placement on deferred adjudication community supervision pursuant to Rule 25.2(a)(2)(B), he still has the right of appeal. On the other hand, when the defendant appeals from the proceeding on the motion to adjudicate guilt, Rule 25.2(a)(2) will not restrict appeal, but Article 42.12 § 5(b) will continue to prohibit the appeal of the trial court’s decision to adjudicate guilt. Under this circumstance, the trial judge must check the box on the certification form indicating that the case “is not a plea-bargain case, and the defendant has the right of appeal.” In the instant case, the court of appeals erred in denying Appellant’s general notice of appeal of the trial court’s revocation proceeding solely on the basis of an underlying plea bargain from the original proceeding. The trial judge is instructed to re-certify this case by designating it as “not a plea-bargain case” on the certification form. The court of appeals has jurisdiction to consider Appellant’s appeal, subject to Article 42.12 § 5(b).

JOHNSON, J., filed a concurring opinion.

JOHNSON, J.,

concurring opinion.

Tex.R.App. P. 25.2(a)(2) is intended to reduce the number of baseless appeals and thereby conserve judicial resources. It works quite well for cases in which incarceration or community supervision is assessed at the time of the original plea. The choice of which box to check is usually clear: there was a plea bargain or there wasn’t; there were pretrial motions that were ruled on by the trial court, or there weren’t; the trial court gave permission to appeal, or it didn’t. Thus the availability of appeal is easily decided in the vast majority of cases, and the trial court acts on the basis of adequate information.

However, at the time that a trial court is required to certify whether an appellant is permitted to appeal from proceedings on a motion to adjudicate guilt, it faces a dilemma; a defendant has a limited right to appeal, depending on the issues raised, but the trial court does not know what those issues will be or whether those issues are permitted under Tex.Code Crim. Proc. Art. 42.12, § 5(b).

Just as for revocations of community supervision, the provisions of Tex.R.App. P. 25.2(a)(2) cannot apply; there can be no plea bargain, as no recommendation by the state is binding on a trial court during a revocation or adjudication hearing. Gutierrez v. State, 108 S.W.3d 304 (Tex.Crim. App.2003). The only question is whether the issues that appellant wishes to appeal are permitted by Art. 42.12, § 5(b). In circumstances such as these, the trial court must, of necessity, act without full knowledge, and it does not err by choosing the option that preserves an appellant’s right of appeal.

Here, a certification stating that this is a plea-bargain case and that appellant had no right of appeal is inaccurate both because there was no plea bargain and because appellant does have the limited right to appeal issues “unrelated to his conviction.” This is the latest of many times that this issue has come before this Court, and thus it appears that the rules governing appeal after revocation or adjudication are not well understood. In sum, they are: 1) Tex.R.App. P. 25.2(a)(2) does not apply because a plea bargain at the time of the original pleading is satisfied, or not, at the original pleading and does not carry over to a subsequent revocation or adjudication hearing; 2) defendants granted community supervision may appeal from all aspects of the revocation hearing; and 3) defendants granted deferred adjudication may not appeal the decision by the trial court to adjudicate, but may appeal other matters because, after adjudication, “all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.” Tex.Code Crim. Proo. Art. 42.12, § 5(b).

The legislature created this conundrum when it chose to deny an appeal of the decision to adjudicate. If and until the legislature changes its choice in the matter, only our courts of appeals, knowing what issues were raised on appeal, will, unlike the trial court, have sufficient information to sort through appeals from adjudication hearings and separate permitted appeals from prohibited ones.

I join the opinion of the Court.

      . Unless otherwise indicated, all references to Rules refer to the Texas Rules of Appellate Procedure.

      . Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure.

      . Prior to Dillehey, we had held that a defendant had no right to appeal an order deferring adjudication because former Article 42.12 § 3d(b), now Article 42.12 § 5(b), granted the right to appeal only after final adjudication of guilt. See Ex Parte Hernandez, 705 S.W.2d 700 (Tex.Crim.App.1986); see also McDougal v. State, 610 S.W.2d 509 (Tex.Crim.App.1981) (stating that "if a defendant is dissatisfied with the decision to defer adjudication or with the terms and conditions of the order, his proper remedy is to move for final adjudication.”)

      . See Vidaurri, 49 S.W.3d at 887 (Johnson, J. concurring) ("The reality of plea bargaining in regard to a deferred adjudication is that the bargaining is done at the time the defendant is placed on deferred adjudication. At that time, the plea bargain ... is complete. At an adjudication hearing, unless a second bargain as to punishment is reached, there is no plea agreement, and thus, by its plain language, Rule 25.2[ (a)(2)], which is applicable when 'the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant,’ does not apply.").

      . See Kahookele v. State, 165 S.W.3d 440 (Tex.App.-Austin 2005) (holding that "in appeals governed by Vidaurri and Woods, the trial court cannot know whether the defendant will raise an issue related or unrelated to the conviction until the defendant's brief is filed," and the court did not err by choosing the option on the certification form that preserved the right of appeal.); Franklin v. State, 165 S.W.3d 807 (Tex.App.-Austin 2005, no pet.) (explaining that "[t]he certification should state that there was a plea bargain for deferred adjudication, but following an adjudication of guilt the defendant has the right of appeal as to issues unrelated to the conviction.”); Mobley v. State, No. 07-05-0072-CR, 2005 WL 1277893, 2005 Tex.App. LEXIS 4188 (Tex.App.-Amarillo May 31, 2005, no pet.) (not designated for publication) (abating the appeal and remanding the cause to the trial court with directions to re-certify whether an appellant who is seeking to challenge a post-adjudication issue unrelated to the adjudication of guilt has a limited right of appeal).