Scott Taylor Aune v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-23-00165-CR

SCOTT TAYLOR AUNE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 316th District Court
Hutchinson County, Texas
Trial Court No. 12312, Honorable James M. Mosley, Presiding

July 22, 2024
OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Appellant, Scott Taylor Aune, appeals from a judgment adjudicating him guilty of

the offense of aggravated assault with a deadly weapon1 and sentence of twelve years’

incarceration. We reform the Order of Deferred Adjudication and affirm the trial court’s

Judgment Adjudicating Guilt of Appellant.

1 See TEX. PENAL CODE ANN. § 22.02(a)(2).
BACKGROUND

In December of 2020, Appellant pleaded nolo contendere to the offense of

aggravated assault with an affirmative finding that he used or exhibited a deadly weapon

in the commission of the offense. The record reflects that Appellant was not physically

present in the courtroom to enter this plea; rather, he entered his plea by videoconference.

In accordance with the plea bargain, the trial court deferred adjudication of Appellant’s

guilt, placed him on community supervision for a period of five years, and assessed a fine

in the amount of $2,000. Appellant did not appeal from this order. The State filed a

motion to proceed to adjudication, alleging six violations of the terms of his community

supervision, in April of 2021.2 The trial court entered an arrest warrant for Appellant.

Appellant was arrested in Harris County. At the hearing on the State’s motion, the State

offered evidence that Appellant was expressly informed of each of the terms and

conditions of his community supervision; however, Appellant testified that he was not

notified of the specific requirements of his community supervision that were made

applicable to him by the trial court’s order. After the hearing, the trial court entered

judgment adjudicating Appellant guilty of the original aggravated assault charge and

sentenced him to twelve years’ incarceration in the Institutional Division of the Texas

Department of Criminal Justice. From this judgment, Appellant timely appealed.

2 The State subsequently filed two amended motions to proceed to adjudication, each updating the

same six alleged violations.

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VOIDNESS OF DEFERRED ADJUDICATION ORDER

Appellant presents one issue by his appeal. He contends that the trial court lacked

jurisdiction to enter the order placing him on deferred adjudication community supervision

because he did not waive his right to be present at the plea hearing in person or in writing.

See TEX. CODE CRIM. PROC. ANN. arts. 1.13(a), 27.18(a)(1). The State responds that

Appellant’s videoconference appearance at his plea hearing deprived the trial court of

“authority,” which made the deferred adjudication order voidable. Thus, Appellant was

obligated to raise the issue by appeal at the time he was placed on deferred adjudication

community supervision and cannot raise this issue for the first time on appeal from the

judgment adjudicating him guilty.

In general, a defendant placed on deferred adjudication community supervision

must appeal issues relating to the original plea proceeding when deferred adjudication

community supervision is first imposed. Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim.

App. 2001) (en banc). The Texas Court of Criminal Appeals has recognized two

exceptions to this general rule: (1) the “void judgment” exception, and (2) the “habeas

corpus” exception.3 Id. The void judgment exception arises in the rare situation in which

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

the judgment in question.” Id. A void judgment is a nullity and can be challenged at any

time. Id. at 667–68. As such, if the order placing Appellant on deferred adjudication

community supervision was void, the trial court would be without authority to adjudicate

3 The “habeas corpus” exception does not apply to Appellant’s appeal and Appellant does not
contend that it does, so we will not address it specifically.

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Appellant guilty and Appellant would be able to challenge that void judgment on appeal

from his adjudication. Id. at 668.

A judgment is void only in very rare situations, usually due to a lack of jurisdiction.

Id. The Texas Court of Criminal Appeals has provided a “nearly” exhaustive list of

instances where a judgment is void:

A judgment of conviction for a crime 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, thus the trial court has no jurisdiction over the defendant, (2) the
trial court lacks subject matter jurisdiction over the offense charged, such
as when a misdemeanor involving official misconduct is tried in a county
court at law, (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, when such has not been waived,
in violation of Gideon v. Wainwright [372 U.S. 335, 83 S. Ct. 792, 9 L. Ed.
2d 799 (1963)].

Id. (internal citations omitted). Appellant does not contend that any of these instances

caused the order of deferred adjudication to be void.

Rather, Appellant contends that his entry of a guilty plea by videoconference

without first providing an in-person or written waiver deprived the trial court of jurisdiction

to adjudicate him guilty. In Lira v. State, the Texas Court of Criminal Appeals addressed

a situation in which two defendants pleaded guilty via videoconference over their

objection and without an in-person or written waiver. 666 S.W.3d 498, 503, 519 (Tex.

Crim. App. 2023). In that case, the court held that, “[a] trial court has no authority to hold

a videoconferenced plea hearing when the defendant has not consented.” Id. at 519.

Consequently, the court affirmed the court of appeals’ reversal of the trial court’s

judgments based on the videoconferenced pleas and remanded the cases to the trial

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court for further proceedings. Id. In its discussion, the court stated that the court of

appeals had been correct to find the pleas “voidable.” Id.

It is clear from Lira that a court acts without authority when it accepts a defendant’s

guilty plea by videoconference without the defendant’s consent. Lira, 666 S.W.3d at 519.

But, unlike Appellant’s contention, this lack of authority arises as a result of the trial court

failing to comply with a statutory requirement and is not jurisdictional. See Davis v. State,

956 S.W.2d 555, 558 (Tex. Crim. App. 1997) (en banc) (“Sometimes, when the court’s

conduct violates one of these laws [prescribing statutory procedural requirements],

especially a law which seems ‘mandatory’ on its face, it is common to say that the court

did not have authority to act as it did. But it is a mistake to say that the court was without

jurisdiction in the matter.”). Thus, we conclude that the trial court’s error in accepting

Appellant’s plea by videoconference and without valid consent constitutes voidable error.

See Lira, 666 S.W.3d at 519 (describing present circumstance as “voidable” error); see

also Davis, 956 S.W.2d at 559 (“[E]rrors involving the violation of a statutory procedure

have not been deemed to be void, but voidable.”).

Because the trial court’s error in accepting Appellant’s plea via videoconference

and without his in-person or written consent was voidable and Appellant did not challenge

the trial court’s Order of Deferred Adjudication at the time it was issued, we conclude that

he cannot present that challenge on appeal from the trial court’s Judgment Adjudicating

Guilt of Appellant. We overrule Appellant’s sole issue.

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REFORMATION OF DEFERRED ADJUDICATION ORDER

This Court has the authority to reform the trial court’s judgment to correct a clerical

error. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App.

1993) (en banc). In the present case, the Order of Deferred Adjudication indicates that

Appellant appeared in person with counsel and pleaded guilty. However, the record

unambiguously shows that Appellant entered his plea by videoconference and that he

pleaded nolo contendere. As such, we reform the Order of Deferred Adjudication to

remove the indication that Appellant appeared in person and to change the notation that

he pleaded guilty to nolo contendere.

CONCLUSION

Having overruled Appellant’s sole issue, we affirm the trial court’s Judgment

Adjudicating Guilt. We also reform the trial court’s Order of Deferred Adjudication to

remove the indication that Appellant appeared in person and change the notation of his

plea from guilty to nolo contendere.

Judy C. Parker
Justice

Publish.

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