Jeffery Todd Popp v. State ( 2004 )

IN THE

TENTH COURT OF APPEALS

No. 10-03-00263-CR

Jeffery Todd Popp,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2002-556-C

MEMORANDUM Opinion

            Jeffery Popp was convicted of driving while intoxicated, a felony offense.  The jury recommended a sentence of 10 years in prison and a $5,000 fine.  The court ordered the sentence to begin after the sentence in another cause ran.  We affirm.

Popp initially contends the trial court erred in failing to grant a mistrial, sua sponte, when a juror responded by asking to be excused from the panel to one of Popp’s outbursts during voir dire.  No objection, request for instruction, or request for mistrial was made by Popp. Rules that require a timely and specific objection do not apply to two relatively small categories of errors.  Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002).  Popp’s complaint does not fit within these small categories.  Thus, because Popp did not object, he has not preserved his complaint for our review.  Tex. R. App. P. 33.1.

          In his second and third issues, Popp argues that the trial court erred in entering a nunc pro tunc judgment because 1) the trial court had no jurisdiction to do so; and 2) the trial court did not give Popp notice or the opportunity to be heard and have counsel present.

          The Rules of Appellate Procedure provide that once the record has been filed in the appellate court, all further proceedings in the trial court are suspended.  Tex. R. App. P. 25.2(g).  The appellate record was not complete until after the trial court entered its nunc pro tunc judgment.  Popp cites no authority for his proposition that the trial court had no jurisdiction to enter the nunc pro tunc judgment.  His second issue is improperly briefed and presents nothing for review. Long v. State, 137 S.W.3d 726, 737 (Tex. App.—Waco 2004, no pet.).

          Popp further contends that the trial court erred in entering the nunc pro tunc judgment because he was not given notice of the court’s intent to enter the judgment and was not given an opportunity to be heard and to have counsel present.

The purpose of a nunc pro tunc order is to have the court records correctly reflect a judgment actually rendered by the trial court.  See Jones v. State, 795 S.W.2d 199, 202 (Tex. Crim. App. 1990); McGinnis v. State, 664 S.W.2d 769, 770 (Tex. App.—Amarillo 1983, pet. ref’d).  The Court of Criminal Appeals has said, that before any unfavorable nunc pro tunc orders are entered, the person convicted should be given an opportunity to be present for the hearing and represented by counsel, in order to accord him due process of law.  Shaw v. State, 539 S.W.2d 887, 890 (Tex. Crim. App. 1976).  But more recently, the Court has said that if the trial court properly changed the order, remanding for a hearing would be a “useless task.”  Homan v. Hughes, 708 S.W.2d 449, 454-455 (Tex. Crim. App. 1986).

When the trial judge pronounced Popp’s sentence, he stated,

Mr. Popp, it is the sentence of the Court that you be confined to the Texas Department of Criminal Justice Institutional Division for a term of ten years, and fined $5,000.00.  It is furthermore the sentence of the Court that this sentence shall begin to run when you have fully and completely discharged the sentence in 2002-277-C, whereby you were assessed eleven years in the Texas Department of Criminal Justice, Institutional Division.  The sentence in this case shall begin to run when you have fully and completely discharged that sentence in cause number 2002-277-C. 

For some reason, this pronouncement did not appear in the written judgment.  The judgment was then corrected to reflect the court’s actual pronouncement.  Popp does not contend that his sentences cannot run consecutively.  Sending this cause back to the trial court for a hearing would be “useless.”  Popp’s third issue is overruled.

In his fifth issue, Popp contends the jury finding that he was competent to stand trial was against the great weight and preponderance of the evidence.  A defendant is presumed competent to stand trial unless he proves his incompetence by a preponderance of the evidence.  Acts of 1965, 59th Leg., vol. 2, p. 317, ch. 722 (repealed 2003)(formerly art. 46.02 § 1A).[1]  The correct standard of review for a factual insufficiency issue where the defendant has the burden of proof by a preponderance of the evidence is whether, after considering all the relevant evidence, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust.  Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990).

          By the time of his trial, Popp had dismissed two retained attorneys and a court-appointed attorney.  He was represented at the incompetency hearing by another court-appointed attorney.  Three witnesses, two attorneys and a legal assistant, testified that Popp had periods of irrational behavior and did not understand the proceedings against him.  However, the court-appointed psychiatrist determined Popp was competent to stand trial. And a former court-appointed attorney testified that, although he could not get Popp to take his criminal charges seriously, he did not think Popp was incompetent during his period of representation.  Contrary to Popp’s assertion, considering all the relevant evidence, the judgment is not so against the great weight and preponderance of the evidence so as to be manifestly unjust.  Popp’s fifth issue is overruled.

          In his fourth issue, Popp contends the trial court erred in failing to sua sponte impanel a second competency jury.  See Acts of 1965, 59th Leg., vol. 2, p. 317, ch. 722 (repealed 2003)(formerly art. 46.02 § 2(b)).  Under caselaw interpreting section 2, if a competency issue is raised by the defendant, any party, or the court and 1) evidence of incompetency is brought to the attention of the trial court by the defendant, any party, or the court, 2) of the type to raise a bona fide doubt in the judge's mind regarding the defendant's competency to stand trial, then 3) the judge must conduct a Section 2 "competency inquiry" to determine if there is some evidence sufficient to support a finding of incompetence, and if there is, 4) the judge must impanel a jury for a Section 4 "competency hearing."  McDaniel v. State, 98 S.W.3d 704, 710-711 (Tex. Crim. App. 2003).  And where there has already been one determination of competency by a jury and there is no error in that finding, to complain of the denial of a second hearing, the defendant must put forth some evidence of a subsequent change in competency or some “new evidence” in a manner analogous to the newly discovered evidence basis for a new trial.  Miles v. State, 688 S.W.2d 219, 224 (Tex. App.—El Paso 1985, pet. ref’d).  “Any other procedural and evidentiary framework would effectively block trial on the merits.”  Id.

          Popp made at least 47 outbursts either in front of or out of the presence of the jury before he voluntarily chose to not personally attend his trial.  Most of those outbursts involved displeasure with his latest court-appointed attorney, an attorney Popp had previously retained, and the trial court.  His attorney expressed concern for Popp’s mental status but also acknowledged that Popp had been recently evaluated and found to be competent.  Counsel also stated that he had not seen any significant change in Popp’s behavior and would not ask for another evaluation “because this is the exact same behavior I have observed in the past three months.”

          No error was found in the jury’s determination of Popp’s competence.  And Popp has presented no evidence of a subsequent change in his competency to stand trial. Thus, the trial court did not err in failing to impanel a jury for a second competency hearing.  Popp’s fourth issue is overruled.

          Having overruled the issues properly presented, we affirm the judgment of the trial court.

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Affirmed

Opinion delivered and filed October 13, 2004

Do not publish

[CR25]

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[1] The statutes regarding competency to stand trial are now located in Tex. Code Crim. Proc. Ann. art. 46B.001, et. seq. (Vernon Pamp. 2004-2005). The new chapter applies only to a defendant against whom proceedings have not been initiated under Article 46.02 before the effective date of the new chapter.  Acts of 2003, 78th Leg., ch. 35 § 16.  Popp does not fall within this category.  Thus, the former chapter applies.

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            Paragraph 3.01 of the Procedures for Internal Deadlines for Approval of Opinions and Orders allows six weeks from distribution of an opinion until the Proposed Issue Date.  More than six weeks have elapsed since two Justices approved the draft majority opinion in this case.

            Applying Paragraph 8.01 of the Procedures, the Issue Date for the majority opinion in this case is set for Wednesday, August 15, 2007.  The Final Response Date for purposes of Paragraph 4.01 of the Procedures is set as August 8, 2007, and failure to act by that date constitutes approval of the draft majority opinion authored by Justice Vance to be issued on August 15, 2007.

            This modified procedure is adopted this 25th day of July, 2007.

                                                                        ________________________________

                                                                        Tom Gray

                                                                        _s/ Bill Vance ____________________

                                                                        Bill Vance

                                                                        _s/ Felipe Reyna __________________

                                                                        Felipe Reyna

(Emphasis added.)  Chief Justice Gray wrote a handwritten “dissent” to the action of the majority in adopting the modified procedure.

Having received no response by August 8, Justice Vance wrote Chief Justice Gray on August 10:

Per your request, this is a courtesy notice in advance of the issuance of the opinion in TAMU v. Bading without your response under the deadlines.

This accelerated interlocutory appeal was argued and submitted on June 6, over nine weeks ago.  Your proposed opinion did not garner a majority of the votes.  An opinion that I drafted was approved by a majority of justices on June 11, over eight weeks ago.  To date, no concurring or dissenting opinion has been given to us for our review.  You have said, however, "You do what ever you want to do, but my position always has been and remains that I am unable commit to any specific date to be ready to vote. Life just does not offer that level of certainty.  I may or may not be ready by [August 15].  twg"

In light of all the pending matters arising out of the same underlying event, the parties are entitled to be promptly informed of the decision we have reached.

Under the modified procedure approved on July 25, the Final Response Date in this case was August 8, so the opinion will issue as a unanimous opinion on August 15.  ("failure to act by [the Final Response Date] constitutes approval of the draft majority opinion authored by Justice Vance to be issued on August 15, 2007") [sic]

I trust that the proposed opinion that your [sic] circulated back in June correctly reflected your view of how the legal issues presented in this appeal should be resolved.  It should be easy to convert that to a concurring opinion to be issued next week with my opinion.

Chief Justice Gray replied:

Bill,

Your email begins with multiple false premises and continues in that vein throughout.  If you "do what you want to do," as I feel certain you, will empowered as you are with the second vote from Felipe, I will again have to follow it up with a special note, as I did last week in TxDot v. York.

twg

The opinion was issued as scheduled on August 15.

            Various rules impose deadlines at every step of the appellate process, from the overruling of a motion for new trial by operation of law after 75 days to the automatic denial of a motion for rehearing in the Texas Supreme Court if not decided within six months.[7] See, e.g., Tex. Const. art. V, § 31(d); Tex. R. Civ. P. 329b(c).  Furthermore, Appellate Rule 41.1(c) allows for the issuance of an opinion by two justices, after argument, when one cannot participate “for any reason.”  Tex. R. App. P. 41.1(c).  This case was submitted on oral argument on June 6, 2007.

Under the rules governing the issuance of opinions, Chief Justice Gray approved the draft majority opinion.  He alone decided not to affirmatively vote to join the opinion or to dissent from or concur in the judgment in this case in a timely manner.  He is not disqualified; he has not recused himself.  Thus, he remains a member of the panel assigned to the case.  The decision reflected by the “Special Note” is his alone.

            We overrule issue nine.

            In issue ten, Appellees say that our internal operating procedures have rendered them “innocent victims” in a way that violates their “appellate due process” rights.  The University responds by noting that no authority is cited in support of this issue.  Nothing is presented for review.  We overrule issue ten.

CONCLUSION

            We have overruled rehearing issues one through five and eight through twelve.  We sustain issues six and seven.  We withdraw our judgment dated August 15, 2007, and issue a modified judgment to reverse the “orders” of the trial court denying the University’s pleas to the jurisdiction and render an order granting the University’s pleas and dismissing all of Appellees’ trial-court claims for lack of jurisdiction.  In all other respects the Appellees’ motions for rehearing are overruled.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

            (Additional Special Note by Chief Justice Gray)

Motions for rehearing granted in part; denied in part

Judgment withdrawn; modified judgment issued

Opinion delivered and filed November 14, 2007

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[1] We again note that our decision is based on a prior version of Section 33.004 of the Civil Practice and Remedies Code, no longer in effect, which allowed findings of responsibility of “persons” over which the court has jurisdiction.  We express no opinion about whether an entity that enjoys sovereign immunity can be designated as a responsible third party under the current version.

[2] In an earlier case in which a party, in a motion for rehearing, claimed that an opinion on the affirmative vote of two justices obviated potential appellate jurisdiction of the Supreme Court of Texas and was erroneous, we attached the then-current version of our "Procedures for Internal Deadlines for Approval of Opinions and Orders."  Tesmec USA, Inc. v. Whittington, 192 S.W.3d 178, 183-88 (Tex. App.—Waco 2006, pet. denied) (op. on rehearing).  The Procedures have since been amended and have proven to be workable.

[3] Court-adopted rules cannot be inconsistent with the constitution.  See Starnes v. Holloway, 779 S.W.2d 86, 96 (Tex. App.—Dallas 1989, writ denied).  "A statute controls over a procedural rule."  In re Chu, 134 S.W.3d 459, 466 (Tex. App.—Waco 2004, orig. proceeding).

[4] The exception is companion cases that are assigned to the same justice.

[5] Demonstrating sufficient time to consider the appeal.

[6] The relevant part of Paragraph 8.01 provides: “Any procedure or deadline specified herein may be changed, modified, or suspended in any case by a majority vote of the Justices on the panel.”

[7] According to an informal survey that we conducted, the Texas Supreme Court and approximately half of the fourteen courts of appeals have some kind of internal deadlines for the approval of opinions.