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MEMORANDUM OPINION
No. 04-07-00825-CR
Stephanie GONZALES,
Appellant
v.
The STATE of Texas,
Appellee
From the 218th Judicial District Court, Karnes County, Texas
Trial Court No. 00-08-00096-CRK
Honorable Donna Rayes, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: April 29, 2009
AFFIRMED
Stephanie Gonzales appeals the judgment adjudicating her guilty of aggravated assault with
a deadly weapon and sentencing her to fifteen years in prison, complaining she did not waive her
right to a jury trial in the original plea proceeding. We affirm.
Gonzales was indicted for aggravated assault with a deadly weapon in August 2000. The
clerk’s record contains plea documents signed June 19, 2001, including a plea bargain agreement,
a waiver and consent to stipulations, plea admonishments, and a waiver of Gonzales’s right to a trial
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by jury, which was joined and approved by her attorney, counsel for the State, and the trial judge.
The record also contains a motion dated October 12, 2001, in which Gonzales asserts she previously
signed a written waiver of a jury trial and entered a plea of guilty, and requests to withdraw the
waiver and the plea. The record does not reflect the motion was heard or ruled upon. On November
27, 2001, the trial court rendered a judgment that recites Gonzales appeared that day, pled guilty, and
waived her right to a jury trial. The court deferred adjudication and placed Gonzales on community
supervision for a period of ten years. No reporter’s record of the November 27, 2001 hearing, or of
any prior hearings in the case have been filed. Gonzales did not appeal the trial court’s decision.
In 2007, Gonzales pled true to the State’s allegations that she violated two of the conditions
of her community supervision. The court accepted the plea and, after reviewing the presentence
investigation report and conducting a punishment hearing, adjudicated Gonzales guilty and sentenced
her to fifteen years incarceration. On appeal, Gonzales contends the November 2001 judgment
placing her on deferred adjudication was rendered without a valid waiver of her right to a jury trial,
in violation of her rights under Sixth Amendment to the United States Constitution and article I,
section 15 of the Texas Constitution.
As a general rule, “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). However, there is an exception to the general rule in those “very rare
situations” where the alleged error in the original plea hearing would render the original judgment
void. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001). The alleged error must be one
that deprived the trial court of power to render the judgment. Id. “Moreover, for a judgment to be
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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, even though the available portions of the record tend to support the
existence of the defect.” Id. at 668-69.
Gonzales contends she was placed on community supervision after she withdrew her June
2001 waiver of a right to a jury trial. The contention is not established by the record. The record
before us does not reflect the motion to withdraw her plea and jury waiver was presented, heard, or
granted. However, even if we were to accept Gonzales’s contention that the trial court allowed her
to withdraw the June 2001 waiver, the record reflects she again waived her rights at the subsequent
plea hearing. The judgment recites that at the November 27, 2001 hearing, Gonzales was
admonished and “requested the consent and approval of the Judge to waive the right of a trial by a
jury,” which request was given. “We must presume that statement correct in the absence of direct
proof of its falsity, and there is no such proof in the record.” Johnson v. State, 72 S.W.3d 346, 349
(Tex. Crim. App. 2002). Any failure to obtain a second written jury waiver, if error, would have been
harmless. See id.
Gonzales has failed to allege error that would render the original judgment placing her
community supervision void. Accordingly, we affirm the trial court’s judgment.
Steven C. Hilbig, Justice
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