Opinion
No. 05-02-00233-CR
Opinion Filed May 28, 2003 Do Not Publish
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-46797-SN. AFFIRM as MODIFIED
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
OPINION
Tracy Edward Wright appeals the trial court's judgment adjudicating his guilt for the offense of aggravated assault. In two points of error, appellant contends the trial court's judgment is void because the underlying order placing him on deferred adjudication probation was void and the trial court entered an untimely deadly weapon finding in the judgment adjudicating guilt. After modifying the judgment to delete the deadly weapon finding, we affirm. The indictment alleged appellant struck his wife, Tabitha Wright, with a baseball bat and used and exhibited the baseball bat and a knife. Before trial, on July 20, 2000, appellant entered a not guilty plea. During the trial, two police officers testified Tabitha told them appellant had beaten her, held a knife to her throat, and hit her in the shoulder with a baseball bat. After the State rested, Tabitha was called as a defense witness to testify appellant had beaten her, but he had not used any weapons. Tabitha testified she lied to the police about the weapons so they would take appellant to jail for the night. After hearing the conflicting testimony, the trial court asked appellant and Tabitha to approach the bench. While lecturing appellant about his conduct, the trial judge first said he believed Tabitha testified truthfully but that he did not have enough evidence to find appellant guilty beyond a reasonable doubt. Subsequently, the trial judge indicated he believed "hardly anything" of Tabitha's testimony and stated she "ought to be charged with turning in a false report to the Police Department." The trial court found "the evidence is sufficient for a finding of guilty," but deferred adjudicating appellant's guilt and placed him on probation for ten years. The trial court did not make any express oral ruling on the deadly weapon issue. The deferred adjudication order recites "no finding" regarding use of a deadly weapon. Appellant did not appeal the trial court's July 21, 2000 deferred adjudication order. In 2002, the State moved to proceed with adjudication of appellant's guilt on grounds he assaulted Tabitha on September 1, 2001 by choking her and he had been convicted of another family violence assault in municipal court on July 23, 2001. After hearing the evidence, the trial court adjudicated appellant guilty, revoked his community supervision, and assessed punishment at five years confinement. In his first point of error, appellant contends his conviction should be reversed because the trial court improperly placed him on deferred adjudication community supervision even though he entered a plea of not guilty. Because a defendant pleading not guilty is ineligible for deferred adjudication, appellant contends the underlying deferred adjudication order-and the subsequent judgment adjudicating guilt-are void. A defendant who violates the terms of deferred adjudication community supervision is "entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination." Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2003); Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999). Any complaints a defendant might have about the order deferring adjudication of guilt must be raised in an appeal from that order. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). As a limited exception to this general rule, however, appellant may raise in an appeal after adjudication the issue of whether the trial court's judgment is void for want of jurisdiction. Nix v. State, 65 S.W.3d 664, 667-68 (Tex.Crim.App. 2001). A trial judge may grant deferred adjudication only in cases where the defendant enters a plea of guilty or nolo contendere. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2003). Because he received an unauthorized probation after pleading not guilty, appellant contends the void judgment exception applies to this appeal. The State agrees appellant should not have received community supervision, but denies the improper grant of community supervision creates a void judgment subject to the Nix exception. We agree with the State. See Ex parte Williams, 65 S.W.3d 656, 658 (Tex.Crim.App. 2001) (concluding grant of unauthorized regular community supervision does not constitute a void sentence). We overrule appellant's first point of error. In his second point of error, appellant challenges the deadly weapon finding in the trial court's judgment adjudicating guilt. Appellant points out that the trial judge who presided over the trial did not make a deadly weapon finding. Appellant questions whether a different trial judge who adjudicated appellant guilty, but who heard no evidence regarding use of a deadly weapon, could enter such a finding in the judgment adjudicating guilt. The State concedes appellant's point. A trial judge, acting as trier of fact in the punishment phase of trial, is authorized to make an affirmative deadly weapon finding if he has heard evidence on the deadly weapon issue and the trier of fact in the guilt-innocence phase of trial did not decide the matter. See Fann v. State, 702 S.W.2d 602, 604 (Tex.Crim.App. 1986) (op. on reh'g). In the present case, however, the judge presiding over the adjudication hearing did not hear evidence and, therefore, was not empowered to make a finding. See id. We sustain appellant's second point of error. We have the authority to modify incorrect judgments when the necessary information is available to do so. 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 (Tex.App.-Dallas 1991, pet. ref'd). We modify the trial court's judgment adjudicating guilt to delete the affirmative finding of use or exhibition of a deadly weapon. Tex.R.App.P. 43.2(b); Asberry, 813 S.W.2d at 529. As modified, the trial court's judgment is affirmed.