Ernest Paty v. State ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-07-00055-CR ______________________________



ERNEST PATY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 114th Judicial District Court Smith County, Texas Trial Court No. 241-0123-03

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

   Ernest Paty appeals from the judgment adjudicating his guilt for the offense of indecency with a child. See Tex. Penal Code Ann. § 21.11 (Vernon 2003).

The State abandoned one of the allegations contained in its application to adjudicate, and Paty pled "not true" to the other allegations contained in that application. ⁽¹⁾ The trial court found that Paty had violated conditions of his deferred adjudication community supervision as follows: (1) by failing to pay his community supervision fees as ordered for the months of July and August 2006; (2) by failing to pay court costs as required on or before December 17, 2005; (3) by failing to pay the monthly payment on his fine for July and August 2006; and (4) by failing to pay the monthly payment on his restitution for August 2006. After a hearing on punishment, the trial court sentenced Paty to twenty years' imprisonment and a fine of $10,000.00. Paty was represented by the same appointed counsel at trial and on appeal.

Appellate counsel filed a brief July 19, 2007, under the mandate of Anders v. California, 386 U.S. 738 (1967), and Ex parte Senna, 606 S.W.2d 329, 330 (Tex. Crim. App. 1980), and has accordingly also filed a motion to withdraw. Counsel sent Paty a copy of the brief and advised him by letter that she believes there are no arguable contentions of error. She also informed Paty of his right to review the record and file a pro se response. Paty has not filed a response, nor has he requested an extension of time in which to file such a response.

Counsel has filed a brief which discusses the record and reviews the proceedings. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced, as required by High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). See also Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel concluded from her review of the record that there is no arguable point of error to support the appeal.

Counsel further states in the brief that Paty was admonished by the trial court of his rights and that his deferred adjudication community supervision could be revoked if any of the allegations in the State's application were found true. Counsel's statements are supported by the record.

We have reviewed the record and find the evidence sufficient to support the trial court's findings of "true" to the State's allegations. However, in our review of the record, we note that the judgment incorrectly reflects that Paty pled "true" to the allegations contained in that application. The only "true" plea that Paty made was to the first paragraph of the State's application, that being the identity paragraph.

This Court has the authority to reform the judgment to make the record speak the truth when the matter has been called to our attention by any source. See French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992). In Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.--Dallas 1991, pet. ref'd), the court noted that the authority of the appellate court to reform incorrect judgments is not dependent on request of any party; the appellate court may act sua sponte. The Texas Rules of Appellate Procedure provide direct authority for this Court to modify the judgment of the trial court. Tex. R. App. P. 43.2.

Therefore, we reform the trial court's judgment to reflect pleas of "not true" to paragraphs II through V of the State's application.

We have reviewed the record and agree with counsel there are no arguable points of error in this case. ⁽²⁾  

As reformed, we affirm the judgment of the trial court.

Bailey C. Moseley

Justice

Date Submitted: October 2, 2007

Date Decided: October 3, 2007

Do Not Publish

1. Paty pled "true" to paragraph I of the State's application to proceed to final adjudication; however, that paragraph was the identity paragraph and did not contain any allegations of violations of his deferred adjudication community supervision.

2.

Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Paty in this case. No substitute counsel will be appointed. Should Paty wish to seek further review of this case by the Texas Court of Criminal Appeals, Paty must either retain an attorney to file a petition for discretionary review or Paty must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that is overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.

t, and shall make no further orders and shall take no further action in the case except for good cause stated in the order in which such action is taken.

(d) If the judge declines to recuse himself, he shall forward to the presiding judge of the administrative judicial district . . . an order of referral, the motion, and all opposing and concurring statements. Except for good cause stated in the order in which further action is taken, the judge shall make no further orders and shall take no further action in the case after filing of the motion and prior to a hearing on the motion.

Tex. R. Civ. P. 18a(c), (d) (emphasis added).

          The record before us shows that on January 20, 2004, the trial court entered a final decree of divorce in the marriage of Toohey and Stephanie Michelle Arnold-Toohey. Toohey's former wife is now Stephanie Michelle Floyd. On September 22, 2005, Toohey filed a petition to modify the parent-child relationship. Toohey's amended petition, seeking an additional finding of contempt against Floyd, followed a few months later. On February 28, 2006, Toohey filed an unverified motion to recuse Judge Pesek. Floyd filed a response to the recusal motion April 7, 2006. On June 5, 2006, the trial court signed an "Order on Emergency ex parte Motion to Suspend Possession of and Access to the Minor Children." It is this June 5 order that Toohey would have this Court invalidate via mandamus.

          In the brief supporting the petition for writ of mandamus, Toohey more specifically asserts,

The trial court in this case did not recuse himself, and therefore is without authority to enter the Order on Emergency Ex Parte Motion to Suspend Possession of and Access to the Minor Children. The order is therefore void[,] and Toohey has no adequate remedy at law absent intervention by this Court. His visitation is currently being denied by the actions of Floyd, while she acts under color of law provided by a void order. The determination of the voidness [sic] of the order further cannot be determined or set aside by the sitting trial court by virtue of the pending motion to recuse.

          We deny Toohey's petition for writ of mandamus for three reasons. First, there is nothing in the record to affirmatively show that Judge Pesek (a) refused to recuse himself, (b) refused to refer the recusal motion to the presiding judge of the administrative judicial district, or (c) refused to take any action whatsoever on Toohey's recusal motion. As such, we cannot say Toohey has shown himself entitled to relief based on the record before us. Cf. In re Pilgrim's Pride Corp., 187 S.W.3d 197, 198–99 (Tex. App.—Texarkana 2006, orig. proceeding).

          Second, at the time it entered the June 5 order, the only recusal motion pending before the trial court was Toohey's unverified February 28 filing. This Court has previously held that an unverified recusal motion does not trigger Rule 18a's mandatory referral and hearing provisions. Moorhead v. State, 972 S.W.2d 93, 94–95 (Tex. App.—Texarkana 1998, no pet.). Accordingly, Judge Pesek could have properly concluded he had no duty to act on Toohey's February 28 unverified motion to recuse.

          Third, to the extent Toohey now claims the trial court was without any authority to act once Toohey filed the recusal motion, Toohey is incorrect. See Mercer v. Driver, 923 S.W.2d 656, 659 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding). Generally, once a valid motion to recuse has been timely filed, the judge who is the subject of the recusal motion should enter no further orders in the case after he or she either (1) grants the motion to recuse, or (2) refers the recusal motion to the presiding judge of the administrative judicial district. Tex. R. Civ. P. 18a. However, Rule 18a has an exception to this proscription, an exception which is twice stated in the rule itself. In paragraphs (c) and (d), Rule 18a authorizes a trial judge (who is the subject of a recusal motion) to intercede and enter further orders when "good cause" merits such intervention and necessitates the further orders. Tex. R. Civ. P. 18a(c), (d).

          The trial court, by action of the Honorable Jeff Addison presiding, wrote in the June 5 order that "good cause" existed for granting the emergency relief and expressly referred to Floyd's motion for emergency relief and the affidavit accompanying her motion as providing the good cause. Therefore, the trial court's June 5 order satisfies the exception in Tex. R. Civ. P. 18a(c) and (d), and we cannot say the trial court abused its discretion.

          For the reasons stated, we deny Toohey's petition for writ of mandamus. Toohey's "Motion for Emergency Stay" of the underlying proceedings is likewise denied.

                                                                Donald R. Ross

                                                                Justice

Date Submitted:      June 22, 2006

Date Decided:         June 23, 2006