Ex Parte: Austin Rucker

Affirmed and Dismissed w.o.j. and Opinion Filed March 10, 2022

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00364-CR
No. 05-21-00365-CR

EX PARTE: AUSTIN RUCKER

On Appeal from Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause Nos. WX21-90235-Y & W10-71844-Y(A)

MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Carlyle
Opinion by Justice Myers
This is an appeal from the denial of two article 11.09 post-conviction

applications for writ of habeas corpus, the first1 filed on November 9, 2020, and the

subsequent application2 filed on January 27, 2021. In two issues, Rucker contends

(1) the trial court abused its discretion by denying the writ application without prior

notice to the parties; and (2) the trial court abused its discretion in denying relief. In

a cross-point, the State argues we lack jurisdiction over the appeal from the denial

of the first application, cause 00365-CR. We sustain the State’s cross-point, dismiss

1
No. 05-21-00365-CR; Writ No. W10-71844-Y(A).
2
No. 05-21-00364-CR; Writ No. WX21-90235-Y.
the appeal in 00365-CR for lack of jurisdiction, and affirm the trial court’s order

denying the subsequent application in 00364-CR.

BACKGROUND AND PROCEDURAL HISTORY

Rucker filed his first application for an article 11.09 writ of habeas corpus on

November 9, 2020, approximately nine years after he was convicted in January 2011

of class A misdemeanor assault, based on a plea of nolo contendere. Rucker alleged

in his application the judgment is void “[b]ecause there is no evidence of the plea

bargain nor a judicial confession supporting a guilty plea.” He further alleged that

he continues to suffer collateral consequences from his conviction “in that he cannot

possess a firearm or ammunition.” The State asserted in its response that (1) Rucker

was not confined or restrained by his misdemeanor conviction; (2) his complaint was

barred by laches; (3) his complaint is not preserved; (4) his complaint is not

cognizable; and (5) his conviction is valid. In addition to other documents, the State

attached a copy of the plea agreement signed by Rucker’s trial counsel,3 the

prosecutor, and the trial court as an exhibit to the State’s response.

On December 15, 2020, the trial court signed an order stating that

“[a]pplicant’s complaints are without merit and [he] is not entitled to relief,” and

denying Rucker’s application by written order without a hearing. The trial court’s

order directed the clerk of the court to send a copy of the order to Rucker’s attorney

3
Attorney Melvin Bruder, who represented Rucker in the criminal case, died on December 18, 2016.

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of record, Allan Fishburn, and to counsel for the State, but there is nothing in the

record showing when or if a copy of the order was sent to the parties as directed.

Rucker filed a subsequent application for a writ of habeas corpus challenging

his conviction on January 27, 2021. This application does not purport to be an

amended application and it does not reference the prior application. Rucker alleged

in the subsequent application that the judgment was void “[b]ecause there is no

evidence of a plea bargain nor a judicial confession supporting a guilty plea.” He

further alleged he is restrained in his liberty and suffers collateral consequences

related to his conviction in the following two respects:

Applicant is a student at Southern Methodist University. Prior to sitting
for the bar exam determination of Applicant’s “character and fitness”
will be made by the Texas Board of Law Examiners pursuant to Rule
10. Applicant may be denied permission to take the examination
pursuant to findings made under Rule 4, See, Tex. Board Law Exam.
Rules 4 and 10, December 1, 2019.
Applicant’s conviction could be used to enhance punishment in other
cases.

In its response, the State argued Rucker’s complaint is barred by laches, not

preserved, not cognizable, and that his conviction is valid.

On April 27, 2021, the day of the scheduled hearing, the trial court signed a

written order denying the subsequent application. In the order denying relief, the

court stated in part:

On this Date, the Court considered the Applicant’s Application for a
Writ of Habeas Corpus pursuant to Texas Code of Criminal Procedure
Article 11.09.

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 This is Applicant’s second application for a writ of habeas corpus in
cause number F10-71844-Y. The Court denied Applicant’s first
application on December 15, 2020. Applicant alleged the same ground
for relief in his first application as he has alleged in his second
application. The Court previously considered Applicant’s claims and
entered an order finding Applicant is not entitled to relief and denied
Applicant’s application. Therefore, it is the Order of this Court that
Applicant’s second application is DENIED.

Rucker did not file a motion for reconsideration or motion for new trial

challenging the court’s order denying the subsequent application. But Rucker’s

attorney sent the trial court clerk an email complaining about the cancelation of the

hearing, stating that the purpose of the hearing was to make a record of (1) the court

denying the first writ “without a hearing and[ ] without notice to the parties,” and

(2) the fact that the December 15, 2020, order “was done without ever notifying the

parties.” Rucker’s attorney argued that because he did not receive notice of the order

denying relief from the first writ, his time for filing a notice of appeal had expired,

and the purpose of the hearing on the second writ “was so I could make a record for

a motion for an out of time appeal.” Rucker’s attorney provided the district clerk

with a copy of the email and instructed the clerk to include the email in the clerk’s

record.

On May 10, 2021, approximately thirteen days after the trial court signed the

order denying the subsequent application, Rucker filed a notice of appeal.

DISCUSSION

I. First Habeas Application

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 We begin with the State’s cross-point, which argues we have no jurisdiction

to consider the appeal in 00365-CR from the trial court’s first order denying relief.

The trial court signed the first order denying relief, cause 00365-CR (W10-

71844-Y(A)), on December 15, 2020. Thus, Rucker’s deadline for filing the notice

of appeal without an extension of time was January 14, 2021. See TEX. R. APP. P.

26.2(a)(1). Rucker did not file a motion to extend the time for filing the notice of

appeal; he filed a subsequent application for a writ of habeas corpus on January 27,

2021, which is addressed below. See TEX. R. APP. P. 26.3 (“Extension of Time.”).

Rucker’s May 10, 2021, notice of appeal was filed approximately five months after

the court signed the first order denying relief.

The State argues this notice of appeal is untimely to perfect an appeal in

00365-CR, and we agree. It was not filed within the prescribed time and there was

no motion to extend the time to file. In the absence of a timely perfected notice of

appeal, we must dismiss the appeal. Ex parte Castillo, 369 S.W.3d 196, 198 (Tex.

Crim. App. 2012); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).

Therefore, we sustain the State’s cross-point and dismiss the appeal in cause 00365-

CR (W10-71844-Y(A)) for lack of jurisdiction.

II. Subsequent Habeas Application

Turning to the appeal from the trial court’s order denying his subsequent

application, cause 00364-CR (WX21-90235-Y), Rucker brings two points of error.

In his first point, he argues the trial court abused its discretion by denying the writ

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application without prior notice to the parties, and in his second point he contends

the trial court abused its discretion by denying relief.

Rucker alleges the misdemeanor judgment of conviction is void because there

is no evidence of the plea bargain nor a judicial confession supporting the plea.

Rucker points out that the plea agreement in the record describes the offense as

“Assault Class A,” but under the admonitions on page two it states Rucker was

charged with a Class C misdemeanor. Rucker also asserts that the caption and style

are blank on the “State’s Motion to Reduce the Offense Charged,” and that the

document in the record titled “Judicial Confession” also has no caption and style,

nor is it signed by Rucker or his attorney. The State replies in part that Rucker’s

void judgment claim is unsupportable on appeal.

When reviewing a trial court’s ruling in an article 11.09 application for writ

of habeas corpus, we view the evidence in the record in the light most favorable to

the court’s ruling and uphold that ruling absent an abuse of discretion. Diamond v.

State, 613 S.W.3d 536, 544 (Tex. Crim. App, 2020). We afford almost total

deference to the court’s factual findings when they are supported by the record,

especially when they are based on credibility and demeanor. Id. This degree of

deference also applies to any implied findings and conclusions supported by the

record. Id. But if the resolution of the ultimate question turns only on the application

of legal standards, we review those determinations de novo. Id. We will uphold the

court’s ruling if it is correct under any theory of applicable law. Id. at 544–45.

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 Article 27.14(a) of the Code of Criminal Procedure authorizes a trial court in

a misdemeanor case to accept a plea of guilty or nolo contendere “made either by

the defendant or his counsel in open court” and to assess punishment “either upon

or without evidence, at the discretion of the court.” See TEX. CODE CRIM. PROC. art.

27.14(a); Ex parte Desai, No. 10-18-00031-CR, 2018 WL 2142745, at *2 (Tex.

App.—Waco May 9, 2018, no pet.) (mem. op., not designated for publication) (trial

court was authorized under article 27.14(a) to accept Desai’s misdemeanor plea and

assess punishment without consideration of any evidence).

A defendant convicted of a misdemeanor offense may attack the validity of

his conviction by way of habeas corpus if he is either (1) confined or restrained as a

result of a misdemeanor charge or conviction, or (2) is no longer confined, but is

subject to collateral legal consequences resulting from the conviction. State v.

Collazo, 264 S.W.3d 121, 125–26 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

A challenge to the sufficiency of the evidence is not cognizable by way of an

application for writ of habeas corpus; only where the judgment is void because there

was no evidence to support the judgment, has a violation of due process been shown

that justifies collateral attack. Ex parte Cantrell, 112 S.W.3d 753, 754 (Tex. App.—

Beaumont 2003, pet. ref’d); see Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim.

App. 2004). However,

[F]or 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

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 fact exist, then the judgment is not void, even though the available
portions of the record tend to support the existence of the defect.
Nix v. State, 65 S.W.3d 664, 668–69 (Tex. Crim. App. 2001), abrogated on other

grounds by Wright v. State, 506 S.W.3d 478, 481–82 (Tex. Crim. App. 2016). An

applicant for a writ of habeas corpus bears the burden of proving his allegations by

a preponderance of the evidence. Collazo, 264 S.W.3d at 126; see Ex Parte Thomas,

906 S.W.2d 22, 24 (Tex. Crim. App. 1995).

The record shows that a grand jury indicted Rucker for the offense of felony

stalking on January 27, 2010. On January 21, 2011, according to the trial court’s

docket sheet, the court granted the State’s motion to reduce the charge to a class A

misdemeanor assault. On that same day, Rucker’s trial counsel, the prosecutor, and

the trial court signed a plea agreement stating that Rucker was pleading nolo

contendere to the reduced charge. The plea agreement reflects Rucker’s plea, his

election not to testify, and the State’s recommendation of time served. On the second

page of the plea agreement, in the court’s admonitions to the defendant, it identifies

the punishment range for the offense as “Class C Misdemeanor.” On the first page,

however, the offense is identified as “Assault Class A,” with the letter “C” crossed

out and an “A” written in. The degree of offense is identified as “Class A M.” The

agreement also shows the agreed sentence of three days’ confinement in the county

jail, time served, a $100 fine, and Rucker’s waiver of a court reporter. The

statements and waivers section of the agreement includes the following statement:

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 I admit and judicially confess that I committed the offense of Assault
on _____ exactly as alleged in the charging instrument. I affirm that
my plea and judicial confession are freely and voluntarily made, and
not influenced by consideration of fear, persuasion, or delusive hope of
pardon or parole.
The signatures and acknowledgments section includes (1) Rucker’s printed name,

but not his signature; (2) defense counsel’s printed name, signature, and State Bar

Number; (3) the prosecutor’s printed name, signature, and State Bar Number; and

(4) the trial judge’s printed name and signature. A handwritten date of “1/21/11”

appears to the left of the prosecutor’s signature, and a date-stamp of “JAN 21, 2011”

appears to the left of the trial judge’s signature.

The clerk’s record includes the final judgment of conviction, which states that

it was entered on January 21, 2011, and that Rucker was convicted of assault. It

states that the degree of offense was a class A misdemeanor, that Rucker pleaded

guilty, and that the punishment was three days in the county jail and a $100 fine.

The clerk’s record also includes the trial court’s certification of defendant’s

right to appeal, dated January 21, 2011, which is signed by the defendant, defense

counsel, and the trial judge. Furthermore, the judgment certificate of thumbprint,

dated January 21, 2011, is signed by the bailiff/deputy sheriff and the trial court, and

it certifies that the affixed fingerprints of the defendant in cause F10-71844-Y (the

trial court case number in the criminal case) were taken at the time of disposition of

the case. Additionally, the trial court’s January 21, 2011, docket sheet shows the

indicted offense of “STALKING/FEL” marked through, and written in are the

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notations “Class ‘A’ misd[,] Assault[,] 22.01 P/C[,] 032710.” The disposition entry

reads as follows:

Jury and arraignment waived. Plea of . . . nolo contendere. Defendant
admonished. Evidence presented. Defendant was found guilty of Class
A assault, as . . . included in the indictment . . . and sentenced to 3 days
. . . confinement . . . in the county . . . jail . . . . A fine of $100.00 was
assessed. Defendant was credited with back-time.

The lower margin of the docket sheet contains the following handwritten notations:

“PGFR-JG; 3 days County Jail; BT: 4/27/10—4/27/10; Mtn to Reduce Granted;

cc$367; fine $100.”

Rucker contends that the judgment of conviction is void, yet judgments are

void only in very rare situations—usually due to the trial court’s lack of jurisdiction.

Nix, 65 S.W.3d at 668; Flores v. State, No. 01-10-00531-CR, 2013 WL 709100, at

*10 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (mem. op., not designated for

publication). The list of situations in which a judgment of conviction is void includes

those in which the record reflects that there is no evidence to support the conviction.

Nix, 65 S.W.3d at 668; Flores, 2013 WL 709100, at *10; see also Wolfe v. State, 560

S.W.2d 686, 688 (Tex. Crim. App. 1978). For the judgment to be void, however,

the record must show a complete lack of evidence to support the conviction, not

merely insufficient evidence. Nix, 65 S.W.3d at 668 n.14; Wolfe, 560 S.W.2d at 688.

And a guilty plea constitutes some evidence for this purpose. Nix, 65 S.W.3d at 668

n.14; Ex Parte Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986).

As for Rucker’s contentions, the omission of the style and caption of the case

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in the State’s motion to reduce the charged offense does not negate the fact that the

trial court granted the State’s motion and sentenced Rucker on the lesser charge.

Likewise, the fact that neither Rucker nor his attorney signed “SX#1,” titled

“JUDICIAL CONFESSION,” an uncaptioned and unstyled document in the clerk’s

record, is not dispositive because, as we indicated earlier, a trial court may find a

person guilty in a misdemeanor proceeding upon his plea of guilty or no contest with

or without evidence. See TEX. CODE CRIM. PROC. art. 27.14(a); Ex parte Desai, 2018

WL 2142745, at *2; Ex Parte Robert, No. 12-09-00104-CR, 2009 WL 2517256, at

*3 (Tex. App.—Tyler Aug. 19, 2009, no pet.) (mem. op., not designated for

publication).

The final judgment of conviction in this case, the plea agreement signed by

defense counsel, and trial court’s docket sheet support the entry of Rucker’s plea of

nolo contendere to the charge of class A misdemeanor assault. Furthermore, under

the judicial presumption of regularity, a reviewing court, absent evidence of

impropriety, indulges “every presumption in favor of the regularity of the

proceedings and documents in the lower court.” Light v. State, 15 S.W.3d 104, 107

(Tex. Crim. App. 2000); see also Jones v. State, 77 S.W.3d 819, 822 & n.13 (Tex.

Crim. App. 2002) (“[I]n the absence of evidence to the contrary, this Court presumes

the regularity of the trial court’s judgment and records.”) (citing Breazeale v. State,

683 S.W.2d 446, 450 (Tex. Crim. App. 1985) (op. on reh’g)).

Because the record reflects the entry of Rucker’s plea of nolo contendere to

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class A misdemeanor assault, and because there is no transcript of the plea

proceeding to support a void judgment claim,4 we conclude the trial court did not err

in determining Rucker was entitled to no relief and denying his subsequent

application for writ of habeas corpus. We therefore overrule Rucker’s points of error

and affirm the trial court’s order.5

/Lana Myers//
LANA MYERS
JUSTICE
210364f.u05
210365f.u05
Do Not Publish
TEX. R. APP. P. 47.2(b)

4
See, e.g., Nix, 65 S.W.3d at 668–69; Ephraim v. State, No. 02-19-00076-CR, 2020 WL 938175, at *2
(Tex. App.—Dallas Feb. 27, 2020, no pet.) (mem. op., not designated for publication) (citing Nix)
5
In its brief, the State also argued Rucker is not confined or suffering a restraint from his conviction;
his complaint is barred by laches; it is not preserved; and that Rucker’s actual complaint is a challenge to
the sufficiency of the evidence, which is not cognizable in a habeas proceeding. Because of our holding
above, we do not address these issues.
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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

EX PARTE: AUSTIN RUCKER On Appeal from the Criminal District
Court No. 7, Dallas County, Texas
No. 05-21-00364-CR Trial Court Cause No. WX21-90235-
Y.
Opinion delivered by Justice Myers.
Justices Partida-Kipness and Carlyle
participating.

Based on the Court’s opinion of this date, the trial court’s judgment is

AFFIRMED.

Judgment entered this 10th day of March, 2022.

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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

EX PARTE: AUSTIN RUCKER On Appeal from the Criminal District
Court No. 7, Dallas County, Texas
No. 05-21-00365-CR Trial Court Cause No. W10-71844-
Y(A).
Opinion delivered by Justice Myers.
Justices Partida-Kipness and Carlyle
participating.

Based on the Court’s opinion of this date, the appeal is DISMISSED for lack

of jurisdiction.

Judgment entered this 10th day of March, 2022.

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