GERNARD JACKSON v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

GERNARD JACKSON, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-09-00650-CR

Decided: January 27, 2010

Before Justices FitzGerald, Murphy, and Myers

OPINION

Opinion By Justice Myers

Gernard Jackson appeals following the adjudication of his guilt for aggravated sexual assault.   In three issues, he argues the original order placing him on deferred adjudication probation was void, that he was improperly denied a punishment hearing, and that the judgment erroneously reflects a plea of true to the motion to proceed to an adjudication of guilt.   As modified, we affirm the trial court's judgment.

Background

According to the record, appellant pleaded guilty, pursuant to a negotiated plea agreement, to the offense of aggravated sexual assault.   See Tex. Penal Code Ann. § 22.021 (Vernon Supp.2009).   On May 19, 2006, in accordance with the plea agreement, the trial court deferred an adjudication of guilt and placed appellant on deferred adjudication community supervision for a term of three years.   The court also imposed a $250 fine and made a deadly weapon finding.   The State subsequently filed a motion to proceed with an adjudication of guilt, alleging appellant violated four conditions of his probation.   At the January 9, 2009 hearing on the State's motion, appellant pleaded true to violating conditions (g) and (j) and not true to conditions (l) and (m).  The trial court found appellant's plea of true was freely and voluntarily made and found the allegations true.   After hearing the evidence, the trial court found that appellant violated the terms and conditions of his community supervision, adjudicated his guilt, and sentenced him to thirteen years in prison.   The court also made a deadly weapon finding.

Discussion

In his first issue, appellant argues that the trial court's original order of deferred adjudication community supervision is illegal and void because the three year sentence was outside the statutory punishment range.

The Texas Code of Criminal Procedure provides that, subject to certain limitations, the trial court may, “after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision.”  Tex.Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp.2009).   Under this provision, however, the period of community supervision cannot be less than five years for a defendant charged with a violation of sections 21.11, 22.011, or 22.021 of the penal code.  Id.

A defendant who violates the terms of deferred adjudication community supervision “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.”   Id. § 5(b).  While the defendant can appeal this determination, any complaints regarding the order deferring adjudication must be raised in an appeal from that order.  Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.1999).   As a limited exception to this rule, a defendant may raise in an appeal after adjudication the issue of whether the trial court's judgment is void for want of jurisdiction.  Nix v. State, 65 S.W.3d 664, 667-68 (Tex.Crim.App.2001).

Appellant was charged in this case with aggravated sexual assault under section 22.021 of the penal code.   The minimum term of deferred adjudication community supervision allowable by law for this offense was five years.   See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(a).   As a result, the three year term of deferred adjudication community supervision assessed by the trial court in this case fell below the applicable statutory range.   See id.   But contrary to appellant's argument, this does not render the order placing him on deferred adjudication void and it does not require reversal of his conviction.

A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and illegal.   See Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App.2003).   However, community supervision is not a sentence or even part of a sentence.   Ex parte Williams, 65 S.W.3d 656, 657 (Tex.Crim.App.2001) (concluding that unauthorized grant of community supervision did not constitute a void sentence);  Speth v. State, 6 S.W.3d 530, 532-33 (Tex.Crim.App.1999) (defining community supervision as “an arrangement in lieu of the sentence, not as part of the sentence”);  State v. Ramirez, 62 S.W.3d 356, 358 (Tex.App.-Corpus Christi 2001, no pet.)   (“Williams and Speth leave no doubt that a trial court's order granting probation is not a sentence”).   Therefore, the unauthorized term of deferred adjudication community supervision assessed in this case is not an illegal or void sentence subject to the Nix exception.   See Williams, 65 S.W.3d at 657-68;  Wright v. State, No. 05-02-00233-CR, 2003 WL 21223294, at *2 (Tex.App.-Dallas May 28, 2003, no pet.).   Appellant should have brought his complaint concerning the order deferring adjudication in an appeal from that order.   See Manuel, 994 S.W.2d at 661-62.   We overrule appellant's first issue.

In his second issue, appellant argues, citing Issa v. State, 826 S.W.2d 159 (Tex.Crim.App.1992), that the trial court erred in not holding a punishment hearing after finding he violated his deferred adjudication probation.

A defendant adjudicated guilty is entitled to a separate punishment hearing, but it is a statutory right that can be waived.  Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App.2001);  Issa, 826 S.W.2d at 161.   A defendant preserves alleged error regarding the denial of a separate punishment hearing by objecting at the time of the denial, or in the absence of an opportunity to object, by filing a motion for new trial.  Vidaurri, 49 S.W.3d at 886;  Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App.1999);  Issa, 826 S.W.2d at 161.   At the very least, the defendant must bring the issue to the trial court's attention to preserve error.   See Vidaurri, 49 S.W.3d at 885-86;  Issa, 826 S.W.2d at 161.   The lack of a punishment hearing is not an issue that can be raised for the first time on appeal.  Lopez v. State, 96 S.W.2d 406, 414 (Tex.App.-Austin 2002, pet. ref'd);  Christian v. State, 870 S.W.2d 86, 88 (Tex.App.-Dallas 1993, no pet.).

In this case, appellant neither requested a separate punishment hearing nor complained about the lack of a such a hearing either at the time sentence was imposed or in his motion for new trial.   See Tex.R.App. P. 33.1(a)(1);  Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.) (for error to be preserved for appellate review, the record must show appellant made a timely request, objection, or motion).   Accordingly, appellant failed to preserve his complaint for appellate review.   We overrule appellant's second issue.

In his third issue, appellant asks us to modify the judgment to reflect his plea of true to violating conditions (g) and (j) of his probation and his plea of not true to conditions (l) and (m).  The State agrees the judgment should be modified to accurately reflect appellant's pleas.

In this case, the record shows that appellant pleaded true to violating conditions (g) and (j) of his probation and not true to conditions (l) and (m), but the trial court's written judgment states that he pleaded true to the State's motion to adjudicate.   Therefore, because we have the necessary information to do so, we modify the judgment in this case to reflect that appellant pleaded true to conditions (g) and (j) and not true to conditions (l) and (m).  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.

LANA MYERS JUSTICE

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