Brent Dewayne Johnson v. The State of Texas--Appeal from 248th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-103-CR

BRENT DEWAYNE JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 248th District Court

Harris County, Texas

Trial Court # 654,219

O P I N I O N

This is an appeal by Appellant Johnson from his conviction for attempted murder, for which he was assessed twenty years in the Institutional Division of the Texas Department of Criminal Justice.

Appellant was charged by indictment with attempted murder. He pled guilty without an agreed recommendation on punishment. The trial court deferred a finding of guilt and placed Appellant on 10-years adjudication probation.

Three months later the State filed a motion to adjudicate Appellant's guilt, alleging that he had violated the conditions of his probation by committing another criminal offense. After a hearing on the State's motion, the trial judge found Appellant guilty of attempted murder and assessed punishment at twenty-years confinement.

Appellant appeals on three points of error:

In points one and three Appellant claims that the indictment fails to charge him with a penal code offense. He claims that the indictment does not charge attempted murder, but charges him with "attempt to commit attempted murder." Thus he contends that the indictment conveyed no jurisdiction to the trial court and any action taken by the trial court is void.

A person commits criminal attempt if, with intent to commit an offense, he does an act amounting to more than mere preparation that tends to but fails to effect the commission of the offense intended. Penal Code Sec. 15.01(a). Thus, to prove attempted murder, it is sufficient to show that the accused had the intent to cause the death of the complainant, and that he committed an act which amounted to more than mere preparation, that could have caused the death of the complainant but failed to do so. Weeks v. State, (Tex. App. Eastland) 834 S.W.2d 559, 561.

The indictment in this case charged that Appellant:

"intentionally, with the specific intent to commit the offense of murder of Darian Fletcher, hereafter styled Complainant, [did] an act, to-wit: by shooting in the direction of the Complainant with a deadly weapon, namely, a firearm, which amounted to more than mere preparation that tended to but failed to effect the commission of the offense intended."

Appellant claims this indictment does not charge attempted murder, because an act amounting to more than mere preparation was alleged as "shooting in the direction of the Complainant" rather that "shooting at the Complainant." He argues that shooting in the direction of a person does not show that he had the specific intent to kill and does not tend to effect the commission of murder.

The specific intent to kill is a necessary element of attempted murder. Flanagan v. State, (Tex. Crim. App.) 675 S.W.2d 734, 741. Specific intent to kill may be inferred from the use of a gun, which the Penal Code defines as a deadly weapon, per se. Godsey v. State, (Tex. Crim. App.) 719 S.W.2d 578, 580. Furthermore, a deadly weapon used in a deadly manner almost conclusively supports the inference that the accused intended to kill. Godsey, supra at page 581; Graves v. State, (Tex. App. Dallas) 782 S.W.2d 5, 6.

Article V, Sec. 13 of the Texas Constitution, confers jurisdiction on a trial court by the presentment of an indictment or information. Studer v. State, (Tex. Crim. App.) 799 S.W.2d 263, 268.

We hold the indictment here properly charged Appellant with the offense of attempted murder, and that the trial court did have jurisdiction over the cause.

Appellant's first and third points are overruled.

Appellant's second point of error contends that his guilty plea was involuntary because he was not admonished pursuant to Tex. Code Crim. Proc. 42.12, Sec. 5(b), that he could not appeal from the proceedings adjudicating his guilt.

Article 42.12, Sec. 5(a) provides that a judge who places a defendant on deferred adjudication probation shall inform the defendant of the possible consequences of this type of probation as set forth in subsection (b).

Subsection (b) provides:

"On violation of a condition of [probation] imposed under subsection (a), the defendant may be arrested and detained . . . The defendant is entitled to a hearing limited to the determination by the court of whether to proceed with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred."

Appellant pled guilty without an agreed recommendation from the State on February 9, 1993. He first waived his rights to formal arraignment and trial by jury, then pled guilty to the offense of attempted murder. The trial court then determined Appellant was pleading guilty because he was guilty. The judge next explained that there was no agreed recommendation in this case. He informed Appellant of the range of punishment, and explained that the court was not bound by any term of years within that range. The court then determined that Appellant was under no fear or threats, that he had no delusive hope of pardon or parole, and that he was sane. Then the judge questioned Appellant regarding his stipulation of evidence and asked if he signed the same voluntarily. Appellant responded that he had. The trial court made the following ruling:

"Mr. Johnson, upon your plea of guilty and evidence introduced herein, the court is specifically not making a finding of guilt and placing you on ten-years probation so long as you live up to the terms and conditions of probation."

Appellant was not advised that he could not appeal.

At the time Appellant pled guilty, he was unaware the judge would place him on deferred adjudication probation. The record reflects he pled guilty without an agreed recommendation and understood that the full range of punishment was available to the court. Yet he pled guilty anyway and received the admonishments required under Tex. Code Crim. Proc. art. 26.13(a). If at this point the trial judge had given Appellant straight probation or penitentiary time, he would have complied with all the admonishments required for a guilty plea. Yet, because he gave Appellant deferred adjudication probation, Article 42.12, Sec. 5(b) provides further admonishments. When Appellant pled guilty, he was not aware that he would receive the benefit of deferred adjudication probation. The plea that was voluntary minutes before did not become involuntary simply because the judge gave Appellant the unexpected gift of deferred adjudication.

The failure to advise Appellant that he could not appeal, under this record, is harmless. Tex. R. App. P. 81(b).

Furthermore, when pleading guilty without an agreed recommendation, as Appellant did here, Appellant is entitled to appeal only jurisdictional issues or voluntariness of his plea. Shallhorn v. State, (Tex. Crim. App.) 732 S.W.2d 636, 637; Kings v. State, (Tex. Crim. App.) 687 S.W.2d 761, 765; Helms v. State, (Tex. Crim. App. 484 S.W.2d 925, 927. This is true regardless of the punishment assessed. Appellant has appealed both a jurisdictional issue and a voluntariness issue in this appeal. Thus he has not been denied the right to appeal any issue he might have otherwise been able to appeal.

Point two is overruled.

The judgment of the trial court is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 13, 1994

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