In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-03-00191-CR
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RODNEY LAMAR FOBBS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 19508
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Rodney Lamar Fobbs pled guilty to the charge of possession of a controlled substance in a drug-free zone with intent to deliver and was sentenced to ten years' confinement. Fobbs now attempts to appeal his conviction. Because this case involves a negotiated plea agreement and because Fobbs does not possess the limited right to appeal available to one who appeals a plea of guilty, we lack jurisdiction over this appeal.
Effective January 1, 2003, the Texas Rules of Appellate Procedure were amended. Appellant's notice of appeal invoking appellate jurisdiction was filed after the effective date of the amended rules. The amended rules therefore apply to this appeal. Rule 25.2(a) was amended to read, in pertinent part:
(2) . . . . A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case-that is, a case in which a defendant's plea is guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant-a defendant may appeal only:
(A) those matters that were raised by written motion filed and ruled on before trial, or
(B) after getting the trial court's permission to appeal.
Tex. R. App. P. 25.2(a). The trial court filed a certification of Fobbs'right of appeal in accordance with Rule 25.2(a)(2). It states that the case "is a plea-bargain case, and the defendant has NO right of appeal."
We have jurisdiction to determine whether we have jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Fobbs pled guilty, and when adjudged guilty of that crime, he entered into a negotiated plea agreement as to punishment that the trial court did not exceed at sentencing. Under amended Rule 25.2(a)(2), Fobbs was entitled to appeal only "those matters that were raised by written motion filed and ruled on before trial," or "after getting the trial court's permission to appeal." The trial court certified that neither of these circumstances apply by stating that there is no right of appeal. See Comb v. State, 101 S.W.3d 724, 726 (Tex. App.-Houston [1st Dist.] 2003, no pet.).
Additionally, Fobbs failed to timely perfect his appeal by failing to timely file a notice of appeal. See Tex. R. App. P. 26.2(a). Since Fobbs filed no motion for new trial, he had thirty days from the date on which sentence was imposed to file his notice of appeal. See Tex. R. App. P. 26.2(a)(1). Sentence was imposed on April 23, 2003, and Fobbs filed a notice of appeal on August 26, 2003, well beyond the time period allowed.
For these reasons, we are without jurisdiction and, accordingly, dismiss the appeal.
Jack Carter
Justice
Date Submitted: September 18, 2003
Date Decided: September 19, 2003
Do Not Publish
ion is whether the videotape was otherwise admissible as an exception to the hearsay rule. In making our determination, we review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). We will not reverse a trial court whose ruling was within the "zone of reasonable disagreement." Id. at 102.
There is no hearsay exception that appears to apply to this situation. Accordingly, we must conclude the trial court abused its discretion by admitting the videotape into evidence and by allowing the detective to review the interview in detail for the jury.
The remaining question is whether this error requires reversal. In order to properly conduct a harm analysis under Tex. R. App. P. 44.2(b), we need only determine whether the error affected a substantial right of the defendant. To make this determination, appellate courts must decide whether the error had a substantial or injurious effect on the jury verdict. The very process of reaching this decision is the performance of a Rule 44.2(b) harm analysis. Llamas v. State, 12 S.W.3d 469, 471 n.2 (Tex. Crim. App. 2000).
We recognize that, in a case recently decided by this Court, we concluded a videotape of a victim's testimony in similar circumstances that was considered by a jury provided a basis for finding the improper admission of other evidence harmless. In that case, however, there was no objection to the admission of the videotape. Josey v. State, 97 S.W.3d 687, 698 (Tex. App.-Texarkana 2003, no pet.).
The improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding any error in admission of hearsay testimony harmless in light of other properly admitted evidence proving same fact); Matz v. State, 21 S.W.3d 911, 912 (Tex. App.-Fort Worth 2000, pet. ref'd); Couchman v. State, 3 S.W.3d 155, 160 (Tex. App.-Fort Worth 1999, pet. ref'd).
In this case, even though erroneously admitted by the trial court, the videotape essentially repeated the previous trial testimony of the victim. Because the videotape is cumulative of properly admitted testimony on the same issue, even though the trial court erred in admitting the videotape, we must disregard the error because it could not have affected Williams' substantial rights. See Tex. R. App. P. 44.2(b); Jensen v. State, 66 S.W.3d 528, 536-37 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd).
Williams next contends the trial court erred by considering his "conviction" in California in the sentencing phase when that conviction was not final under California law. However, the record reflects that, when asked to plead to the enhancement, Williams pled "true." This is typically sufficient in itself to support a finding of a final conviction. Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981); Harrison v. State, 950 S.W.2d 419 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) (discussing application of this concept). Further, there was no argument made at the time that the conviction was not final. Thus, the issue was not preserved for appellate review. See Tex. R. App. P. 33.1.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: September 10, 2003
Date Decided: September 11, 2003
Do Not Publish
1. Article 38.071 of the Texas Code of Criminal Procedure provides that the recording of an oral statement by a child who is younger than thirteen and a victim of certain offenses, is admissible in evidence so long as certain prerequisites are met, one of which is that the court finds the child is unavailable to testify at trial. Tex. Code Crim. Proc. Ann. art. 38.071, § 1 (Vernon Supp. 2003); Carlock v. State, 99 S.W.3d 288, 292 (Tex. App.-Texarkana 2003, no pet.) (reviewing different aspect of article).
2. At trial, Veilleux testified and the videotape was introduced by the State after the victim had testified.
3. The rule provides for only one outcry witness. Before more than one outcry witness may testify, the outcry must be about different events, not simply the repetition of the same event as related by the victim to different individuals. Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.-Texarkana 2000, pet. ref'd).