In the

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 Cleef
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MEMORANDUM OPINION

A Bowie County jury found Joshua Ellis Sutton guilty of evading arrest or detention with 

a vehicle. See TEX. PENAL CODE ANN. § 38.04(b)(2)(A). The jury 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 four 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 102nd Judicial District Court (102nd JDC) did not 

have jurisdiction because his indictment was out of the 202nd Judicial District Court (202nd 

JDC), and (4) his trial counsel was ineffective for failing to move to quash his indictment for 

lack of jurisdiction. Upon review, we find that, while the judgment should be modified to reflect

a guilty plea, Sutton’s guilty plea was voluntary, the 102nd JDC had jurisdiction over Sutton’s 

case, and his trial counsel was not ineffective for failing to object to the 102nd JDC’s 

jurisdiction. As modified, we affirm the trial court’s judgment. 

I. Factual Background 

On January 9, 2023, Sergeant Matt Warner with the Bi-State Narcotics Task Force was 

conducting surveillance at 1512 Pecan Street in Texarkana, Arkansas. He was looking for Sutton 

at that location, and Warner “knew [Sutton] to have felony warrants 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 06-23-00198-CR, 06-23-00199-CR, 06-23-00200-CR, 06-23-00201-CR, and 06-23-

00202-CR, Sutton appeals five other convictions arising from the same set of facts at issue here. 
3

that location, and Warner followed him into Texas. Upon entering Texas, Warner contacted 

Texas State Trooper Kody Edwards. 

Edwards attempted to stop Sutton’s car on a side street off Summerhill Road in 

Texarkana, Texas. Sutton then “pull[ed] over for a short time before taking off.” Sutton “[s]ped 

up and drove away.” Ultimately, Edwards followed Sutton until Sutton “wrecked into the 

backside of Wisdom Animal Clinic.” The police later searched Sutton’s vehicle and found what

was tested and determined to be 1.24 grams of methamphetamine. 

Sutton fled the scene of the crash, and after a manhunt by law enforcement, Sutton was 

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 supervised

him while he was in the hospital. After being cleared, Sutton was discharged. Upon discharge, 

Sutton was cuffed and was about to be transported when “he took off running.” Edwards called 

for backup to assist in apprehending Sutton. The game warden K-9 responded to that request for 

backup and located Sutton. Sutton was taken back into custody.

II. Sutton’s Judgment Should Reflect a Guilty Plea

Sutton argues that the judgment in this case improperly states he pled not guilty to the 

offense of evading arrest or detention with a vehicle. The State does not dispute 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 plead guilty to the charges in the indictment.2 

Accordingly, we modify the judgment by changing “Plea to Offense: NOT GUILTY” to “Plea 

2The relevant exchange was as follows: 
4

to Offense: GUILTY.” See TEX. R. APP. P. 43.2(b); see also French v. State, 830 S.W.2d 607, 

609 (Tex. Crim. App. 1992) (recognizing “appellate court[s] ha[ve] authority to reform a 

judgment to include an affirmative finding to make the record speak the truth when the matter

has been called to its attention by any source” and adopting 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 Harmed by the Failure to Admonish Under Article 26.13(a)(1)

With his second point of error, Sutton claims the trial court failed to give the Texas Code 

of Criminal Procedure Article 26.13(a)(1) admonishments prior to accepting his guilty plea. 

Article 26.13 requires certain admonishments be given prior to accepting a guilty plea. See TEX.

CODE CRIM. PROC. ANN. art. 26.13 (Supp.). Specifically, Sutton claims the trial court did not 

give the following admonishment: “[T]he court shall admonish the defendant of: (1) the range 

of the punishment attached to the offense.” TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(1). 

In the present action, Sutton was only asked if he understood the indictment prior to 

entering his guilty plea. The trial court did not admonish Sutton under Article 26.13(a)(1). In 

[BY THE STATE]: That’s correct, Your Honor. 23F0050-102 in the name and by the 

authority of the State of Texas, the grand jury of Bowie County, Texas, duly organized at the 

January term 2023 of the District Court of Bowie County, Texas, do present in the County of 

Bowie and the State of Texas that in Bowie County, Texas, Joshua Sutton, hereinafter referred to 

as the defendant, heretofore on or about January the 9th of 2023, did then and there while using a 

vehicle intentionally flee from Trooper Kody Edwards, a person the defendant knew was a peace 

officer, who was attempting to lawfully arrest or detain the defendant against the peace and dignity 

of the State.

THE COURT: All right. Mr. Sutton, do you understand that indictment?

MR. SUTTON: Yes, sir.

THE COURT: And how do you intend to plead to that indictment?

MR. SUTTON: Guilty.
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response to Sutton’s claim that he was not properly admonished, the State claims Sutton waived 

this issue by not objecting. Upon review, we find that, although this issue was not waived by not 

objecting, any error was harmless to Sutton. 

As an initial matter, Sutton did not object to the failure to admonish 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 first time on appeal. See Bessey v. State, 239 

S.W.3d 809, 813 (Tex. Crim. App. 2007) (recognizing an “[a]ppellant is entitled to assert his 

claim on appeal regarding the trial court’s failure to properly admonish him, despite not having 

made the claim in the trial court”). 

Because this issue was not waived, the next issue becomes whether Sutton was harmed 

by the trial court’s failure to admonish him under Article 26.13(a)(1). See TEX. R. APP. P.

44.2(b). Under Rule 44.2(b), “Any other error, defect, irregularity, or variance that does not 

affect substantial rights must be disregarded.” Id. Here, because the trial court explained the 

punishment range twice during voir dire and in front of Sutton before it accepted Sutton’s guilty

plea, we find that this error did not affect Sutton’s substantial rights. 

Notably, during 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 and a fine not to exceed up to $10,000.” Later, the trial court again reiterated the 

range of punishment: “As mentioned earlier[,] the possible punishment range in this case, in the 

various cases, is anywhere from not less than two years to not more than [twenty] years in the 

Texas Department of Criminal Justice and/or a fine not to exceed $10,000.” Based upon those
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explanations, there is “no evidence which tends to indicate that appellant was actually harmed or 

misled in making his determination to enter a guilty plea.” Martinez v. State, 981 S.W.2d 195, 

197 (Tex. Crim. App. 1998) (per curiam). Accordingly, we find that Sutton’s substantial rights 

were not affected by this error. 

IV. Sutton Waived Any Objection to the 102nd JDC 

Sutton argues that the indictment “conveyed jurisdiction on the 202nd District Court of 

Bowie County, Texas,” and the 102nd JDC did not have jurisdiction over his case. Sutton 

further argues that “[t]here is no indication in the record that the case was properly transferred 

from the 202nd District Court to the 102nd District Court.” Consequently, Sutton claims, “the 

judgment in this case is necessarily void, and should be reversed and rendered.” We find that 

any objection to any purported transfer from the 202nd JDC to the 102nd JDC was waived.

3

 

Upon review, the indictment for this offense was returned by a grand jury in the 202nd

JDC. At that time, this case was assigned to the 102nd JDC, and the indictment even includes a 

cause number for the 102nd JDC. Sutton was tried, and the trial court entered a final judgment

in Sutton’s case in the 102nd JDC. 

By statute, the 202nd JDC and the 102nd JDC have “concurrent and coextensive” 

jurisdiction. TEX. GOV’T CODE ANN. § 24.381(c). As such, even without a transfer order from 

one district court to the other, “[t]he fact that appellant was indicted by a grand jury impaneled 

by one court and tried in another court without a motion to transfer the case to the trial court is, 

3Upon review of the record, there does not appear to have been a transfer, but this case was initially assigned to the 

102nd JDC after the grand jury returned the indictment. That being said, even assuming a transfer was necessary, as 

outlined in this opinion, this issue was waived because Sutton’s trial counsel did not object to the lack of a transfer 

order. 
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at best, a procedural issue.” Henderson v. State, 526 S.W.3d 818, 821 (Tex. App.—Houston [1st 

Dist.] 2017, pet. ref’d). As a potential procedural defect, this issue should have been raised 

before “the trial court to preserve this issue for appellate review.” Id. at 819. 

Here, there is no dispute that Sutton did not raise this issue before the trial court, but 

Sutton instead raises this issue for the first time on appeal. Consistent with Henderson and our 

prior caselaw, this issue is waived. See Sharkey v. State, 994 S.W.2d 417, 419 (Tex. App.—

Texarkana 1999, no pet.) (addressing this issue and recognizing “[i]f a defendant does not file a 

timely plea to the jurisdiction, he waives any right to complain that a transfer order does not 

appear in the record”); see also Lemasurier v. State, 91 S.W.3d 897, 899 (Tex. App.—Fort 

Worth 2002, pet. ref’d). We find that any objection to the purported transfer from the 202nd

JDC to the 102nd JDC was waived. 

V. Sutton’s Trial Counsel Was Not Ineffective 

Sutton claims that his trial counsel was ineffective for failing to object to the 102nd

JDC’s jurisdiction. Sutton claims his trial counsel should 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 prong of Strickland and cannot establish that his counsel was ineffective. 

The Sixth Amendment to the United States Constitution guarantees an accused the right 

to reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI; 

Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). We “look to the totality of the 

representation” in evaluating 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 right to counsel does not 
8

mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 

2006). “[T]o prevail on a claim of ineffective assistance of counsel, [the defendant] must satisfy 

the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, [687–88] . . . (1984).” 

Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding). A failure to 

make a showing under either prong of the Strickland test defeats a claim for ineffective 

assistance. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).

To prove ineffective assistance of his counsel, Sutton must show (1) that trial counsel’s 

representation fell below an objective standard of reasonableness, based on prevailing 

professional norms, and (2) that there is a reasonable probability that the result of the proceeding 

would have been different but for trial counsel’s deficient performance. See Strickland v. 

Washington, 466 U.S. 668, 687–95 (1984); Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. 

Crim. App. 1986). A “reasonable probability” means a “probability sufficient to undermine 

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 

evidence, that there is . . . no plausible professional reason for a specific act or omission.” Bone 

v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Accordingly, judicial scrutiny of 

counsel’s performance must be highly deferential, and “the defendant must overcome the 

presumption that, under the circumstances, the challenged action ‘might be considered sound 

trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 

(1955)). 
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We apply a strong presumption that trial counsel was competent and presume that 

counsel’s actions and decisions were reasonably professional and motivated by sound trial 

strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Also, when an 

appellate record is silent on why trial counsel failed to take certain actions, “the appellant has 

failed to rebut the presumption that trial counsel’s decision 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 (Tex. Crim. App. 1999).

Under the present facts, Sutton’s trial counsel did not object to the assignment or transfer 

of Sutton’s case to the 102nd JDC. The record is silent as to why she did not object, and Sutton 

has not rebutted the presumption that this may have been a reasonable trial strategy. See Mata, 

226 S.W.3d at 431. His trial counsel may have believed trying the action in the 102nd JDC was 

beneficial to her client, or trial counsel may have known such an objection would have been 

futile because the 102nd JDC and the 202nd JDC have concurrent jurisdiction. Without more in 

the record, we cannot speculate as to the reason she did not object, and we must presume it was a 

valid trial strategy. We, therefore, find that Sutton has not met his burden under the first prong 

of Strickland, and we find no ineffective assistance of counsel. 
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IV. Disposition 

We modify the judgment by changing “Plea to Offense: NOT GUILTY” to “Plea to 

Offense: GUILTY.” As modified, we affirm the trial court’s judgment. 

Charles van Cleef 

Justice

Date Submitted: April 5, 2024

Date Decided: April 19, 2024

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