                                        NO. 07-08-0456-CR

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL D

                                       FEBRUARY 10, 2009

                              ______________________________


                            STEVEN MARK EMMERT, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE

                            _________________________________

               FROM THE 242ND DISTRICT COURT OF SWISHER COUNTY;

                     NO. B-3637-0108; HONORABLE ED SELF, JUDGE

                             _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                    MEMORANDUM OPINION


      On August 7, 2002, Appellant, Steven Mark Emmert, pled guilty to the offense of

indecency with a child by exposure. 1 Pursuant to a plea agreement, Appellant was

sentenced to ten years confinement, with the period of confinement suspended in favor of

      1
          Tex. Penal Code Ann. ' 21.11(a)(2)(A) (Vernon 2003).
ten years community supervision. He was also assessed a fine and ordered to pay

court-appointed attorney's fees and costs of court. No appeal was taken from that

proceeding.      On October 22, 2008, the trial court revoked Appellant's community

supervision and imposed the original sentence. By two issues 2 Appellant contends: (1)

the State offered no evidence of his guilt in the original plea proceeding in contravention

of article 1.15 of the Texas Code of Criminal Procedure; 3 and (2) the trial court failed to

conduct a sufficient inquiry into his finances in the original plea proceeding prior to

assessing court-appointed attorney’s fees. For the reasons that follow, we affirm.


                                         Procedural Posture


        Appellant was originally indicted for the offense of indecency with a child by

contact. 4 Prior to the entry of Appellant=s plea, the State moved to amend the indictment

to allege the offense of indecency with a child by exposure. 5                 During that hearing the

following exchange occurred, in pertinent part, as follows:


        COURT: Mr. Emmert, you=re originally charged by indictment in this case
        with the offense of indecency with a child by contact. You=ve heard the
        State announce that they=re electing to proceed under a lesser offense of

        2
        Appellant originally raised a third issue; however, due to an opinion issued by the Court of Criminal
Appeals subsequent to original briefing, he filed a Reply Brief wherein he candidly withdrew that issue.
        3
          Tex. Code Crim. Proc. Ann., art. 1.15 (Vernon 2005). Unless otherwise indicated, this and all
future references to articles refer to the Texas Code of Criminal Procedure.
        4
         Tex. Penal Code Ann. ' 21.11(a)(1) (Vernon 2003).
        5
         At the commencement of the hearing, the prosecuting attorney moved to amend the indictment to
allege the offense of indecency with a child by exposure. Without specifically granting the motion, the trial
court proceeded to receive Appellant=s plea of guilty to the Alesser offense of indecency with a child by
exposure.@

                                                     2
indecency with a child by exposure. Do you understand the charge against
you, sir?

DEFENDANT Yes, sir.

                               *      *     *

COURT: What is your plea to the charge made against you, then, guilty or
not guilty?

DEFENDANT: Guilty.

                               *      *     *

COURT: Are you pleading guilty, then, to the lesser offense, because you
are guilty of that offense, and for no other reason?

DEFENDANT: Yes, sir.

                               *      *     *

COURT: Now, is there a plea bargain?

STATE: State would respectfully recommend 10 years probated for a
period of 10 years, $2,000 fine, all the sexual terms . . . court costs, and
attorney fees. That=s my understanding of the plea bargain.

COURT: Counsel, is that your understanding?

DEFENSE: Yes, your honor.

COURT: And, Mr. Emmert, was that your understanding of the plea
bargain?

DEFENDANT: Yes, sir.

COURT: Let me just repeat that to make sure that I have it down right. You
would be sentenced to 10 years confinement in the Institutional Division,
that confinement would be suspended and you would be placed on
probation for a period of 10 years; you would pay a $2,000 fine; you would
be required to register as a sex offender; you would spend 120 days in the
county jail, and pay the court costs and the court-appointed attorney=s fees.



                                     3
                                       *    *    *

      COURT: Did you also understand that if I accept this plea bargain
      agreement and I set your punishment at anything equal to or less than the
      plea bargain, you could not appeal your case to any higher court except
      with my permission?

      DEFENDANT: Yes, sir.

                                       *    *    *

      COURT: Now, understanding all of those rights, Mr. Emmert, do you still
      wish to enter your plea of guilty to the lesser offense?

      DEFENDANT: Yes, sir.


      Following these admonishments Appellant was tendered as a witness, sworn, and

questioned by the State. Although the State, through Appellant, offered into evidence a

Stipulation of Evidence wherein he confessed to the offense of indecency by contact, at

no time did the State question Appellant as to the element of exposure.           At the

conclusion of that hearing, the trial court pronounced Appellant guilty of indecency by

exposure, assessed sentence at ten years confinement and a fine of $2,000, and then

suspended the imposition of sentence in favor of ten years community supervision. That

same day, the trial court entered its Judgment of Conviction reflecting the imposition of

sentence and the assessment of attorney’s fees of $250 and court costs of $322.25. No

appeal was taken from that judgment.


      In October 2008, the State filed an amended motion to revoke Appellant=s

community supervision alleging, among other things, Appellant=s failure to report on

                                           4
multiple occasions from June 2005 through September 2008, failure to make

court-ordered payments from August 2004 through October 2008, and failure to pay

community supervision fees from June 2005 through October 2008. At the revocation

hearing, following a plea of Anot true,@ Appellant admitted he failed to report and stay

current on required payments.


       At the conclusion of the revocation hearing, the trial court revoked Appellant=s

community supervision and imposed the original sentence. The trial court explained that

Appellant had Aa right to appeal the revocation only,@ and, A[s]ince the plea of guilty was

pursuant to a plea bargain, there [was] no right to appeal that portion of th[e] case.@ In the

trial court=s certification of Appellant=s right of appeal, the trial court certified Athis criminal

case: is a plea-bargain case, and the defendant has NO right to appeal, except the

revocation.@     (Emphasis supplied).         Thereafter, Appellant filed a general notice

appealing from the trial court=s Arevocation of his community supervision.@


       I.      Issue One - ANo Evidence@ Claim - Article 1.15


       Appellant's first issue does not attack the propriety of the trial court's order

revoking community supervision.           Instead, for the first time, Appellant seeks to

collaterally attack the original Judgment of Conviction based upon a "no evidence"

allegation pursuant to article 1.15.




                                                 5
         It is a well established rule of appellate procedure that the validity of an original

conviction, from which no appeal is taken, cannot be raised on appeal from an order

revoking community supervision. Burrell v. State, 492 S.W.2d 482, 483 (Tex.Crim.App.

1973) (collected cases cited therein).        The Texas Court of Criminal Appeals has

recognized two limited exceptions to this general rule: (1) the "habeas corpus" exception

and (2) the "void judgment" exception. Nix v. State, 65 S.W.3d 664, 667 (Tex.Crim.App.

2001).


         Appellant attempts to invoke the void judgment exception. The void judgment

exception recognizes that there are some rare situations in which the trial court's

judgment is accorded no respect due to a complete lack of power to render the judgment

in question. This exception has been interpreted to include situations where the record

reflects that there is "no evidence" to support the conviction. Ex Parte Moffett, 542

S.W.2d 184 (Tex.Crim.App. 1976). However, for a judgment to be void due to a lack of

evidence, the record must show a due process violation arising from a complete absence

of evidence to support the conviction, not merely insufficient evidence. See Thompson

v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Nix, 65 S.W.3d at

688, n.14; Wolfe v. State, 560 S.W.2d 686, 688 (Tex.Crim.App. 1978).                 From a

sufficiency of the evidence point of view, a guilty plea constitutes some evidence of guilt

for purposes of due process. Ex Parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App.

1986).



                                               6
       Here, Appellant contends the only evidence offered in support of his plea of guilty,

to-wit: the Stipulation of Evidence, is insufficient because the stipulation tracked the

language of the original indictment charging him with indecency with a child by contact, as

opposed to the offense of indecency with a child by exposure. However, the record

reflects Appellant entered a plea of guilty to the offense of indecency with a child by

exposure. Although Appellant's plea of guilty alone would not satisfy the requirements of

article 1.15, see Menefee v. State, 287 S.W.3d 9 (Tex.Crim.App. 2009), it was sufficient

for purposes of due process. Therefore, Appellant's original judgment is not subject to

collateral attack as a void judgment. Finding that Appellant's claim does not come within

the limited "void judgment" exception to the general rule, we overrule his first issue.


       II.        Issue One - Alternative Harm Analysis


       Even if the trial court erred in failing to receive evidence sufficient to substantiate

Appellant's plea under article 1.15, such error would be subject to harmless error analysis

under Rule 44.2(b) of the Texas Rules of Appellate Procedure. 6 Menefee v. State, 287

S.W.3d at 18. Rule 44.2(b) provides that non-constitutional error Athat does not affect

substantial rights must be disregarded.@ Substantial rights are not affected by the trial

error if the appellate court, after examining the record as a whole, has a Afair assurance

that the error did not influence the [verdict of the fact finder], or had but a slight effect.@

Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002); Solomon v. State, 49 S.W.3d


       6
           Tex. R. App. P. 44.2(b).

                                              7
356, 365 (Tex.Crim.App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.

1998). In determining whether or not the error influenced the verdict, or had but a slight

effect, an appellate court should consider everything in the record, including any

testimony or physical evidence admitted for the fact finder=s consideration, together with

the nature and character of the error and how that error might have contributed to the

verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). In addition to the

record as a whole, factors a reviewing court should consider include the prosecution and

defense theories and the closing arguments, including whether or not the prosecution

emphasized the error in its argument.       Motilla, 78 S.W.3d at 355.     Ultimately, the

question is whether a reasonable probability exists that the error moved the fact finder

from a state of non-persuasion to one of persuasion.


       Here, Appellant was charged with, and confessed to the second degree felony

offense of indecency with a child by contact. By virtue of a plea bargain agreement, he

pled guilty to the third degree felony offense of indecency with a child by exposure. After

accepting the benefits of the plea bargain for more than six years before the amended

motion to revoke community supervision was filed, Appellant is not suggesting that he is

innocent of the offense of indecency with a child by exposure or that he was somehow

tricked into pleading guilty to an offense that never occurred. Furthermore, no one is

suggesting that independent evidence of his guilt does not exist or that the problem here

is anything other than carelessness on the part of the attorneys involved. But for the

failure of counsel and the court to carefully read the plea papers, specifically the

                                            8
Stipulation of Evidence, Appellant would not have before this Court the argument he now

contends should result in an acquittal. In light of the procedural posture of this case, it is

hard to imagine how the lack of substantiating evidence moved the trial court from a state

of non-persuasion to one of persuasion.           Furthermore, if this Court were to grant

Appellant the relief he requests, he would still face prosecution for the more serious

offense of indecency with a child by contact. From the totality of the record, it strains

credulity to somehow find that Appellant was harmed by this error. Therefore, even if we

addressed Appellant's first issue, any error would be harmless.


       III.   Issue Two – Attorney’s Fees


       By his second issue, Appellant contends that because the record does not contain

sufficient evidence to demonstrate his financial ability to offset the cost of court-provided

legal services, the trial court erred in ordering the reimbursement of attorney’s fees. See

Mayer v. State, 274 S.W.3d 898 (Tex.App.BAmarillo 2008, pet. granted). Because this

issue does not come within the exception to the general rule that the validity of the original

conviction cannot be raised on appeal from an order revoking community supervision,

Burrell, 492 S.W.2d at 482, we need not address that issue.


       That said, a plea agreement is generally held to constitute a contractual

arrangement between the State and the defendant. State v. Moore, 240 S.W.3d 248,

251 (Tex.Crim.App. 2007). Moreover, A[w]hen a defendant agrees to the terms of a plea

bargain agreement he is deemed to have entered into the agreement knowingly and

                                              9
voluntarily unless he shows otherwise.@ Moore, 240 S.W.3d at 251 (quoting Ex parte

Williams, 637 S.W.2d at 947). In the absence of any evidence establishing Appellant did

not knowingly and voluntarily agree to pay $250 in court-appointed fees incurred in the

original proceeding, the trial court committed no error by accepting the plea agreement as

some evidence of Appellant=s willingness and ability to pay. Appellant=s second issue is

overruled.


                                      Conclusion


      The trial court’s judgment is affirmed.



                                                 Patrick A. Pirtle
                                                     Justice

Do not publish.




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