Opinion
No. 07-03-0487-CR
November 2, 2004. DO NOT PUBLISH.
Appeal from the 364th District Court of Lubbock County; No. 2001-436535; Honorable Bradley S. Underwood, Judge.
Panel D: Before QUINN and REAVIS and CAMPBELL, JJ.
ON MOTION FOR REHEARING
On August 30, 2004, in a memorandum opinion we affirmed the revocation of Jermaine Perryman's community supervision. On September 27, 2004, appellant filed with the clerk of this court an untitled document in the form of a handwritten letter which we construe to be a Motion for Rehearing. In the letter appellant informs us that he did not intend to appeal the revocation of his community supervision, but instead intended to appeal the underlying conviction for tampering with evidence. He argues there was insufficient evidence to support the conviction and complains of ineffective assistance of counsel at trial. These issues were presented by appellant in his response to the Anders brief filed by his appellate counsel and were addressed in our August 2004 opinion. See Anders v. California 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed 2d 493 (1967). In his letter Perryman now also challenges the sufficiency of the indictment. As noted in our August 2004 opinion, as a general rule, in an appeal of revocation of community supervision, an appellant is precluded from raising claims concerning the conviction that resulted in the trial court placing him on community supervision. Manuel v. State, 994 S.W.2d 658, 661 (Tex.Crim.App. 1999). There are only two recognized exceptions to this general rule, which have been called (1) the "void judgment" exception, and (2) the "habeas corpus" exception. Nix v. State, 65 S.W.3d 664, 667 (Tex.Crim.App. 2001). Only the "void judgment" exception is relevant here. A judgment is void when the trial court's judgment is considered a nullity due to a complete lack of power to render the judgment in question. Id. at 667-68. A void judgment may be attacked at any time. Ex parte Beck, 922 S.W.2d 181, 182 (Tex.Crim.App. 1996). A judgment for conviction of a crime is void when (1) the document purporting to be a charging instrument does not satisfy the constitutional requisites of a charging instrument, depriving the trial court of jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as prosecuting an offense in the incorrect court, (3) the record reflects there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when the right to counsel has not been waived. Nix, 65 S.W.3d at 668. Appellant alleges that the indictment is insufficient, but does not explain how the indictment is deficient, and cites no authority to support his contention. The indictment contained in the record generally tracks the language of Section 37.09(d)(1) of the Penal Code with respect to the allegation on which appellant was convicted, and complies with the requisites of Article 21.02 of the Code of Criminal Procedure. Tex. Pen. Code Ann. § 37.09(d)(1) (Vernon 2003); Tex. Crim. Proc. Code Ann. art. 21.02 (Vernon 1989). The judgment of conviction is not void because of constitutional deficiencies in the indictment. See also Tex. Crim. Proc. Code Ann. art. 1.14 (Vernon Supp. 2004-2005) (If defendant does not object to defect, error or irregularity of form or substance in indictment before the date on which the trial on the merits commences, he waives and forfeits right to object and may not raise objection on appeal); Duron v. State, 956 S.W.2d 547 (Tex.Crim.App. 1997). Appellant also alleges in his letter there was insufficient evidence to convict him of the offense of tampering with evidence. For a judgment to be void on evidentiary grounds, the record must show a complete lack of evidence to support the conviction, not merely insufficient evidence. See Wolfe v. State, 560 S.W.2d 686, 688 (Tex.Crim.App. 1978). The appellate record does not contain a reporter's record of the original hearing, nor does the clerk's record contain a stipulation of evidence, but the clerk's record does contain a copy of the judgment indicating that appellant entered a plea of guilty at the hearing. A guilty plea constitutes some evidence for the purpose of determining if a judgment is void. Nix, 65 S.W.3d at 668 n. 14; Ex Parte Williams, 703 S.W.2d 674, 682-83 (Tex.Crim.App. 1986). Because the guilty plea provides a measure of evidence, the judgment entered in the underlying cause was not void because of a complete lack of evidence. We find nothing in the record to indicate any other circumstances exist that would make the judgment void. See Nix v. State, 65 S.W.3d at 668. Accordingly, the issues appellant raises in his letter are not reviewable on his appeal of the order revoking community supervision. See Manuel, 994 S.W.2d at 661. The only question presented in an appeal from an order revoking community supervision is whether the trial court abused its discretion in revoking the appellant's community supervision. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984). For these reasons, appellant's motion for rehearing is overruled.
Appellant's counsel filed an Anders brief and a motion to withdraw as counsel for appellant. The motion was granted.
Perryman v. State, No. 07-03-0487-CR, 2004 Tex.App. LEXIS 7907, (Tex.App.-Amarillo, August 30, 2004, no pet. h.) (not designated for publication).