James Smith Jr. v. State ( 2011 )

Affirmed and Opinion filed December 20, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-10-00960-CR
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JAMES SMITH, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1147159
OPINION
Appellant pled guilty to assault - family violence. In accordance with the terms of
a plea bargain agreement, the trial judge deferred adjudication of guilt and placed appellant
on community supervision for a period of four years. Subsequently, the State filed a
motion to adjudicate guilt. After a hearing, the trial court found appellant guilty and
assessed punishment at confinement for thirty-five years in the Institutional Division of the
Texas Department of Criminal Justice.
Appellant’s only issue on appeal asserts the trial court erred in sentencing him
outside the range of punishment. Appellant was sentenced as a habitual felony offender.
See Tex. Pen. Code § 12.42(d) (West 2011). Under section 12.42(d), it must be shown the
defendant has previously been finally convicted of two felony offenses, and “the second
previous felony conviction [was] for an offense that occurred subsequent to the first
previous conviction having become final.” Id. Appellant claims that, in his original plea
proceeding, the trial court erred in finding the second enhancement paragraph true because
it refers to the wrong cause number when it references the first previous felony conviction.
Therefore, appellant argues, the State failed to establish the first previous conviction was
final when the offense giving rise to the second previous conviction occurred.
According to the order of deferred adjudication and his brief, appellant entered a
plea of “true” to both enhancement paragraphs. A plea of true constitutes evidence and is
sufficient proof, standing alone, to satisfy the State’s burden of proof on an enhancement
allegation. See Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984).
Furthermore, it is the general rule that a defendant who is placed on deferred
adjudication may only raise issues relating to the original proceeding in an appeal taken
when deferred adjudication probation is first imposed. Manual v. State, 994 S.W.2d 658,
661-62 (Tex.Crim.App.1999). Such issues may not be raised in an appeal from an order
revoking probation and adjudicating guilt. Id. An exception arises when the trial court
had no power to render judgment. See Nix v. State, 65 S.W.3d 664, 668
(Tex.Crim.App.2001) (judgment of conviction is void when (1) the charging instrument
does not satisfy the constitutional requisites of a charging instrument; (2) the trial court
lacks subject matter jurisdiction over the offense charged; (3) the record reflects that there
is no evidence to support the conviction; or (4) an indigent defendant is required to face
trial without appointed counsel). Under the facts of this case, the void judgment exception
does not apply.
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Here, appellant could have appealed from the order placing him on deferred
adjudication which contained the finding of true to the second enhancement paragraph.
Instead, he waited until after his community supervision was revoked and adjudication of
guilt formally made. Thus, he waived his argument. See Manuel, 994 S.W.2d at 661-62.
For these reasons, appellant’s issue is overruled and the judgment of the trial court is
affirmed.
PER CURIAM
Panel consists of Justices Brown, Boyce, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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