Opinion
No. 05-02-00634-CR.
Opinion Issued February 28, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F97-75820-PR. AFFIRMED.
OPINION
Gene Montrell Dancer appeals his conviction for aggravated assault. Pursuant to a plea agreement, appellant pleaded guilty, the trial court deferred adjudicating appellant's guilt and placed him on ten years' community supervision and assessed a $300 fine. Subsequently, on November 6, 2000, the State filed a motion to proceed with adjudication of guilt. After appellant's plea of true and a hearing, the trial court found the State's allegations true and continued the cause for sentencing. Later, however, the trial court granted the State's request to withdraw its November 6, 2000 motion to adjudicate. On March 19, 2002, the State filed another motion to adjudicate. After hearing testimony from appellant, the court accepted appellant's plea of true to the allegations in the State's motion to adjudicate, found the allegations true, adjudicated appellant guilty, and assessed punishment at five years' confinement. In his first issue, appellant complains the trial court illegally sentenced him because (1) there was no motion to adjudicate pending at the time of the sentencing hearing and (2) no evidence was presented by the State to support the allegations in the March 19, 2000 motion to adjudicate. Appellant's complaints concern the trial court's determination to proceed with adjudication of guilt. Such a challenge is not permitted. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2003); see also Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). We dismiss appellant's first issue for lack of jurisdiction. In his second issue, appellant requests the judgment be reformed to reflect his probation was revoked based on the State's November 6, 2000 motion to adjudicate guilt that had earlier been withdrawn. The record reflects the State filed a second motion to proceed with adjudication of guilt on March 19, 2002. The November 6, 2000 motion to adjudicate alleged that appellant had violated conditions (h), (j), and (n) of the terms of his probation. The March 19, 2002 motion alleged that appellant had violated conditions (a), (d), (h), and (j) of the terms of his probation. On April 17, 2002, the trial court held a hearing on the second motion to adjudicate. Not only did appellant plead true to the allegations contained in the March 19, 2002 motion, he testified he failed to return to jail as required (condition a) as alleged in paragraph (1) and he failed to report to his probation officer (condition d) as alleged in paragraph (2). The record reflects the evidence supports the judgment which reflects it was based on the grounds set forth in the State's March 19, 2002 motion. We decline to accept appellant's invitation to reform the judgment to reflect that it was based on the withdrawn November 6, 2000 motion to adjudicate We resolve appellant's second issue against him. Appellant's first issue is dismissed for lack of jurisdiction. The judgment of the trial court is affirmed.