Opinion issued February 7, 2013.




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                        ————————————
                            NO. 01-11-01124-CR
                         ———————————
                       FRANK ZUNIGA, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee




                 On Appeal from the 184th District Court
                         Harris County, Texas
                     Trial Court Case No. 1309014



                       MEMORANDUM OPINION

     Frank Zuniga appeals the trial court’s judgment adjudicating his guilt and

sentencing him to twelve years’ confinement. Zuniga was placed on deferred

adjudication community supervision for the second-degree felony offense of
indecency with a child. See TEX. PENAL CODE ANN. § 21.11(a)(1), (d) (2011). The

State moved to adjudicate Zuniga’s guilt and the trial court did so. On appeal,

Zuniga contends that there was no evidence to support his guilty plea and his

conviction must therefore be reversed. We affirm.

                                  Background

      Zuniga was charged by indictment with the felony offense of indecency with

a child for touching the complainant’s genitals. Zuniga pleaded guilty pursuant to

a plea bargain with the State and waived the making of a record of his plea

proceedings. The Waiver of Constitutional Rights, Agreement to Stipulate, and

Judicial Confession (the “Confession”) that Zuniga signed, however, did not

mention Zuniga touching complainant’s genitals. Rather, it stated that Zuniga had

caused complainant to touch the genitals of a second minor complainant. The trial

court accepted the plea and deferred adjudication of Zuniga’s guilt, placing him on

deferred adjudication community supervision for seven years.

      Approximately three months later, the State moved to adjudicate Zuniga’s

guilt, alleging a violation of the provisions of his community supervision that

prohibited contact with minors.    At the hearing on the motion to adjudicate,

Zuniga’s community supervision file was admitted into evidence.           The file

included the police report containing complainant’s statements to his mother and

the report from the Children’s Assessment Center containing complainant’s

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statements to the forensic interviewer. In these statements, complainant indicated

that Zuniga had touched complainant’s genitals. After the hearing, the trial court

found the allegations to be true, adjudicated Zuniga’s guilt, and sentenced him to

twelve years’ confinement. Zuniga appeals.

                                      Analysis

      A defendant who receives deferred adjudication community supervision

generally may not appeal errors in the original proceeding that resulted in the

deferred adjudication after a later proceeding to adjudicate guilt. Nix v. State, 65

S.W.3d 664, 667–68 (Tex. Crim. App. 2001); Manuel v. State, 994 S.W.2d 658,

661–62 (Tex. Crim. App. 1999). There are two exceptions to this general rule: a

judgment may be challenged after adjudication (1) when it is void or (2) by habeas

corpus. Nix, 65 S.W.3d at 667.

      “The void judgment exception recognizes that there are some rare situations

in which a trial court’s judgment should be accorded no respect due to a complete

lack of power to render the judgment in question.” Id. Because a void judgment is

a nullity, it may be attacked at any time. Id. at 668. It logically follows that “[i]f

the original judgment imposing [community supervision] was void, then the trial

court would have no authority to revoke that [community supervision], since, with

no judgment imposing probation (because it is a nullity), there is nothing to

revoke.” Id.

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      In Nix, the Court of Criminal Appeals identified a “very nearly” exclusive

list of circumstances rendering a judgment void.

      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, in violation of
      Gideon v. Wainwright.

Id. (footnotes omitted).

      The third circumstance, the “no evidence” exception, is the basis of Zuniga’s

appeal. For this exception to apply, “the record must show a complete lack of

evidence to support the conviction, not merely insufficient evidence.” Id. at 668

n.14. “[T]he record must leave no question about the existence of the fundamental

defect.” Id.

      Zuniga contends there is no evidence to support his conviction because the

acts admitted in the Confession are not the same acts alleged in the indictment.

Accordingly, argues Zuniga, the Confession cannot support the conviction. See

Nix, 65 S.W.3d at 668 n.14 (noting that guilty plea or judicial confession is

ordinarily sufficient to support conviction); Tijerina v. State, 264 S.W.3d 320, 324

(Tex. App.—San Antonio 2008, pet. ref d). While the Confession did not track the

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indictment, Zuniga’s claim fails because other evidence supports the conviction.

In the written admonishments, given pursuant to Article 26.13(d) of the Code of

Criminal Procedure, Zuniga swore, “I have read the indictment and I committed

each and every element alleged.” Additionally, at the hearing on the motion to

adjudicate guilt, the trial court admitted into evidence Zuniga’s community

supervision file.   The file reflects that complainant told his mother and the

Children’s Assessment Center’s forensic interviewer that Zuniga touched

complainant’s genitals, which is the offense alleged in the indictment. Thus, there

is no “complete lack of evidence to support the conviction.” See Nix, 65 S.W.3d at

668 n.14.    Because the record contains some evidence to support Zuniga’s

conviction, we overrule Zuniga’s sole issue.

                                   Conclusion

      We affirm the trial court’s judgment.



                                               Rebeca Huddle
                                               Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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