NO. 07-03-0437-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 30, 2004
______________________________
DAVID CAFFERY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 359TH DISTRICT COURT OF MONTGOMERY COUNTY;
NO. 98-05-00463-CR; HONORABLE KATHLEEN A. HAMILTON, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Pursuant to a plea of guilty, appellant David Caffery was convicted of two counts of
aggravated sexual assault of a child and sentenced by a jury to concurrent 20 year
sentences and $5,000 fines. Presenting three issues, appellant contends the trial court
erred (1) in failing to sua sponte withdraw his guilty plea and enter a plea of not guilty after
he testified before the jury during the punishment hearing that he had no memory of
committing the offenses charged, (2) by directing the jury to find him guilty, and (3) by
interviewing the complaining witness and two of the State’s other witnesses in camera
without notice to him or his attorney or without him or his attorney being present prior to
deciding to reject a proposed plea bargain and prior to a determination of guilt or
innocence. We affirm.
Appellant’s contentions require only a brief review of the events in the trial court.
Shortly prior to July 25, 2003, the State and appellant reached a plea bargain agreement
under which he would plead guilty in exchange for a 10 year sentence. On Friday, July 25,
2003, appellant and his counsel appeared before the court with the State’s attorney to “do
the plea.” While appellant’s counsel was appearing in another court, and without
knowledge or consent, the trial court conducted an in camera interview of the victim and
her family members in her chambers out of the presence of the court reporter, State’s
counsel, or appellant. When counsel returned to the courtroom, the trial court informed
counsel that she was aware of the plea bargain, but announced she declined to accept it.
The case was then set for trial on punishment the following Monday. On Monday morning
when the case was called both sides announced ready. After appellant’s plea was
received and the signed admonitions and stipulations were admitted into evidence without
objection, the case was presented to the jury for punishment.
2
By his first issue, appellant contends the trial court erred in failing to sua sponte
withdraw his guilty plea and enter a plea of not guilty after he testified before the jury during
the punishment hearing that he had no memory of committing the offenses charged. By
his second issue, he contends the trial court erred by directing the jury to find him guilty.
Considering these two issues together, we disagree.
In addition to the standard admonishments, appellant signed a stipulation of
evidence and judicially confessed the facts alleged in the indictments. These stipulations
were verified by his oath administered by the court clerk. Also, the written stipulations and
admission of facts signed by appellant were approved by his counsel. Notwithstanding
counsel’s able briefing, at the time he prepared appellant’s brief, he did not have the
benefit of Mendez v. State, 138 S.W.3d 334, 350 (Tex.Cr.App. 2004) (en banc), issued on
June 30, 2004. The authorities relied on by appellant are not controlling because under
Mendez, the trial court does not have a duty to change a defendant’s plea on its own
motion. Issues one and two are overruled.
By his third issue, appellant contends the trial court erred by interviewing the
complaining witness and two of the State’s other witnesses in camera without notice to him
or his attorney or without him or his attorney being present prior to deciding to reject a
proposed plea bargain and prior to a determination of guilt or innocence. With
commendable professional candor, the State does not challenge appellant’s assertion of
error, but contends the error was not preserved for review. We agree with the State.
3
The trial court informed appellant’s counsel of the in camera conference with the
victim and family members on July 25, 2003. When the case was called for trial,1
appellant’s counsel announced ready and the trial commenced without any objection.
Although by his motion for new trial and argument here appellant suggests that the judge
should have been recused to hear the case, by his failure to present a motion to recuse,
he waived any error. See Arnold v. State, 853 S.W.2d 543, 544-45 (Tex.Cr.App. 1993).
Similarly, any grounds for mistrial were waived by appellant’s failure to move for mistrial
before announcing ready. See Powell v. State, 502 S.W.2d 705, 711 (Tex.Cr.App. 1973).
Issue three presents nothing for review and is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1
The in camera conference by the judge with the victim and family members and the
report to counsel of the conference and her decision to reject the plea bargain appears in
the reporter’s record made during the evidentiary hearing on appellant’s motion for new
trial.
4