Opinion
No. 05-04-01430-CR
Opinion Filed June 6, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-43117-JM. Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
OPINION
Javier Enrique Recinos waived a jury trial and entered a negotiated guilty plea to aggravated assault. Pursuant to the plea bargain agreement, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $2000 fine. Later, the State moved to proceed with adjudication of guilt, alleging eleven violations. At a hearing, appellant pleaded true to five allegations and not true to six allegations. The trial court found all of the allegations true, adjudicated appellant guilty, and sentenced him to fifteen years' confinement. In two issues, appellant contends the trial court erred in sentencing him to the penitentiary and in not allowing him to present punishment evidence. We affirm the trial court's judgment. In his first point of error, appellant argues the trial court erred in sentencing him to the penitentiary because the evidence presented at the original plea hearing showed appellant was guilty of misdemeanor assault. Appellant contends the judicial confession he signed only admitted misdemeanor assault, which is contrary to the indictment. The State responds that this Court lacks jurisdiction to consider appellant's insufficiency claim because appellant did not appeal the original imposition of his sentence. We agree with the State. A defendant placed on deferred adjudication probation may raise issues related to the original plea proceedings only in appeals taken when deferred adjudication probation is first imposed. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999); see also Clark v. State, 997 S.W.2d 365, 368 (Tex.App.-Dallas 1999, no pet.). Although phrased as a punishment complaint, appellant is actually challenging the sufficiency of the evidence to support the guilty plea. We do not have jurisdiction to address appellant's complaint. We dismiss appellant's first issue. In his second issue, appellant argues the trial court violated due process by sentencing him after adjudicating guilt without hearing any punishment evidence. Appellant acknowledges that he did not raise this issue in his motion for new trial, but asks this Court to amend the judgment adjudicating guilt or, in the alternative, reverse the judgment and order a new hearing. The State responds that appellant failed to preserve his complaint because he did not object at trial. We agree with the State. Appellant did not complain about his sentence either at the time it was imposed or in his motion for new trial. See Tex.R.App.P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Thus, appellant has not preserved his complaint for review. We resolve appellant's second issue against him. We affirm the trial court's judgment.