COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-147-CR
NO. 2-09-148-CR
VICTOR JONES APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
------------
MEMORANDUM OPINION 1
------------
I. INTRODUCTION
Appellant Victor Jones appeals from the trial court’s order revoking his
deferred adjudication community supervision and adjudicating him guilty of
aggravated assault. In two issues, Jones argues that the evidence is legally and
factually insufficient to sustain his conviction. It is not clear whether Jones is
challenging the sufficiency of the evidence to support his underlying aggravated
1
See Tex. R. App. P. 47.4.
assault conviction or to support his the revocation of his community supervision, and
in the interest of justice, we will construe his issues as raising both contentions. W e
will affirm.
II. P ROCEDURAL B ACKGROUND
Jones pleaded guilty to aggravated assault pursuant to a plea agreement. On
January 11, 2008, the trial court placed him on ten years’ deferred adjudication
community supervision and imposed a $500 fine. The State filed a motion to
proceed with an adjudication of guilt on October 21, 2008, and filed an amended
motion on January 12, 2009, both alleging that Jones had violated multiple
conditions of his community supervision. At the adjudication hearing, Jones initially
pleaded “Not True” to the alleged violations of his community supervision conditions,
and the State called several witnesses to testify regarding those allegations. The
hearing continued on a later date, at which time Jones withdrew his plea and entered
a plea of “True.” Jones testified and attempted to explain some of his violations.
The trial court found the allegations true, adjudicated Jones guilty, sentenced him
to thirteen years’ confinement, and imposed a $500 fine.
III. N O J URISDICTION O VER ISSUES C HALLENGING
U NDERLYING C ONVICTION
W hen, as here, a defendant is placed on deferred adjudication community
supervision, the trial court’s determination to proceed with an adjudication of guilt on
the original charge is reviewable under the same standard applied to a trial court’s
2
decision to revoke community supervision. Tex. Code Crim. Proc. Ann. art. 42.12,
§ 5(b) (Vernon 2009). In other words, a defendant placed on deferred adjudication
community supervision may raise issues relating to the original plea proceeding,
such as evidentiary sufficiency, only in appeals taken when deferred adjudication
community supervision is first imposed. See Manuel v. State, 994 S.W .2d 658, 661
(Tex. Crim. App. 1999) (setting forth standard applied to trial court’s decision to
revoke community supervision); Pizana v. State, No. 04-08-00535-CR, 2009 W L
700661, at *1–2 (Tex. App.—San Antonio Mar. 18, 2009, no pet.) (applying Manuel
in appeal of trial court’s judgment adjudicating defendant’s guilt).
In this case, Jones’s appeal was filed well over thirty days after the original
plea proceeding; therefore, to the extent that he complains of his underlying
conviction, his appeal is not timely. See Tex. R. App. P. 26.2(a) (providing notice of
appeal must be filed within thirty days of sentencing or ninety days if motion for new
trial filed). 2 W e lack jurisdiction over Jones’s two issues to the extent that he
2
The void judgment rule is an exception to the general rule that complaints
about the original plea proceeding must be raised on appeal when deferred
adjudication is first imposed. See Nix v. State, 65 S.W .3d 664, 667–68 (Tex. Crim.
App. 2001) (noting that exception applies in very rare situations). For the exception
to apply, the record must reflect a complete lack of evidence to support the
conviction, not merely insufficient evidence. Id. at 668 n.14. The void judgment
exception does not apply to Jones’s appeal because he does not contend—and the
record does not reflect—that no evidence supports his conviction. See id.; Pizana,
2009 W L 700661, at *2 (holding that void judgment exception did not apply because
defendant’s guilty plea to underlying charge was some evidence to support her
conviction).
3
attempts to challenge the sufficiency of the evidence regarding his underlying
conviction.
IV. S UFFICIENCY OF E VIDENCE AT ADJUDICATION H EARING
W e apply an abuse of discretion standard to a trial court’s judgment revoking
community supervision imposed under an order of deferred adjudication. Rickels v.
State, 202 S.W .3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W .2d
492, 493 (Tex. Crim. App. 1984). The State must prove by a preponderance of the
evidence that a condition of community supervision was violated. Rickels, 202
S.W .3d at 763 (citing Cardona, 665 S.W .2d at 493). A plea of true to even one of
the State’s allegations is sufficient to support a revocation of deferred adjudication
community supervision. See Watts v. State, 645 S.W .2d 461, 463 (Tex. Crim. App.
1983).
Here, Jones’s pleas of true support the trial court’s decision to adjudicate.
See id. Additionally, his own testimony admitting to violations of his community
supervision conditions supports the trial court’s decision. Consequently, the trial
court did not abuse its discretion by revoking Jones’s community supervision. See
Rickels, 202 S.W .3d at 763. To the extent that Jones challenges the sufficiency of
the evidence at the adjudication proceeding, we overrule Jones’s two issues.
V. C ONCLUSION
Having determined that we lack jurisdiction to consider Jones’s two issues to
the extent that he attempts to challenge the sufficiency of the evidence regarding the
4
original plea proceeding, we dismiss those parts of his two issues for want of
jurisdiction. Having overruled Jones’s two issues to the extent that he challenges
the sufficiency of the evidence regarding the adjudication proceeding, we affirm the
trial court’s judgment.
PER CURIAM
PANEL: W ALKER, LIVINGSTON, and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 11, 2010
5