No. 14-03-00198-CR.
Memorandum Opinion filed March 2, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 182nd District, Harris County, Texas, Trial Court Cause No. 834,305. Dismissed.
Panel consists of Justices EDELMAN, FROST, and GUZMAN.
KEM THOMPSON FROST, Justice.
This is an appeal from appellant's conviction for aggravated assault following an adjudication of guilt after violations of the terms and conditions of appellant's community supervision. As a threshold matter, we must decide whether this court has jurisdiction to hear appellant's claim that the evidence is insufficient to prove two enhancement paragraphs. We have determined that, because the order deferring adjudication of guilt reflects appellant's plea of true to the enhancement paragraphs at that time, this court does not have appellate jurisdiction and, therefore, we dismiss this appeal for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by indictment with the felony offense of aggravated assault for threatening his wife with imminent bodily injury by using and exhibiting a deadly weapon, namely a knife. See TEX. PEN. CODE ANN. §§ 22.01, 22.02 (Vernon 2003 Supp. 2004). The indictment contained two enhancement paragraphs, one for appellant's 1972 felony conviction for robbery and the other for appellant's 1976 felony conviction for burglary. After closing arguments in a bench trial, according to the record, appellant pleaded no contest in open court without an agreed punishment recommendation from the State, and waived a court reporter. The trial court deferred adjudication of guilt and placed appellant on community supervision for ten years and imposed a fine of $500. The order deferring adjudication of guilt reflects that appellant pleaded true to the enhancement paragraphs and that the trial court found them to be true. The State filed a motion to adjudicate guilt in March of 2002, citing several violations of the terms and conditions of appellant's community supervision. At the hearing on the motion, appellant pleaded "true" to all of the State's allegations. The trial court found each of the allegations true. Addressing the enhancement paragraphs, the trial court stated twice that appellant previously had entered pleas of "true" to each of the offenses. Defense counsel requested the trial court find only one of the enhancement paragraphs true to reduce appellant's sentence. On the record, the trial court found the enhancement paragraphs true and assessed punishment at twenty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division. II. ISSUE PRESENTED
In his sole issue, appellant contends the trial court erred in its assessment of punishment at twenty-five years' confinement because the evidence is insufficient to prove the two enhancement allegations. Specifically, appellant argues the record does not contain evidence that he signed a stipulation or pleaded true to the two enhancement paragraphs nor did the State offer a penitentiary packet to prove the two convictions. III. ANALYSIS AND DISCUSSION
Although neither party has raised the issue, we must first determine whether this court has jurisdiction to consider this matter on appeal. A defendant placed on deferred-adjudication community supervision may raise issues relating to the original plea proceeding only in appeals taken when deferred-adjudication community supervision is first imposed. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) (finding no jurisdiction when appellant argued after adjudication of guilt that evidence from original proceeding was insufficient to substantiate his guilt). In Hardeman v. State, on appeal after the adjudication of guilt, the appellant contended, among other things, that the evidence was insufficient to support the trial court's findings on two enhancement paragraphs. See Hardeman v. State, 1 S.W.3d 689, 691 (Tex.Crim.App. 1999). The appellant had stipulated to the two enhancement paragraphs at the time the trial court deferred adjudication. See id. at 690. Citing Manuel v. State, the Texas Court of Criminal Appeals held that the court of appeals was correct in determining it lacked jurisdiction over this claim. See id. at 691. Similarly, in this case, appellant contends the evidence is insufficient to prove the two enhancement paragraphs in the indictment. Both the order deferring adjudication and the trial court's statements at the hearing to adjudicate guilt indicate that appellant pleaded true to the enhancement paragraphs at the time the trial court imposed deferred adjudication. There is no material difference between the facts of this case and those in Hardeman. See Hardeman, 1 S.W.3d at 691. Under Hardeman, this court lacks appellate jurisdiction. Accordingly, we dismiss appellant's appeal for want of jurisdiction.