             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-19-00240-CR
      ___________________________

     WENDY DIANE FOX, Appellant

                      V.

          THE STATE OF TEXAS


   On Appeal from the 30th District Court
         Wichita County, Texas
        Trial Court No. 51,754-A


Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
 Memorandum Opinion by Justice Birdwell
                             MEMORANDUM OPINION

          Appellant Wendy Diane Fox appeals her conviction, contending that her judicial

confession is inadequate under two principles—the void judgment exception and

Article 1.15 of the Texas Code of Criminal Procedure—which she attempts to fuse

together into a single, unified rule. We hold that the law does not support a fusion of

these two incompatible principles. We further hold that Fox’s divisible challenges

under the void judgment exception and Article 1.15, taken separately, must fail for

separate reasons. We therefore affirm.

                                   I.    BACKGROUND

          In 2011, a grand jury indicted Fox for the offense of improper relationship

between educator and student. A warrant affidavit described Fox’s admission of how

the offense occurred. Fox told police that she became acquainted with an eighteen-

year-old male student while working as a substitute teacher at Iowa Park High School

in January of 2011. She stated that between January and May of 2011, she regularly met

the student at a local lake, and the two became good friends. In May of 2011, the

student asked Fox to come to his house, which she did. Fox told police that this was

the first of four times that they had sexual intercourse and that their last encounter was

in June 2011. Fox’s account of the relationship was confirmed by the student and his

friend.

          In 2012, Fox pleaded guilty pursuant to a plea bargain. She signed a judicial

confession in which she stipulated that on or about June 10, 2011, while she was an

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employee of Iowa Park High School, she intentionally or knowingly engaged in sexual

intercourse with a student. Fox acknowledged, in writing and in open court, that her

plea and confession were admissions of all elements necessary to constitute the offense.

The trial court admitted her confession into evidence, accepted her plea, and, pursuant

to the State’s recommendation, deferred adjudication and placed her on community

supervision for a period of eight years.

      In 2016, the State moved to adjudicate guilt, alleging that Fox had violated the

terms of her community supervision. Fox agreed to serve a jail sanction and to undergo

sex-offender treatment, and she was continued on deferred adjudication.

      In 2018, the State again moved to adjudicate guilt. The State presented evidence

that Fox had failed to report to the probation department as required, had tested

positive for opiates, and had twice been unsuccessfully discharged from sex-offender

treatment. After considering the evidence, the trial court revoked Fox’s community

supervision and sentenced her to nine years’ confinement. Fox appeals.

                                  II.      DISCUSSION

      In her sole issue, Fox argues that there is a complete lack of evidence to support

her initial guilty plea, rendering the judgment void. According to Fox, there are gaps

and inconsistencies in her judicial confession that render the evidence insufficient under

Article 1.15 of the Texas Code of Criminal Procedure.

      Fox is attempting to combine two distinct principles. First, she is invoking Code

of Criminal Procedure Article 1.15, which requires the State to introduce sufficient

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evidence of guilt even when a defendant pleads guilty. Second, and at the same time,

Fox is raising the void judgment exception, which provides that on appeal from

revocation, an appellant may challenge a judgment that is supported by no evidence.

Fox would join these two principles into a single argument, but as we explain, the law

does not support such a hybridization. Rather, each principle must be considered

separately, and for separate reasons, Fox’s challenge under each principle fails.

      Article 1.15 is a “procedural safeguard required by the State of Texas but not by

federal constitutional law.” Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App.

1986). Article 1.15 requires that when a defendant pleads guilty, the State must

nonetheless introduce evidence showing the guilt of the accused. Tex. Code Crim.

Proc. Ann. art. 1.15. This article provides that “in no event shall a person charged be

convicted upon his plea without sufficient evidence to support the same.” Id. Evidence

is sufficient under Article 1.15 if it embraces every element of the charged offense, such

as where the defendant gives into evidence a judicial confession that “covers all of the

elements” of the offense. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009).

Thus, a conviction on a guilty plea might fail for insufficiency if the judicial confession

completely omitted an element of the offense. Breaux v. State, 16 S.W.3d 854, 857 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d).

      Fox argues that certain gaps and flaws in her judicial confession render the

evidence insufficient under Article 1.15, but the procedural posture of this case prevents

us from considering Fox’s sufficiency challenge. A defendant placed on deferred-

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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. Perez v. State, 424 S.W.3d 81, 85

(Tex. Crim. App. 2014); Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999).

Sufficiency challenges, like those raised under Article 1.15, cannot be raised on appeal

from revocation. Manuel, 994 S.W.2d at 662. Thus, to the extent that Fox disputes the

sufficiency of her judicial confession under Article 1.15, her challenge cannot be

considered on appeal from revocation. See id.

      There is an exception to the rule of Manuel, though, for judgments that are void.

Wright v. State, 506 S.W.3d 478, 481 (Tex. Crim. App. 2016). The void judgment

exception requires that the claimed defect be one that renders the original judgment of

conviction a “nullity” that is “accorded no respect due to a complete lack of power to

render the judgment in question.” Id. (quoting Nix v. State, 65 S.W.3d 664, 668 (Tex.

Crim. App. 2001)). In Nix, the court outlined four situations in which a judgment of

conviction is void, one of which occurs when the record reflects that there is “no

evidence to support the conviction.” 65 S.W.3d at 668. “For the judgment to be void,

the record must show a complete lack of evidence to support the conviction, not merely

insufficient evidence.” Id. at 668 n.14. “And a guilty plea constitutes some evidence

for this purpose.” Id. Thus, to the extent that Fox argues that the judgment is void

because there is no evidence to support her conviction, her guilty plea itself supplies

the necessary measure of proof. See id.

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       Fox asks us to merge this void judgment inquiry with an Article 1.15 inquiry, but

there are several points of incompatibility that prevent any marriage of the two. A void

judgment inquiry poses a question (is there no evidence to support the judgment, not

merely insufficient evidence?) that is very different from an Article 1.15 inquiry (is there

insufficient evidence to support the judgment?). A guilty plea has a different effect on

the resolution of each of these questions. Under binding precedent, a guilty plea by

itself is enough evidence to satisfy a void judgment inquiry. See id. But a guilty plea

cannot be enough evidence to satisfy an Article 1.15 inquiry, because Article 1.15

requires the State to introduce “sufficient evidence” showing a defendant’s guilt even

when a defendant pleads guilty. See Tex. Code Crim. Proc. Ann. art. 1.15. And again,

an Article 1.15 sufficiency challenge may be procedurally defaulted, but a challenge

under the void judgment exception may not. We must respectfully reject Fox’s attempt

to amalgamate these two incompatible principles into a single argument.1 See Diaz v.

State, No. 03-15-00539-CR, 2016 WL 1084398, at *5 n.3 (Tex. App.—Austin Mar. 17,

2016, no pet.) (mem. op., not designated for publication) (separating an Article 1.15

sufficiency challenge from a void judgment challenge and addressing both individually).




       1
        Fox cites Landon v. State for the proposition that these two inquiries can be
combined. 222 S.W.3d 75, 78–79 (Tex. App.—Tyler 2006, no pet.) (mem. op.). We
believe that Landon reached the correct result. But to the limited extent that Landon can
be read as blessing a merger of these two inquiries in every case, we decline to adopt its
reasoning.

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      Still, construing her brief liberally and dividing her argument into its constituent

parts, we believe that Fox can be given credit for raising two cognizable arguments

within the same issue: an Article 1.15 challenge and a void judgment challenge. Her

Article 1.15 challenge fails because sufficiency arguments regarding the original plea

proceedings cannot be raised on appeal from revocation. See Manuel, 994 S.W.2d at

661–62. Her void judgment challenge fails because the guilty plea is itself enough

evidence to prevent the judgment from being void. See Diaz, 2016 WL 1084398, at *5

n.3 (holding that appellant’s sufficiency challenge under Article 1.15 was procedurally

defaulted under Manuel, while appellant’s void judgment challenge failed because the

guilty plea was itself enough evidence to prevent the judgment from being void); Crume

v. State, 342 S.W.3d 241, 244 (Tex. App.—Beaumont 2011, no pet.) (similar).

      Because Fox’s hybrid argument is unavailing, as are its two constituent parts, we

overrule her sole issue and affirm.

                                 III.   CONCLUSION

      We affirm the trial court’s judgment.

                                                      /s/ Wade Birdwell

                                                      Wade Birdwell
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 6, 2020



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