Opinion
No. 05-02-00263-CR.
Opinion Filed February 27, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F99-50573-VL. AFFIRMED as MODIFIED.
Before Justices MORRIS, WHITTINGTON, and FRANCIS.
OPINION
Juan Jerome McHenry waived a jury trial and entered an open plea of guilty to unlawful possession of cocaine in an amount of one gram or more but less than four grams. See Tex. Health Safety Code Ann. §§ 481.102, 481.115(a), (c) (Vernon Supp. 2003). After finding the enhancement paragraph true, the trial court deferred adjudication of guilt, placed appellant on probation for ten years, and assessed a $300 fine. Subsequently, the trial court granted the State's motion to proceed with an adjudication of guilt, found appellant guilty, and sentenced him to fifteen years confinement in the penitentiary. In three points of error, appellant contends the trial court lacked jurisdiction to hear the case and render judgment, the evidence is legally insufficient to support his guilty plea, and the trial court erred by including a fine in the judgment. We conclude the first point is without merit, we dismiss the second point of error, and sustain appellant's third point of error. In his first point, appellant argues the trial court never acquired jurisdiction to hear the case or render judgment because there was no order transferring the case from the 292nd Judicial District Court to Criminal District Court No. 5. In particular, he complains the indictments were returned to the 292nd Judicial District Court, yet the cases were tried in Criminal District Court No. 5. Appellant contends that because there is no order transferring the cases to Criminal District Court No. 5, the trial court did not have jurisdiction. The State argues appellant failed to make a timely plea to the trial court's jurisdiction and has forfeited his complaint. We agree with the State. Appellant did not file a plea to the trial court's jurisdiction or in any way complain to the trial court about the lack of a transfer order. Consequently, appellant's complaint concerning this issue, raised for the first time on appeal, is untimely. See Sharkey v. State, 994 S.W.2d 417, 419 (Tex.App.-Texarkana 1999, no pet.). Even if appellant had not waived his complaint, reversal would not be required. The records do not establish that appellant's case was ever filed in the 292nd Judicial District Court. Rather, that court presided over the grand jury that indicted appellant. The docket sheet shows that this case was originally assigned to Criminal District Court No. 5. Accordingly, we conclude this complaint is without merit. In his second point, appellant argues the evidence is legally insufficient to support his plea of guilty because documents purporting to be judicial confessions were not admitted into evidence. The State responds appellant waived his complaint because he did not appeal this issue at the time he was placed on deferred adjudication. We again agree with the State. A defendant granted deferred adjudication may raise issues relating to the original plea proceeding only in appeals taken when the order granting deferred adjudication is first imposed, not after adjudication. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). Thus, we do not have jurisdiction to address appellant's complaint. We dismiss this point of error. In his third and final point, appellant argues the trial court's judgment should be modified to delete a fine that was not orally pronounced upon adjudication of guilt. The State agrees the fine was not pronounced upon adjudication of guilt and should be deleted. Unlike revocation of regular probation, when a defendant's deferred adjudication probation is revoked, "all proceedings" continue as if the adjudication of guilt had not been deferred. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2003). In appellant's case, the trial court's judgment adjudicating guilt expressly set aside the underlying deferred adjudication order and declared it to be of no further force and effect. See Abron v. State, 997 S.W.2d 281, 282 (Tex.App.-Dallas 1998, pet. ref'd). Thus, there is no longer a fine to carry forward. Appellant is entitled to have his sentence, including the assessment of any fines, pronounced in his presence. See Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Vernon Supp. 2003); Abron, 997 S.W.2d at 282. When there is a variation between the oral pronouncement of the sentence and the written memorialization of the sentence, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim. App. 1998). Thus, the judgment incorrectly includes a $300 fine. We sustain appellant's third point of error. Accordingly, we modify the trial court's judgment to delete the fine. 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.