                                    NO. 07-00-0405-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                    NOVEMBER 6, 2001

                           ______________________________


                              AARON BROWN, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

             FROM THE 72nd DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 96-422102; HONORABLE BRADLEY UNDERWOOD, JUDGE

                          _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       Appellant Aaron Brown appeals his adjudication of guilt for the offense of retaliation

and the revocation of his community supervision. He urges that (1) the evidence was

insufficient to support a finding that he violated the terms of his probation, (2) the condition

of his probation requiring him to completely abstain from alcoholic beverages was illegal

and violation of that condition could not support revocation and (3) the trial court which

conducted the adjudication hearing was without jurisdiction. We affirm.
                                   I. BACKGROUND


      On September 12, 1997, pursuant to a plea bargain, appellant pled guilty to the

offense of retaliation in the 72nd District Court of Lubbock County. In accordance with the

plea bargain, adjudication of guilt was deferred and appellant was placed on community

supervision for five years. The plea was heard by, adjudication was deferred by, and

community supervision was imposed by the Honorable Bradley Underwood, acting under

an exchange of benches.


      The State subsequently filed a Motion to Proceed With Adjudication of Guilt. Judge

Underwood, again acting under an exchange of benches, heard the State’s amended

motion and determined that appellant violated terms of his probation order that required

appellant to (1) commit no offense against the laws of Texas or any other State or the

United States, and (2) maintain total abstinence from the use or possession of alcoholic

beverages and any narcotics or dangerous drugs not prescribed by a physician and

cooperate fully with the Community Supervision Officer and any other agency contracted

therewith to achieve rehabilitation of appellant. Judge Underwood adjudicated appellant

guilty of retaliation and revoked his community supervision. At the time he adjudicated

appellant, Judge Underwood affirmed to appellant that appellant did not have the right to

appeal the adjudication decision. Judge Underwood then conducted a sentencing hearing

and sentenced appellant to confinement in the Texas Department of Criminal Justice,

Institutional Division, for five years. Judge Underwood specified after the sentencing

hearing that appellant could appeal the sentencing decision. The Judgment Adjudicating

Guilt was styled as being in the 137th District Court of Lubbock County. Appellant filed a

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notice of appeal setting out three bases for appeal: (1) a general notice paragraph as to

the adjudication of guilt and sentence, (2) a statement that the appeal was from the denial

of a written pretrial motion ruled on before the adjudication hearing and (3) an assertion

that the trial court gave permission to appeal.


       By three issues appellant urges reversible error in the adjudication of guilt and

revocation of his community supervision. His first issue asserts insufficiency of the

evidence to prove that appellant violated any laws of the State of Texas. His second issue

urges that the condition of his probation requiring him to totally abstain from the use of

alcohol was unauthorized by statute, was illegal, and therefore could not be the basis for

revocation of his community supervision. His third issue asserts that the trial court was

without jurisdiction to hear the revocation proceeding because the prosecution and

deferred adjudication order were in the 72nd District Court of Lubbock County, the record

did not contain an order transferring jurisdiction to the 137th District Court of Lubbock

County, and pursuant to TEX . CRIM . PROC . CODE ANN . art. 42.12 § 10(a) (Vernon Supp.

2001),1 the 137th District Court of Lubbock County was without jurisdiction to hear and rule

on the adjudication motion.


                                              II. LAW


       A threshold question in any case is whether the court has jurisdiction over the

pending controversy. See State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996).

Jurisdiction is the power of the court over the subject matter of the case, conveyed by


       1
           Further references to the Code will reference the “Code of Criminal Procedure.”

                                                 3
statute or constitutional provision, id., coupled with personal jurisdiction over the parties.

Flowers v. State, 935 S.W.2d 131, 134 n.4 (Tex.Crim.App. 1996). Courts will address the

question of jurisdiction sua sponte. Roberts, 940 S.W .2d at 657. For, unless a court has

jurisdiction over a m atter, its actions in the m atter are without validity. Id. at 657 n.2.


       The Rules of Appellate Procedure do not establish jurisdiction of courts of appeals,

but, rather, provide procedures which must be followed in order to invoke jurisdiction over

a particular appeal. See Olivo v. State, 918 S.W .2d 519, 523 (Tex.Crim.App. 1996). If the

jurisdiction of a court of appeals is not properly invoked, the power of the appellate court to

act is as absent as if it did not exist, id. (quoting Ex parte Caldwell, 383 S.W .2d 587, 589

(Tex.Crim.App. 1964)), and the appeal will be dismissed for lack of jurisdiction. See State

v. Riewe, 13 S.W .3d 408, 413-14 (Tex.Crim .App. 2000). If appeal as to an issue or matter

is properly perfected as to form, a court must examine the record underlying the notice of

appeal to determine if jurisdiction substantively exists as to the issue or matter in question.

See Sherman v. State, 12 S.W .3d 489, 492 (Tex.App.--Dallas 1999, no pet.). Dismissal of

an issue or the entire matter is appropriate unless both (1) the form of the notice of appeal

is proper to perfect appeal as to the issue or matter, see Lyon v. State, 872 S.W .2d 732,

736-37 (Tex.Crim.App. 1994), and (2) the alleged jurisdiction is supported by the record.

See Sherman, 12 S.W .3d at 492. In other words, if T EX. R. A PP . P. 25.2(b)(3)2 is applicable,

then for an appellate court to have its jurisdiction invoked over a matter, com pliance with

TRAP 25.2(b)(3) is required as to both form and substance. Id.




       2
           A rule of appellate procedure will be referred to as “TRAP_” hereafter.

                                                  4
       The requirem ents of TRAP 25.2(b)(3) apply to a defendant who plea bargains for

deferred adjudication. See Vidaurri v. State, 49 S.W .3d 880, 883 (Tex.Crim.App. 2001).

To perfect appeal from a judgment which was rendered on the defendant’s plea of guilty or

nolo contendere under Code of Criminal Procedure article 1.15, and in which the

punishment assessed did not exceed the punishment recommended by the prosecutor and

agreed to by the defendant, the notice of appeal must (a) specify that the appeal is for a

jurisdictional defect; (b) specify that the substance of the appeal was raised by written

motion and ruled on before trial; or (c) state that the trial court granted permission to appeal.

TRAP 25.2(b)(3); Young v. State, 8 S.W .3d 656, 666-67 (Tex.Crim .App. 2000).


       An appellant whose deferred adjudication probation has been revoked and who has

been adjudicated guilty of the original charge, may not, on appeal, raise contentions of

error in the adjudication of guilt process. Code of Crim inal Procedure article 42.12, § 5(b);

Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999).


                                        III. ANALYSIS

                  A. Issue One: Insufficiency of the evidence to prove

                               violation of a term of probation


       Appellant’s first issue asserts that the trial court abused its discretion in finding that

appellant violated the terms of his probation. He urges that the evidence was insufficient

to prove by a preponderance of the evidence that appellant violated a law. We conclude

that we do not have jurisdiction over the issue, and even if we had jurisdiction, appellant

is precluded from raising the issue on appeal.


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       Appellant’s Notice of Appeal generally states his intent to appeal the trial court’s

ruling adjudicating him guilty, revoking his community supervision and assessing his

punishment at five years confinement. Thereafter, the Notice specifies that (1) appellant

intends to appeal a ruling denying a written pretrial motion which was ruled on before the

adjudication hearing, and (2) the trial court gave permission to appeal the ruling

adjudicating guilt and revoking community supervision.


        Issue one does not relate to denial of a written pretrial motion. And, although his

Notice of Appeal states that the trial court granted permission to appeal the ruling

adjudicating guilt, see TRAP 25.2(b)(3)(C), the record reflects that the trial court did not give

such permission, even assuming arguendo, that the provisions of the Code of Criminal

Procedure would have allowed the trial court to do so. See Code of Criminal Procedure

article 42.12, § 5(b). Nor does the issue address a jurisdictional issue as to the trial court.

The issue is not encompassed within appellant’s Notice of Appeal.


       Because our appellate jurisdiction in this matter has not been invoked by compliance

with TRAP 25.2(b)(3) in either form or substance, we m ust dism iss the issue.              See

Sherman, 12 S.W .3d at 492.


       Moreover, appellant may not, on appeal, raise contentions of error in the process

by which his guilt was adjudicated. See Code of Criminal Procedure article 42.12, § 5(b);

Connolly, 983 S.W.2d at 741.




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                                       B. Issue Two:

                 The condition of probation requiring appellant to completely

                     abstain from using alcoholic beverages was illegal.


       Appellant next urges that in setting the terms of his deferred adjudication community

supervision the trial court imposed an unreasonable, and therefore illegal, condition by

requiring him to abstain completely from the use of alcohol. See Code of Criminal

Procedure article 42.12, § 11. He asserts that the requirement was unreasonable, and

therefore illegal, because it bore no reasonable relationship to the retaliation offense which

was the basis for imposition of community supervision. The substance of his appellate

issue, as set out in his Notice of Appeal, relates to the trial court’s overruling of a written

motion which was heard before the adjudication hearing, not to a motion made and ruled

on before the hearing at which he pled guilty and received deferred adjudication.


       W e again first determine whether appellant perfected his appeal and invoked our

appellate jurisdiction on this issue. See Riewe, 13 S.W .3d at 413-14. First, we observe that

appellant does not urge that this issue involves a jurisdictional defect.         See TRAP

25.2(b)(3)(A). Next, we reiterate our previous determination that the trial court did not give

appellant permission to appeal the ruling adjudicating guilt and revoking community

supervision, even if the court could have properly done so. See TRAP 25.2(b)(3)(B). W e

lastly address the statement in appellant’s Notice of Appeal that he is appealing the denial

of a written pretrial motion ruled on before the adjudication hearing.            See TRAP

25.2(b)(3)(C).




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       The Legislature provided that contentions that error occurred in the process by which

a defendant’s guilt was adjudicated may not be raised on appeal. See Code of Criminal

Procedure article 42.12, § 5(b); Connolly, 983 S.W.2d at 741. When we consider the

statement in appellant’s notice of appeal to the effect that the substance of the appeal was

raised by written motion ruled on before the adjudication hearing, and the record which

shows that his motion was filed after the hearing at which appellant pled guilty and

received deferred adjudication, we conclude that our jurisdiction has not been invoked by

the form of appellant’s Notice of Appeal or the substance of the record. See Sherman, 12

S.W .3d at 492. We, therefore, must dismiss the claims made in appellant’s second issue.


                    C. Issue Three: The trial court lacked jurisdiction

                                     to hear the matter


       By his third issue appellant challenges the jurisdiction of the 137th District Court of

Lubbock County to hear the State’s motion to adjudicate. He bases his issue on his claim

that the prosecution and order for deferred adjudication and imposition of community

supervision were entered in the 72nd District Court of Lubbock County, and the record

does not contain an order indicating that jurisdiction was transferred to the 137th. He cites

LaBelle v. State, 692 S.W.2d 102 (Tex.Crim.App. 1985), and references Code of Criminal

Procedure article 42.12 § 10(a) which provides that only the court in which a defendant was

tried may revoke community supervision, unless the judge has transferred jurisdiction of

the case to another court.




                                              8
       The docket sheet shows that appellant’s case was originally assigned to the 72nd

District Court, and that on September 12, 1997, Judge Underwood, “Under Exchange of

Benches,” heard appellant’s guilty plea, deferred appellant’s adjudication and granted him

community supervision. The Order for Deferred Adjudication signed by Judge Underwood

on September 12, 1997, is styled as being in the 72nd District Court and specifically sets

out that Judge Underwood presided “Under Exchange of Benches.” The State’s original

and amended motions to proceed with adjudication are styled in the 72nd District Court.

Prior to the adjudication hearing, appellant filed motions styled with the proper trial court

cause number, 96-422,102, but with the 137th District Court in the style of the case.

Neither the docket sheet nor any other evidence in the record supports appellant’s claim

that the case was transferred from the 72nd District Court to the 137th District Court. The

docket sheet entry for the adjudication hearing shows that Judge Underwood again

presided “Under Exchange of Benches.” The style of the Judgment Adjudicating Guilt

contains the correct trial court cause number, but shows the case as being in the 137th

District Court.


       TEX . GOV’T CODE ANN . § 24.303(a) (Vernon 1988) authorizes the exchange of

benches by district judges of counties in which there are two or more district courts.

Appellant did not object to Judge Underwood presiding under an exchange of benches at

either the original hearing at which appellant pled guilty and received deferred adjudication,

or at the adjudication hearing. Nor does appellant assert error on appeal because Judge

Underwood presided via exchange of benches.




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       The record does not indicate that appellant’s case was transferred from one court

to another. Rather, the record indicates a clerical error in the style of the case on the

Judgment Adjudicating Guilt. Thus, the record does not show that jurisdiction of the case

was transferred in violation of Code of Criminal Procedure article 42.12 § 10(a).

Appellant’s third issue is overruled.


                                    IV. CONCLUSION


       Appellant’s first and second issues are dismissed; his third issue is overruled. We

modify the style of the August 11, 2000, Judgment Adjudicating Guilt to the following: “The

State of Texas vs. Aaron Brown, No. 96-422,102 in the 72nd District Court of Lubbock

County, Texas.” As modified, the judgment is affirmed. TRAP 43.2(b).




                                                       Phil Johnson
                                                          Justice



Do not publish.




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