Ty Weston Lothringer v. The State of Texas--Appeal from 351st District Court of Harris County

Opinion issued September 28, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00501-CR

TY WESTON LOTHRINGER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 955429

MEMORANDUM OPINION

Appellant, Ty Weston Lothringer, appeals from the trial court s judgment convicting him for the second degree felony offense of aggravated assault. See Tex. Pen. Code Ann. 22.02(a)(2) & (b)(1) (Vernon 2005). The trial court assessed punishment at ten years in prison after adjudicating appellant s guilt. In two issues, appellant asserts that the trial court abused its discretion by denying his motion for a new trial because (1) a fatally defective indictment deprived the trial court of jurisdiction to adjudicate guilt and (2) his original plea was involuntary due to ineffective assistance of counsel. We conclude that we have no jurisdiction over this appeal because the issues complained of here could be properly raised only during an appeal of his original sentence when appellant was placed on deferred adjudication. We therefore dismiss the appeal for want of jurisdiction.

Procedural Background

Appellant was charged by an indictment that alleged that he, on or about July 16, 2003, did then and there unlawfully, intentionally and knowingly threaten CHERYL, a member of the Defendant s FAMILY with imminent bodily injury by using and exhibiting a deadly weapon, namely, A FIREARM. // Appellant pleaded guilty with an agreed recommendation from the State for five years deferred adjudication community supervision. The trial court accepted appellant s guilty plea, placed him on deferred adjudication community supervision and certified that appellant had no right to appeal the case.

On January 26, 2005, the State filed a third amended motion to adjudicate appellant s guilt alleging that he violated the terms and conditions of his community supervision by (1) assaulting Cheryl Lothringer, (2) consuming alcohol, and (3) failing to report to his supervision officer. At the hearing on the motion to adjudicate, Cheryl testified that appellant assaulted her by choking her. The trial court found true the assault allegation, and sentenced appellant to ten years in prison on February 10, 2005.

Appellant filed a motion for new trial asserting that the conviction was void due to a defective indictment that failed to state Cheryl s last name, and that he was denied effective assistance of counsel at his original trial. At the new trial hearing, the evidence showed that the file of the attorney who represented appellant when he originally pleaded guilty to the offense did not contain a copy of the indictment that charged appellant with the offense, and included an affidavit from Cheryl that stated that she was not afraid of appellant and did not believe that he was capable of causing her physical injury. The trial court denied the motion for new trial. The trial court certified that appellant had the right to appeal the case.

Jurisdiction

The State asserts that we have no jurisdiction to address appellant s issues raised in this appeal because those issues should have been presented during an appeal from appellant s original plea of guilty to the offense, when he was placed on deferred adjudication. Appellant responds that we have jurisdiction because the indictment is void.

As a general rule, a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication community supervision is first imposed. Manuel v. State, 994 S.W.2d 658, 661 62 (Tex. Crim. App. 1999). However, an exception to this rule exists when the trial court s judgment is determined to be void. Nix v. State, 65 S.W.3d 664, 667 68 (Tex. Crim. App. 2001). Though rare, a void judgment is a nullity and can be attacked at any time. Id. One situation in which a judgment for conviction of a crime may be found void occurs when the charging instrument does not satisfy the constitutional requisites of a charging instrument, thus depriving the trial court of jurisdiction. // Id.

Here, the charging instrument in question is an indictment. The constitutional requisites for an indictment are established by article V, section 12(b) of the Texas Constitution, and are satisfied by a written instrument accusing a person of the commission of an offense with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective. Duron v. State, 956 S.W.2d 547, 550 51 (Tex. Crim. App. 1997); see Tex. Const. art. V, 12(b). The presentment of a constitutionally sufficient indictment to a court invests the court with jurisdiction over the cause. See Tex. Const. art. V, 12(b); Duron, 956 S.W.2d at 550; State v. Smith, 957 S.W.2d 163, 165 (Tex. App. Austin 1997, no pet.).

By alleging that appellant intentionally and knowingly threatened a family member named Cheryl with imminent bodily injury by using and exhibiting a deadly weapon, the indictment clearly and specifically charges appellant with aggravated assault, see Tex. Pen. Code Ann. 22.02(a)(2) & (b)(1) (Vernon 2005), and the indictment therefore satisfies the requirements of the constitution. See Duron, 956 S.W.2d at 550 51; Smith, 957 S.W.2d at 165. The constitutionally sufficient indictment here invested the court with jurisdiction over the aggravated assault charge against appellant. See Tex. Const. art. V, 12(b); Duron, 956 S.W.2d at 550; Smith, 957 S.W.2d at 165. Because the indictment satisfies the constitutional requisites of a charging instrument, the judgment here is not void. See Nix, 65 S.W.3d at 667 68.

Although the indictment failed to list Cheryl s last name, in apparent violation of article 21.07 of the Code of Criminal Procedure, // the indictment charged the felony offense of aggravated assault, thus meeting the constitutional requirements for an indictment. We conclude that appellant s challenges to the indictment are statutory, not constitutional, and that the indictment, which plainly charges appellant with the felony of aggravated assault, is not void.

Appellant, however, asserts that because Cheryl s last name was not included in the indictment, he could potentially be subject to double jeopardy. Appellant did not assert a double jeopardy objection to the trial court when he pleaded guilty to the aggravated assault, and he waived his right to appeal the sentence that placed him on deferred adjudication. We conclude that we have no jurisdiction to address appellant s complaints about the alleged potential for double jeopardy due to the indictment s description of the complainant only as Cheryl. //

Appellant also complains of ineffective assistance of counsel rendered by the trial counsel who represented him when he pleaded guilty. That complaint pertains to his original sentence when he was placed on deferred adjudication over which we have no jurisdiction. See Manuel, 994 S.W.2d at 661 662; see also Cozzi v. State, 160 S.W.3d 638, 640 (Tex. App. Fort Worth 2005, pet. ref d) (holding claim of ineffective assistance of counsel at time of guilty plea must be raised in appeal from order placing appellant on deferred adjudication community supervision, not after guilt is adjudicated); Webb v. State, 20 S.W.3d 834, 836 (Tex. App. Amarillo 2000, no pet.) (same).

We hold that we have no jurisdiction to consider appellant s challenges to the indictment, to the claim of double jeopardy, and to his original trial counsel s representation because those matters needed to be raised during an appeal of the trial court s order placing him on deferred adjudication. Manuel, 994 S.W.2d at 661 62;Cozzi, 160 S.W.3d at 640; Webb, 20 S.W.3d at 836.Conclusion

We dismiss this appeal for want of jurisdiction.

Elsa Alcala

Justice

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

Do not publish. Tex. R. App. P. 47.2(b).