Gaston v. State, 05-00-00616-CR

• Decision Date: 06 December 2001
• Docket Number: No. 05-00-00616-CR,05-00-00616-CR
• Citation: 63 S.W.3d 893
• Parties: (Tex.App.-Dallas 2001) MONTY GLEN GASTON, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 893

63 S.W.3d 893 (Tex.App.-Dallas 2001)

MONTY GLEN GASTON, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-00-00616-CR

Court of Appeals of Texas, Dallas

December 6, 2001

On Appeal from the 382nd District Court Rockwall County, Texas Trial Court Cause No. 2-95-99

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices Kinkeade, O'Neill, and FitzGerald

OPINION

Opinion By Justice O'Neill

Monty Glen Gaston appeals the revocation of his community supervision, which is based on a plea-bargained conviction. He asserts that (1) the revocation order is void because the underlying judgment of conviction is void; (2) he received ineffective assistance of counsel at the revocation phase; (3) he is entitled to a new trial because the record of the original plea hearing is unavailable; and (4) the order cumulating the sentence for this offense with a separate offense is defective, rendering the consecutive sentences void. For reasons that follow, we affirm.

Facts

In June 1995, appellant was charged by indictment with burglary of a building, in violation of section 30.02 of the Texas Penal Code. On November 21, 1995, pursuant to the terms of a plea- bargain agreement, he pleaded guilty. The trial judge assessed a $1,000 fine and 200 hours of community service, sentenced him to confinement for two years in a state facility, suspended the sentence, and imposed five years' community supervision (probation). The judgment (the "Probated Judgment") reflects each of those facts, but it does not explicitly state that the defendant was "adjudged guilty" by the court.

In August 1997, the State filed a motion to revoke community supervision, and capias issued. In March 2000, after a hearing the trial judge revoked appellant's community supervision, imposed a sentence of two years' imprisonment, and ordered the sentence to run consecutively with a separate sentence from Dallas County.

Appellate Rule 25.2(b)(3) and Jurisdiction to Review

In his first point of error, appellant argues that the trial court's order revoking his probation is void because it is based on a judgment of conviction that is itself void. Thus, the argument goes, if the original judgment of conviction and probation is a nullity, the trial court had nothing valid to revoke.

The State urges that this point of error is an attack on the original plea-bargained conviction and thus is not cognizable on appeal. The State contends that the full strictures of rule 25.2(b)(3) of the Texas Rules of Appellate Procedure apply to this issue. Therefore, the State urges, once rule 25.2(b)(3) is applied, appellant's general notice of appeal is insufficient and this court has no jurisdiction to review this issue. We disagree because rule 25.2(b)(3) does not apply here.

By its terms, rule 25.2(b)(3) requires more than a general notice of appeal and applies in cases where a defendant appeals a judgment based on a plea of guilty or nolo contendere and the punishment assessed does not exceed the punishment agreed to by the defendant and prosecutor. Tex. R. App. P. 25.2(b)(3) (formerly rule 40(b)(1)). The restrictions of rule 25.2(b)(3) apply to appeals attacking the propriety of a plea-bargained conviction. Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App. 1998). But the rule does not apply to appeals attacking the propriety of orders revoking probation (community supervision), even though based on a plea-bargained conviction. Id. Accordingly, rule 25.2(b)(3) does not apply to this appeal of a revocation order, and appellant's general notice of appeal is sufficient.

While generally the original plea cannot be attacked on an appeal of the revocation order, the court may review the underlying judgment of conviction to see if it is "void." Nix v. State, No. 793- 00, 2001 WL 717453, *2, __ S.W.3d __, __ (Tex. Crim. App. June 27, 2001) (explaining "void-judgment" exception that applies in "regular probation" cases and extending it to deferred adjudication cases). That is, on appeal from a revocation proceeding, a defendant may raise an error in the original plea proceeding if the error would render the original judgment "void." Id. Appellant raises a void- judgment issue here. Accordingly, we have jurisdiction to examine whether appellant's original conviction was void.

Void Judgment

Appellant argues that the original judgment of conviction was void because it did not explicitly state that the defendant was "adjudged guilty of the offense" as found by the court. This, appellant asserts, violates article 42.01, section 1(8) of the Texas Code of Criminal Procedure.

"A void judgment is a nullity from the beginning, and is attended by none of the consequences of a valid judgment. It is entitled to no respect whatsoever because it does not affect, impair, or create legal rights." Ex parte Seidel, 39 S.W.3d 221, 225 (Tex. Crim. App. 2001). Only void convictions are subject to collateral attack. Christian v. State, 865 S.W.2d 198, 201 (Tex. App.-Dallas 1993, pet. ref'd) (challenge to voidable error in conviction, raised on appeal from revocation order, was impermissible collateral attack).

A judgment is void "in very rare circumstances - usually due to a lack of jurisdiction." Nix, 2001 WL 717453, at *2, __ S.W.3d at __.¹ Errors involving a statutory procedure have not been deemed to render a judgment void, but merely voidable. Davis v. State, 956 S.W.2d 555, 559 (Tex. Crim. App. 1997). Failure to adhere to the requirements of article 42.01 does not render a conviction void, but merely voidable. See Jones v. State, 795 S.W.2d 199 (Tex. Crim. App. 1990) (reversing appellate court order that judgment was void; omitted recitation that "defendant is adjudged guilty" did not render judgment incomplete or invalid); see also Porter v. State, 757 S.W.2d 889, 891 (Tex. App.-Beaumont 1988, no pet.) (failure to adhere to article 42.01 did not render judgment void, but merely voidable).

Article 42.01 of the code of criminal procedure states that a judgment should reflect that the defendant is "adjudged guilty of the offense as found by . . . the finding of the court." Tex. Code Crim. Proc. Ann. art. 42.01, § 1(8) (Vernon Supp. 2002). The record reveals that the Probated Judgment does indeed omit those words.² But, as in Jones, this error involved statutory procedure and does not render the judgment void, but merely voidable. As such, the error may not be challenged in a collateral attack. We overrule appellant's first point of error.³

Ineffective Assistance of Counsel

In his second point of error, appellant argues that he received ineffective assistance of counsel at the revocation hearing because his attorney failed to object to the underlying "void" judgment of conviction.

We use the Strickland standard in evaluating claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). To prevail, appellant must show counsel's representation fell below an objective standard of reasonableness as well as a reasonable probability that a different outcome would have resulted but for counsel's error. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Id. at 813.

Appellant's argument rests on his assertion that the underlying judgment was "void"and that his counsel should have raised that argument at the revocation hearing. Having concluded that the omissions in the judgment did not render it void, we cannot fault appellant's counsel for failing to assert that argument at the revocation hearing. Accordingly, appellant fails to meet his burden of showing that his counsel's failure to object to this merely voidable judgment fell below an objective reasonable standard of professionalism. Further, had trial counsel raised the issue with the trial court, the only probable outcome would have been the issuance of a nunc pro tunc judgment correcting the omission. See Jones, 795 S.W.2d at 202 (when proof shows that conviction has occurred in fact, nunc pro tunc judgment is proper to "enter" judgment that was "rendered" earlier). Accordingly, we overrule appellant's second point of error.

Missing or Lost Record

In a supplemental point of error, appellant argues that he is entitled to a new trial because the record of the original plea hearing in November 1995 has been lost. Therefore, appellant asserts, without a record of the original plea hearing, he is unable to determine whether there are appealable issues concerning jurisdiction or voluntariness of the plea.

An appellant is entitled to a new trial when (1) he timely requested a reporter's record, (2) a significant portion of the reporter's record was lost or destroyed through no fault of appellant, (3) the lost portion of the reporter's record is necessary to the resolution of the appeal, and (4) the parties cannot agree on a complete reporter's record. Tex. R. App. P. 34.6(f). The inquiry whether the missing record is necessary is in itself a harm analysis. Issac v. State, 989 S.W.2d 754, 757 (Tex. Crim. App. 1999). The appellant has the burden of establishing that the missing portion of the record is "necessary to the appeal's resolution." See id.; see also Alvear v. State, 25 S.W.3d 241 (Tex. App.-San Antonio 2000, no pet.).

The trial court found that the reporter's record of the original plea hearing on November 21, 1995 was unavailable through no fault of the appellant and that the parties could not agree on a record. We adopted those findings. Appellant fails, however, to meet his burden of showing that the missing reporter's record is necessary to resolve this appeal, on either of appellant's asserted grounds of jurisdiction or voluntariness.

First, we note that we may not review on a direct appeal whether appellant's guilty plea was voluntary. Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001) (...