                                   NO. 07-04-0114-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                 OCTOBER 12, 2004
                          ______________________________

                                BENJAMIN P. JOHNSON,

                                                                Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2000-433,250; HON. CECIL G. PURYEAR, PRESIDING
                       _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

       Benjamin P. Johnson (appellant) appeals from a judgment adjudicating him guilty

of aggravated sexual assault. Via two issues, he contends that 1) the State “failed to prove

that the person in court was the person who engaged in the conduct alleged in the Third

Amended Motion to Proceed with Adjudication of Guilt and was the same person placed

on deferred adjudication” and 2) the trial court erred in admitting “Hearsay Evidence” in

finding that appellant had violated his probation. We dismiss for lack of jurisdiction.

       Appellant originally pled guilty to the indictment charging him with aggravated sexual

assault. The trial court deferred the adjudication of his guilt for the crime and instead
placed him on community supervision for ten years. Subsequently, the State moved to

adjudicate his guilt. The trial court granted the motion, adjudicated appellant guilty of the

assault, and assessed a sentence of 25 years in prison.

       In questioning whether the State presented sufficient evidence illustrating that

appellant 1) was the person whose adjudication of guilt was originally deferred and 2)

violated the terms of his community supervision, appellant implicitly attacks the decision

to adjudicate his guilt. This is so because whether the trial court had before it the right

defendant and whether that defendant did something to warrant the denial of further

community supervision are clearly part of the court’s decision to proceed with an

adjudication of that person’s guilt. And, because we have no jurisdiction over appeals

involving the “determination by the [trial] court of whether it proceeds with an adjudication

of guilt on the original charge,” TEX . CODE CRIM . PROC . ANN . art. 42.12, §5(b) (Vernon

Supp. 2004-2005), and that has been construed to mean error arising “in the adjudication

of guilt process, Connolly v. State, 983 S.W.2d 738 (Tex. Crim. App. 1999), we must

dismiss the appeal. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Drew v.

State, 942 S.W.2d 98, 99 (Tex. App.--Amarillo 1997, no pet.).

       Accordingly, the appeal is dismissed for want of jurisdiction.


                                                  Brian Quinn
                                                    Justice


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