Opinion
No. 05-05-00610-CR
Opinion Issued May 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-43071-T. Reversed and Remanded.
Before Justices MORRIS, LANG, and MAZZANT.
MEMORANDUM OPINION
In this case, Robert Sanchez pleaded not guilty to the offense of attempted indecency with a child. The trial court found appellant guilty and passed the case for punishment. The judge later "set aside the finding of guilt," found the evidence was sufficient to prove appellant's guilt, and placed appellant on six years' deferred adjudication community supervision. Appellant and the State have filed a joint motion to reverse the trial court's judgment and remand for a new punishment hearing, asserting that the deferred adjudication order is void. We agree that the order is void. Accordingly, we grant the joint motion, reverse the trial court's judgment, reinstate the finding of guilt, and remand for a new punishment hearing. Article 42.12, section 5 provides that a judge, after receiving a guilty or nolo contendere plea and hearing evidence, and finding that the evidence substantiates a finding a guilt, may defer adjudicating the defendant guilty and place him on community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2004-05). Deferred adjudication community supervision is not available for a defendant who pleads not guilty. See id.; Visosky v. State, 953 S.W.2d 819, 820-21 (Tex.App.-Corpus Christi 1997, no pet.); Rodriguez v. State, 939 S.W.2d 211, 221 (Tex.App.-Austin 1997, no pet.). Although the trial court's docket sheet reflects that the judge withdrew his finding of guilt, nothing in the record reflects that appellant withdrew his not guilty plea and thereafter pleaded guilty or nolo contendere to the offense. See Reeves v. State, 68 S.W.3d 828, 830 (Tex.App.-Eastland 2002, pet. ref'd). In fact, the trial court's order deferring adjudication of guilt recites that appellant pleaded "not guilty" to the offense. Because deferred adjudication is not available for a defendant who pleads not guilty, the trial court's order deferring adjudication of guilt is void. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a); Ex parte Seidel, 39 S.W.3d 221, 225 (Tex.Crim.App. 2001); Visosky, 953 S.W.2d at 821; Rodriguez, 939 S.W.2d at 222. We grant the joint motion to reverse and remand. We reverse the trial court's order deferring adjudication of guilt. We reinstate the finding of guilt and remand for a new punishment hearing.