          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-02-00482-CR



                                  Cardray Levell Dewitty, Appellant

                                                     v.

                                     The State of Texas, Appellee




          FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
             NO. 52,599, HONORABLE BOBBY L. CUMMINGS, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Appellant Cardray Levell Dewitty pleaded guilty to attempted aggravated sexual assault and

was placed on deferred adjudication community supervision. Tex. Pen. Code Ann. '' 15.01 (West 1994),

22.021 (West Supp. 2003). He now appeals from a judgment of conviction rendered after the district

court revoked supervision and assessed punishment at ten years= imprisonment. He brings forward three

points of error attacking his original guilty plea. We overrule these points and affirm the conviction.

                As a general rule, a defendant placed on deferred adjudication supervision must raise errors

relating to the original plea proceeding in an appeal taken when supervision is first imposed, rather than

raising them for the first time in an appeal following adjudication and sentencing. Manuel v. State, 994

S.W.2d 658, 661-62 (Tex. Crim. App. 1999). There is a Avoid judgment@ exception to Manuel. See Nix

v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). An error or defect at the original guilty plea
proceeding that renders the subsequent judgment of conviction void may be raised for the first time after

adjudication and sentencing. Id. at 667-68. A judgment is void only in very rare situations. Id. at 668.

                 Appellant=s first point of error is that he was not properly admonished before his guilty plea

was accepted. See Tex. Code Crim. Proc. Ann. art. 26.13 (West 1989 & Supp. 2003). If true, this

would not render the judgment of conviction void. Under Manuel, this contention is not properly before us

and is overruled.

                 Appellant=s second and third points of error are both premised on his unsupported assertion

that the indictment in this cause accused him of sexual assault. Based on this premise, appellant argues in

point two that he could not be convicted of attempted aggravated sexual assault as a lesser included offense

of sexual assault. See id. art. 37.09(4) (West 1981). In point three, he contends the stipulated evidence,

which states that he attempted to commit the acts alleged in the indictment, did not support his conviction for

attempted aggravated sexual assault. See id. art. 1.15 (West Supp. 2003). The State does not urge that

these contentions are foreclosed by Manuel, and we will address them without deciding that question.

                 The indictment alleged that both appellant and Andre Dwayne Edmond, acting in concert,

intentionally or knowingly penetrated the female sexual organ of the complainant without her consent during

the course of the same criminal episode. Contrary to appellant=s assumption, the indictment alleged the

offense of aggravated sexual assault. See Tex. Pen. Code Ann. ' 22.021(a)(1)(A)(i), (2)(A)(v) (West Supp.

2003). Thus, the district court did not err by accepting a plea of guilty to the lesser included offense of

attempted aggravated sexual assault. And the written stipulation, which tracked the indictment except to state




                                                      2
that appellant and Edmond attempted to penetrate the complainant, supported the guilty plea and established

appellant=s guilt. Points of error two and three are overruled.

                 The judgment of conviction is affirmed.




                                                 ____________________________________________

                                                 Jan P. Patterson, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: February 21, 2003

Do Not Publish




                                                    3
