      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00517-CR



                                 Crystal Nell Horton, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF MILLS COUNTY, 35TH JUDICIAL DISTRICT
            NO. 2751, HONORABLE STEPHEN ELLIS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Crystal Nell Horton, appearing pro se, pleaded no contest to a charge of

arson, a first degree felony. See Tex. Penal Code Ann. § 28.02 (West 2011). Horton was granted

deferred adjudication, placed on community supervision for ten years, and assessed a $2,500 fine.1




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           Prior to sentencing, appellant executed a “Waiver of Right to Counsel,” which stated:

       I have been advised on this 6 day of May, 2009, by the 35th District Court of Mills
       County, Texas of my right to representation by counsel in the trial of the charge
       pending against me. I have been further advised that if I am unable to afford counsel,
       one will be appointed for me free of charge. Understanding my right to have counsel
       appointed for me free of charge if I am not financially able to employ counsel, I wish
       to waive that right and request the court to proceed with my case without an attorney
       being appointed for me. I hereby waive my right to counsel.

See Tex. Code Crim. Proc. Ann. art. 1.051(g) (West 2005) (prescribing form of written waiver of
right to counsel).
No court reporter’s record was made of that proceeding, and no appeal was taken from the trial

court’s order within the time limits prescribed by law.

               Approximately eighteen months later, the State moved to adjudicate guilt, alleging

that Horton had violated several terms of her community supervision. Horton pleaded true to two

violations, and after hearing evidence, the trial court found that she had committed five additional

violations. The court sentenced her to twenty years in prison. On appeal, Horton contends for the

first time that the original judgment of deferred adjudication is void because she was indigent at the

time of her plea, she was not represented by counsel, and her written waiver of the right to counsel

was invalid because the trial court failed to inquire about her indigency status and failed to admonish

her regarding the dangers and disadvantages of proceeding pro se. We will affirm.

               The Texas Court of Criminal Appeals has held that “a defendant placed on deferred

adjudication community supervision may raise issues relating to the original plea proceeding, such

as evidentiary sufficiency, 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). The court has,

however, recognized an exception to that limitation in rare circumstances in which the deferred

adjudication judgment is void, including when “an indigent defendant is required to face criminal

trial proceedings without appointed counsel, when such has not been [properly] waived.” Nix

v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001) (citing Gideon v. Wainwright, 372 U.S. 335

(1963)). To establish that a judgment is void, the defect must be apparent on the face of the record:


       [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 fact exist, then the judgment is not void,

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       even though the available portions of the record tend to support the existence of
       the defect.


Id. at 668-69.

                 In Nix, the defendant had alleged that his original plea had been taken in violation of

his rights to counsel and a jury trial because the trial court (1) failed to inquire as to whether the

defendant had knowingly and intelligently waived his right to counsel, (2) did not admonish him

about the dangers of self-representation, and (3) neglected to appoint an attorney when the defendant

had not effectively waived counsel. Id. at 666-67. The court held, however, that the void-judgment

exception did not apply in that case because there was no record of the plea proceeding. Id. at 669.

The court stated,


       [W]e cannot ascertain the truth of appellant’s claims on this record without a
       transcription of the plea proceedings. Although the plea papers show appellant
       representing himself pro se, a transcript of the plea hearing might have shown that
       appellant voluntarily waived counsel and was informed by the trial court of the
       dangers of self-representation.


Id. (footnotes omitted).

                 Like the defendant in Nix, Horton challenges the validity of her waiver of the right

to counsel, but because there is no transcription of the plea proceeding, error is not apparent on the

face of the record before this Court. In accordance with Nix, we therefore overrule Horton’s sole

appellate issue. The trial court’s judgment is affirmed.




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                                           _____________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: December 13, 2012

Do Not Publish




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