## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00197

- CR

JOSHUA ELLIS SUTTON , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 23F0050

- 102

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION
A Bowie County jury found Joshua Ellis Sutton guilty of evading arrest or detention with
a vehicle. See T EX
. P ENAL C ODE A NN
. § 38

. 04(b)(2)(A)

. The ju ry assessed Sutton’s punishment

at ten years’ imprisonment with a fine of $2,000.00. The trial court accepted the jury’s
assessment and sentenced Sutton in accordance with it

. On appeal, 1 Sutton raises fou r points of error: (1) the judgment of conviction improperly
states he pled not guilty , (2) his guilty plea was involuntary because the trial court failed to give
Article 26.13 (a)(1) admonishments , (3) the 102 nd Judicial District Court (102nd JDC) did not have jurisdiction be c a us e his indic tme nt was ou t of the 202 nd Judicial District Court (202nd JDC) , and (4) his trial counsel was ineffective for failing to move to quash his indictment for lack of jurisdiction. U pon review, we find that , while the judgment should be modified to reflec t
a g uil ty plea , Sutton’s guilty pl ea w as voluntary, the 102 nd J DC had jurisdiction over Sutton’s case, and his trial counsel was not ineffective for failing to object to the 102 nd JDC ’s juri sdiction . As modified , w e affirm the tria l court’s judgment.
I. F actual B ack ground On January 9, 2023, Sergeant Matt Warner with the B i

- S tate N arcotics T ask F orce was conducting surveillance at 1512 Pecan Street in Texarkana, Arkansas. He was looking fo r Sutton
at that loc a t io n , and Warner “knew [Sutton] to h ave fe lon y warran t s and also to have previously fled from officers on the Texas side.” Warner identified Sutton at that location. Sutton then left

1 In companion cause numbers 06

- 23

- 001 98

- CR, 06

- 23

- 001 99

- CR, 06

- 23

- 00200

- CR, 06

- 23

- 00201

- CR, and 0 6

- 23

- 00202

- CR, Sutton appeals fi ve other convi c tion s arising from the same set o f facts a t issue here

.3

that location, and Warner followed him int o Texas. Upon entering Texas, Warner contacted
Texas S tate Tr ooper Kody E dwards. Edwards attempted to stop Sutton’s car on a side street of f Summerhill Road in
Texarkana , Texas

. Sutton then “ pull [ed] over for a short t i m e before takin g off.” Sutton “ [ s ] ped up and drove away.” Ultimately, Edwar ds followed S utt on until Sutto n “wrec ked into the backside of Wisdom Animal Clinic.” The police later searched Sutton’s vehicle and found wha t

was tested and determined to be 1.24 grams of meth amphetamine.
Sutton fled the scene of the crash , and afte r a manhunt by la w enforcement, Sutton w as found in a “privacy fenced

- in area and a shed

. ” Thereafter , Sutton was taken to the hospital to be medically cleared. Sutton was in the hospital for “ six

- plus hours.” Law enforcement supervis ed
him while he was in the hospit al. After being cleared , Sutt on was discharged. Upon discharge, Sutton was cuffed and was about to be transported when “ he took off running.” Edwards call ed
for b ackup to assist in apprehending Sutton

. The game warden K

- 9 responded to that r e quest for
bac kup and located Sutton. Sutton was taken back into cus tody

. II. Sutton’s Judgment Should Reflect a Guilty Plea Sutton argues that the j udgment in this case improperly states he pl ed not guilty to the

o f fense of evadi ng arrest or detention with a vehicle. Th e State does not disput e Sutton’s claim that he pled guilty and agrees the judgment should be modified to reflect a guilty plea. Upon review, we find that Sutton did ple a d gu i l ty t o the charges in th e indictment. 2 Accordingly, we modify the j udgment by changing “ Plea to Offen se : NOT GUILTY” to “ Plea

2 The relevant exch ange was as follows :4

to Offense : GUILTY. ” See T EX
. R

. A PP
. P

. 43.2(b) ; s ee al s o French v. State , 8 30 S.W.2d 607, 609 (Tex. Crim. App. 1 992) ( recognizing “ appellate court [ s ] ha [ ve ] authority to reform a judgment to include a n a ffirmative finding to m ake the record speak the truth when the matter
has been called to its attentio n by an y source ” and a dopti ng the reasoning of Asberry v. State , 813 S.W.2d 526, 529

– 30 (Tex. App.

— Dallas 1991, pet. ref’d) ( en banc) )

. III. Sutton Was Not Ha rmed by the Failure to Admonish Under Article 26.13(a)(1)
With his se cond point of error, Sutton cl a ims th e trial court fa iled to give the Texas Code
of Crimin al Procedure Article 26.13 (a)(1) admonishments prior to accepting his guilty plea.
Article 26 .13 requires certain admon ishmen ts be given prior to accepting a g uilty plea. Se e T EX
. C O DE C RIM
. P RO C
. A NN
. art. 26.13 (Supp.)

. Specifically, Sutton claims the trial court did not give the following admonishment: “ [T] he court shall admonish the defenda nt of: (1) the range
of t he p unishment attached to the offense. ” T EX
. C O DE C RIM
. P RO C
. A NN
. art. 26.13(a)(1). In the pres ent action, Sutton was only asked if he understood the indictment prior to entering his guilty plea. The trial court did not admon ish Sutton under Article 2 6.13 (a)(1) . In

[ BY T HE STATE ]: That’s correct , Your Honor. 23F0050

- 102 in the name and by the author ity of the State of Tex as, the grand jury of Bowie Coun ty, Texas, dul y org anized at the January te rm 20 23 of the District Court of Bow ie Count y, Texas, do present in the C ounty of Bowie and the State of Texas that in Bowie County, Texas, Joshua Sutton, her einafter referred to as the defendant, heretofor e on or about January the 9th of 2023, did then an d the re while using a vehicle intentionally flee from Trooper Kody Edward s, a person the defendant knew was a peace officer, who was attempting to lawfully ar rest or detain the defe ndant against the peace a nd dign i ty of the Sta t e. THE COURT : All right

. Mr. Sutton, d o you understand that indictment?
MR. SUTTON : Yes, sir.
THE COURT : And how do you intend to plead to that indictm ent?
MR. SUTTON : Guilty

.5

response t o Sutton’s c laim that he was not properly adm onished, t he Sta te claims Sutton waived this issue by not objecting

. Upon review, w e find that, although this issue was not waived by not objecting , any error wa s harmle ss to Sutton

. As an i n itial matter, S utton did not obje ct to th e fa ilure to admonis h under Article
26.13 (a)(1)

. Sutton, however, was not required to object to preserve this issue for appeal , and Sutton is permitted to raise this issue for the fir st time on a pp e al. See Bessey v. State , 239
S .W .3d 809, 813 (Tex. Crim. App . 2007) ( recognizing an “[a]ppellant is entitled to assert his
claim o n ap peal regarding the trial court’s failure to properly admonish him, despite not having
made the claim in th e trial cour t” )

. Beca use this issue was not wa ived, th e ne xt issue becomes whether Sutton was harmed by the trial court’s failure to admonish him un der Article 26.13 (a)(1)

. See T EX
. R. A PP
. P. 44.2(b). Under Rule 44.2(b), “ A ny other error, defect, i rre gularity, or variance t hat does not
affect sub stantial rig hts must be disr egarded. ” Id. Here, because the trial court explained the punishme nt range twice during voir dire and in front of Sutton before it accepted Sutton ’s guilty plea , we find that th is error did n o t affect Su tton’s subs tantial rig hts.
No tably, du ring voir dire, the trial court stated as follows: “The range of punishment over these nine cases [including the one at issue] is no less than two years and no more than [twenty] years an d a fine not to e x ceed up to $1 0,000.” L ater, th e trial c ourt again reiterated the range of punishment: “As mentioned earlier [,] the pos sible punishment range in this case, in the various cases, is anywhere from not less than two yea rs to not more tha n [ twenty] ye a rs in the
T exas De partment of Cri minal Ju stice and /or a fine not t o exceed $10,000.” Based upon th ose6

explanations, t here is “no evidence which tends to indicate that appellant was actually harmed or misled in making his determination to ent er a guilty plea.” Martinez v. Stat e , 981 S .W.2d 195 , 197 (Tex. Crim . App. 1998) (per curiam)

. Accordingly, we find that Sutton’s subst an tial rights

were not affected by this error
. IV. Sutton Waived Any Objection to the 102 nd JDC
Sutton a r gues that the in di ctment “conveyed juri sdicti on on the 202 nd District Court of
Bowie County, Texas,” and the 102 nd JDC did not have j urisdiction over his case. Sutton further argues that “ [t]here is no indication in the record that the ca se was prop erly trans ferred
fr om th e 202 nd District Court to t he 102 nd District Court.” Consequently , Sutton claims , “the judgment in this case is necessarily v oid, and should be reversed and rendered.” We find that any objection t o any p ur

ported transfer from the 202 nd JDC to the 10 2 nd JDC was waived

. 3
U pon review, the indictment for this offense was returned by a grand jury in the 202 nd
JDC

. At that time , this case was ass ig ned to the 102 nd JDC , and the indictment even inclu des a

cause nu mb er for the 102 nd JDC

. Sutton was t r ied , and the trial court entered a final judgment in Sutton’s case in the 102 nd JDC

. By statute, th e 202 nd JDC and the 10 2 nd JDC have “con current and coextensive” jurisdiction. T EX
. G OV ’ T C ODE A NN
. § 24.381(c). As such, even without a tra nsfer order f r om one district court to the oth er, “[t]he f ac t that appellant was indicted by a grand jury impaneled by one cou rt a nd tried in another cour t without a motion to transfer the case to the trial court is,

3 Upon review of the record , th ere does not appe ar to have been a t r ansf er, b ut this case was initial ly assigned t o the 102 nd JDC after the grand jury returned the indictment

. That being sai d , even assuming a transfer was necessary, as outlined in this opin ion, this issue was wa ived bec ause Sutton’s trial c ounsel did no t obje ct to the lack of a transfer or der.7

at best, a procedural issue.” Henderso n v. State , 5 2 6 S .W.3d 818, 821 (Tex. App.

— Hou ston [1st
Di st .] 2017, pet. ref’d)

. As a potent ial procedural defect, this issu e should hav e been raised
be fore “ the trial court to preserve this issue for appellate review. ” I d. at 819. Here, there is no dispute that S utt on did not raise this issue be fore t he trial court , but
Sutton i nstead raises this issue for the first time o n appeal. Consiste nt with Henderso n and our prior case law, this issue is waived. Se e Sharkey v. State , 994 S.W.2d 417, 419 (Tex. App.

— Texarka n a 1 999, no pet.) ( addressing this issue a nd recognizing “ [i ]f a def endant does n ot file a timely plea to the jur isdiction, he waive s any right to c omplain that a transfer order does not appear in the record ”) ; s ee also Lemasurier v. State , 91 S.W.3d 897, 8 99 (Tex. App.

— Fort
Worth 2002 , pe t. r ef’d). W e find that a ny objectio n to the purported transfer from the 202 nd
JDC to th e 102 nd JDC was waived

. V. Sutton’s Trial Counsel Was Not Ineffective
Sutton claims that his trial counsel was i neffect ive for faili n g t o object to t he 102 nd
JDC ’s ju risdiction. Sutton claims his trial counsel shou ld have filed a motion to quash the
indictment and was ineffective for failing to do so. Upon review , we find that Sutton has not met the first pr ong o f Stri ckland and can n ot e sta blish that his counsel was ineffective

. The Sixth Amendment to the U nit ed States Con stitution guarantees an accused the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. C ONST . amend. VI; Lop ez v. S tate , 343 S.W

. 3d 1 37, 142 (Tex. Crim. App. 2011) . We “look to the totality of the represent ati on” in evalua ting the effectiveness of counsel. Auld v. State , 652 S.W.3d 95, 113 (Tex. App.

— Texarkana 2022, no pet.). As many cases have noted, the rig ht to c ouns el does n o t8

me an the r ight to errorless coun sel. Robertson v. State , 187 S.W.3d 475, 48 3 ( Tex. Crim. Ap p. 2006). “[T]o prevail on a claim of ineffective assistance of counsel, [the defendant] must satisfy
the two

- prong test set forth in Strick land v . Was hington , 4 66 U .S. 668, [687

– 88] . . . ( 1984) .”
Ex parte Imoudu , 284 S.W.3d 866, 869 (Te x. Crim. App. 20 09) (orig. proceeding). A failure to make a showing under either prong of the Strickland test defeats a claim for ineffective
assistance. R

yland e r v. State , 10 1 S.W .3d 107, 110

– 11 (Tex. Cri m. Ap p. 2003). To prove ineffective assistance of hi s counsel, Su tton must show (1) that trial counsel’s representation fell below an objective standard of reasonableness, based on prevailing professional n orms , a nd ( 2) that t h ere is a rea sonable probabili ty th at the result of the proceeding
would have b een different bu t for trial counsel’s deficient performance. See Strickland v. Washington , 466 U.S. 6 68, 687

– 95 (1984); Hernandez v. State , 726 S.W.2d 53, 5 5

– 57 ( Tex. Crim. App

. 198 6). A “ reasonable probab ility ” means a “probability sufficient to undermi ne confidence in the outcome.” Strickland , 466 U.S. at 694. Under the first prong of Strickland, “the defendant must prove, by a preponderance of the
eviden ce, th at there is .

. . n o plausi ble professional reaso n for a specific act or omission.” Bone

v. Sta te , 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Accordingly, judicial scrutiny of counsel’s per formance must be highly deferential, and “the defendant mus t ov er come the
presu m ptio n that, under the circums tance s, the challenged action ‘might be considere d s ound
trial st rategy.’” Strickland , 466 U.S. at 689 (quoting Michel v. Louisiana , 350 U.S. 91, 101 (1955)).9

We apply a strong presumption that trial cou nsel w as competent a n d pr esume th at counsel’s acti ons a nd decisions were reasonably professional an d m otivated by s ound trial strategy. Jackson v. State , 877 S.W.2d 768 , 771 (Tex. C rim. App. 1994). Also, when an appellate record is silent on why trial co unse l failed to take cert ain acti ons, “the appella nt ha s failed to rebut the presumption that trial co unsel’s decis ion was in some way

— be it conceivable

or not

— reasonable.” Mata v. State , 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson v. State , 9 S. W. 3d 808, 814 (T e x. C rim. App . 1999).
Under th e pre sent facts, Sutton’s trial counsel did not o bje ct to the ass ignment or transfer
of Sutton’s case to the 102 nd JDC

. The record is silent as to why she did not object , and Sutton
has not rebu tted t he presumpt ion that this m a y h ave been a reasonable trial st rategy. See Mata , 226 S.W.3d at 431

. His trial counsel may have believed try ing the action in the 102 nd JDC was beneficial to her client , or trial counsel may have known such an obj ec tion would have bee n f utile because t h e 1 02 nd JDC and the 202 nd JDC hav e co ncu rrent jurisdi ction

. Without more in
the reco rd, we cannot spec ulate as to the reason she did not object , and we must presume it was a valid trial strat egy
. W e , th erefore, find that Su tton has not me t his burden u n der the first prong
of Strickland , and we fi nd no ineffectiv e assistance of counsel.10

IV. Disposition
W e modify the j udgment by changing “ Plea to Offense : NOT GUILTY” to “ Plea to
Offense : GUILTY

. ” A s mod ified , w e affirm the trial court ’s judgment.

C harles van Cleef Justic e Date Subm it ted: April 5, 2024 Date Dec ided: April 19 , 2024
Do Not Publish