Opinion issued February 7, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-01124-CR
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FRANK ZUNIGA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1309014
MEMORANDUM OPINION
Frank Zuniga appeals the trial court’s judgment adjudicating his guilt and
sentencing him to twelve years’ confinement. Zuniga was placed on deferred
adjudication community supervision for the second-degree felony offense of
indecency with a child. See TEX. PENAL CODE ANN. § 21.11(a)(1), (d) (2011). The
State moved to adjudicate Zuniga’s guilt and the trial court did so. On appeal,
Zuniga contends that there was no evidence to support his guilty plea and his
conviction must therefore be reversed. We affirm.
Background
Zuniga was charged by indictment with the felony offense of indecency with
a child for touching the complainant’s genitals. Zuniga pleaded guilty pursuant to
a plea bargain with the State and waived the making of a record of his plea
proceedings. The Waiver of Constitutional Rights, Agreement to Stipulate, and
Judicial Confession (the “Confession”) that Zuniga signed, however, did not
mention Zuniga touching complainant’s genitals. Rather, it stated that Zuniga had
caused complainant to touch the genitals of a second minor complainant. The trial
court accepted the plea and deferred adjudication of Zuniga’s guilt, placing him on
deferred adjudication community supervision for seven years.
Approximately three months later, the State moved to adjudicate Zuniga’s
guilt, alleging a violation of the provisions of his community supervision that
prohibited contact with minors. At the hearing on the motion to adjudicate,
Zuniga’s community supervision file was admitted into evidence. The file
included the police report containing complainant’s statements to his mother and
the report from the Children’s Assessment Center containing complainant’s
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statements to the forensic interviewer. In these statements, complainant indicated
that Zuniga had touched complainant’s genitals. After the hearing, the trial court
found the allegations to be true, adjudicated Zuniga’s guilt, and sentenced him to
twelve years’ confinement. Zuniga appeals.
Analysis
A defendant who receives deferred adjudication community supervision
generally may not appeal errors in the original proceeding that resulted in the
deferred adjudication after a later proceeding to adjudicate guilt. Nix v. State, 65
S.W.3d 664, 667–68 (Tex. Crim. App. 2001); Manuel v. State, 994 S.W.2d 658,
661–62 (Tex. Crim. App. 1999). There are two exceptions to this general rule: a
judgment may be challenged after adjudication (1) when it is void or (2) by habeas
corpus. Nix, 65 S.W.3d at 667.
“The void judgment exception recognizes that there are some rare situations
in which a trial court’s judgment should be accorded no respect due to a complete
lack of power to render the judgment in question.” Id. Because a void judgment is
a nullity, it may be attacked at any time. Id. at 668. It logically follows that “[i]f
the original judgment imposing [community supervision] was void, then the trial
court would have no authority to revoke that [community supervision], since, with
no judgment imposing probation (because it is a nullity), there is nothing to
revoke.” Id.
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In Nix, the Court of Criminal Appeals identified a “very nearly” exclusive
list of circumstances rendering a judgment void.
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.
Id. (footnotes omitted).
The third circumstance, the “no evidence” exception, is the basis of Zuniga’s
appeal. For this exception to apply, “the record must show a complete lack of
evidence to support the conviction, not merely insufficient evidence.” Id. at 668
n.14. “[T]he record must leave no question about the existence of the fundamental
defect.” Id.
Zuniga contends there is no evidence to support his conviction because the
acts admitted in the Confession are not the same acts alleged in the indictment.
Accordingly, argues Zuniga, the Confession cannot support the conviction. See
Nix, 65 S.W.3d at 668 n.14 (noting that guilty plea or judicial confession is
ordinarily sufficient to support conviction); Tijerina v. State, 264 S.W.3d 320, 324
(Tex. App.—San Antonio 2008, pet. ref d). While the Confession did not track the
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indictment, Zuniga’s claim fails because other evidence supports the conviction.
In the written admonishments, given pursuant to Article 26.13(d) of the Code of
Criminal Procedure, Zuniga swore, “I have read the indictment and I committed
each and every element alleged.” Additionally, at the hearing on the motion to
adjudicate guilt, the trial court admitted into evidence Zuniga’s community
supervision file. The file reflects that complainant told his mother and the
Children’s Assessment Center’s forensic interviewer that Zuniga touched
complainant’s genitals, which is the offense alleged in the indictment. Thus, there
is no “complete lack of evidence to support the conviction.” See Nix, 65 S.W.3d at
668 n.14. Because the record contains some evidence to support Zuniga’s
conviction, we overrule Zuniga’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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