VELMA ARNOLD v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Lang

Velma Arnold appeals from a judgment revoking community supervision.   At her original plea hearing, she pleaded guilty to the felony offense of injury to a child.   In her first issue, Arnold contends the trial court erred in revoking community supervision because her evidentiary stipulation presented in her original plea proceeding does not confess to a crime under the penal code, there is no evidence to support her conviction, and the judgment adjudicating her guilt and assessing punishment is void.   In her second issue, she argues she received ineffective assistance of counsel during both her original plea hearing and her community supervision revocation hearing.   We decide both of Arnold's issues against her and affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 27, 2003, Arnold was indicted for causing bodily injury to a child while operating a motor vehicle while intoxicated, a felony offense.   At a hearing in the trial court, where she was represented by counsel, Arnold signed a stipulation, which substantially tracked the language of the indictment.   Her stipulation states, in pertinent part, that on October 18, 2002, Arnold did “intentionally and knowingly cause bodily injury to ․ a child younger than 15 years of age, by operating a motor vehicle while intoxicated in which [the child] was a passenger.”   The court found Arnold guilty, sentenced her to ten years' confinement, suspended the sentence, and placed her on ten years' community supervision.   No appeal was taken from the trial court's community supervision judgment.

In December 2010, the State filed an amended motion to revoke community supervision, alleging Arnold committed six acts that violated conditions of her community supervision.   Arnold pleaded true to three allegations and not true as to the remaining allegations.   The trial court found true the three allegations to which Arnold had pleaded true, revoked her community supervision, and sentenced her to six years' confinement.   This appeal followed.

II. SUFFICIENCY OF EVIDENTIARY STIPULATION

In her first issue, Arnold argues the evidence is insufficient to support her conviction because her stipulation did not state she committed an “act” as required by the statute.¹  She contends the stipulation does not confess to a crime under the penal code and there is no evidence to support her original guilty plea, the community supervision judgment, and the judgment revoking community supervision and imposing a sentence of confinement.   Accordingly, she argues the plea and judgments are void.   The State responds that the Court lacks jurisdiction to consider Arnold's issue regarding the original plea proceeding.   In the alternative, the State asserts, should this Court conclude it has jurisdiction to address Arnold's issue, the indictment and stipulation are sufficient to meet the elements of the offense, the community supervision judgment is not void, and the trial court did not err in rendering the judgment revoking community supervision.

A. Standard of Review and Applicable Law

“The general rule is that the sufficiency of the evidence to sustain a conviction cannot be collaterally attacked.   Further, an appeal from an order revoking probation ² is limited to the propriety of the revocation and does not include a review of the original conviction.”  Traylor v. State, 561 S.W.2d 492, 494 (Tex.Crim.App. [Panel Op.] 1978).   There are exceptions to those general rules.   See Whetstone v. State, 786 S.W.2d 361, 363 (Tex.Crim.App.1990);  see also Nix v. State, 65 S.W.3d 664, 667 & n.7 (Tex.Crim.App.2001).   One exception is where there is a void judgment.  Nix, 65 S.W.3d at 667;  see Ex parte Patterson, 969 S.W.2d 16, 19 (Tex.Crim.App.1998).   In criminal cases, a judgment is void if there is no evidence to support the conviction.  Nix, 65 S.W.3d at 668.   However, for a judgment to be void due to no evidence, the record must show a due process violation arising from a complete absence of evidence to support the conviction.  Wolfe v. State, 560 S.W.2d 686, 688 (Tex.Crim.App.1978);  Ex parte Moffett, 542 S.W.2d 184, 185 (Tex.Crim.App.1976);  Crume v. State, 342 S.W.3d 241, 244 (Tex.App.—Beaumont 2011, no pet.);   see also Nix, 65 S.W.3d at 668.

B. Application of Law to Facts

Arnold alleges there is no evidence to support her conviction, i.e., it is void.   However, the record reflects that Arnold entered a plea of guilty.   Although her plea of guilty alone may not satisfy the requirements of article 1.15 on a direct appeal, a guilty plea constitutes some evidence for purposes of due process.   See Nix, 65 S.W.3d at 668 n.14;  Menefee v. State, 287 S.W.3d 9, 16–17 (Tex.Crim.App.2009);  Crume, 342 S.W.3d at 244;  see also Tex.Code Crim. Proc. Ann. art. 1.15 (West 2005 & Supp.2011).   Therefore, Arnold's original judgment is not subject to attack as a void judgment.   We decide Arnold's first issue against her.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

In her second issue, Arnold argues her trial counsel was ineffective during the original plea hearing because he did not file a motion to quash the indictment nor contest the adequacy of the stipulation supporting Arnold's guilty plea.   Further, she contends her counsel was ineffective during the revocation hearing in failing to contest the motion to revoke on the basis that the trial court's judgment adjudicating her guilt and assessing community supervision was void.   The State responds this Court lacks jurisdiction to address Arnold's arguments concerning the failure to file a motion to quash and the failure to contest the adequacy of the stipulation supporting the guilty plea.   As to Arnold's arguments of ineffective counsel during the community supervision revocation hearing, the State contends there is no evidence in the record to meet the two-prong Strickland standard necessary to prevail on appeal.

A. Standard of Review and Applicable Law

To prevail on a claim of ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different.   See Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984);  Ex parte Niswanger, 335 S.W.3d 611, 615 (Tex.Crim.App.2011).   Failure to make the required showing of either deficient performance or sufficient prejudice defeats the claim that counsel was ineffective.  Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App.2005);  Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).

Allegations that counsel was ineffective must be firmly founded in the record and not based on retrospective speculation.  Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App.2002).   This requires an appellant to present direct evidence of the reasons for counsel's actions or omissions at trial, unless counsel's deficiency is affirmatively demonstrated in the record.   See Mata v. State, 226 S.W.3d 425, 430 (Tex.Crim.App.2007);  Thompson, 9 S.W.3d at 814.   A reviewing court will find counsel's deficiency to be affirmatively demonstrated in the record when no reasonable strategy could justify counsel's conduct.   Andrews, 159 S.W.3d at 102.

B. Application of Law to Facts

Because we have already decided the original judgment was not void, and, thus, we lack jurisdiction to consider issues relating to the original plea hearing, we likewise cannot consider Arnold's claim that trial counsel was ineffective during the original plea hearing.   See, e.g., Kirtley v. State, 56 S.W.3d 48, 51–52 (Tex.Crim.App.2001);  see also Montano v. State, No. 09–01–00234–CR, 2002 WL 31835057, at *1 (Tex.App.—Beaumont Dec. 19, 2002, no pet.) (not designated for publication) (lacking jurisdiction to consider ineffective assistance claim as to original plea hearing, but considering merits as to ineffective assistance claim as to revocation hearing).   Accordingly, we address only her remaining argument that her trial counsel was ineffective during the community supervision revocation hearing “by not realizing that [Arnold] should not have been on [community supervision] in the first place because of a void judgment.”

Arnold contends her counsel's performance fell below an objective standard in not “notic[ing] that the indictment was defective and insufficient and [failing to file] a motion to quash the indictment.”   However, as we concluded above, the trial court's community supervision judgment was not void.   Accordingly, we cannot fault Arnold's counsel for failing to assert that argument at the revocation hearing.  Gaston v. State, 63 S.W.3d 893, 898 (Tex.App.—Dallas 2001, no pet.);  Thacker v. State, 999 S.W.2d 56, 67 (Tex.App.—Houston [14th Dist.] 1999, pet. ref'd) (“Trial counsel's failure to file a motion to quash or object to the indictment does not constitute ineffective assistance because the indictment was legally sufficient.   Trial counsel is not ineffective for failure to make meritless objections.”).   Arnold has not met her burden to show counsel's performance fell below an objective standard of reasonableness.   We decide Arnold's second issue against her.

IV. CONCLUSION

We conclude the original judgment is not subject to attack as a void judgment.   Accordingly, we do not have jurisdiction to address claims relating to the original plea hearing.   Further, Arnold has not met her burden to show that she received ineffective assistance of counsel during her community supervision revocation hearing.   The trial court's judgment is affirmed.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

VELMA ARNOLD, Appellant

No. 05–11–00917–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 86 th Judicial District Court of Kaufman County, Texas.  (Tr.Ct.No.21706–86).

Opinion delivered by Justice Lang, Justices Bridges and Francis participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 10, 2012.

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE

FOOTNOTES

FN1. Tex. Penal Code Ann. § 22.04(a) (West Supp.2011) (“A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child ․:(3) bodily injury.”) (emphasis added)..  FN1. Tex. Penal Code Ann. § 22.04(a) (West Supp.2011) (“A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child ․:(3) bodily injury.”) (emphasis added).

FN2. “ ‘Community supervision’ is the current statutory term for what was formerly called ‘probation.’ ”  Ballard v. State, 126 S.W.3d 919, 919 n.1 (Tex.Crim.App.2004)..  FN2. “ ‘Community supervision’ is the current statutory term for what was formerly called ‘probation.’ ”  Ballard v. State, 126 S.W.3d 919, 919 n.1 (Tex.Crim.App.2004).

DOUGLAS S. LANG JUSTICE