                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00261-CR

ROBERT KNOTEN,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 40th District Court
                               Ellis County, Texas
                            Trial Court No. 31,729-CR


                          MEMORANDUM OPINION


      Robert Knoten appeals from a judgment revoking his deferred adjudication

community supervision and adjudicating his guilt, after which he was sentenced to

twenty-five years in prison as a habitual offender. See TEX. CODE CRIM. PROC. art. 42.12,

§§ 5(b), 21 (West Supp. 2011).      Knoten complains that the trial court erred by

adjudicating his guilt and revoking his community supervision because the original

judgment placing him on deferred adjudication community supervision is void because

there was no evidence of his guilt during his original guilty plea. We affirm the
judgment of the trial court.

        Generally, a defendant who receives deferred adjudication community

supervision may not appeal errors in the original proceeding in a later proceeding when

adjudicated. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). However,

there are two exceptions to that general rule, when a judgment is void or can be

attacked by habeas corpus. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001).

The void judgment exception recognizes that there are some rare situations in which a

trial court’s judgment should be accorded no respect because of a complete lack of

power to render the judgment in question. Id. A void judgment is a “nullity” and thus

can be attacked at any time. Id. It logically follows that if the original judgment

imposing community supervision was void, then the trial court would have no

authority to revoke that community supervision, since there is nothing to revoke with

no judgment imposing probation (because it is a nullity). Id.

        A judgment of conviction for a crime is void when:

        (1) 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.


Knoten v. State                                                                        Page 2
Nix, 65 S.W.3d at 668. Knoten contends that the original sentence imposed placing him

on deferred adjudication community supervision was void because there was no

evidence to support the judgment because he did not properly enter a guilty plea.

        During the hearing on the original plea, the trial court explained the terms of the

plea bargain to Knoten and asked him if he understood those terms to be the plea

bargain, which Knoten answered affirmatively. The trial court then asked Knoten,

“Understanding what the plea agreement is and what will happen in the case if you

plead guilty, do you do so freely and voluntarily?” Knoten also answered this question

affirmatively. Knoten contends that this exchange constitutes no evidence of a guilty

plea. We disagree.

        Article 27.13 of the Code of Criminal Procedure requires that a plea of guilty or

nolo contendere in a felony case to be made in open court by the defendant in person. See

TEX. CODE CRIM. PROC. ANN. art. 27.13 (West 2005).     We evaluate a complaint alleging a

deviation from article 27.13 under the particular facts of that case to determine whether

the trial court complied with the intent of the statute, which is to ensure that the

defendant voluntarily desires to plead guilty. Costilla v. State, 146 S.W.3d 213, 217 (Tex.

Crim. App. 2004). Article 27.13 does not require an oral plea by the defendant although

the better practice is “to inquire of the defendant personally what his plea is.” Id. See

also Shields v. State, 608 S.W.2d 924, 927 (Tex. Crim. App. [Panel Op.] 1980) (concluding

that failure to elicit a verbal guilty plea from the defendant did not invalidate his


Knoten v. State                                                                      Page 3
conviction where the trial court complied with the spirit and letter of article 27.13).

Substantial compliance is shown when the circumstances of the plea indicate that the

defendant knowingly and voluntarily intended to plead guilty. Costilla, 146 S.W.3d at

217.

        In addition to the dialogue discussed above, prior to the plea Knoten signed a

document containing required admonishments which also included a section

containing waivers and stipulations which indicated that Knoten was pleading guilty to

the offense, waived his rights, and then included a judicial confession. This document

was signed by Knoten, his trial counsel, and the State as well as by the trial court.

Knoten argues that this document does not constitute evidence of his guilty plea

because it was not offered into evidence and the trial court did not express that it took

judicial notice of it.

          Where the trial court and the parties, without objection, treat certain proof as if

it had been admitted in evidence, it is not error for the trial court to consider the same in

reaching its verdict. See Ex parte Reagan, 549 S.W.2d 204, 205 (Tex. Crim. App. 1977)

(affirming where court and parties treated governor’s warrant in habeas corpus hearing

as if admitted into evidence); Killion v. State, 503 S.W.2d 765, 765-66 (Tex. Crim. App.

1973) (reviewing court permitted to consider defendant’s stipulations to charged

offenses where considered by trial court in adjudicating guilt for theft and burglary,

although written stipulations not formally admitted into evidence); Richardson v. State,


Knoten v. State                                                                        Page 4
475 S.W.2d 932, 932-33 (Tex. Crim. App. 1972) (finding that record showed court

admitted exhibits to support adjudication of guilt for burglary even though court did

not specifically state that exhibits were admitted into evidence). The reporter’s record

from the original plea indicates that the trial court considered the document containing

the admonishments, waivers, and the judicial confession. Knoten orally agreed that he

understood all of his rights contained in the documents he had signed. The recitation of

those rights was only contained in that document.         Upon questioning by his trial

counsel during the plea, Knoten affirmed that he did not want to have a jury trial, had a

plea bargain with the State he wanted to accept, and understood the consequences of a

revocation. Further, when rendering judgment, the trial court stated that the finding of

guilt was based on the judicial admission and his plea of guilt.

        We find that Knoten’s response to the trial court’s questions, taken with the

judicial confession and written plea of guilt are sufficient to establish substantial

compliance with article 27.13 and constitute evidence to support the conviction.

Therefore, the original judgment placing Knoten on deferred adjudication community

supervision is not void. We overrule Knoten’s sole issue.

Conclusion

        Having found that the judgment placing Knoten on deferred adjudication

community supervision is not void, we affirm the judgment of the trial court

adjudicating his guilt and revoking his community supervision.


Knoten v. State                                                                    Page 5
                                       TOM GRAY
                                       Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 22, 2012
Do not publish
[CRPM]




Knoten v. State                                        Page 6
