Richard Lynn Nuckols v. State of Texas ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-00-342 CR ____________________

RICHARD LYNN NUCKOLS, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 252nd District Court Jefferson County, Texas Trial Court No. 62,370

---

O P I N I O N

Appellant Richard Lynn Nuckols pleaded guilty to the felony offense of attempted murder. See Tex. Pen. Code Ann. §§ 15.01, 19.02 (Vernon 1994). The trial court deferred adjudication of guilt, fined Nuckols $500, and placed him on community supervision for ten years. After the State filed a motion to revoke probation, Nuckols pleaded true to five violations. The trial court accepted the pleas of true, adjudicated Nuckols' guilt, and sentenced him to ten years in the Texas Department of Criminal Justice -- Institutional Division. He filed a notice of appeal after the adjudication of guilt in July 2000.

After appeal was perfected, Nuckols' retained counsel filed a brief stating he found no arguable error and informed Nuckols of his conclusion. On October 11, 2001, this Court gave Nuckols an opportunity to file a pro se brief if he so desired, and he has done so.   

We first consider Nuckols' claim that his case should be dismissed because the reporter's record of the original plea hearing on November 16, 1992, is lost. ⁽¹⁾ The record before us contains the clerk's record and the reporter's record of the following proceedings: sentencing hearing on December 14, 1992, the hearing on the motion to revoke in June 2000, and the July 2000 sentencing hearing. Rule 34.6(f)(3) of the Texas Rules of Appellate Procedure provides that a defendant is entitled to a new trial if, among other things, a lost or destroyed reporter's record is "necessary to the appeal's resolution." In Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999), the Court of Criminal Appeals decided that a defendant placed on deferred adjudication must appeal issues relating to the original deferred adjudication proceeding when deferred adjudication is first imposed. In Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App. 2000), the Court relied on Manuel in holding that "the reporter's record from the original deferred adjudication proceeding is not necessary to this appeal's resolution since appellant cannot now appeal any issues relating to the original deferred adjudication proceeding." Id. at 408.

The holdings in Manuel and Daniels are not absolute. Under the void judgment exception, a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding in an appeal from the revocation proceeding. See Nix v. State, 65 S.W.3d 664, 667-668 (Tex. Crim. App. 2001). As part of its discussion of the exception, Nix specifically addresses the circumstance where a defendant levels a no evidence challenge to the original plea proceeding, but the record contains no court reporter's transcription of that hearing. Id. at 668-669. In that context, the "conviction is not void, even though the record -- as far as it goes -- tends to support the no evidence claim." Id. at 669 (footnote omitted). When there is no transcription of the hearing, the court is unable to ascertain whether other evidence was introduced to support the appellant's conviction. Id. (footnote omitted). As the Court explained, for a judgment to be void, the record must leave no question about the existence of the fundamental defect. Id. at 668. Here, Nuckols has failed to allege an error that would render the original judgment of conviction void. He does not claim, for example, fundamental error, does not make a no evidence challenge, and does not allege any other type of error that may have occurred at the original plea proceeding. Since he alleges no error that would render the judgment void, we find the exception does not apply.

Nuckols' other issues have no merit. As we understand his brief, he contends that the PSI contains inaccuracies. However, the PSI report is not contained in the record, and we cannot consider his assertions regarding it on appeal. See Belton v. State, 900 S.W.2d 886, 893 (Tex. App.--El Paso 1995, pet. ref'd). To the extent that Nuckols also raises issues relating to the trial court's determination to adjudicate his guilt, he cannot appeal from that determination. See Tex. Code Crim. Proc. Ann. art. 42.12 (5)(b) (Vernon Supp. 2002). Further, if his brief is interpreted to raise issues concerning the punishment phase, he has not preserved them. See Tex. R. App. P. 33.1(a).

We overrule Nuckols' issues and affirm the trial court's judgment.

AFFIRMED.  

_________________________________

DAVID B. GAULTNEY

Justice

Submitted on March 22, 2002

Opinion Delivered April 10, 2002

Do Not Publish

Before Walker, C.J., Burgess, and Gaultney, JJ.

1. We note that the clerk's record contains a document entitled "Agreed Punishment Recommendation," which would appear to be a plea bargain. However, without a record of the original plea proceeding and without any mention of a plea bargain in the deferred adjudication order, the judgment adjudicating guilt, the reporters' record, or anywhere else in the record, we cannot be certain the trial court accepted the plea agreement. Therefore, we treat Nuckols' plea as an open plea.