      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00344-CR



                               Ronald Lynn Swafford, Appellant

                                                 v.

                                  The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY
              NO. 622315, HONORABLE MIKE DENTON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Ronald Lynn Swafford pleaded no contest to an information accusing him

of making a harassing communication. See Tex. Pen. Code Ann. § 42.07(a)(4) (West 2003). The

court deferred adjudication and placed Swafford on community supervision for nine months. The

court certified that Swafford has its permission to appeal this plea bargain case. See Tex. R. App.

P. 25.2(a)(2)(B), (d).

               Swafford represents himself. His only point of error is that his plea was involuntary

because he did not fully understand its consequences. Specifically, Swafford asserts that he was not

told that deferred adjudication involved probation, or community supervision, and its attendant

conditions. He claims that had he known that probation was part of the plea bargain, he would have

changed his plea and requested a trial.
               The State responds that Swafford’s contention is not properly before us, citing the

opinion in Donovan v. State, 68 S.W.3d 633 (Tex. Crim. App. 2002). In that case, the question

presented was whether a defendant placed on deferred adjudication probation was entitled to

challenge the voluntariness of his plea by means of a motion for new trial. Id. at 635. The court of

criminal appeals held that a motion for new trial is not an available remedy when adjudication is

deferred, and that the defendant was required to either timely request adjudication or seek habeas

corpus relief. Id. at 637-38. See also Hammack v. State, 963 S.W.2d 199, 200 (Tex. App.—Austin

1998, no pet.) (motion for new trial rules do not apply to deferred adjudication proceeding).

               A defendant placed on deferred adjudication supervision has the same right of appeal

as a defendant placed on ordinary community supervision. Manuel v. State, 944 S.W.2d 658, 661

(Tex. Crim. App. 1999); Dillehey v. State, 815 S.W.2d 623, 625 (Tex. Crim. App. 1991). Nothing

in Donovan precludes a defendant from challenging the voluntariness of his plea in an appeal from

an order deferring adjudication. Although the limited right of appeal afforded a defendant who

pleads guilty or no contest pursuant to a plea bargain agreement generally does not encompass the

voluntariness of the plea, that limitation does not apply to Swafford because he has the trial court’s

permission to appeal. Tex. R. App. P. 25.2(a)(2); see also Brown v. State, 943 S.W.2d 35, 42 (Tex.

Crim. App. 1997) (defendant who receives deferred adjudication as part of plea bargain may raise

involuntariness claim on appeal following adjudication). We conclude that Swafford is not

procedurally barred from challenging the voluntariness of his no contest plea in this appeal.

               Although Swafford may raise the voluntariness issue, the record before us does not

support his claim. The assertions made by Swafford in his brief are not evidence. Because there was



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no reporter present when Swafford entered his plea, we have no record of what he was or was not

told by the court when the plea was made. We also have no record of what, if anything, he was told

by the attorney who represented him at trial. The record before us does contain the “defendant’s plea

of guilty, nolo contendere, waiver & stipulation,” signed by Swafford and his attorney, in which

Swafford acknowledged that he had been advised of the consequences of his plea and stated that his

plea was made freely and voluntarily.

               Because we find no evidence in the record to support Swafford’s claim that his plea

was involuntary, we overrule the point of error and affirm the conviction.




                                              __________________________________________

                                              Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: April 29, 2004

Do Not Publish




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