Davidette Johnson v. State, 01-15-00869-CR

In Jan. 2014 Davidette Johnson pleaded guilty to aggravated assault with a deadly weapon and received three years deferred adjudication community supervision.
The State later filed motions to adjudicate; a first motion was dismissed after modifications to supervision conditions.
In July 2015 the State filed a second motion alleging Johnson committed a new offense in June 2015: assaulting his dating partner, Alexis Lundy, by kicking her.
At the adjudication hearing Johnson pleaded not true. An eyewitness (Sarah Wood) testified she saw Johnson kick and strike Lundy and identified him to police.
Lundy testified she fell twice due to a preexisting knee condition, denied that Johnson assaulted her, and introduced medical records.
The trial court found the allegation true, adjudicated guilt, and sentenced Johnson to four years’ confinement. Johnson appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Whether trial court proceeded without an express jury-waiver at original plea, requiring reversal	Johnson: he did not expressly waive jury trial when he pleaded guilty to obtain deferred adjudication; this defect entitles him to a new trial	State: waiver challenge to the original plea must have been raised on direct appeal from the deferred-adjudication order; cannot be attacked in revocation appeal	Court: Lack of jurisdiction to reach the claim; waiver challenge must be raised at time deferred adjudication was imposed; issue overruled
2. Whether evidence was insufficient to adjudicate guilt because State failed to prove a new law violation by preponderance	Johnson: testimony (Lundy) and medical records show he did not assault her; falls explain injuries — preponderance not met	State: eyewitness and officer testimony supported finding that Johnson assaulted Lundy	Court: No abuse of discretion; trial court credited eyewitness over Lundy; evidence supports adjudication

Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001) (deferred-adjudication issues must be raised on direct appeal from placement on community supervision)
Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999) (limitations on attacking original plea in revocation appeal)
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) (State must prove violation by preponderance in revocation proceedings)
Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984) (burden of proof in revocation cases)
Taylor v. State, 604 S.W.2d 175 (Tex. Crim. App. 1980) (trial judge is sole trier of fact in revocation hearings)
Amado v. State, 983 S.W.2d 330 (Tex. App.—Houston [1st Dist.] 1998) (credibility determinations and appellate standard in revocation adjudications)
Story v. State, 614 S.W.2d 162 (Tex. Crim. App. 1981) (no abuse of discretion where trial court resolves conflicting evidence against appellant)
Ex parte Lyles, 891 S.W.2d 960 (Tex. Crim. App. 1995) (jury-waiver principles — distinguishable because not a revocation appeal)