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modifying judgment to delete finding that appellant had violated community supervision on ground that had been abandoned by State at adjudication hearing
Summary of this case from Lumpkins v. StateOpinion
No. 05-07-01004-CR
Opinion Filed March 26, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-60270-WT.
Before Chief Justice THOMAS and Justices WRIGHT and FRANCIS.
OPINION
Charles Johnson, II waived a jury and pleaded guilty to sexual assault. See Tex. Pen. Code Ann. § 22.011 (Vernon Supp. 2007). The trial court deferred adjudicating appellant's guilt, placed him on five years' community supervision, and assessed a $2000 fine. The State later moved to adjudicate guilt, alleging appellant violated several conditions of his community supervision. The trial court granted the State's motion, adjudicated appellant guilty, and assessed punishment at ten years' imprisonment. In three points of error, appellant contends his plea of true was involuntary, the trial court abused its discretion in accepting his plea of true, and the judgment should be modified. We affirm the trial court's judgment as modified. In his first two points of error, appellant argues his plea of true to allegations he violated the conditions of his deferred community supervision were involuntary, and the trial court abused its discretion in accepting his plea of true. The State responds that this Court does not have jurisdiction to address appellant's complaints and, alternatively, appellant's plea of true was not involuntary. We agree we have no jurisdiction over the issues. Appellant's complaints challenge the trial court's decision to adjudicate guilt, which is not permitted. See Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). Accordingly, we dismiss appellant's first and second points of error. In his third point of error, appellant asserts the trial court's judgment should be modified to reflect the conditions of deferred community supervision he was found to have violated. The State agrees the trial court's judgment should be modified to reflect the State abandoned the first allegation and the trial court found the remaining allegations true. In its motion to proceed with adjudication of guilt, the State alleged appellant violated conditions (a), (g), (j), (l), and (p) of his community supervision. During the adjudication hearing, the State abandoned the allegation regarding condition (a). The trial court granted that request, heard testimony, and found that appellant violated conditions (g), (j), (l), and (p). The trial court's judgment recites appellant violated the terms and conditions of community supervision as set out in the motion to adjudicate guilt, which included condition (a). Thus, the judgment is incorrect. We sustain appellant's third point of error. We modify the trial court's judgment to reflect the conditions of community supervision appellant was found to have violated were conditions (g), (j), (l), and (p). See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.
Prior to June 15, 2007, no appeal could be taken from the trial court's determination to adjudicate guilt. See Act of May 7, 1975, 64th Leg., R.S., ch. 231, § 1, 1975 Tex. Gen. Laws 572, 572-73, amended by Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397 (intervening amendments not included). Complaints could be raised regarding issues unrelated to the adjudication of guilt. See Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App. 2006). Effective June 15, 2007, article 42.12, section 5(b) was amended to provide for appellate review of the decision to adjudicate guilt in the same manner as the revocation of regular community supervision under article 42.12, section 21. See Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Gen. Laws 4395, 4397. Appellant was adjudicated guilty before the effective date of the amendment; therefore, the amendment to article 42.12, section 5(b) does not apply to his appeal. See Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 53, 2007 Tex. Gen. Laws 4395, 4413.