Affirmed and Opinion Filed February 6, 2013




                                            In The
                                   øurt øf Apnahi
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                                     No, 05-11-00772-CR
                                     No. 05-1 1-00773-CR
                                     No. 05-1 1-00774-CR
                                     No. 05-11-00775-CR
                                     No. 05-11-00776-CR

                          DAVID WAYNE HAMILTON, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                     On Appeal from the 282nd Judicial District Court
                                  Dallas County, Texas
              Trial Court Cause Nos. F09-40406-S, F09-40407-S, F09-40408-S,
                              F09-40409-S, and F09-71540-S

                            MEMORANDUM OPINION
                         Before Justices Lang-Miers, Myers, and Lewis
                                   Opinion by Justice Lewis
       In June 2010, appellant David Wayne Hamilton pleaded guilty to five offenses: burglary

of a habitation, two aggravated assaults with a deadly weapon, evading arrest, and arson of a

habitation. The trial court placed appellant on deferred adjudication community supervision. In

June 2011, appellant pleaded true to two violations of his community supervision. The trial

court adjudicated appellant’s guilt in each of the five cases, assessing his punishment at ten

years’ confinement in the burglary and assault cases, 180 days’ confinement in the evading arrest

case, and twenty-five years’ confinement in the arson case. In ten issues, appellant contends the
evidence was insufficient to support each ot the deferred adjudication orders and his rig.ht to a

public trial was violated in the origtnal plea proceedings. We conclude the dispositive issues

before us are clearly settled in law. Accordingly, we issue this memorandmn opinion pursuant to

Texas Rule of Appellate Procedure 47.4. We affirm the trial court’s judgments.

                                              BACKGROUND

       Appellant’s issues are rooted in ambiguities in the timeline under which his guilty pleas

were made in June 2010. For example, giving credence to the dates either typed or written on

documents, the following events occurred on June 9, 2010: appellant’s five Orders of Deferred

Adjudication were signed and entered; appellant was placed on community supervision; and the

terms of his community supervision in four of the five cases were signed by appellant, the trial

court, and a supervising officer of the court. (The supervision terms were signed in the burglary

case on June 10, 2010.) Appellant’s fingerprints were taken for his judgment on June 16, 2010.

Appellant signed judicial confessions in all five cases and swore to them before a deputy district

clerk on June 18. 2010. In addition, although the district attorney signed the plea agreements in

each case on April 29, 2010, the signatures on the plea agreements of appellant, his attorney, and

the trial court are undated.   Finally, all of these documents—regardless of date—bear a file

stamp of June 18, 2010.

       This Court abated the appeals and issued an order requiring the trial court to conduct a

hearing to determine the dates on which appellant entered his pleas, made his confessions, and

was placed on deferred adjudication community supervision. We also ordered the trial court to

determine the possibility of creating a reporter’s record of any of appellant’s plea proceedings.

The trial court made findings on the record that, on June 9, 2010, it had heard sufficient evidence

to find appellant guilty, but instead had granted appellant’s request and placed him on deferred
   adjudicat ion community                supervision.         Ihe court further found tha certain documents were file—

   stamped       at a    later date. The traI            courts      othcial court reporter tiled a document in this Court

   entitled Status ot Reporters Record, which asserts that “jaipparently proceedings were had in

   this Court on         June     18. 2010, in which the defendant pled guilty to the CourL” However, the

   court    reporter     determined there was no reporter’s record for those proceedings.

                                                          SUFFIcIENcY OF TIlE EvIDENcE

               In his first five issues, appellant contends that—-on this ambiguous record—there is no

   indication the judicial confessions were signed at the time of the deferred adjudication hearing.

   If the confessions were not l)elore the judge when he signed the deferred adjudication orders,

   appellant argues, then there was no evidence supporting those orders, and they should be set

   aside,

               The State responds that these                 issues    were waived because appellant did not raise them in

   an appeal following the deferred adjudication proceeding. The Texas Court of Criminal Appeals

   has held:

               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, 66 1—62 (Tex. Crim. App. 1999). However, appellant urges

   that these complaints (and those addressed below) fall within an exception to the Manuel rule

   that applies when the judgment entered in the first proceeding was void. The void-judgment rule

   does apply in the deferred adjudication context. See Nix v. State, 65 S.W.3d 664, 668 (Tex.

   Crim. App. 2001). But void judgments are unusual.’ And, importantly, for a judgment to be



The Nix court identified the Ibuiowing as a “very nearly’ exclusive list of void judgments of conviction for a crime:
void, the record must clearly establish the existence of the fundamental defect, Id. Therefore,

when a record is incomplete, we will not conclude a judgment is void if the missing portion

could show the defect does not in fact exist; this is true even if the record we do have tends to

support the existence of the defect, See id. at 66869. In appellant’s case, there is no reporter’s

record of any plea proceedings.                        Thereftre, even if we assume (without deciding) that the

judicial   confessions         fell outside the plea proceedings, we must ask whether a reporter’s record

could establish that sufficient evidence was offered to support appellant’s guilt in each of the five

charged cases. Because a court reporter’s transcription of appellant’s plea proceedings could

have established that other evidence—above and beyond the judicial confessions—supported

each of the trial court’s deferred adjudication orders, those orders are not void. See Id. at 669

(“For example, when a defendant levels a ‘no evidence’ challenge against the conviction, but the

record contains no court reporter’s transcription of the original plea hearing, then the conviction

is not void, even though the record—as far as it goes—tends to support the no evidence claim,”).

We overrule appellant’s first five issues.

                                                       RIGHT TO PUBLIC TRIAL

           In his sixth through tenth issues, appellant contends the deferred adjudication orders are

void because the plea proceedings violated his right to a public trial “[bjy allowing the judicial

confessionisi to be signed and sworn in the District Clerk’s Office nine days after the deferred

adjudication proceedings were held before the trial court.” The Sixth Amendment to the United



           (I) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the
           constitutional requisites of a charging instrument, 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, in
           violation of Gideon u. Wainwright.

Nix, 65 S.W,3d at 668.
States   Constitution   guarantees an accused the right to a public trial in all criminal prosecutions.

U.S. C0Nsu. amend. VI. And a plea proceeding is considered a trial under Texas law. Murray r.

State, 30    S.W.3d 874. 880 (Tex. (Tex. Crim. App. App. 2009),            Violation of the right to a

public trial is structural error, which does not require a showing of harm for reversal. Li/lu       i’.



Staic. 365 S.W.3d 321, 328 (Tex. Crim. App. 2012). 1-lowever. the right to a public trial can be

waived ..Sce Levine v. t!nited Stales. 362 U.S. 610. 619 (I %0).            Thus. if appellant cannot

establish that his deferred adjudication orders arc void on this ground, his complaint will have

been waived by his failure to appeal the orders after they were entered. See Manuel, 994 S.W.2d

at 66162. Appellant has not cited us to any authority indicating a violation of the right to a

public trial would render the deferred adjudication orders void.         But even if such a violation

could raise the issue of void orders, we could not find them void on the record before us.

          Our first step in analyzing whether an appellant’s right to a public trial has been violated

is to determine whether the trial was, in fact, closed to the public. Lilly, 365 S.W.3d at 329. The

record before us does not speak to whether any of appellant’s plea proceedings were open or

closed to the public.

          We have already concluded that—in the absence of a reporter’s record of any plea

proceedings—we must assume the trial court heard evidence other than the judicial confessions

that was sufficient to support appellant’s pleas.         If we had a reporter’s record of the plea

proceedings, such a record could also have established that the proceedings were open to the

public. Therefore, appellant caimot establish the orders are defective, even if the record before

us does not establish for certain that the hearing was open to the public. See Nix, 65 S.W.3d at

668—69 (“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.”).
        Even if we focus solely on the judicial confessions, as appellant does, we discern no basis

for declaring the deterred adjudication orders VOid.       Again, we have no reporter’s record

identifying where the signing took place.         Appellant assumes that because the judicial

confessions recite that they were sworn to belore a deputy district clerk, the proceeding took

place “in the District Clerk’s OfficeS.” Nothing in the record suggests. let alone establishes, that

fact. Each of the lve confessions is signed by appellant, his attorney. the district attorney, and

the trial court.    If the State had been relying upon the judicial confessions as additional

evidentiary support for the pleas, the clerk could certainly have been present in open court to

attest to appellant’s signature. And, once again, a reporter’s record could have established that

tact.

        Because a reporter’s record could have established that any of appellant’s deferred

adjudication proceedings took place in open court, we need not look further to determine

whether a public-trial violation could ever result in void orders. We overrule appellant’s sixth

through tenth issues.

                                              CoNcLusIoN

        Appellant has failed to allege an error that could render his deferred adjudication orders

void.   Accordingly, his complaints concerning the deferred adjudication proceedings are not

preserved for our review. We affirm the judgments of the trial court.




                                                  /AVID LEWIS
Do Not Publish                                      JUSTICE
TEx. R. App. P.47

1 10772F.U05
                                   Qøurt uf Aiih
                          JFiftI! 3iiiIrirf nf it Ja11u
                                              JUDGMENT

DAVID WAYNE I IAMILTON, Appellant                        On Appeal Irom the 282nd Judicial District
                                                         Court, Dallas County, Texas
No. 051 l00772CR               V.                        Trial Court Cause No. F09-4040&S,
                                                         Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                             Justices LangMiers and Myers
                                                         participating.


       Based on the Court’s      opinion   of this date, the judgment of the trial court is AFFIRMED.


                        6
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Judgment entered this         day of February, 2013.




                                                        DAVID LE          IS
                                                        JUSTICE
                                   Qøurt nf Arprat
                       JIift1 iitrirt nf ixa at attai
                                        JUDGMENT

DAVID WAYNE HAMILTON, Appellant                    On Appeal from the 282nd Judicial District
                                                   Court, Dallas County, Texas
No, 05-1 1-00773-CR        V.                      Trial Court Cause No. F09-40407-S.
                                                   Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                       Justices Lang-Miers and Myers
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 6th day of February, 2013.




                                                    AVID LE    IS
                                                   JUSTICE
                                nitrt of AVp1\1i
                        Fi1t1i 3itric1 of cxzti at JaI1a
                                          JUDGMENT

DAV ID WAYNE HAMILTON. Appellant                      On Appeal from the 282nd Judicial District
                                                      Court. Dallas County, Texas
No. 051 1M0773-CR          V.                         Trial Court Cause No. F09-40408-S.
                                                      Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                          Justices LangMiers and Myers
                                                      participating.


       Based on the   Courts opinion   of this date, the judgment of the trial court   is   AFFIRMED.


Judgment entered this 6th day of February, 2013.




                                                       AVID LEWIS
                                                     JUSTICE
                                 Qinurt øf Appiah
                         Fift1! Oitrict nf ixai at 1atta
                                           JUDGMENT

DAVID WAYNE HAMILTON, Appellant                       On Appeal from the 282nd Judicial District
                                                      Court, Dallas County, Texas
No, O5 11 M0775-CR            V,                      Trial Court Cause No. FO94O4O9S.
                                                      Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                          Justices Lang-Miers and Myers
                                                      participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


                        th
                        6
Judgment entered this        day of February, 2013.
                                  (LLUIrL   Lii    .1t1ltL!3
                        Wi[tli Dii1rici tuf ixa tt OattLu
                                       JUDGMENT

DAVID WAYNE HAMILTON, Appellant                    On Appeal from the 282nd Judicial District
                                                   Court, Dallas County, Texas
No. 05-1 1-00776-CR       V.                       Trial Court Cause No. F09-7 1540-S.
                                                   Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                       Justices Lang-Miers and Myers
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 6t day of February, 2013.




                                                  gAVID LEWIS
                                                  TUSTICE
