Benjamin P. Johnson v. State ( 2004 )

NO. 07-04-0114-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
OCTOBER 12, 2004
______________________________
BENJAMIN P. JOHNSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2000-433,250; HON. CECIL G. PURYEAR, PRESIDING
_______________________________
Before QUINN, REAVIS, and CAMPBELL, JJ.
Benjamin P. Johnson (appellant) appeals from a judgment adjudicating him guilty
of aggravated sexual assault. Via two issues, he contends that 1) the State “failed to prove
that the person in court was the person who engaged in the conduct alleged in the Third
Amended Motion to Proceed with Adjudication of Guilt and was the same person placed
on deferred adjudication” and 2) the trial court erred in admitting “Hearsay Evidence” in
finding that appellant had violated his probation. We dismiss for lack of jurisdiction.
Appellant originally pled guilty to the indictment charging him with aggravated sexual
assault. The trial court deferred the adjudication of his guilt for the crime and instead
placed him on community supervision for ten years. Subsequently, the State moved to
adjudicate his guilt. The trial court granted the motion, adjudicated appellant guilty of the
assault, and assessed a sentence of 25 years in prison.
In questioning whether the State presented sufficient evidence illustrating that
appellant 1) was the person whose adjudication of guilt was originally deferred and 2)
violated the terms of his community supervision, appellant implicitly attacks the decision
to adjudicate his guilt. This is so because whether the trial court had before it the right
defendant and whether that defendant did something to warrant the denial of further
community supervision are clearly part of the court’s decision to proceed with an
adjudication of that person’s guilt. And, because we have no jurisdiction over appeals
involving the “determination by the [trial] court of whether it proceeds with an adjudication
of guilt on the original charge,” TEX . CODE CRIM . PROC . ANN . art. 42.12, §5(b) (Vernon
Supp. 2004-2005), and that has been construed to mean error arising “in the adjudication
of guilt process, Connolly v. State, 983 S.W.2d 738 (Tex. Crim. App. 1999), we must
dismiss the appeal. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Drew v.
State, 942 S.W.2d 98, 99 (Tex. App.--Amarillo 1997, no pet.).
Accordingly, the appeal is dismissed for want of jurisdiction.
Brian Quinn
Justice
Publish.
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