Opinion filed September 24, 2015




                                       In The


        Eleventh Court of Appeals
                                     __________

                              No. 11-13-00130-CR
                                     __________

                      TORY LEVON KIRK, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee

               On Appeal from the Criminal District Court No. 5
                            Dallas County, Texas
                    Trial Court Cause No. F-0962440-L

          MEMORANDUM OPINION ON REMAND
      Tory Levon Kirk appeals the revocation of his deferred adjudication
community supervision for the offense of aggravated robbery with a deadly weapon.
In one issue on appeal, Appellant asserts that the evidence was legally insufficient
to support his conviction. We affirm the judgment of the trial court.
                                   Background Facts
      Appellant entered an open plea of guilty in 2010 to the offense of aggravated
robbery with a deadly weapon. TEX. PENAL CODE ANN. § 29.03 (West 2011).
Appellant also signed a judicial confession, which the trial court admitted into
evidence at the time Appellant entered his original plea of guilty. At that time, the
trial court accepted Appellant’s plea, deferred an adjudication of guilt, and placed
him on deferred adjudication community supervision for eight years.
      Over two years later, the State filed a motion to revoke Appellant’s
community supervision and proceed with an adjudication of guilt. The State alleged
nine different violations of the terms and conditions of Appellant’s community
supervision. The trial court found that the State had proven all of the allegations and
adjudicated Appellant guilty of aggravated robbery with a deadly weapon. The trial
court sentenced Appellant to confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of eight years.
                                       Analysis
      In a single issue on appeal, Appellant argues that the evidence was legally
insufficient to support his conviction. Appellant contends that the State did not offer
any evidence to establish that he used a deadly weapon during the commission of a
robbery. He contends that his purported use of a BB gun does not constitute the use
of a deadly weapon. Thus, he asserts that the State failed to prove both a robbery
and an aggravating factor.
      A defendant placed on deferred adjudication community supervision may
raise issues relating to the original plea proceeding only in an appeal taken when the
deferred adjudication community supervision is first imposed and not later after guilt
is adjudicated. See Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App.
1999). There are two exceptions to this rule: the habeas corpus exception and the
void judgment exception. See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App.
2001). Because Appellant did not file a petition for writ of habeas corpus, the habeas
corpus exception does not apply here.


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      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, and thus the trial court has no jurisdiction over the
defendant; (2) the trial court lacks subject-matter jurisdiction over the offense
charged, such as when a misdemeanor involving official misconduct is tried in a
county court at law; (3) the record reflects that there is no evidence to support the
conviction; or (4) an indigent defendant is required to face criminal trial proceedings
without appointed counsel, when such has not been waived. Id. at 668. Thus, a
judgment is void only in very rare situations. Id. The error that Appellant presents
on appeal does not pertain to the trial court’s jurisdiction of the offense charged.
      Appellant argues that there is no evidence to support his conviction because a
BB gun is not a firearm. For the judgment to be void, however, the record must
show a complete lack of evidence to support the conviction, not merely insufficient
evidence. Id. at 668 n.14. A guilty plea constitutes some evidence for this purpose.
Id. Here, Appellant’s plea of “guilty” and his signed judicial confession constitute
some evidence in support of his conviction, and the judgment is not void for lack of
evidence.
      Because Appellant’s sole issue relates to the original plea proceeding and
because he has not shown that either the habeas corpus exception or the void
judgment exception applies to his case, Appellant’s issue, as presented in this appeal
filed more than two years after the trial court placed him on deferred adjudication,
was not timely presented. See Celestine v. State, No. 05-12-01677-CR, 2014 WL
1022423 (Tex. App.—Dallas Feb. 24, 2014, no pet.) (not designated for
publication); Bloom v. State, No. 05-13-00280-CR, 2014 WL 429291 (Tex. App.—
Dallas Feb. 3, 2014, no pet.) (mem. op., not designated for publication). We dismiss
Appellant’s sole issue.


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                                   This Court’s Ruling
      We affirm the judgment of the trial court.



                                                     JOHN M. BAILEY
                                                     JUSTICE


September 24, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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