Calvin Ray Fox, Jr. v. State

NO. 12-07-00369-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CALVIN RAY FOX, JR., § APPEAL FROM THE THIRD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Calvin Ray Fox, Jr. appeals his conviction for burglary of a habitation. In one issue,
Appellant argues that his trial counsel rendered ineffective assistance. We dismiss for want of
jurisdiction.
BACKGROUND
Appellant was charged by indictment with burglary of a habitation, a second degree felony.1
The incident was alleged to have occurred on or about July 24, 2003. Appellant pleaded guilty to
the offense charged in the indictment. Appellant and his counsel signed an agreed plea
recommendation stating, in part, that he consented to the stipulation of evidence, judicially confessed
to the offense alleged in the indictment, admitted that he committed each and every element alleged
in the indictment, waived his time to file motions for new trial and in arrest of judgment, waived his
right to appeal, and waived his right of trial by jury. This document was acknowledged by
Appellant, his counsel, and the State’s attorney. The trial court accepted Appellant’s plea, deferred
further proceedings without entering an adjudication of guilt, and ordered that Appellant be placed
1
See T EX . P EN AL C O D E A N N . § 30.02(a), (c)(2) (Vernon 2003).
on deferred adjudication community supervision for a period of ten years.2
On August 25, 2006, the State filed a motion to proceed with an “adjudication of guilt and
sentence.” The motion alleged that Appellant had violated the terms of his community supervision.
Appellant pleaded “true” to each and every allegation contained in the State’s motion and stated that
all the allegations were “true and correct.” After a hearing, the trial court found that the pleas of
“true” were freely and voluntarily given, and adjudged Appellant guilty as charged of the offense
of burglary of a habitation. The trial court later granted the State’s motion, and assessed Appellant’s
punishment at ten years of imprisonment.3 This appeal followed.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue, Appellant argues that his trial counsel for his initial guilty plea rendered
ineffective assistance. As such, Appellant contends, his plea was involuntary. Generally, a defendant
placed on deferred adjudication community supervision may raise issues relating to the original plea
proceeding only in appeals taken when deferred adjudication community supervision is first
imposed. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). The two exceptions
to this rule are (1) the “void judgment” exception and (2) the “habeas corpus” exception. Nix v.
State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). Because Appellant did not file a petition for a
writ of habeas corpus, we do not consider this exception.
A judgment of conviction for a crime is void when (1) the document purporting to be a
charging instrument does not satisfy the constitutional requisites of a charging instrument, and thus
the trial court has no jurisdiction over the defendant; (2) the trial court lacks subject matter
jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct
is tried in a county court at law; (3) the record reflects that there is no evidence to support the
conviction, or (4) an indigent defendant is required to face criminal trial proceedings without
appointed counsel, when such has not been waived. Id. at 668. Thus, a judgment is void only in
2
See T EX . C O D E C RIM . P RO C . A N N . art. 42.12, § 5(a) (Vernon Supp. 2008).
3
An individual adjudged guilty of a second degree felony shall be punished by imprisonment for any term
of not more than twenty years or less than two years and, in addition, a fine not to exceed $10,000. T EX . P ENAL
C O D E A N N . § 12.33 (Vernon 2003).
2
very rare situations. Id.4
Here, Appellant raises issues relating to his original plea proceeding including ineffective
assistance of counsel and the voluntariness of his guilty plea. Because he raised these issues after
his deferred adjudication community supervision was revoked, we may address them only if his
conviction was “void.” See id. at 667; Manuel, 994 S.W.2d at 661-62; Few v. State, 136 S.W.3d
707, 711 (Tex. App.–El Paso 2004, no pet.) . However, involuntary plea or ineffective assistance
of counsel claims, even if meritorious, do not render a conviction void. See Nix, 65 S.W.3d at 669;
Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001); Williams v. State, 837 S.W.2d 759,
761 n.1 (Tex. App.–El Paso 1992, no pet.). Appellant could have appealed from the order placing
him on deferred adjudication and could have raised the voluntariness of his plea or ineffective
assistance of counsel following his original plea hearing. See Hanson v. State, 11 S.W.3d 285, 288
(Tex. App.–Houston [14th Dist.] 1999, pet. ref’d). He failed to do so, and we are precluded from
addressing his complaint now. See Manuel, 994 S.W.2d at 661-62. Accordingly, we are without
jurisdiction to consider Appellant’s sole issue.
DISPOSITION
Because this court is without jurisdiction to consider Appellant’s sole issue, we dismiss the
appeal for want of jurisdiction.
JAMES T. WORTHEN
Chief Justice
Opinion delivered October 31, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
4
W hile the court of criminal appeals hesitated to call this an exclusive list, it described it as “very nearly
so.” Nix, 65 S.W .3d at 668.
3