COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-392-CR
LADIAMON HARRIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213 TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION (footnote: 1)
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Pursuant to a plea bargain, Appellant Ladiamon Harris pled guilty to the offense of robbery by threat, a second degree felony. (footnote: 2) The trial court placed him on deferred adjudication community supervision for seven years. About seven months later, the State filed a petition to proceed to adjudication, alleging that Appellant had committed a new offense. The jury convicted Appellant of the new offense, (footnote: 3) and the trial court found the allegation true, concluding that Appellant had violated the terms of his deferred adjudication community supervision. The trial court then adjudicated Appellant guilty and assessed punishment at twenty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant timely filed a general notice of appeal, which has not been amended.
Appellant’s court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion. In the brief, counsel avers that, in his professional opinion, this appeal is frivolous. Counsel’s brief and motion meet the requirements of Anders v. California (footnote: 4) by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief. This court provided Appellant the opportunity to file a pro se brief, but he has not done so.
Once Appellant’s court-appointed counsel files a motion to withdraw on the ground that the appeal is frivolous and fulfills the requirements of Anders , this court is obligated to undertake an independent examination of the record and to essentially rebrief the case for Appellant to see if there is any arguable ground that may be raised on his behalf. (footnote: 5)
Appellant is foreclosed from now raising issues related to his original plea proceeding. (footnote: 6) Similarly, he is prohibited from appealing the adjudication of guilt. (footnote: 7) The only exception to these rules is the “void judgment” exception. (footnote: 8) As the Texas Court of Criminal Appeals has explained:
A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, 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, in violation of Gideon v. Wainwright . (footnote: 9)
Our review of the record reveals no jurisdictional defects. The trial court had jurisdiction over this case. (footnote: 10) Further, the felony information, coupled with Appellant’s affirmative waiver of indictment, sufficiently conferred jurisdiction on the trial court and provided Appellant with sufficient notice. (footnote: 11) The record demonstrates that there was evidence to support the conviction. Appellant’s signed judicial confession appears in the clerk’s record, and the trial court took judicial notice of it. (footnote: 12) Even though no reporter’s record from the original proceeding is before us, “for a judgment to be void, the record must leave no question about the existence of the fundamental defect. If the record is incomplete, and the missing portion could conceivably show that the defect does not in fact exist, then the judgment is not void.” (footnote: 13) Consequently, Appellant could not rely on the absence of the reporter’s record to allege a “void judgment” at this stage. Finally, the record shows that Appellant had counsel for the proceedings. We conclude that the “void judgment” exception does not apply to Appellant. Appellant may, however, still challenge all proceedings occurring after adjudication. (footnote: 14)
Our review of the record after adjudication yields no reversible error. We have already upheld Appellant’s conviction for the new offense, holding that the evidence in that case was legally sufficient to support the judgment. (footnote: 15) Proof of just one allegation in the petition to adjudicate is sufficient support for revocation. (footnote: 16) Further, the sentence assessed by the trial court is within the statutorily permissible range. (footnote: 17) There is also no evidence in the record that Appellant’s trial counsel at revocation and punishment was ineffective. (footnote: 18)
After independently reviewing the record, we therefore agree with appellate counsel’s determination that any appeal from this case would be frivolous. Accordingly, we grant appellate counsel’s motion to withdraw and affirm the trial court’s judgment.
PER CURIAM
PANEL F: DAUPHINOT, J.; CAYCE, C.J.; and WALKER, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 23, 2003
FOOTNOTES
1:
See Tex. R. App. P. 47.4.
2:
See Tex. Penal Code Ann. § 29.02 (Vernon 2003).
3:
This court subsequently affirmed Appellant’s conviction and sentence in the new offense. See Harris v. State , No. 2-02-393-CR (Tex. App.—Fort Worth August 27, 2003, pet. filed) (not designated for publication).
4:
386 U.S. 738, 87 S. Ct. 1396 (1967).
5:
Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
6:
See Vidaurri v. State , 49 S.W.3d 880, 884 (Tex. Crim. App. 2001); Manuel v. State , 994 S.W.2d 658, 661 (Tex. Crim. App. 1999).
7:
See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2003).
8:
Nix v. State , 65 S.W.3d 664, 668-69 (Tex. Crim. App. 2001).
9:
Id. (citations omitted).
10:
See Tex. Code Crim. Proc. Ann. art. 4.05.
11:
See Tex. Const. art. V, § 12; King v. State , 473 S.W.2d 43, 51-52 (Tex. Crim. App. 1971) ; see also Weatherby v. State , 61 S.W.3d 733, 739 (Tex. App.—Fort Worth 2001, pet. ref’d) (Dauphinot, J., concurring).
12:
See McDougal v. State , 105 S.W.3d 119, 120-21 & n.9 (Tex. App.—Fort Worth 2003, pet. ref’d).
13:
Nix , 65 S.W.3d at 668-69.
14:
See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b); Vidaurri , 49 S.W.3d at 885.
15:
See Harris , No. 2-02-393-CR, slip op. at 4.
16:
See Moore v. State , 605 S.W.2d 924, 926 (Tex. Crim. App. 1980).
17:
See Tex. Penal Code Ann. § 12.33(a).
18:
See Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Hernandez v. State , 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).