Sanders v. State , 1983 Tex. App. LEXIS 5495 ( 1983 )

OPINION

COHEN, Justice.

Two cases are before the Court simultaneously in this appeal. Appellant was indicted in cause number 287,393 for the offenses of aggravated rape and aggravated sexual abuse. He pled nolo contendere and was convicted only of the lesser offense of rape, with punishment assessed at seven years incarceration in the Texas Department of Corrections, probated for seven years. In cause number 293,457, appellant was indicted for the offense of aggravated sexual abuse. He pled nolo contendere to the lesser offense of sexual abuse. Punishment was assessed at seven years incarceration in the Department of Corrections, probated for seven years.

The State filed a motion to revoke appellant’s probation in both cases, alleging that he had violated the terms of his probation by committing the criminal offenses of aggravated kidnapping and sexual abuse. After a hearing, the court found that appellant had violated the terms of probation, as alleged in the State’s motion to revoke probation, by committing the crimes of aggravated kidnapping and sexual abuse on or about October 3, 1980, in Harris County, Texas. Appellant was sentenced to serve seven years in the Texas Department of Corrections on each case, to be served concurrently.

In his first ground of error, appellant contends that the trial court abused its discretion by revoking his probation because the evidence was insufficient to show the commission of aggravated kidnapping, as alleged in the motion to revoke probation. We note that appellant contests only the sufficiency of the evidence supporting the trial court’s finding that he committed aggravated kidnapping. He does not contest the sufficiency of the evidence to support the trial court’s finding that he committed the offense of sexual abuse. The State’s motions to revoke probation filed in both cases alleged the commission of both offenses.

We need not consider whether the evidence was sufficient to prove aggravated kidnapping, since there is no challenge to the sufficiency of the evidence that appellant committed sexual abuse. When a motion to revoke probation alleges several violations of probation, the court’s order revoking probation will be affirmed if the proof on any allegation is sufficient. Moore v. State, 605 S.W.2d 924 (Tex.Cr.App.1980); Jones v. State, 571 S.W.2d 191 (Tex.Cr.App.1978). Consequently, even if the evidence were insufficient to prove an aggravated kidnapping, the error would be harmless. Ground of error number one is overruled.

In ground of error number two, appellant argues that the district court abused its discretion in revoking his probation in cause number 293,497 because there is no evidence that appellant committed the offense of “sexual abuse of a child” as recited in the judgment and sentence. This is not a challenge to the sufficiency of the evidence produced by the State at the hearing on the Motion to Revoke Probation. Rather, it is a challenge to the evidence to support a conviction upon appellant’s original plea of no contest to the underlying offense of sexual abuse in cause number 293,457. Appellant argues that there is no evidence in the record that the complainant on the underlying offense was younger than seventeen years of age, as required by Tex.Penal Code Ann. § 21.10.

This complaint comes too late. Failure to appeal from a conviction resulting in probation waives the right to appeal. Errors in the underlying conviction may not later be raised in an appeal from the order revoking the probation. Tex.Code Crim. Pro.Ann. art. 42.12, § 8(b); Hoskins v. State, 425 S.W.2d 825 (Tex.Cr.App.1968); Norris v. State, 630 S.W.2d 362 (Tex.App.—Houston [1st Dist.] 1982). Appellant acknowledges this in his brief. However, he argues that the alleged error should be reviewed in the interest of justice, “because there is no evidence to support an essential element of the judgment and sentence.” He relies on Gonzalez v. State, 588 S.W.2d 574, 575 (Tex.Cr.App.1979); and Barbee v. State, 432 S.W.2d 78 (Tex.Cr.App.1968). These cases are distinguishable. Neither was a collateral attack made upon the original conviction after the probation was revoked. Neither was an appeal from a revocation of probation. Both were direct appeals from judgments ordering incarceration in the Department of Corrections.

We further note that there is no such thing as an “essential element of the judgment and sentence.” The word “element” is a term of art pertaining to the definition of an offense. Tex.Penal Code Ann. § 1.07(a)(13).

We further note that appellant was indicted in cause number 293,457 for the offense of aggravated sexual abuse under Tex. Penal Code Ann. § 21.05, and not sexual abuse of a child, under § 21.10. This was reduced to the lesser included offense of sexual abuse, pursuant to Tex.Penal Code Ann. § 21.04. Appellant judicially confessed to the offense of sexual abuse and pled nolo contendere to it. The mistake in naming the offense in the judgment may be reformed. Tex.Code Crim.Pro.Ann. art. 44.24(b). We hereby reform the judgment in cause number 293,457, the order revoking probation, and the sentence to reflect that appellant was convicted of the crime of sexual abuse and not “sexual abuse of a child.” Cleland v. State, 572 S.W.2d 673, 676 (Tex.Cr.App.1978). Ground of error number two is overruled.

Appellant has'filed a pro se brief in this case. We refuse to consider it. In Texas there is no right to hybrid representation. Landers v. State, 550 S.W.2d 272, 278 (Tex.Cr.App.1977).

The judgment of the district court in cause number 293,457 is affirmed as herein-above reformed, and the judgment in cause number 287,393 is affirmed.