Rodrick Lanier Tillman v. State

Rodrick Lanier Tillman v. State

WITHDRAWN

12/31/02

IN THE

TENTH COURT OF APPEALS

No. 10-02-268-CR

No. 10-02-269-CR

     RODRICK LANIER TILLMAN,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the Criminal District Court

Jefferson County, Texas

Trial Court Nos. 84151 and 84152

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Rodrick Lanier Tillman pleaded guilty to aggravated robbery in trial court cause no. 84151 (appellate cause no. 10-02-268-CR). Pursuant to a plea agreement, the court deferred an adjudication of guilt and placed Tillman on unadjudicated community supervision for ten years.

      Tillman pleaded guilty to possession of hydrocodone in the amount of four hundred grams or more in trial court cause no. 83786 (appellate cause no. 10-02-269-CR). The parties struck the same plea bargain in this case, and the trial court placed Tillman on unadjudicated community supervision for ten years.

      Six months later, the court adjudicated Tillman’s guilt and sentenced him to twenty years’ imprisonment in both cases. Tillman filed a general notice of appeal in both cases.

      To properly invoke the jurisdiction of this Court over an appeal from a negotiated guilty plea, an appellant must file a notice of appeal which complies with Rule of Appellate Procedure 25.2(b)(3). White v. State, 61 S.W.3d 424, 429 (Tex. Crim. App. 2001); Tex. R. App. P. 25.2(b)(3). This rule applies with equal force to “an appeal, made either before or after an adjudication of guilt, by a defendant placed on deferred adjudication who challenges an issue relating to his conviction.” Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002).

      Tillman’s general notices of appeal do not comply with Rule 25.2(b)(3). Accordingly, we dismiss his appeals for want of jurisdiction.

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed for want of jurisdiction

Opinion delivered and filed October 30, 2002

Do not publish

[CR25]

ber 28, 2005 by a per curiam order which also denied Kelly’s motion for rehearing and granted Gaines’s motion for rehearing in part;

 

(4) Chief Justice Gray’s concurring and dissenting opinion issued on September 28, 2005 expressly withdrew his concurring and dissenting opinion of July 13, 2005;

 

(5) on October 7, Kelly filed a “Motion to Correct Order and Judgment” contending that (a) the September 28, 2005 per curiam order incorrectly states that Gaines’s motion for rehearing was granted in part and (b) the September 28, 2005 judgment does not match the revised September 28 majority opinion; and

 

(6) on October 13, 2005 Kelly filed a motion for rehearing asserting (a) the same grounds raised in his October 7, 2005 motion and (b) an additional ground challenging the decision on his motion to compel Gaines and Southwest Guaranty to answer discovery regarding the contemplated source(s) for the funding of the loan to Kelly which never materialized.

 

By an unpublished per curiam order the majority, on this date, has: (1) granted Kelly’s October 7, 2005 motion to correct the order and judgment, (2) modified the judgment to indicate that both motions for rehearing filed in July are granted in part, and (3) denies Kelly’s October 13, 2005 motion for rehearing.  To accomplish this, the following are being issued:

(1) an order which:

 

(a) withdraws the September 28, 2005 order and judgment;

 

(b) substitutes a new judgment for the September 28, 2005 judgment;

 

(c) substitutes the September 28, 2005 opinion for the July 13, 2005 opinion;

 

(d) grants in part Kelly’s and Gaines’s July motions for rehearing;

 

(e) grants Kelly’s October 7, 2005 motion to correct the order and judgment; and

 

(f) denies Kelly’s October 13, 2005 motion for rehearing.[1]

 

(2) a new judgment.[2]

 

With these comments regarding the history of this appeal, I now proceed to the substance of my dissenting opinion.

THE DISSENTING OPINION

 

          Sometimes all that is necessary to prove a privilege is the document itself.  “When… the claim for protection is based on a specific privilege, such as attorney-client or attorney work product, the documents themselves may constitute the only evidence substantiating the claim of privilege.”  Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986).  But when this situation presents itself, it requires some careful analysis, analysis that is lacking in the majority opinion. 

In this case, in addition to the documents being provided in camera, Kelly provided a privilege log to assist the trial court in the evaluation of the privileges asserted by Kelly.  With regard to Kelly’s privilege log, I note that it also fails to identify the other recipients of items 2, 3, and 4.[3]  Because other persons received the documents, and there is no affidavit or other evidence of who these persons are, I agree that Kelly has failed to establish the privileges asserted to these three items.  See E.I. Dupont De Nemours and Company, 136 S.W.3d 218, 225-226 (Tex. 2004).  I also note that the information in the log on items 2 and 3 is not entirely accurate.

          Item 1 in the privilege log is clearly work product.  Kelly sought to protect it on this basis.  It should be protected.  Thus, on this issue, I must dissent to the majority ordering these privileged documents turned over to the opposing party as part of this Court’s judgment.  At the very least the trial court should be given the opportunity on remand to review the privileges asserted with the guidance provided by this Court’s opinions.

 

 

                                                          TOM GRAY

                                                          Chief Justice

 

Concurring and Dissenting Opinion delivered and filed November 16, 2005

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[1] This gets a little confusing since, as indicated above, the relief in this motion for rehearing that is being denied is, in part, the same relief that is being granted via the ruling on the October 7, 2005 motion.

 

[2] The new judgment was modified to address a complaint I had about rendering a severance as part of the judgment.  A severance that was not requested by anyone other than Justice Vance.  The fact, or propriety, of a severance was not addressed in any opinion.

 

[3] It is difficult to discern or correlate the documents produced in camera to the privilege log.  The log has four items listed.  The documents produced in camera are divided by five numbered tabs.  The first three items behind tab 1 correspond to the first three items on the log.  Everything after that, including what is behind each of the four remaining tabs, may have been part of a file as described in item 4 in the log.  I simply cannot tell.  There are many people who appear to have received the documents whose identities are not established.  There are many discrete documents of different and diverse character.  The privilege log should have listed each document and the privilege asserted to it.  For a discussion of the procedure to establish a privilege at the trial court and what is necessary for review of a ruling on a privilege, see the excellent discussion by Justice Vance in In Re Monsanto, 998 S.W.2d 917 (Tex. App.—Waco 1999, orig. proceeding).