Tamika Renee Johnson v. State of Texas

• Court: Court of Appeals of Texas
• Decided: May 22, 2002
• Docket: 04-00-00644-CR
• Status: Published

Opinion

No. 04-00-00644-CR

Tamika Renee JOHNSON,

Appellant

v.

STATE of Texas,

Appellee

From the 263rd Judicial District Court, Harris County, Texas

Trial Court No. 815037

Honorable Jim Wallace, Judge Presiding

Memorandum Opinion

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: May 22, 2002

DISMISSED IN PART FOR LACK OF JURISDICTION; AFFIRMED

Tamika Renee Johnson entered a plea of guilty to a charge of forgery, and in accordance with a plea agreement, was placed on deferred adjudication for three years. She appeals the revocation of her deferred adjudication and the trial court's imposition of sentence for sixteen months in prison. Because the issues in this appeal involve the application of well-settled principles of law, we dismiss Johnson's appeal in part and overrule her remaining issue in this memorandum opinion. Tex. R. App. P. 47.1. We affirm the conviction for the following reasons:

1. In her first issue, Johnson complains the trial court failed to give her the opportunity to present mitigating evidence at a separate sentencing hearing. Not withstanding the limitations of Tex. R. App. P. 25.2(b)(3), we have jurisdiction to consider an appeal complaining of the process by which a defendant is sentenced following the trial court's decision to adjudicate guilt pursuant to Tex. Code Crim. Pro. Ann. art. 42.12 § 5(b) (Vernon Supp. 2002). Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001). However, because Johnson testified during the revocation proceedings and did not either object at trial to the trial court's pronouncement of sentence or include the issue in her motion for new trial, she waived her first point of error. Tex. R. App. P. 33.1(a); Vidaurri, 49 S.W.3d at 886; Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999). Furthermore, because the record does not show what additional mitigating evidence Johnson might have presented during a punishment hearing, she failed to show that her trial counsel was ineffective in not raising the issue in the motion for new trial. Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex. Crim. App. 1999). Johnson's first issue is overruled.

2. In her second issue, Johnson complains the evidence was insufficient to support the trial court's finding that she violated the conditions of her probation. This point of error challenges the trial court's determination to proceed with an adjudication of guilt. We lack jurisdiction to review the trial court's "determination . . . of whether it proceeds with an adjudication of guilt on the original charge." Tex. Code Crim. Proc. Ann. 42.12, § 5(b) (Vernon Supp. 2002); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). The appeal is dismissed in part for lack of jurisdiction and the judgment of the trial court is affirmed.

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