Opinion
No. 05-02-01513-CR
Opinion Filed August 19, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-81151-00. DISMISS
Before Justices MORRIS, WRIGHT, and MOSELEY.
OPINION
Michael Shawn Sargent entered a nonnegotiated guilty plea to aggravated sexual assault. The trial court deferred adjudicating appellant's guilt, placed him on ten years' community supervision, and required him to serve 180 days' confinement as a condition of community supervision. Subsequently, the State moved to proceed with adjudication of appellant's guilt, alleging he had violated multiple conditions of community supervision. Appellant entered a plea of true to each of the State's allegations. The trial court adjudicated appellant guilty, revoked his community supervision, and assessed punishment at thirty-five years confinement. In his sole point of error, appellant contends the trial judge who adjudicated guilt lacked subject matter jurisdiction and personal jurisdiction over his case. We dismiss the appeal for want of jurisdiction. Appellant was placed on deferred adjudication community supervision by the Honorable Charles Sandoval, presiding judge of the 380th Judicial District Court. The Honorable Mark Rusch, presiding judge of the 401st Judicial District Court, adjudicated appellant guilty. Because there is no order in the record transferring appellant's case from the 380th Judicial District Court to the 401st Judicial District Court, appellant contends the adjudication order and resulting sentence are void. Before hearing appellant's case, Judge Rusch announced, "In this next matter [the adjudication hearing], we're going to be sitting for the 380th District Court." Judge Rusch explained to appellant that he had a right to wait and have Judge Sandoval hear his case. Appellant chose to have Judge Rusch preside over the adjudication hearing. In signing the written approval of appellant's waiver of rights, Judge Rusch signed the document as "Judge for the 401 Judicial District Court, Sitting for the 380 Judicial District Court." The final judgment adjudicating appellant's guilt is signed by Judge Sandoval. Appellant concedes that district court judges in the same county have the power to exchange benches and sit for one another. See Tex. Gov't Code Ann. § 24.303(a) (Vernon 1988). Nevertheless, appellant contends the community supervision statute provides that only the court in which the defendant was tried may revoke community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 5, 10(a) (Vernon Supp. 2003). Appellant argues that the government code and community supervision statute conflict and, as the specific statute governing deferred adjudication, the community supervision statute should prevail. The State responds, in part, that there is no conflict because appellant's community supervision was revoked in the 380th Judicial District Court. 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). Notwithstanding the fact that appellant couches his point of error as a challenge to the trial court's jurisdiction, appellant actually challenges the trial court's determination to proceed with adjudication of guilt. Therefore, we conclude we have no jurisdiction to consider appellant's appeal. We dismiss the appeal for want of jurisdiction.
Moreover, if we could decide this appeal on the merits, the record clearly shows appellant was adjudicated guilty by the 380th Judicial District Court. See Davis v. State, 956 S.W.2d 555, 557-58 (Tex.Crim.App. 1997) (explaining jurisdiction is vested in court rather than in judge who acts for the court). Therefore, we would resolve appellant's point against him.