Opinion issued on June 15, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00490-CR
ELROY TOMPKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 155th District Court
Waller County, Texas
Trial Court Cause No. 99-03-9782
MEMORANDUM OPINION
Appellant, Elroy Tompkins, pleaded guilty to aggravated sexual assault of a child. The trial court found appellant guilty and sentenced him to 10 years of deferred adjudication community supervision. Appellant later violated the conditions of his community supervision, and the trial court sentenced him to 10 years in prison and assessed court costs of $230.25. In four points of error, appellant asserts that the trial court erred in (1) sentencing him for the offense of aggravated sexual assault of a child, a first degree felony offense, after the indictment had been reduced to a second degree felony; (2) allowing him to enter a plea without regard to the due order of pleadings; (3) going forward with the State’s motion to adjudicate guilt without showing that he had received adequate and proper notice; and (4) going forward with the State’s motion to adjudicate guilt when the State showed a lack of due diligence in proceeding with the adjudication of guilt and sentencing after the revocation of his community supervision. We modify the judgment and, as modified, affirm.
Background
Appellant pleaded guilty to the first degree felony offense of aggravated sexual assault of a child. At the hearing on punishment, the State orally agreed to amend the indictment to reduce the charge from a first degree felony to a second degree felony because the complainant was over the age of 14 but under the age of 17 at the time of the offense. Appellant signed a waiver of constitutional rights and stipulated that the acts alleged in the indictment were true. The trial court accepted his plea and reset the case for sentencing after a pre-sentence investigation (“PSI”) was conducted. Following a hearing, the trial court sentenced appellant to 10 years deferred adjudication community supervision.
The State filed its final motion to adjudicate guilt stating that appellant had violated the conditions of his community supervision. In its motion, the State alleged that appellant failed to (1) submit to a polygraph exam, (2) attend sex offender counseling, (3) report to his probation meetings, and (4) complete his community service requirement. Appellant was also charged with being removed from group counseling and testing positive for alcohol and marijuana. Appellant pleaded true to each allegation. Following a hearing, the trial court revoked appellant’s community supervision, sentenced him to 10 years in prison, and assessed court costs of $230.25.
Jurisdiction
In his first point of error, appellant argues that the trial court erred in sentencing him for the offense of aggravated sexual assault of a child, a first degree felony, after the indictment had been amended to reduce the charge to a second degree felony offense. Specifically, he contends that the trial court erred in sentencing him pursuant to the State’s fourth motion to adjudicate guilt because the order of deferred adjudication, and subsequent judgment revoking adjudication of guilt incorrectly listed the degree of appellant’s offense as a first degree felony. Appellant asserts that this jurisdictional error in the underlying sentencing document renders the finding of guilt void. We disagree.
Under article 42.12, section 5(b) of the Code of Criminal Procedure, if a defendant violates a condition of his deferred adjudication community supervision, he 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. No appeal may be taken from this determination.” Tex. Code Crim. Proc. Ann. art 42.12, § 5(b) (Vernon Supp. 2005); Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005). In an appeal from a judgment adjudicating guilt after community supervision has been revoked, this Court only has jurisdiction to consider a claim that, “on its face, relate[s] to the sentence imposed, not to the decision to adjudicate.” Hogans, 176 S.W.3d at 834. Thus, if an appeal only raises a claim of purported error in the adjudication of guilt determination, a court of appeals should dismiss the claim without reaching the merits. See id. Appellant’s claim that he was “not properly found guilty” challenges the underlying determination by the court of whether to adjudicate guilt and not the court’s assessment of punishment. See Hargesheimer v. State, 182 S.W.3d 906, 910 (Tex. Crim. App. 2006). Because he makes no challenges related to the punishment phase of the hearing, we cannot consider the effect of the trial court’s consideration of punishment under the first degree punishment range.
An exception to the general rule that a defendant placed on deferred adjudication community supervision must raise issues relating to the original plea proceeding at the time the punishment is first imposed, is the “void judgment” exception. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001). The “void judgment” exception allows an appellant to raise error regarding his original plea hearing after revocation of probation if the error is one that would render the original judgment void. Id. If an original judgment imposing probation is void, then the trial court has no authority to revoke probation because a void judgment leaves nothing to revoke. Id. at 668. The void judgment exception applies to deferred adjudication probation. Id.
A judgment is rarely void and usually requires a showing of a jurisdictional issue, such as: (1) a constitutional defect in the charging instrument (i.e. indictment, information, or complaint); (2) a lack of subject matter jurisdiction over the offense charged; (3) a record that reflects no evidence to support the conviction; or (4) a denial of counsel for an indigent. Id. (finding this list of jurisdictional issues to be “very nearly” exclusive). Otherwise, a “void conviction” is one in which the court had no jurisdiction over the subject matter of the case or over the accused, or when the trial court lacked qualification to act in any manner. Ex parte McCain, 67 S.W.3d 204, 209 (Tex. Crim. App. 2002).
Here, appellant has failed to allege an error that could render the original judgment of conviction void. He has not asserted that the trial court committed error at his original plea hearing, and he has not demonstrated that there was any jurisdictional issue involved in this case. Although an indictment that does not satisfy the constitutional requisites of a charging instrument qualifies as a jurisdictional defect, appellant has not claimed that the indictment in this case is constitutionally infirm. See Nix, 65 S.W.3d at 668. He is only claiming that errors in the order granting deferred adjudication and the judgment of conviction rendered his conviction void. Appellant was required to appeal this issue at the time the court ordered him placed on deferred adjudication. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). Appellant’s appeal after adjudication and revocation is untimely, and we have no jurisdiction to address this issue.
Accordingly, we overrule appellant’s first point of error.
We do, however, modify the judgment to reflect that appellant was convicted of a second degree felony.
Due Order of Pleadings
In his second point of error, appellant argues that, without regard to the due order of pleadings, the trial court erred in allowing his plea to be made at the hearing on punishment. He contends that, in order for him to have been properly and voluntarily placed on deferred adjudication community supervision, the trial court must have gone through a series of steps to insure appellant was accorded a fair hearing on the matter.
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1). The trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); see also Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Here, appellant did not object at trial that the due order of pleadings had not been followed. Therefore, we conclude that he failed to preserve for our review any complaint that the trial court abused its discretion. Tex. R. App. P. 33.1.
We overrule appellant’s second point of error.
Failure to Receive Proper Notice
In his third point of error, appellant argues that the trial court erred in going forward with the State’s fourth amended motion to adjudicate guilt without a showing that the defendant had received adequate and proper notice of the motion. He contends that, because the record does not reflect that he was duly served with the motion, the adjudication should be rescinded and the matter remanded to the trial court for further proceedings. We disagree.
Appellant never objected to a lack of notice at trial. He had almost four months from the time that the State filed its fourth amended motion to adjudicate guilt to the time of the hearing on the motion to revoke his deferred adjudication community supervision to have filed an objection with the trial court complaining that he had not received adequate notice of the motion. He chose not to object; therefore, his failure to object waives any error. Tex. R. App. P. 33.1(a)(2); see Turner v. State, 805 S.W.2d 423, 431-32 (Tex. Crim. App. 1991). Failure to object can result in the waiver of even constitutional error. Mendez, 138 S.W.3d at 342.
We overrule appellant’s third point of error.
Failure to Show Due Diligence
In his fourth point of error, appellant argues that the trial court erred in allowing the State to proceed with its fourth amended motion to adjudicate guilt because it failed to exercise due diligence in providing appellant with a speedy revocation hearing. We disagree.
The Court of Criminal Appeals has held that, “given the plain meaning of Article 42.12, § 5(b) [of the Code of Criminal Procedure], an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process.” Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). The court then reasoned that, “the due diligence issue ‘is really in the nature of a plea in bar or defense.’” Id. (quoting Harris v. State, 843 S.W.2d 34, 35-36 n.1 (Tex. Crim. App. 1992)). Thus, the trial court’s finding on the issue “was merely a part of its decision to revoke and proceed to judgment,” and was not appealable. Id. Accordingly, we overrule appellant’s fourth point of error.
Conclusion
We modify the judgment revoking adjudication of guilt to reflect that the “Degree of Offense” is a second degree felony and that the “Applicable Punishment Range” be modified to comply with that offense. As modified, we affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Keyes, and Hanks.
Do not publish. Tex. R. App. P. 47.4.