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                                 MEMORANDUM OPINION

                                         No. 04-07-00825-CR

                                       Stephanie GONZALES,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 218th Judicial District Court, Karnes County, Texas
                                 Trial Court No. 00-08-00096-CRK
                              Honorable Donna Rayes, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: April 29, 2009

AFFIRMED

           Stephanie Gonzales appeals the judgment adjudicating her guilty of aggravated assault with

a deadly weapon and sentencing her to fifteen years in prison, complaining she did not waive her

right to a jury trial in the original plea proceeding. We affirm.

           Gonzales was indicted for aggravated assault with a deadly weapon in August 2000. The

clerk’s record contains plea documents signed June 19, 2001, including a plea bargain agreement,

a waiver and consent to stipulations, plea admonishments, and a waiver of Gonzales’s right to a trial
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by jury, which was joined and approved by her attorney, counsel for the State, and the trial judge.

The record also contains a motion dated October 12, 2001, in which Gonzales asserts she previously

signed a written waiver of a jury trial and entered a plea of guilty, and requests to withdraw the

waiver and the plea. The record does not reflect the motion was heard or ruled upon. On November

27, 2001, the trial court rendered a judgment that recites Gonzales appeared that day, pled guilty, and

waived her right to a jury trial. The court deferred adjudication and placed Gonzales on community

supervision for a period of ten years. No reporter’s record of the November 27, 2001 hearing, or of

any prior hearings in the case have been filed. Gonzales did not appeal the trial court’s decision.

       In 2007, Gonzales pled true to the State’s allegations that she violated two of the conditions

of her community supervision. The court accepted the plea and, after reviewing the presentence

investigation report and conducting a punishment hearing, adjudicated Gonzales guilty and sentenced

her to fifteen years incarceration. On appeal, Gonzales contends the November 2001 judgment

placing her on deferred adjudication was rendered without a valid waiver of her right to a jury trial,

in violation of her rights under Sixth Amendment to the United States Constitution and article I,

section 15 of the Texas Constitution.

       As a general rule, “a defendant placed on deferred adjudication community supervision may

raise issues relating to the original plea proceeding . . . only in appeals taken when deferred

adjudication community supervision is first imposed.” Manuel v. State, 994 S.W.2d 658, 661-62

(Tex. Crim. App. 1999). However, there is an exception to the general rule in those “very rare

situations” where the alleged error in the original plea hearing would render the original judgment

void. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001). The alleged error must be one

that deprived the trial court of power to render the judgment. Id. “Moreover, for a judgment to be


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void, the record must leave no question about the existence of the fundamental defect. If the record

is incomplete, and the missing portion could conceivably show that the defect does not in fact exist,

then the judgment is not void, even though the available portions of the record tend to support the

existence of the defect.” Id. at 668-69.

       Gonzales contends she was placed on community supervision after she withdrew her June

2001 waiver of a right to a jury trial. The contention is not established by the record. The record

before us does not reflect the motion to withdraw her plea and jury waiver was presented, heard, or

granted. However, even if we were to accept Gonzales’s contention that the trial court allowed her

to withdraw the June 2001 waiver, the record reflects she again waived her rights at the subsequent

plea hearing. The judgment recites that at the November 27, 2001 hearing, Gonzales was

admonished and “requested the consent and approval of the Judge to waive the right of a trial by a

jury,” which request was given. “We must presume that statement correct in the absence of direct

proof of its falsity, and there is no such proof in the record.” Johnson v. State, 72 S.W.3d 346, 349

(Tex. Crim. App. 2002). Any failure to obtain a second written jury waiver, if error, would have been

harmless. See id.

       Gonzales has failed to allege error that would render the original judgment placing her

community supervision void. Accordingly, we affirm the trial court’s judgment.



                                                       Steven C. Hilbig, Justice

Do not publish




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