No. 05-10-00438-CR
Opinion Filed April 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 6 Dallas County, Texas, Trial Court Cause No. F06-00591-X.
Before Justices MURPHY, FILLMORE, and MYERS.
Opinion By Justice FILLMORE.
Deborah Kaye Strickland appeals following the trial court's adjudication of her guilt for injury to a child. In a single point of error, Strickland argues the information to which she originally pleaded nolo contendere was void because it did not sufficiently allege the elements of the offense and was not supported by a complaint and that her plea was not valid because she was not guilty of the charged offense. We modify the trial court's judgment and affirm the judgment as modified.
Background
Strickland was originally indicted for indecency with a child. Strickland's trial counsel advised her that there was a good chance she would be convicted of indecency with a child and would be required to register as a sex offender. Strickland did not want to register as a sex offender, did not want to go to prison, and did not want the conviction on her record. Strickland gave her trial counsel "carte blanche" to do what he could to resolve the case within these parameters. Strickland entered into a plea agreement pursuant to which she agreed to plead nolo contendere to the offense of injury to a child. The plea agreement provided for an "agreed sentence" of five years deferred adjudication with a condition that Strickland would have "no contact with other people's teenage boys" and a $2000 fine. The State dismissed the indictment for indecency with a child and charged Strickland by information with injury to a child. In the opinion of Strickland's trial counsel, Strickland was not guilty of the offense of injury to a child. However, she agreed to plead nolo contendere to injury to a child in order to avoid registering as a sex offender. Strickland's trial counsel believed Strickland benefitted from the plea bargain. On May 22, 2006, the trial court deferred adjudication of guilt on the charge of injury to a child, placed Strickland on community supervision for five years, and assessed a $2000 fine. One of the conditions of Strickland's community supervision prevented her from having contact with teenage boys under seventeen years of age. In 2009, Melissa Joy, Strickland's probation officer, realized a thirteen-year-old boy was living in Strickland's home. At some point, Joy also learned the child was autistic and that Strickland was home-schooling him. It was determined by Joy, her supervisor Shawn Pedigo, and the probation supervisor assigned to the trial court, Ann Graham, that the situation would be addressed by having Strickland undergo a sex offender evaluation. Because Strickland claimed she had adopted the child, she was also requested to provide proof of the adoption. On August 24, 2009, the trial court modified the conditions of Strickland's community supervision to require Strickland to participate in a sex offender evaluation within thirty days of referral. On September 2, 2009, Strickland signed the order modifying the conditions of community supervision and indicated she understood the requirement. Strickland was subsequently hospitalized for eight days, and the deadline for completing the evaluation was extended by two weeks. Strickland ultimately missed two appointments with the person scheduled to conduct the sex offender evaluation. Pedigo last saw Strickland on October 21, 2009. Strickland had not undergone a sex offender evaluation at that time. Further, although Strickland provided a petition for adoption of the child filed in an Oklahoma court in 1996 and a 1996 order from the Oklahoma court granting her temporary custody of the child, she was unable to provide proof the adoption was completed. Graham was concerned about the safety of the child due to Strickland's misstatement that the child was legally adopted, the child being autistic, Strickland home-schooling the child, and Strickland's "victim or victims [being] adolescent males about the same age as this child is now." Graham spoke with the attorney who represented Strickland in Oklahoma, and he indicated a formal adoption had not been completed. On October 22, 2009, the State filed a motion to adjudicate guilt asserting Strickland violated the terms of her community supervision by obtaining a controlled substance by fraud, being delinquent $734 in the payment of the assessed fine and court costs, having contact with a male between the ages of thirteen and seventeen, and failing to obtain a sex offender evaluation. Prior to the hearing, the State abandoned the allegation Strickland obtained a controlled substance by fraud. The trial court found Strickland was delinquent in the payment of the assessed fine and court costs and had failed to obtain a sex offender evaluation as ordered. The trial court adjudicated Strickland guilty of the offense of injury to a child and sentenced her to five years' imprisonment. Analysis
Strickland argues the information charging her with injury to a child is void because there was not a complaint to support the information and the information contained insufficient factual allegations. The sufficiency of a charging instrument presents a question of law that we review de novo. Smith v. State, 309 S.W.3d 10, 13-14 (Tex. Crim. App. 2010). Strickland first asserts the information was void because there was no supporting complaint. An "information" is a "written statement filed and presented in behalf of the State by the district or county attorney, charging the defendant with an offense which may by law be so prosecuted." Tex. Code Crim. Proc. Ann. art. 21.20 (West 2009). Generally, an information may not be presented "until affidavit has been made by some credible person charging the defendant with an offense." Id. art. 21.22. However, "the mere presentment of an information to a trial court invests that court with jurisdiction over the person of the defendant, regardless of any defect that might exist in the underlying complaint." Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App. 2003). Because defects in a complaint are not jurisdictional in the traditional sense, any defect in the complaint must be raised before trial or it is waived. Id. (citing Studer v. State, 799 S.W.2d 263, 266 (Tex. Crim. App. 1990)); see also Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005) ("If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and may not raise the objection on appeal or in any other postconviction proceeding."). Strickland did not object to the lack of complaint prior to entering her plea and, therefore, waived any defect in the information due to the lack of a complaint. Further, a defendant who is accused of any offense other than a capital felony and who is represented by legal counsel can in open court or by written instrument waive her right to be accused by indictment. Tex. Code Crim. Proc. Ann. art. 1.141 (West 2005). The defendant is then charged by information. Id. "When a defendant waives the right to be tried upon an indictment and agrees to be tried upon an information, the prosecution is not required to also file a complaint." Ex parte Hyett, 610 S.W.2d 787, 788 (Tex. Crim. App. 1981); see also Chapple v. State, 521 S.W.2d 280, 282 (Tex. Crim. App. 1975). In her original plea agreement, Strickland waived her right to be tried on an indictment. Accordingly, it was not necessary for the State to file a complaint in support of the information. Strickland next argues the information is void because it contained insufficient factual allegations. An information alleges "an offense" if the allegations are "clear enough that one can identify the offense alleged." Teal v. State, 230 S.W.3d 172, 180 (Tex. Crim. App. 2007). If the allegations are sufficiently clear, the information confers subject matter jurisdiction on the trial court. Id. Stated another way, the proper test is: Can the trial court (and appellate courts who give deference to the trial court's assessment) and the defendant identify what penal code provision is alleged and is that penal code provision one that vests jurisdiction in the trial court? Id. As charged in this case, a person commits the offense of injury to a child if she intentionally or knowingly causes bodily injury to a child fourteen years of age or younger. Tex. Penal Code Ann. § 22.04(a)(3), (c)(1) (West Supp. 2010). The information alleged Strickland intentionally and knowingly caused bodily injury to the complainant, a child 14 years of age or younger, by contact with the face of the complainant and the hand of the defendant. Subject to rare exceptions, an information "tracking the language of the statute will satisfy constitutional and statutory requirements." Smith, 309 S.W.3d at 14 (quoting State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998)). Accordingly, the information in this case was clear enough to identify the offense alleged as injury to a child. As charged, the offense was a third degree felony. See Tex. Penal Code Ann. § 22.04(a)(3), (f). The trial court had jurisdiction over "criminal cases of the grade of felony." Tex. Code Crim. Proc. Ann. art. 4.05 (West 2005). Accordingly, the information conferred subject matter jurisdiction on the trial court. Strickland asserts the information is void because it alleges only "contact," without an "empowering verb" such as "struck or hit." Even if the failure to allege whether Strickland "struck or hit" the complainant was a missing element of the offense, a defect in an information by failure to recite an element of the offense is a substance defect. Smith, 309 S.W.3d at 17-18 (citing Studer, 799 S.W.2d at 268). Strickland was required to object to the defect prior to trial. Id. at 18; see also Tex. Code Crim. Proc. Ann. art. 1.14. Because Strickland failed to object prior to pleading nolo contendere that the information contained insufficient factual allegations, she waived any such defect in the information. See Smith, 309 S.W.3d at 18; Studer, 799 S.W.2d at 271; see also Teal, 230 S.W.3d at 177 (focus is on whether defect was brought to trial court's attention). Strickland finally contends the "validity of the plea is questionable" because it is undisputed that she was not guilty of the offense of injury to a child. Strickland concedes the United States Supreme Court has recognized a defendant can enter a valid guilty plea while still professing her innocence if the plea represents a "voluntary and intelligent choice among the alternative courses of action open to the defendant." See North Carolina v. Alford, 400 U.S. 25, 31 (1970). Strickland argues this case is distinguishable from Alford because she pleaded nolo contendere, rather than guilty, and the offense she pleaded to was not a lesser-included offense of the original charged offense. Generally, a defendant may not raise the issue of voluntariness of the plea when appealing from a felony conviction that is the result of a plea agreement that was honored by the trial court. See Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001); see also Tex. Code Crim. Proc. Ann. art. 44.02 (West 2006). Further, "a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding . . . only in appeals taken when deferred adjudication community supervision is first imposed." Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); Clark v. State, 997 S.W.2d 365, 368 (Tex. App.-Dallas 1999, no pet.) (en banc) (op. on reh'g) ("[A] defendant must appeal the voluntariness of his plea at the time he is placed on deferred adjudication probation and cannot wait until he is adjudicated to bring this issue."); see also Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App. 2000) (loss of record of plea proceedings irrelevant because appellant could not raise voluntariness of original plea in appeal from subsequent adjudication of guilt). Here, Strickland entered into a plea bargain that was honored by the trial court. Further, she did not challenge the voluntariness of her plea following the original plea hearing. Accordingly, she may not now complain about the voluntariness of her plea. See Cooper, 45 S.W.3d at 81; Manuel, 994 S.W.2d at 661-62. We overrule Strickland's sole point of error. Modification of Judgment
In its motion to adjudicate guilt, the State alleged Strickland violated conditions (a), (h), (q), and (s) of her community supervision. Prior to trial, the State abandoned the allegation Strickland violated condition (a). The trial court orally found Strickland violated condition (h) (relating to the payment of the assessed fine and court costs) and condition (s) (relating to the failure to undergo a sex offender evaluation). However, the trial court's judgment reflects the trial court found Strickland violated "the terms and conditions of community supervision as set out in the State's ORIGINAL Motion to Adjudicate Guilt as follows: See attached Motion to Adjudicate Guilt." When there is a conflict between the trial court's oral pronouncement and the written judgment, the oral pronouncement controls. Thompson v State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information before us to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Therefore, on our own motion, we modify the trial court's judgment to show Strickland violated conditions (h) and (s) of her community supervision. As modified, we affirm the trial court's judgment.