Opinion filed June 23, 2011




                                              In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-09-00354-CR
                                         __________

                    CHARLES DANIEL JOHNSON, JR., Appellant

                                                 V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 35th District Court

                                      Brown County, Texas

                                 Trial Court Cause No. CR19965


                              MEMORANDUM OPINION

       This is an appeal from an order of adjudication in which the trial court convicted Charles
Daniel Johnson, Jr. of the offense of stalking and assessed his punishment at confinement for ten
years. We affirm.
       In his sole issue on appeal, appellant contends that the trial court abused its discretion in
adjudicating guilt and imposing the maximum sentence for the offense of stalking in light of
appellant’s assertion that he was not guilty of stalking. Under this issue, appellant asserts that his
original plea of no contest was not made voluntarily and that his due process rights were violated
because he was innocent.
         A trial court is authorized to revoke a defendant’s deferred adjudication community
supervision and adjudicate his guilt on the original charge if the State proves by a preponderance
of the evidence that the defendant violated any condition of his community supervision. TEX.
CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2010); Rickels v. State, 202 S.W.3d
759, 763 (Tex. Crim. App. 2006). Pursuant to Article 42.12, section 5(b), the scope of the
hearing is “limited to the determination by the court of whether it proceeds with an adjudication
of guilt on the original charge.”      We review a trial court’s decision to proceed with an
adjudication of guilt for an abuse of discretion. A trial court does not abuse its discretion if the
order revoking community supervision is supported by a preponderance of the evidence.
Rickels, 202 S.W.3d at 763-64.        A defendant placed on deferred adjudication community
supervision may raise issues relating to the original plea proceeding in an appeal taken when
deferred adjudication community supervision is first imposed, not in an appeal from a
subsequent order of adjudication. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App.
1999).
         Appellant originally pleaded no contest to the allegations in the indictment, and the trial
court deferred the adjudication of appellant’s guilt and placed him on community supervision.
The State subsequently filed a motion to adjudicate, alleging that appellant had violated various
terms and conditions of his community supervision. The trial court conducted a hearing and
found that appellant had violated five of the terms and conditions as set out in the State’s motion,
including violating a protective order, failing to report, failing to pay fees, failing to complete
community service restitution, and communicating with the young woman with whom he had
been convicted of stalking. Appellant does not challenge these findings. Furthermore, the
findings are supported by the evidence presented at the hearing.
         Appellant complains that his due process rights were violated because the evidence
presented at the adjudication hearing conclusively established his innocence of the offense of
stalking. We disagree. The issue at the hearing was whether appellant violated the terms and
conditions of his probation, not whether he was guilty of stalking. He had previously pleaded no
contest to the offense of stalking. Moreover, the evidence presented at the hearing did not



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establish his innocence of the offense of stalking. Appellant’s rights to due process were not
violated.
         Appellant also complains of the trial court’s assessment of the maximum sentence. When
a defendant is adjudicated guilty, he is subject to the entire range of punishment for the offense.
Ditto v. State, 988 S.W.2d 236, 238-39 (Tex. Crim. App. 1999). The range of punishment for the
third degree felony of stalking is imprisonment for any term of not more than ten years or less
than two years. TEX. PENAL CODE ANN. §§ 12.34, 42.072(b) (Vernon 2011). The sentence
assessed in this case (ten years) was within that range. Generally, a penalty assessed within the
statutory range of punishment established by the legislature will not be disturbed on appeal.
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).
         We hold that the trial court did not abuse its discretion in adjudicating appellant’s guilt or
in assessing punishment. Appellant’s issue is overruled.
         The judgment of the trial court is affirmed.




                                                                                  PER CURIAM


June 23, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel1 consists of: Wright, C.J.,
McCall, J., and Hill, J.2




         1
           Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.

         2
             John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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