No. 01-03-00475-CR
Opinion Issued March 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 789261.
Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
LAURA CARTER HIGLEY, Justice.
Appellant, Charles Henry Brooks, pleaded guilty to felony theft and was placed on deferred adjudication community supervision. Subsequently, appellant's community supervision was revoked and his guilt was adjudicated. In four issues, appellant challenges the constitutionality of his original plea proceedings. We dismiss for want of jurisdiction.
BACKGROUND
On September 21, 1999, appellant pleaded guilty to felony theft, with an agreed recommendation as to punishment, and waived trial by jury. On October 8, 1999, in accordance with appellant's plea agreement, the trial court deferred adjudication of guilt, ordered restitution in the amount of $48,308.40, and placed appellant on community supervision for 10 years. No court reporter was present during the proceedings. Appellant did not appeal. On February 11, 2002, the State moved to adjudicate appellant's guilt on the grounds that he violated the terms of his community supervision. Appellant pleaded "true" to the allegations. After a hearing, the trial court found the allegations true, adjudicated appellant's guilt, and, in accordance with a plea agreement at adjudication, sentenced him to three years' confinement. No court reporter was present. Jurisdiction
In his first and second issues, appellant contends that Code of Criminal Procedure article 1.15, which prescribes the procedure for guilty plea proceedings, violates his federal and state constitutional rights to compulsory process. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004-2005). Specifically, he contends that the statute is facially unconstitutional because it permits only the State, and not a defendant, to put on evidence. The State contends that we are without jurisdiction to address appellant's issues because appellant was required to bring any challenge to his original plea proceedings at the time they took place and punishment was imposed, and not three years later upon adjudication of guilt and revocation of his community supervision. Generally, a defendant must raise issues relating to the original plea proceeding at the time the punishment is first imposed. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). However, the "void judgment" exception allows an appellant to raise error regarding his original plea hearing after revocation of probation if the error is as such that it would render the original judgment void. Nix v. State, 65 S.W.3d 664, 667-68 (Tex.Crim.App. 2001). If an original judgment imposing probation is void, then the trial court has no authority to revoke probation because a void judgment leaves nothing to revoke. Id. at 668. The void judgment exception applies to deferred adjudication probation. Id. A judgment is rarely void and usually requires a showing of a jurisdictional issue, such as: (1) a constitutional defect in the charging instrument; (2) a lack of the subject matter jurisdiction; (3) a record that reflects no evidence to support the conviction; or (4) a denial of counsel for an indigent. Id. at 668 (finding this list of jurisdictional issues to be "very nearly" exclusive). Otherwise, a "void conviction" is one in which the court had no jurisdiction over the subject matter of the case or over the accused, or when the trial court lacked qualification to act in any manner. Ex parte McCain, 67 S.W.3d 204, 209 (Tex.Crim.App. 2002). A conviction will be void if the statute prescribing the offense is facially unconstitutional. McGowan v. State, 938 S.W.2d 732, 741-42 (Tex.App.-Houston [14th Dist.] 1996), aff'd on other grounds sub. nom, Weightman v. State, 975 S.W.2d 621 (Tex.Crim.App. 1998). However, because article 1.15 concerns how and when a judgment may be rendered on a plea, it is procedural in nature. See TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon Supp. 2004-2005). Appellant has not demonstrated that his constitutional challenge to article 1.15 can be classified as a jurisdictional challenge or that the void-judgment exception applies to purely procedural statutes. See Nix, 65 S.W.3d at 669; Okigbo v. State, 960 S.W.2d 923, 925 n. 1 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). Moreover, this Court has held that article 1.15 "neither prohibits the defendant from offering evidence nor prohibits the court from considering the evidence offered by the defendant." Lyles v. State, 745 S.W.2d 567, 568 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd). Because appellant waived his right to have a court reporter record his plea proceeding, there is nothing in the record to indicate that appellant attempted to offer evidence or objected to an inability to present evidence. For a judgment to be void, "the record must leave no question about the existence of the fundamental issue." Nix, 65 S.W.3d at 668. Appellant was required to appeal his first two issues at the time of his original guilty plea. See Manuel, 994 S.W.2d at 661-62. Appellant's appeal after adjudication and revocation is untimely, and we have no jurisdiction to address his first two issues. Express Waiver
In his third and fourth issues, appellant contends that the trial court erred fundamentally in proceeding to judgment because there is no evidence in the record that he waived his federal and state constitutional rights to compulsory process. Federal law does not require that a defendant expressly waive his right to compulsory process. See FED. R. CRIM. P. 11(c). Texas law requires an express waiver of (1) the right to a jury trial, (2) the right to confront one's accusers, and (3) the right to refuse to testify at trial. Lyles, 745 S.W.2d at 567-568. Because there is no requirement that defendant expressly waive his right to compulsory process, there is no fundamental error. See id. at 568. As above, appellant failed to timely appeal at the time he entered his plea and was placed on deferred adjudication probation. Hence, we have no jurisdiction over issues three and four. Manuel, 994 S.W.2d at 661-62. CONCLUSION
Because we have no jurisdiction to hear the merits of appellant's complaints regarding his original guilty plea, we dismiss this appeal for want of jurisdiction.