                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   Nos. 07-14-00091-CR
                                        07-14-00092-CR


                          SHAMMANN SMITH, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 64th District Court
                                   Hale County, Texas
  Trial Court Nos. A17432-0711 & A17444-0711, Honorable Robert W. Kinkaid, Jr., Presiding

                                   October 22, 2014

                              MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Shammann Smith, appellant, appeals her convictions for theft over $1,500 and

for tampering with a governmental record. Through three issues, she contends that 1)

the evidence was insufficient to support the orders deferring her guilt and therefore the

orders adjudicating guilt were void, 2) her guilty pleas were involuntary and 3) counsel

was ineffective. We affirm.
        Background

        Appellant was indicted for theft and for tampering with a governmental record.

She pled guilty to both offenses and was placed on deferred adjudication community

supervision pursuant to a plea agreement.                  Subsequently, the State filed a motion

requesting that appellant be adjudicated guilty of both offenses. A hearing was held on

the motion, which hearing resulted in her being adjudicated guilty and sentenced to

sixteen months in a state jail facility. She now appeals her convictions.

        Sufficiency of the Evidence1

        Appellant attempts to attack the judgment adjudicating her guilt and convicting

her of theft. As the argument goes, because there was insufficient evidence to prove

her guilt despite her guilty plea, her conviction for the offense is void.2

        Again, this is an appeal from a judgment revoking appellant’s community

supervision, adjudicating her guilt, and convicting her.                  As such our jurisdiction to

entertain complaint that could have been urged via appeal from the order deferring guilt

and placing the accused on community supervision is quite limited. See Jones v. State,

42 S.W.3d 143, 148 (Tex. App.—Amarillo 2000, no pet.) (stating that “a defendant who

pleads guilty and is placed on deferred adjudication may raise issues relating to the

original plea proceeding only in an appeal taken when the trial court first orders deferred

adjudication and imposes community supervision . . . [w]hether the original guilty plea

was knowing and voluntary is an issue which must be raised by appeal taken when


        1
          Appellant does not argue that her conviction for tampering with governmental records lacks
evidentiary support.
        2
         No trial court is authorized to render a conviction in a felony case, consistent with article 1.15 of
the Texas Code of Criminal Procedure, based upon a plea of guilty “without sufficient evidence to support
the same.” See TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005). Furthermore, a void judgment can
be attacked at any time. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001).

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deferred adjudication is first imposed”).       Furthermore, complaints rendering the

judgment void may be raised at any time, even after the revocation of community

supervision. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001). A complaint

that “no evidence,” as opposed to insufficient evidence, supports a finding of guilt is

such a complaint. Id. Yet, as explained in Nix, “[for]the judgment to be void, the record

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

evidence[,] [a]nd a guilty plea constitutes some evidence for this purpose.” Id. at 668

n.14. Here, appellant entered a guilty plea to the charges in the indictment. Thus, our

situation likens the latter example in Nix, that is, the occasion where the defendant’s

guilty plea constitutes some evidence of guilt. Thus, the judgment is not void, and we

cannot entertain the issue.

      Appellant would disagree with our conclusion because the original indictment

was amended. The amendment changed the identity of the person owning the property

she was accused of taking. It also altered the sum taken from being one lump sum

between $1,500 to $20,000 to an aggregation of sums totaling from $1,500 to $20,000.

To that she adds her stipulation executed in conjunction with the plea hearing. Therein,

she admits to the truthfulness of the indictment’s contents as reiterated in the

stipulation. But, the reiteration consisted of the un-amended allegations found in the

original indictment, not the amended ones. So, in her view, there is only evidence of

record indicating that she committed the crime alleged in the un-amended instrument

and not the crime mentioned in the amended instrument. This argument may have

given us pause if the amended instrument actually created two indictments, that is, an

original and an amended instrument. But, an amendment does not have that effect. It



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simply substitutes the language of the initial document with that of the amendment.

Thomas v. State, 825 S.W.2d 758, 761 (Tex. App.—Houston [14th Dist.] 1992, no pet.)

(distinguishing the effect of an amendment to the operative pleading in the criminal

realm from that in the civil realm); accord Ex parte Streater, 154 S.W.3d 216, 218 (Tex.

App.—Fort Worth 2004, pet ref’d) (suggesting that the amendment does not replace but

rather supplements the instrument). So, there is no “indictment” and an “amended

indictment” per se but only an indictment. In other words, by admitting under oath and

in open court that the allegations of the indictment were true and correct, she provided

sufficient evidence to support her conviction, irrespective of what was said in her written

stipulation of evidence.

       Voluntariness of Plea and Effective Assistance of Counsel

       Appellant’s final two issues concern the voluntariness of her plea and the

effectiveness of her counsel. Both relate to the guilty plea that led to the trial court

deferring her adjudication of guilt and placing her on community supervision. Because

both complaints were susceptible to appeal from the order deferring her adjudication of

guilt, we have jurisdiction over neither at this point. See Jones v. State, supra.3

       We affirm the judgments of the trial court.



                                                               Brian Quinn
                                                               Chief Justice


Do not publish.


       3
          Appellant’s citation to Hernandez v. State, No. 02-01-432-CR, 2003 Tex. App. LEXIS 5469 (Tex.
App.—Fort Worth June 26, 2003, no pet.) is of no consequence. It did not address a situation wherein
the appellant opted to forego appeal until her community supervision was revoked. It dealt with matters
that could be asserted on appeal from a judgment entered upon a guilty plea.

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