Israel Jesus Tijerina v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Israel Jesus Tijerina

Appellant

Vs.                   No. 11-01-00173-CR B Appeal from Taylor County

State of Texas

Appellee

                                                             Memorandum Opinion

On April 15, 1994, Israel Jesus Tijerina waived his right to a trial by jury and entered a plea of Aguilty@ to the indictment for burglary of a vehicle.  The offense occurred on September 9, 1992.  The trial court accepted his plea, deferred the adjudication of guilt, and placed appellant on probation for 6 years pursuant to the plea bargain agreement. On September 17, 1996, the court granted the State=s motion to adjudicate and then placed appellant on community supervision for 6 years.  On April 27, 2001, the trial court granted the State=s motion to revoke community supervision, reduced the sentence to confinement for a term of 5 years from that date, and gave credit for 388 days spent in jail. Appellant appeals.  We affirm.

                                                                 Issues for Review

Appellant presents two issues for appellate review. First, he argues that the trial court erred because he Adid not waive his rights to a jury trial in compliance with Art. 1.13@ of the Penal Code.  Next, he argues that the trial court erred by sentencing him for a third degree felony when he Ashould have been sentenced for a Class A misdemeanor.@  Both issues will be discussed.

                                                               Waiver of Jury Trial

Appellant=s brief refers to the instrument found at Page No. 6 of the clerk=s record.  The instrument actually starts at Page No. 4 of the clerk=s record, and it contains 4 pages. The heading shows that it is AWRITTEN  PLEA  ADMONISHMENTS@ for the 42nd District Court of Taylor County.  It shows that appellant was admonished in writing that he was charged with the felony offense of burglary of a motor vehicle; that the range of punishment was not more than 10 years nor less than 2 years confinement plus a fine not to exceed $10,000; and that, if the court defers adjudicating guilt, Aon violation of any imposed condition, [appellant] may be arrested [and] entitled to a hearing limited to the determination by the Court of whether to proceed with an adjudication of guilt on the original charge.@ After those written admonishments are the ASTATEMENTS OF DEFENDANT@ which include the following:

1.  Comes now the defendant, joined by my counsel, and state that I understand the foregoing admonishments from the Court and am aware of the consequences of my plea. I further state that I am mentally competent and that my plea is freely and voluntarily entered....I am satisfied with representation given to me by my counsel....I also waive and give up under Art. 1.14 C.C.P. all rights given me by law, whether of form, substance or procedure.  Joined by my attorney, I waive and give up my right to a jury in this case, waive and give up the right to appearance, confrontation and cross-examination of the witnesses and consent to oral and written stipulations of evidence, and waive and give up my right to the preparation and filing of a presentence investigation report.

2.  Defendant will plead guilty to the offense of BURGLARY OF A MOTOR VEHICLE, and receive the following agreed sentence: cc & 750 fine, restitution of 289.00 [and] 6 yrs deferred/adj st.

                                                           *    * *

I HAVE READ AND UNDERSTAND THE FOREGOING STATEMENTS AND SWEAR THAT THEY ARE TRUE. (Emphasis added; Boldface in original)

Appellant signed the form immediately below the statement which is in boldface type, and his signature was sworn to and verified by a deputy district clerk.  Just below that verification, the trial court judge, appellant=s counsel, and the prosecutor signed the form to show that each of them Ajoin in and approve the waivers and stipulations [and] agree that the Defendant is fully competent to stand trial...and that the defendant=s plea was freely and voluntarily entered.@

First, we find that appellant=s waiver of his right to jury trial was sufficient.  TEX. CODE CRIM. PRO. ANN. art. 1.14 (Vernon Supp. 2002) permits a defendant to waive the right of trial by jury in all cases Aexcept that a defendant in a capital felony case@ may only waive the right of trial by jury in the manner permitted by TEX. CODE CRIM. PRO. ANN. art. 1.13(b) (Vernon Supp. 2002).  This was not a capital felony case; consequently, Article 1.13(b) was not applicable.  Second, there was no timely objection to any defect in the waiver.  See TEX.R.APP.P. 33.1(a).  Finally, even if there had been a timely objection, any error would have been disregarded under TEX.R.APP.P. 44.2(b).  See Whitmire v. State, 33 S.W.3d 330, 333-34 (Tex.App. - Eastland 2000, no pet=n), where this court held that the judge=s discussion with the defendant^[1] clearly showed that the defendant understood the right to jury trial and Avoluntarily relinquished that right in open court on the record.@  One of the cases cited in support of his claim on this issue is Carter v. State, 928 S.W.2d 745 (Tex.App. - Eastland 1996, pet=n ref=d).  In that case this court held that:

[W]here the judgment recites that the defendant waived his right to trial by jury, the burden is on the defendant to affirmatively establish that he did not waive his right to a jury trial.

The first issue for review is overruled.

                                                  Effect of Amendment of Penal Statute

 TEX. PENAL CODE ANN. ' 30.04 (Vernon Supp. 2002) now states that burglary of a vehicle is a AClass A misdemeanor@ (unless the vehicle is a rail car). Prior to the 1993 amendment, this statute had provided that burglary of a vehicle was a  Afelony of the third degree.@  As noted in Davila v. State, 930 S.W.2d 641, 654 (Tex.App. - El Paso 1996, pet=n ref=d):

In amending the Penal Code, the Legislature specifically provided that an offense committed before the effective date of the amendments is governed by the law in effect when the offense was committed. Acts 1993, 73rd Leg., R.S., ch. 900.

The effective date of the 1993 amendment was September 1, 1994.  The offense for which appellant was convicted was committed on September 9, 1992. Consequently, the trial court did not err in sentencing appellant for a third degree felony.  See Poledore v. State, 8 S.W.3d 22, 25 (Tex.App. - Houston [14th Dist.] 1999, pet=n ref=d.).  The second issue for review is overruled.

                                                             This Court=s Judgment

The judgment of the trial court is affirmed.

April 11, 2002                                                              BOB DICKENSON

Do not publish.  See TEX.R.APP.P. 47.3(b).                SENIOR JUSTICE

Panel consists of:  Arnot, C.J., and

Wright, J., and Dickenson, S.J.^[2]

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^[1]There was a similar discussion between the court and appellant, and it was also on the record and in open court.

^[2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.