No. 04-04-00386-CR
Delivered and Filed: March 30, 2005. DO NOT PUBLISH.
Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-5559W, Honorable Mark R. Luitjen, Judge Presiding. Affirmed As Modified.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis SPEEDLIN, Justice.
SANDEE BRYAN MARION, Justice.
Defendant Walter Leroy Mecom pled no contest to possession of less than twenty abuse units of LSD and, pursuant to his plea bargain agreement, was placed on deferred adjudication community supervision for five years. After violating the terms of his community supervision, the trial court adjudicated defendant guilty and assessed punishment at two-years' confinement and a fine of $5000.00. Defendant raises several issues on appeal. We affirm the trial court's judgment as modified.
ISSUES RELATED TO THE GUILTY PLEA
Defendant was charged with the offense of possession of a controlled substance listed in penalty group 1-A. See Tex. Health Safety Code Ann. § 481.1151 (Vernon 2003). Defendant judicially confessed and orally pled no contest to this offense. However, he was admonished and the court's judgment adjudicating guilt states defendant was convicted under Health and Safety Code section 481.115. On appeal, defendant asserts that because of this error, he was improperly informed of the charge against him and he involuntary pled to, and was placed on community supervision for, the wrong offense. Defendant also asserts the trial court did not have a charging instrument to vest it with jurisdiction over him because he pled no contest to an offense different from the offense in the information. Therefore, according to defendant, the judgment is void. Generally, a defendant who is placed on deferred adjudication probation may raise issues related to the original pleading only in an appeal taken when deferred adjudication probation is first imposed. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). Such issues may not be raised in an appeal from an order revoking probation and adjudicating guilt. Id. Further, a defendant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise contentions of error in the adjudication of guilt process on appeal. Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999); see also Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2004). However, a defendant, on appeal, may challenge the process by which he was sentenced following adjudication of guilt because such issues are unrelated to the conviction or the decision to adjudicate. See Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex.Crim.App. 2001); Vidaurri v. State, 49 S.W.3d 880, 885 (Tex.Crim.App. 2001). There are two exceptions to the general rule as stated in Manuel: the "void judgment exception" and the "habeas corpus exception." See Nix v. State, 65 S.W.3d 664, 667 (Tex.Crim.App. 2001). On appeal, defendant relies only on the void judgment exception. The void judgment exception applies in "rare situations" in which the trial court had no power to render the judgment. Id. at 667-68. If the original judgment imposing probation is void, then the trial court would have no authority to revoke probation. Id. at 668. A judgment of conviction is void when: 1) the charging instrument ( i.e. indictment, information, or complaint) did not satisfy the constitutional requisites of a charging instrument; 2) the trial court did not have subject matter jurisdiction over the offense; 3) there was no evidence to support the conviction; or 4) counsel was not appointed for an indigent defendant who had not waived the right to counsel. Id. We believe defendant is unable to avail himself of the void judgment exception in this case. First, defendant concedes and the record reflects that the charging instrument satisfies the constitutional requisites of an indictment. Under Texas law, a charging instrument must convey sufficient notice to allow the accused to prepare his defense; specifically, it must allege all facts and circumstances necessary to establish the material elements of the offense. State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App. 1998); see also Tex. Code. Crim. Proc. Ann. art. 21.03 (Vernon 1989). A charging instrument tracking the language of the statute will, as a general rule, satisfy constitutional and statutory notice requirements. Galliford v. State, 101 S.W.3d 600, 605 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Here, the information provides in part, [i]n the Count[y] of Bexar and State of Texas, and before the making and filing of this information, on or about the 4th day of September, A.D., 2001, Walter Mecom, hereinafter referred to as defendant, did then and there knowingly and intentionally possess a controlled substance, namely: Lysergic Acid Diethylamide, of an amount less than twenty (20) abuse units.
This information tracks the language of the criminal statute to which defendant orally pled no contest, thus satisfying the constitutional and statutory notice requirements. See Galliford, S.W.3d at 605; Tex. Health Safety Code Ann. § 481.1151 (elements of possession of a substance in penalty group 1-A). Second, the 144th Judicial District Court of Bexar County had subject matter jurisdiction over the case. See Tex. Code Crim. Proc. Ann. arts. 4.01, 4.05 (Vernon Supp. 2004). Third, defendant entered a plea of no contest and cannot allege that there is no evidence to support his conviction. See Nix, 65 S.W.3d at 668 n. 14. Finally, the clerk's record reflects that defendant was represented by counsel at his original plea proceeding. Furthermore, the rule articulated in Manuel also applies to defendant's complaint that his plea was involuntary. See Hanson v. State, 11 S.W.3d 285, 288 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). Because defendant could have appealed the order placing him on deferred adjudication and could have raised the voluntariness of his plea following his original plea hearing, his failure to do so prevents this court from addressing the merits of his complaint. See Cooper v. State, 45 S.W.3d 77, 83 (Tex.Crim.App. 2001). Therefore, we dismiss defendant's first two issues for lack of jurisdiction. The State argues the judgment in this case contains a clerical error that can be corrected. We agree. Defendant was charged with an offense under Health and Safety Code section 481.1151. He judicially confessed and pled no contest to a violation of section 481.1151. However, the trial court's judgment reflects defendant was convicted of an offense under Health and Safety Code section 481.115. At the adjudication proceeding, the trial court noticed the error in the paperwork indicating a charge under section 481.115, instead of section 481.1151. The trial court noted the judgment should read "abuse units" instead of "less than one gram" of LSD and requested that the paperwork be amended to conform to the correct offense. Defense counsel stated that he had no objection to the amendment. The trial court correctly pronounced that defendant was "found guilty of the offense of possession of less than twenty abuse units of LSD,"as he had been charged pursuant to section 481.1151. However, the written judgment was not corrected and recites that the conviction was for possession of "cs pg 1 less than 1 gram," pursuant to section 481.115. The error in the judgment in this case is a mere clerical error that we can correct. We have the authority to modify the trial court's judgment when we have the necessary information before us to do so. Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). Therefore, we modify the trial court's written judgment adjudicating guilt to reflect defendant was convicted of possession of fewer than twenty abuse units of a controlled substance listed in penalty group 1-A, pursuant to Texas Health and Safety Code section 481.1151. INEFFECTIVE ASSISTANCE OF COUNSEL
In his fifth issue, defendant asserts he received ineffective assistance of counsel at the revocation hearing when counsel 1) requested the execution of defendant's sentence; 2) failed to inform the court of jurisdictional issues, and 3) failed to argue for less harsh alternatives. Because defendant's first two claims arise out of the trial court's decision to proceed with the adjudication of guilt following the revocation of defendant's probation, we lack jurisdiction to consider his claims. Tex. Code Crim. Proc. art. 42.12 § 5(b); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992) (on appeal of trial court's decision to revoke probation and adjudicate, even if the appellant's right to counsel has been violated, appellant could not use direct appeal with which to seek redress). To the extent defendant's third claim relates to matters that occurred after the trial court's adjudication of guilt, such matters are appropriate for our consideration. Vidaurri, 49 S.W.3d at 885. Claims of ineffective assistance of counsel are evaluated under the two-step analysis articulated in Strickland v. Washington, 466 U.S. 688 (1984). Defendant must show: 1) that counsel's representation fell below an objective standard of reasonableness, and 2) but for counsel's errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 688-89; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). The reasonableness standard in Strickland requires analyzing the attorney's performance based on the "totality" of the representation. Strickland, 446 U.S. at 690. The defendant must overcome the presumption that the challenged action of counsel might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). A reviewing court cannot speculate as to the reasons why trial counsel acted as he did, rather a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. See Young v. State, 991 S.W.2d 835, 837-38 (Tex.Crim.App. 1999). The appellate record must affirmatively demonstrate the alleged ineffective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003); Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9 S.W.3d at 813-14. Defendant alleges counsel's assistance was ineffective because he requested the execution of sentence. Defendant contends counsel should have requested other alternatives for punishment, such as community supervision. Defendant further asserts counsel's sole request for credit for time served was also deficient because counsel should have requested assessment of less than the maximum sentence and he failed to object to the sentence pronounced. The record is silent as to the reasons defense counsel chose the course he did. Without evidence in the record, we cannot speculate as to trial counsel's strategy. Rylander, 101 S.W.3d at 110-11. Defendant has not demonstrated that the actions or inactions complained of were not legitimate trial strategy, or would have obtained a different result if counsel had followed a different strategy. Accordingly, we overrule defendant's fifth issue. ISSUES RELATED TO PUNISHMENT
In his third issue, defendant asserts the trial court erred in refusing to grant credit for time served. In support of his claim, defendant cites to Code of Criminal Procedure article 42.12 section 15(h)(2) which provides, "a judge may credit against any time a defendant is required to serve in a state jail felony facility time served by the defendant in county jail from the time of the defendant's arrest and confinement until sentencing by the trial court." Tex. Code Crim. Proc. art. 42.12 § 15(h)(2). Defendant further relies on Jimerson v. State, which held that a defendant must be given credit for time spent in a penal institution between his arrest on the revocation warrant and the hearing on revocation under article 42.12 section 15 (h)(2). Jimerson v. State, 957 S.W.2d 875, 876-78 (Tex.App.-Texarkana 1997, no pet.). We disagree. In Jimerson, the defendant was granted credit for the time he spent incarcerated between his arrest on the revocation warrant and the hearing on revocation. Id. at 878. Here, the State filed its original motion to revoke defendant's community supervision on November 21, 2002 and a warrant was issued the next day. However, at the time this warrant was issued, defendant was already incarcerated in Atascosa County on other charges. The Bexar County warrant was not served on defendant until the day he was brought to Bexar County. Defendant argues that he should receive credit for the time served in Atascosa County because neither the statute nor case law require the arrest to be pursuant to a warrant or a revocation motion. However, this argument is contrary to the holding in Jimerson and Ex parte Bates, 978 S.W.2d 575 (Tex.Crim.App. 1998). In Bates, the Court of Criminal Appeals analyzed article 42.12 section 15(h)(2) and the holding in Jimerson, and held that the defendant should have been given credit for the time he spent in jail between the time of his arrest on the revocation warrant and the trial court's decision to revoke his community supervision. Bates, 978 S.W.2d at 578. Defendant has not shown and the record does not reveal that he was held in Atascosa County because of the warrant issued pursuant to the motion to revoke community supervision in Bexar County. Therefore, under the facts of this case, we hold the trial court did not abuse its discretion under article 42.12 section 15(h)(2). Phillips v. State, 64 S.W.3d 458, 462 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (holding trial court did not abuse its discretion under article 42.12 section 15(h)(2) in denying credit for time served on an arrest warrant for the commission of a separate offense, even though the motion to revoke at issue, was carried with that separate case). We overrule issue three. In his fourth issue, defendant asserts the trial court abused its discretion by ordering execution of his sentence and failing to place defendant on community supervision after adjudication. "A court assessing punishment after an adjudication of guilt of a defendant charged with a state jail felony may suspend the imposition of sentence and place him on community supervision or may order the sentence to be executed." Tex. Code Crim. P. art. 42.12 § 5(b). However, defendant contends the execution of sentence is only a permissible exception, and not the general rule. Defendant argues use of that discretionary power to execute judgment was an abuse of discretion "in light of the greater weight of credible evidence" including the fact that defendant had already been incarcerated for more than a year but would be receiving credit for only thirty four days, and the trial court had several less harsh alternatives available. A sentence within the proper range of punishment will not be disturbed on appeal, absent an abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984). The general rule is that when a prosecutor recommends deferred adjudication in exchange for a defendant's plea of guilty, the trial court does not exceed that recommendation if, on proceeding to an adjudication of guilt, the court later assesses any punishment within the range allowed by law. Vidaurri, 49 S.W.3d at 885. Defendant was convicted of possession of a controlled substance listed in penalty group 1-A, a State jail felony with a punishment range of no more than two years and a maximum fine of $10,000.00. Tex. Pen. Code. Ann. § 12.35(a), (b). Defendant's two-year sentence and $5000.00 fine is within the range allowed by law. Therefore, the trial court did not abuse its discretion in ordering execution of sentence. Defendant's fourth issue is overruled. CONCLUSION
We overrule defendant's issues on appeal and affirm the trial court's judgment as modified.