Trcka v. State

• Decision Date: 20 January 1988
• Docket Number: No. 3-87-024-CR,3-87-024-CR
• Citation: Trcka v. State, 744 S.W.2d 677 (Tex. App. 1988)
• Parties: Thomas James TRCKA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 677

744 S.W.2d 677

Thomas James TRCKA, Appellant, v. The STATE of Texas, Appellee.

No. 3-87-024-CR.

Court of Appeals of Texas Austin.

Jan. 20, 1988.

Rehearing Denied Feb. 24, 1988.

Harry A. Nass, Jr., San Antonio, for appellant.

Charles Chapman, Crim. Dist. Atty., Michael S. Wenk, Asst. Crim. Dist. Atty., San Marcos, for appellee.

Before POWERS, BRADY and ABOUSSIE, JJ.

POWERS, Justice.

The prior opinion of this Court, dated December 9, 1987, is withdrawn, and the following is substituted therefor.

On September 16, 1985, Thomas James Trcka entered a plea of guilty to the offense of driving while intoxicated. Pursuant to a negotiated plea agreement, Trcka was assessed a $300.00 fine, ordered to pay court costs, and sentenced to two years confinement in the Hays County Jail. The period of confinement was suspended and Trcka was placed on probation for two years.

On January 8, 1987, the State moved to revoke Trcka's probation, alleging that he had subsequently committed the offenses of involuntary manslaughter and driving while intoxicated. On January 14, 1987, the court conducted a hearing on the State's motion. After hearing the testimony of two witnesses, the court sustained the State's motion. Consequently, Trcka's probation was revoked and he was sentenced to two years confinement in the Hays County Jail. We will affirm the order of the trial court.

Whether the Original Judgment is Void. Trcka's first point of error alleges that the trial court committed reversible error in not allowing appellant to withdraw his plea of guilty on the ground that the 1985 judgment is void. Trcka contends no final judgment was entered in 1985; ¹ and the purported judgment in that proceeding is actually an order granting deferred adjudication in violation of Tex.Code Cr.P.Ann. art. 42.12 § 3d(d) (Supp.1987). ² Trcka then reasons that since the 1985 judgment was unlawful, there was not a valid judgment that could be revoked.

Whatever the 1985 "judgment" was, it was clearly not a final appealable judgment. As is apparent from the language quoted in footnote 1 of this opinion, no judgment on the verdict of guilty was entered. In the absence of any showing in the transcript that a judgment on the verdict of guilty was entered by the trial court, substantially in the form prescribed by Tex.Code Cr.P.Ann. art. 42.01 § 1 (Supp.1987), there is nothing for this Court to review. See Bradley v. State, 151 Tex.Cr.R. 579, 210 S.W.2d 592 (1948); Davis v. State, 145 Tex.Cr.R. 188, 167 S.W.2d 523 (1942). However, a valid judgment was entered on January 14, 1987 when Judge Warner revoked the 1985 order. Having determined that there is a final order that is appealable, we may now consider the merits of Trcka's points of error.

We disagree with Trcka's contention that the invalidity of the original "judgment" gave him a right to withdraw his plea of guilty. Once a trial judge takes a case under advisement or pronounces judgment, the decision whether to allow a defendant to withdraw his plea lies in the trial court's discretion. DeVary v. State, 615 S.W.2d 739 (Tex.Cr.App.1981). In the present case, since almost two years had passed since Trcka pleaded guilty, it was not an abuse of discretion to refuse to allow him to withdraw his plea.

If in fact the original "judgment" was an order granting deferred adjudication, as appellant claims it was, he cannot complain about the decision to proceed to adjudicate because that decision is not appealable. Tex.Code Cr.P.Ann. art. 42.12, § 3d(b). Furthermore, regardless of whether the original "judgment" was an unauthorized attempt to grant deferred adjudication or an ineffective attempt to grant ordinary probation in which no final judgment was entered, Trcka may not, after accepting the benefit of release, complain on appeal that such leniency was a defect. See Coleman v. State, 640 S.W.2d 889, 893 (Tex.Cr.App.1982); see also Tillis v. State, 647 S.W.2d 268 (Tex.Cr.App.1983).

Lack of Specificity in the Original Information. Trcka argues in his second point of error that the trial court committed reversible error in overruling appellant's motion to quash the original information. As a general rule, an appeal from an order revoking probation is limited to the propriety of the revocation order and does not include a review of the original conviction. Hoskins v. State, 425 S.W.2d 825 (Tex.Cr.App.1967). However, the original judgment of conviction may be collaterally attacked on appeal from a revocation order if fundamental error was committed. Dinnery v. State, 592 S.W.2d 343, 350 (Tex.Cr.App.1980) (opinion on rehearing); Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976). Stated in another way, any complaint concerning the original judgment of conviction that could be raised in a post-conviction habeas corpus proceeding pursuant to Tex.Code Cr.P.Ann. art. 11.07 (1977 and Supp.1987) may also be raised on appeal from an order revoking probation. Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972) [to require a separate habeas corpus proceeding would be to require a useless thing].

The type of error that may be collaterally attacked is one that renders the proceeding absolutely void. Nonfundamental errors are merely voidable; this type of error requires reversal if attacked on direct appeal, but may not be collaterally attacked in the absence of a showing of harm. See Ex Parte Shields, 550 S.W.2d 670, 675-676 (Tex.Cr.App.1977). This Court has previously held that the failure of a charging instrument to specify which definition of intoxication the State is relying upon is not a fundamental defect requiring automatic reversal. See Russell v. State, 710 S.W.2d 662 (Tex.App.1986, pet. ref'd) (no prejudice to defendant when the State's lack of scientific evidence of intoxication necessarily meant that State had to rely on the alternate statutory definition of intoxication).

Because the error to which appellant now objects rendered the original judgment voidable, but not void, it is not a proper basis for a collateral attack. Trcka's point of error is overruled.

Lack of Specificity in the Motion to Revoke Probation. Trcka argues in his third and fourth points of error that the trial court committed reversible error in denying appellant's motion to quash the charging paragraphs in the State's motion to revoke probation. The basis for Trcka's motion was that the State failed to specify which definition of "intoxicated" it planned to prove. ³

The relevant portion of the State's motion averred:

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B. During the period of said probation the said THOMAS J. TRCKA has violated the terms of his probation as follows:

1. Within said probationary period, the Defendant THOMAS J. TRCKA violated a term and condition of his probation. Specifically the Defendant, on or about the 26th day of April, A.D., 1986 in Bexar County, Texas, did then and there by accident and mistake when operating a motor vehicle while intoxicated, and by reason of such intoxication cause the death of an individual Norman Shepard by then and there driving said motor vehicle into and causing it to collide with a motor vehicle occupied by Norman Shepard.

2. Within said probationary period, the Defendant THOMAS J. TRCKA violated a term and condition of his probation. Specifically the Defendant, on or about the 26th day of April, A.D., 1986 in Bexar County, did then and there drive and operate a motor vehicle in a public place while intoxicated.

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It is well-established that the allegations in a motion to revoke probation need not be as precise as those in an information or an indictment, although they must give sufficient notice to afford due process. Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970). While a motion to revoke probation "should allege a violation of the law," Jansson v. State, 473 S.W.2d 40, 42 (Tex.Cr.App.1971), the motion need not perfectly allege all the elements of an offense. Crawford v. State, 624 S.W.2d 906, 908 (Tex.Cr.App.1981).

For example, in Crawford, the motion to revoke set forth that the probationer did "knowingly and intentionally possess a controlled substance namely: Cocaine."...