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NO. 12-08-00331-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TYLER ADAMS, § APPEAL FROM THE 217TH

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE § ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Tyler Adams appeals the trial court‟s revocation of his deferred adjudication community 

supervision and adjudication of his guilt. In two issues, Appellant argues that the trial court‟s

order granting deferred adjudication community supervision is void, and that the trial court 

abused its discretion by revoking his deferred adjudication community supervision. We affirm.

BACKGROUND

Appellant was charged by indictment with evading arrest. Appellant pleaded not guilty 

and, after a bench trial, was placed on deferred adjudication community supervision 

(“community supervision”). The State filed a motion to adjudicate, alleging that Appellant had 

violated the terms of his community supervision. Appellant pleaded that the State‟s allegations 

were not true. After a hearing, the trial court found four of the State‟s allegations to be true, 

revoked Appellant‟s community supervision, found him guilty of evading arrest, and assessed his 

punishment at imprisonment for five years. Appellant subsequently filed a notice of appeal.

EVIDENCE OF GUILT
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In his first issue, Appellant asserts that the trial court‟s community supervision order is 

void “because the record reflects that there is no evidence to support a conviction [for evading 

arrest].”

Standard of Review

A defendant placed on deferred adjudication community supervision may not raise issues 

relating to the trial court‟s deferred adjudication community supervision order in appeals filed 

after his community supervision is revoked. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. 

Crim. App. 1999). Instead, a defendant must raise issues relating to the community supervision

order in an appeal taken when community supervision is originally imposed. Id. The court of 

criminal appeals has recognized two exceptions to this rule: the “void judgment” exception and 

the “habeas corpus” exception. Jordan v. State, 54 S.W.3d 783, 785-86 (Tex. Crim. App. 2001). 

Because the habeas corpus exception applies only to habeas corpus proceedings, we need 

consider only the void judgment exception here. See id. (limiting the habeas corpus exception to 

habeas corpus proceedings).

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

trial court‟s judgment is accorded no respect due to a complete lack of power to render the 

judgment in question.” Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). A void 

judgment is a “nullity” and can be attacked at any time. Id. at 667-68. If the trial court‟s order

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

revoke community supervision, since, with no order imposing community supervision (because 

it is a nullity), there is nothing to revoke. Id. at 668. On appeal from a revocation proceeding, a

defendant can raise an error in prior proceedings if the error would render the community 

supervision order void. Id.

“[A] judgment is void only in very rare situations - usually due to a lack of jurisdiction.” 

Id. A community supervision order 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, (2) the trial court lacks subject matter jurisdiction over the 

offense charged, (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, 
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when the right to appointed counsel has not been waived. Id. “While we hesitate to call this an 

exclusive list, it is very nearly so.” Id.

Moreover, for a community supervision order to be void, “the record must leave no 

question about the existence of the fundamental defect.” Id. If the record is incomplete, and the 

missing portion could conceivably show that the defect does not in fact exist, then the order is 

not void, even though the available portions of the record tend to support the existence of the 

defect. Id. at 668-69. “For example, when a defendant levels a „no evidence‟ challenge against 

the [order], but the record contains no court reporter‟s transcription of the original plea hearing, 

then the [order] is not void, even though the record - as far as it goes - tends to support the no 

evidence claim.” Id. at 669. “Without the transcription, we are unable to ascertain whether other 

evidence was introduced to support the [order].” Id.

Discussion

Appellant alleges that he pleaded not guilty to the underlying offense of evading arrest. 

Therefore, he asserts that the State was required to present the trial court with some evidence that

he committed the offense before the trial court could place him on community supervision or 

subsequently adjudicate his case. 

The record contains no reporter‟s record from the original proceedings resulting in 

Appellant‟s being placed on community supervision. However, the docket sheet reflects that the 

trial court placed Appellant on community supervision after a bench trial, and that evidence was 

presented to the trial court at that trial. Specifically, the docket sheet reflects that the State 

presented testimony from three police witnesses and Appellant‟s “common Law” wife, Latricia 

Ballard, and admitted a video recording into evidence. As we explained above, where the record 

is incomplete, and the missing portion could conceivably show that the defect does not in fact 

exist, then the order is not void. Id. at 668-69. In light of the record before us, we cannot hold 

that either the trial court‟s community supervision order or its final judgment is void. See id. 

We overrule Appellant‟s first issue.

EVIDENCE OF COMMUNITY SUPERVISION VIOLATION

In his second issue, Appellant argues that the trial court lacked discretion to revoke his 

community supervision because the State failed to present evidence that Appellant violated his 

supervision conditions.
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Standard of Review

Appellate review of an order revoking community supervision is limited to abuse of the 

trial court‟s discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). Where 

the sufficiency of the evidence supporting a trial court‟s decision to revoke community 

supervision is challenged, a trial court does not abuse its discretion if the greater weight of 

credible evidence creates a reasonable belief that the defendant violated a condition of his 

supervision. Id. at 763-64. In cases where the trial court revokes community supervision based 

upon findings that a defendant violated more than one condition of supervision, the revocation 

does not constitute an abuse of discretion where any single finding of a violation is held to be 

valid. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980) (“We need not address 

[the] appellant‟s other contentions since one sufficient ground for revocation will support the 

[trial] court‟s order to revoke probation.”); Balli v. State, 530 S.W.2d 123, 126 (Tex. Crim. App.

1975) (“There being a valid ground to justify revocation, we need not consider [the] appellant‟s 

other contention that the evidence showed only a single use of alcohol and did not reflect an 

injurious or vicious habit in violation of probation.”). 

Discussion

According to the State‟s motion, Appellant “violated the rules of his community 

supervision by intentionally or knowingly . . . [f]ailing to avoid injurious or vicious habits by 

using and possessing ALCOHOL on or about MAY 10, 2008 AND MAY 26, 2008 . . . .” At 

trial, the State again presented testimony from Ballard. Ballard testified that, on May 26, 2008, 

she was engaged in a heated argument with Appellant at their residence. Concerned, one of her 

children called the police. Ballard admitted that, when the police arrived, she falsely claimed 

that Appellant had physically assaulted her. She stated that she did so out of anger resulting 

from their argument. The police subsequently arrested Appellant.

Ballard was asked about Appellant‟s alcohol consumption. Her responses were often 

evasive, and she generally denied any knowledge of Appellant‟s alcohol consumption. 

However, Ballard did admit that, on May 26, 2008, Appellant had been “consuming alcohol.”

This testimony was complemented by the testimony of Appellant‟s supervision officer, Wesley 

Skidmore. Skidmore testified that, according to “police reports that [he] received, [Appellant] 

was using alcohol [while on community supervision] . . . .” Appellant also testified at trial. He 

repetitively denied consuming alcohol during his community supervision.
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In light of the record before us, we hold that the trial court‟s finding regarding 

Appellant‟s alcohol possession and consumption was supported by sufficient evidence. The 

testimony of Ballard and Skidmore provided sufficient evidence to support a finding of true to 

the State‟s allegation. See Rickels, 202 S.W.3d at 763-64 (trial court does not abuse discretion if 

greater weight of credible evidence creates reasonable belief that defendant violated supervision 

condition). This is true despite Appellant‟s contrary testimony. Appellant‟s possession of 

alcohol could reasonably be inferred from his consumption of alcohol. See id. at 764 (“[A] legal 

sufficiency review is meant to give „full play to the [factfinder‟s] responsibility fairly‟ to „draw 

reasonable inferences from basic facts to ultimate facts.‟”). And the alleged intent could also be 

reasonably inferred from the evidence before the trial court. Cf. Laster v. State, 275 S.W.3d 512, 

522 (Tex. Crim. App. 2009) (allowing jury to make inference of intent).

A trial court‟s decision to revoke does not constitute an abuse of its discretion where any 

single finding of a supervision violation is held to be valid. See Moore, 605 S.W.2d at 926;

Balli, 530 S.W.2d at 126. Here, Appellant‟s only challenge to the trial court‟s alcohol finding is 

that the finding was based upon insufficient evidence. We have held that sufficient evidence 

exists to support that finding. Therefore, we also hold that the trial court did not abuse its 

discretion in revoking Appellant‟s community supervision. See Moore, 605 S.W.2d at 926;

Balli, 530 S.W.2d at 126. We overrule Appellant‟s second issue.1

UNASSIGNED ERROR

We note that Appellant was placed on deferred adjudication community supervision

despite pleading not guilty. Cf. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (Vernon Supp. 

2009) (allowing deferred adjudication community supervision where defendant pleads guilty or 

no contest); Isham v. State, 258 S.W.3d 244, 251-53 (Tex. App.–Eastland 2008, pet. ref‟d) 

(defendant found guilty by jury not eligible for deferred adjudication community supervision). 

However, Appellant has not raised this irregularity as an issue on appeal. Texas Rule of 

Appellate Procedure 38.1(f) provides that “the statement of an issue or point [presented for 

review] will be treated as covering every subsidiary question that is fairly included.” TEX. R.

APP. P. 38.1(f); see State v. Bailey, 201 S.W.3d 739, 743 (Tex. Crim. App. 2006). Rule 38.9 

 

1 Because one supervision violation is sufficient, we have not considered the trial court‟s findings of other 

supervision violations. See TEX. R. APP. P. 47.1.
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instructs that the briefing rules are to be construed liberally, allowing the appellate court to 

“require additional briefing, and make any other order necessary for a satisfactory submission of 

the case” if it “determines . . . that the case has not been properly presented in the briefs, or that 

the law and authorities have not been properly cited in the briefs.” TEX. R. APP. P. 38.9(b); see

Bailey, 201 S.W.3d at 743-44. Neither of these rules authorize a court of appeals to reverse a 

trial court on an issue that was not raised by the appellant. See Bailey, 201 S.W.3d at 743-44. 

Instead, such an act is an abuse of discretion by the court of appeals. See id. Further, while 

courts of appeal may have the discretion to review unassigned error, see Carter v. State, 656 

S.W.2d 468, 468-70 (Tex. Crim. App. 1983), appellate courts “can only sit in review upon 

matters of error either fundamental or which are properly raised upon the trial, and properly 

brought before [the appellate court].” See Moreno v. State, 114 Tex. Crim. 559, 561, 26 S.W.2d 

652, 653 (1930) (op. on reh‟g); see also Carter, 656 S.W.2d at 469 n.4. (quoting Moreno). 

“Fundamental error occurs when a defendant‟s rights are injured to the extent that he is denied a 

fair and impartial trial.” See Tanner v. State, 681 S.W.2d 626, 628 (Tex. App.–Houston [14th 

Dist.] 1983, pet. ref‟d). Therefore, even if the trial court was prohibited from granting deferred 

adjudication community supervision, doing so would not constitute fundamental error. Cf. Davis 

v. State, 956 S.W.2d 555, 557-59 (Tex. Crim. App. 1997) (distinguishing between a trial court‟s 

jurisdiction and authority in the context of void and voidable judgments); Jackson v. State, No. 

05-09-00650-CR, 2010 WL 297945, at *1-2 (Tex. App.–Dallas Jan. 27, 2010, no pet.) (not 

designated for publication) (Because deferred adjudication community supervision is not a 

sentence, “the unauthorized term of deferred adjudication community supervision assessed in 

this case is not an illegal or void sentence subject to the Nix exception.”).

DISPOSITION

We affirm the judgment of the trial court.

SAM GRIFFITH

 Justice

Opinion delivered May 19, 2010.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)