IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 12, 2001
______________________________
MITCHELL RAY RODGERS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE CRIMINAL DISTRICT COURT NO. 4 OF DALLAS COUNTY;
NO. F-9343098-RK; HONORABLE J. ZIMMERMANN, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
In this case, appellant Mitchell Ray Rodgers was indicted for the offense of burglary of a building, enhanced by two prior felony convictions. On January 24, 1994, he entered a plea of guilty and was granted deferred adjudication community supervision for a period of ten years. On September 24, 1999, the trial court proceeded to adjudicate appellant's guilt and assessed his punishment at 20 years confinement in the Institutional Division of the Department of Criminal Justice. From a general notice of appeal, appellant now challenges that sentence. In doing so, he raises three issues for our decision. In those issues, he asserts: 1) his plea of guilty was involuntary because his trial counsel did not render effective assistance; 2) he was denied due process because the "trial judge's statements indicated predisposition towards the matter, depriving appellant of a neutral and detached hearing body," and 3) his plea of guilty "must be presumed involuntary, for there is no record of the existence of a voluntarily signed judicial confession, and the appellant's lack of any plea of true on the record, coupled with the Court's obvious acceptance of said phantom pleas, made such pleas clearly involuntary." We dismiss for want of jurisdiction.
A defendant ordinarily may not appeal the trial court's determination to proceed to adjudicate guilt after a deferment. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2001) (no appeal may be taken from the determination to proceed with a determination of guilt); Brown v. State, 896 S.W.2d 327, 328 (Tex.App.--Houston [1st Dist.] 1995, pet. denied). Furthermore, in cases in which the adjudication arises from a defendant's plea of guilty or nolo contendere, and the punishment does not exceed the recommendation by the prosecutor, the notice must also state that: 1) it is for a jurisdictional defect; 2) it is for matters raised by written motion before trial; or 3) the trial court granted permission to appeal. Tex. R. App. P. 25.2(b).
Appellant's notice of appeal does not satisfy these requirements. Citing Manuel v. State, 994 S.W.2d 658 (Tex.Crim.App. 1999), the State posits that because of that lack, and the fact that appellant did not raise the question of the ineffectiveness of his trial counsel in an appeal at the time he was placed on deferred adjudication, he may not now raise that question. In Manuel, the relevant holding was that "a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed." Id. at 662.
We also note the recent holding in Cooper v. State, 45 S.W.3d 77 (Tex.Crim.App. 2001), that in an appeal from a plea bargained felony conviction in which the judgment assessed by the trial court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the voluntariness of his guilty plea may not be raised. Id. at 83. In Crawford v. State, 890 S.W.2d 941 (Tex.App.--San Antonio 1994, no pet.), the court held that a plea bargain agreement that did not encompass an agreed recommendation as to punishment did not fall within the parameters of Rule of Appellate Procedure 40(b)(1), the progenitor of present Rule 25.2(b)(3), and a general notice of appeal was sufficient to invoke the appellate court's jurisdiction. Id. at 943. However, in Vidaurri v. State, 49 S.W.3d 880 (Tex.Crim.App. 2001), the court considered a plea bargain in which there was a plea bargained recommendation for deferred adjudication but there was no recommendation as to punishment. In that case, the court opined, even without a State recommendation as to punishment, the defendant's knowledge that he was subject to punishment within the range allowed by law meant the punishment did not exceed that recommended by the prosecutor and Rule 25.2(b)(3) was applicable.
It is in the light of those decisions that we examine the procedural history of this case. We must first consider appellant's initial contention that he never actually entered a plea, either to the charged offense or to the alleged enhancement offenses, because if he never entered a plea, there would be no valid judgment for us to consider. The record shows a written instrument styled "Waiver of Jury-Felony Plea of Guilty/Nolo Contendere/Indictment/Information." That document contains some eight printed warnings and explanations of the defendant's rights and the effect of a waiver of those rights. It also contains a recitation that "I do further admit and judicially confess that I am the person named in the charging instrument and that I understand the charge contained therein." It also contains an acknowledgment by which a check mark is placed. That acknowledgment reads, "I am guilty of the offense of Burglary of a Building." The instrument is signed by appellant and his lawyer. The instrument also contains a certificate by the trial judge certifying that he has warned appellant of "the consequences of the plea entered herein." The judge further certifies that he "finds such plea, and all waivers, agreements and consents contained herein to be freely and voluntarily made and accepts the Defendant's plea" (emphasis added). The record is amply sufficient to negate appellant's claim that he never actually entered a guilty plea.
With regard to appellant's claim that he did not enter a plea on the enhancement paragraphs, the reporter's record reveals that during the course of the plea hearing and prior to the time that the trial court announced that it was accepting appellant's plea of guilty, the following colloquy occurred:
Court: Do you want to offer in State's exhibit number 2, being the defendant's signed plea of true in both cases?
Prosecutor: Yes, sir, I do.
The exhibit was then received into evidence without objection. The record is sufficient to establish that appellant did enter a plea to the enhancement paragraphs.
With regard to any question whether the plea was the result of a plea bargain, the record contains an instrument denominated "Plea Bargain Agreement," which is signed by appellant, his counsel, and the prosecutor. It contains a check by paragraphs providing that appellant would plead guilty and testify. It also contains a paragraph providing, "[a]dditional provisions of the agreement are:" This paragraph contains the following handwritten notation, namely, "Open plea - for probation & drug rehabilitation." This instrument is also signed by the prosecutor, appellant and his attorney. This record is sufficient to establish that a plea bargain was struck that appellant would plead guilty and the State would not oppose a plea for probation with drug rehabilitation. Under the instruction of Vidaurri, this agreement is sufficient to limit our jurisdiction to consider appellate issues to those stated in a notice of appeal complying with the requirements of Rule of Appellate Procedure 25.2(b).
We have not overlooked the State's contention that although we should affirm appellant's conviction, we should remand this case for a new punishment hearing because the sentence was outside the applicable range of punishment. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2001). In pursuance of that request, the State points out that appellant pled true, and the court found true, the enhancement allegations. That being so, the applicable range of punishment was not less than 25 nor more than 99 years. See Tex. Penal Code § 12.42(d) (Vernon Supp. 2001). Because the sentence assessed by the trial court is less than the minimum prescribed, the State contends that portion of the court's judgment is void. See Heath v. State, 817 S.W.2d 335, 336 (Tex.Crim.App. 1991). However, for the reasons we have stated, appellant's notice of appeal was ineffective and, because the State did not file a notice of appeal, we have no jurisdiction to consider its contention.
Accordingly, for the reasons we have recounted, this appeal must be, and is, dismissed for want of jurisdiction.
John T. Boyd
Chief Justice
Do not publish.
NO. 07-10-00220-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 9, 2011
JONATHAN A. JACOBSON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-418,173; HONORABLE JIM BOB DARNELL, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Appellant, Jonathan A. Jacobson, appeals his conviction, by jury, for aggravated sexual assault of a child[1] and the resulting punishment of forty-five years imprisonment. On appeal, he contends the trial court erred by overruling his objection to the States jury argument striking at him over the shoulders of counsel. We will affirm.
Factual and Procedural History
Appellant does not challenge the sufficiency of the evidence to support the conviction. In fact, he concedes that the evidence was sufficient. In light of his sole issue on appeal, we address only those facts necessary to the disposition of the appeal.
Appellant was a family friend of complainant, B.J.P. The relationship between twelve-year-old B.J.P. and twenty-year-old appellant began as one resembling siblings but transformed into a possessive, sexual relationship. After a number of outbursts by appellant in response to any effort to keep B.J.P. away from him and after discovering love letters between appellant and B.J.P., B.J.P.s mother reported her suspicions to the Lubbock County Sheriffs Department. The department began its investigation.
Initially, B.J.P. was reluctant to discuss her relationship with appellant. Early in her interview with Detective Richard Mayer, she denied the existence of a sexual relationship. Based on his investigation up to that point, however, Detective Mayer sensed that B.J.P. was not being truthful with him and, so, he persisted in asking her questions while reassuring her that, if she and appellant had had a sexual relationship, she would not be in trouble. B.J.P. admitted that she and appellant did have a sexual relationship.
During cross-examination, Mayer testified that, at the beginning of his investigation, he did not know whether appellant was guilty or innocent. Mayer explained that, even after B.J.P. admitted that she and appellant had engaged in sexual intercourse, he continued his investigation into the matter:
I still knew that even with her saying yes [that sexual intercourse did occur] that I would need more to prove the case, which would be the CARE exam. So I wasnt like, Oh, I got this one in my win pile, you know . . . I still have to go through the steps of investigation to be sure that Im not just falsely accusing somebody of something.
During closing argument to the jury, defense counsel seized on the win pile phrase and focused on Detective Mayers investigatory approach as he attempted to paraphrase Mayers testimony:
Some of the things that Detective Mayer told you that came out, that just jumped up. We have to ask ourselves, now, what is it going to take as far as details, as far as testimony, to put this case in the win pile? You remember thats what the detective said, in the win pile. And he thought about that. From the interview with Mike Privette right off the bat, the first interview.
. . .
The State then asked the detective if he was uncomfortable, and he felt essentially as though he had been attacked, because he sat in that chair and faced hard questions . . . . We start with him talking about how he put it in the win pile. Not about an investigation. Not about following where the evidence leads. You heard him say, We know what happened. We know who did it.
Defense counsels jury argument continued in a rather scathing tone, characterizing the investigation as a witch hunt.
The State responded in its argument to the jury: Somebody in this courtroom has an end result that they will twist and turn and fill in the holes to make it work Appellant objected to the States argument as striking at appellant over shoulders of counsel, and the trial court overruled appellants objection. In that same vein, the State continued: The Defense in this case had their end result, and they will twist the words of Detective Mayer. And if you dont believe me, how many times did he stand up here and use the word win pile?
After the jury found appellant guilty of aggravated sexual assault of a child as alleged and during the trial on punishment, appellant testified and admitted to having had an ongoing sexual relationship with B.J.P. After considering appellants testimony and the other punishment evidence, the jury assessed a forty-five year sentence.
Appellant timely appealed and now contends that the State struck at defendant over the shoulders of counsel. He maintains that the trial court erred by overruling his objection to the States argument and that, in light of the nature of States argument and the absence of any curative instruction to the jury, such error was harmful.
Analysis
Before we can reach the merits of appellants point of error, we must first examine the impact of appellants confession to the offense during the trial on punishment. The Texas Court of Criminal Appeals outlined the effect that a defendants confession would have on subsequent points of error in DeGarmo v. State, 691 S.W.2d. 657, 66061 (Tex.Crim.App. 1985). The general principle of DeGarmo, was that a defendant may not complain on appeal of an error occurring at the guilt phase of the trial when the defendant admits his guilt at the punishment phase of trial. Id. at 661; Houston v. State, 208 S.W.3d 585, 58990 (Tex.App.Austin 2006, no pet.). Ten years after DeGarmo, the Texas Court of Criminal Appeals reaffirmed the DeGarmo doctrine and explained the basis for such a rule:
When the defendant testifies and judicially confesses to the charged offense, the purpose of the trial process has been servedthe truth has been determined and the purpose of the guilt/innocence phase of the trial has been satisfied. No reversible error should occur where the defendant has satisfied the necessity of the trial process.
McGlothlin v. State, 896 S.W.2d 183, 187 (Tex.Crim.App. 1995).
The Texas Court of Criminal Appeals refined and narrowed the scope of the DeGarmo doctrine in Leday v. State, 983 S.W.2d 713, 715 (Tex.Crim.App. 1998) (en banc). The Leday court acknowledged that we as a people have deliberately chosen to adopt laws which interfere with the truth-seeking function of the criminal trial. Id. at 724. Therefore, the court explained, the need to protect some fundamental rights outweighs the truth-seeking function of a criminal trial. Id. at 72425. After Leday, when issues are raised on appeal by an appellant who admitted his guilt during the punishment phase of his trial, a reviewing court must determine if appellant asserts fundamental rights or guaranties [which he cannot be estopped from asserting], or whether the truth-finding function prevails to estop appellant from raising them.[2] Gutierrez v. State, 8 S.W.3d 739, 745 (Tex.App.Austin 1999, no pet.). In other words, when an alleged error during the guilt/innocence phase of trial does not implicate a defendants fundamental rights, a defendant who admits guilt at the punishment phase of trial is estopped from raising that error on appeal. See Wenger v. State, 292 S.W.3d 191, 202 n.8 (Tex.App.Fort Worth 2009, no pet.) (admission of extraneous offense evidence); Jarmon v. State, 263 S.W.3d 25, 3031 (Tex.App.Houston [1st Dist.] 2006, pet. refd) (same); Houston, 208 S.W.3d at 59091 (same); Kelley v. State, 22 S.W.3d 628, 631 (Tex.App.Fort Worth 2000, pet. refd) (alleged jury charge error); Gutierrez, 8 S.W.3d at 745 (jury note-taking during trial).
During his testimony at the trial on punishment, appellant confessed to having had sexual intercourse with B.J.P. Thus, he will be estopped from raising his point of error on appeal unless we determine that the error of which he complains implicates a fundamental right. So, we first evaluate the nature of the issue appellant presents to this Court. That is, we must determine whether the issue appellant raises is one which implicates fundamental rights or guaranties and, thus, is one that, under Leday, is of the nature that would survive for our review beyond appellants confession.
Our research yields no case that directly addresses the DeGarmo/Leday doctrines application to assertions that the State struck at defendant over the shoulders of counsel. We, therefore, look to the treatment of this type of error in other contexts. See Jarmon, 263 S.W.3d at 30 (for a thorough discussion of the considerations that go into evaluation whether the error implicates a fundamental right under Leday).
It is well established that an appellant who fails to raise the complaint that the State struck at him over the shoulders of counsel forfeits his right to advance his complaint on appeal. See Threadgill v. State, 146 S.W.3d 654, 667 (Tex.Crim.App. 2004); see also Huff v. State, No. 07-10-00174-CR, 2010 Tex. App. LEXIS 9424, *1011 (Tex.App.Amarillo Nov. 29, 2010, no pet.) (mem. op., not designated for publication); Stephenson v. State, 255 S.W.3d 652, 659 (Tex.App.Fort Worth 2008, pet. refd). From these cases, we can conclude that the error of which appellant complains is not considered fundamental error which could be raised for the first time on appeal. Further, the Texas Court of Criminal Appeals has consistently and clearly concluded that error associated with striking over the shoulders of counsel is subject to harm analysis as nonconstitutional error. See Brown v. State, 270 S.W.3d 564, 57273, n.2 (Tex.Crim.App. 2008); Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998).
In anticipation of the States argument, appellant cites the Court to Leday and likens the issue in the instant case to an improper prosecutorial comment on a defendants failure to testify. Appellant does not advance an argument that the States argument in the instant case constitutes an improper comment on appellants failure to testify in the guilt/innocence phase of trial. Rather, he suggests that the argument that strikes at a defendant over counsels shoulders is similar to or should receive similar treatment as a prosecutorial comment on the failure to testify. We decline to adopt his analogy. Unlike the issue at bar, a defendants privilege against self-incrimination is a right that is directly and firmly rooted in constitutional law. U.S. Const. amend. V; Griffin v. California, 380 U.S. 609, 614, 85 S.Ct.1229, 14 L. Ed. 2d 106 (1965); Cruz v. State, 225 S.W.3d 546, 548 (Tex.Crim.App. 2007). Leday recognized this and includes such a right in its non-exhaustive list of exceptions to the estoppel-by-confession principle. 983 S.W.2d at 725.
Drawing upon cases that characterize the type of error which appellant urges here as forfeitable by inaction and nonconstitutional in nature, we conclude that such error does not implicate fundamental rights and, thus, is not in the category of error that would survive for our review under Leday after appellant confessed to having committed the offense. Under Leday, appellant is estopped from complaining of improper jury argument after he admitted during the punishment trial that he committed the offense, and our review of this issue on these facts is precluded. Accordingly, we overrule appellants sole issue on appeal.
Conclusion
Having overruled appellants sole point of error, we affirm the judgment of the trial court.[3]
Mackey K. Hancock
Justice
Publish.
[1] See Tex. Penal Code Ann. § 22.021(a)(2)(B) (West Supp. 2010).
[2] The Leday court also set out a non-exhaustive list of errors that a defendant who confessed guilt is not estopped from raising on appeal: (1) errors violating the Due Process Clauses of the Fifth and Fourteenth Amendments regarding the right to have guilt proved beyond a reasonable doubt; (2) errors violating the right in the Double Jeopardy Clause of the Fifth Amendment to not be subjected to a second trial even when there is clear evidence of guilt; (3) errors violating the right to refuse to testify found in the Self-Incrimination Clause of the Fifth Amendment; (4) errors violating the right found in the Due Process Clause of the Fourteenth Amendment to exclude coerced confessions; (5) errors violating the Fourth Amendment prohibition against unlawful search and seizure and illegally obtained evidence; (6) errors violating Article 5 of the Rules of Evidence regarding exclusion of privileged evidence; (7) errors violating the right to have excluded custodial interrogation statements not conforming to the requirements of the Code of Criminal Procedure art. 38.22; (8) errors violating the right to have jurors prevented from asking witnesses questions. 983 S.W.2d at 725.
[3] In addition to joining the majoritys opinion, C.J. Quinn would also overrule the issue because the utterance, when viewed in context, would not be one that reasonable jurors would interpret as commenting upon appellants right to remain silent.