Affirmed and Opinion filed December 20, 2011.

In The

Fourteenth Court of Appeals 

___________________

NO. 14-10-00960-CR

___________________

JAMES SMITH, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 1147159

O P I N I O N

Appellant pled guilty to assault - family violence. In accordance with the terms of 

a plea bargain agreement, the trial judge deferred adjudication of guilt and placed appellant 

on community supervision for a period of four years. Subsequently, the State filed a 

motion to adjudicate guilt. After a hearing, the trial court found appellant guilty and 

assessed punishment at confinement for thirty-five years in the Institutional Division of the 

Texas Department of Criminal Justice.

Appellant’s only issue on appeal asserts the trial court erred in sentencing him 

outside the range of punishment. Appellant was sentenced as a habitual felony offender. 
2

See Tex. Pen. Code § 12.42(d) (West 2011). Under section 12.42(d), it must be shown the 

defendant has previously been finally convicted of two felony offenses, and “the second 

previous felony conviction [was] for an offense that occurred subsequent to the first 

previous conviction having become final.” Id. Appellant claims that, in his original plea 

proceeding, the trial court erred in finding the second enhancement paragraph true because 

it refers to the wrong cause number when it references the first previous felony conviction. 

Therefore, appellant argues, the State failed to establish the first previous conviction was 

final when the offense giving rise to the second previous conviction occurred. 

According to the order of deferred adjudication and his brief, appellant entered a 

plea of “true” to both enhancement paragraphs. A plea of true constitutes evidence and is 

sufficient proof, standing alone, to satisfy the State’s burden of proof on an enhancement 

allegation. See Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984).

Furthermore, it is the general rule that a defendant who is placed on deferred 

adjudication may only raise issues relating to the original proceeding in an appeal taken 

when deferred adjudication probation is first imposed. Manual v. State, 994 S.W.2d 658, 

661-62 (Tex.Crim.App.1999). Such issues may not be raised in an appeal from an order 

revoking probation and adjudicating guilt. Id. An exception arises when the trial court 

had no power to render judgment. See Nix v. State, 65 S.W.3d 664, 668 

(Tex.Crim.App.2001) (judgment of conviction is void when (1) the charging instrument 

does not satisfy the constitutional requisites of a charging instrument; (2) the trial court 

lacks subject matter jurisdiction over the offense charged; (3) the record reflects that there 

is no evidence to support the conviction; or (4) an indigent defendant is required to face 

trial without appointed counsel). Under the facts of this case, the void judgment exception 

does not apply.
3

Here, appellant could have appealed from the order placing him on deferred 

adjudication which contained the finding of true to the second enhancement paragraph. 

Instead, he waited until after his community supervision was revoked and adjudication of 

guilt formally made. Thus, he waived his argument. See Manuel, 994 S.W.2d at 661-62.

For these reasons, appellant’s issue is overruled and the judgment of the trial court is 

affirmed.

PER CURIAM

Panel consists of Justices Brown, Boyce, and McCally.

Do Not Publish — TEX. R. APP. P. 47.2(b).