Opinion
No. 05-01-01913-CR
Opinion Filed October 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 401st District Court, Collin County, Texas, Trial Court Cause No. 380-80897-99. AFFIRM
Before Justices MORRIS, O'NEILL, and LANG.
OPINION
Appellant appeals his conviction for aggravated sexual assault of a child. After pleading guilty before the court with no agreement about punishment, the trial court assessed a forty-year sentence. In two points of error, appellant contends (1) his guilty plea was involuntary, and (2) the trial court erred in failing to sua sponte withdraw his guilty plea. For the following reasons, we affirm the trial court's judgment. Appellant pleaded guilty to aggravated sexual assault of a child. At the plea hearing, the trial court verified that appellant understood the range of punishment. The trial court also told appellant he was not eligible for regular probation and explained the risks associated with deferred adjudication probation. Appellant proceeded to enter his guilty plea. The trial court passed the case for a presentence investigation (PSI). At the subsequent sentencing hearing, appellant requested the trial court to place him on deferred adjudication probation. The trial court indicated it had reviewed appellant's PSI that showed appellant had a prior felony conviction from Massachusetts for another sexual-related offense. In declining to grant appellant deferred adjudication probation, the trial court noted appellant had previously been unable to comply with the terms of probation. The trial court ultimately sentenced appellant to forty years in prison. In his first point of error, appellant contends his plea was involuntary because it was entered with the understanding he was eligible for deferred adjudication probation and he was not so eligible. In his second point of error, appellant contends the trial court should have sua sponte withdrawn his plea after evidence was presented that appellant was not eligible for deferred adjudication probation. Both of appellant's points on appeal are premised on his assertion that, contrary to the assumptions of all concerned, he was not in fact eligible for deferred adjudication probation. To show he was not eligible, appellant relies on article 42.12, section 5(d)(2)(B) of the code of criminal procedure which prohibits a defendant who is charged with aggravated sexual assault of a child from receiving deferred adjudication probation if he has previously been placed on community supervision for specified sexual offenses under the Texas Penal Code. See Tex. Pen. Code Ann. § 42.12, § 5(d)(2)(B) (Vernon Supp. 2003). According to appellant, he was not eligible for deferred adjudication probation because his PSI showed he had previously been placed on probation in Massachusetts for "indecent assault and battery on person over 14." However, under the plain terms of article 42.12, section 5(d)(2)(B), only defendants previously placed on community supervision for offenses under the Texas Penal Code are ineligible for deferred adjudication probation. The statute does not apply to sentences assessed under the laws of other states. As the State correctly points out, when the Texas legislature intends for a trial court to use convictions from other states, it does so plainly. See, e.g., Tex. Pen. Code Ann. § 12.42(c)(2)(B)(v) (Vernon 2003); Tex. Code Crim. Proc. Ann. art. 62.01, § 5(J) (Vernon Supp. 2003). Thus, we conclude appellant was eligible for deferred adjudication probation. Because appellant was eligible for deferred adjudication probation, his plea was not involuntary and the trial court did not err in failing to withdraw it. We overrule appellant's two points of error and affirm the trial court's judgment.