Cantu, Jr., Angel v. State ( 2000 )

NUMBER 13-99-349-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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ANGEL CANTU, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 148th District Court of Nueces County, Texas.

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O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa

On May 28, 1998, appellant, Angel Cantu, Jr., was discovered in a parked van in Corpus Christi with a 13-year-old boy. Both were partially undressed. Upon questioning by police officers, the victim stated that appellant had performed oral sex on him, and that he had done so on two prior occasions. Appellant was arrested and charged with aggravated sexual assault of a child. After his arrest, appellant gave a statement in which he confessed to the crime.

Appellant's case came to trial on March 17, 1999, and a jury was impaneled that day. The next morning, appellant pleaded guilty to the offense of aggravated sexual assault of a child, and the punishment phase of the trial began. The evidence showed that appellant was previously the victim's fifth-grade teacher. He had "counseled" the boy, and knew the boy had been the victim of a prior sexual assault. Before appellant became an elementary school teacher, he was employed as a Child Protective Services caseworker. The jury assessed appellant's punishment at 25 years imprisonment. This appeal ensued.

By a single issue, appellant contends he was denied due process when the trial court failed to follow the procedure outlined by article 26.14 of the code of criminal procedure. We affirm.

Article 26.14 of the code of criminal procedure provides:

When a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.

Tex. Code Crim. Proc. Ann. art. 26.14 (Vernon 1989).

Appellant contends he wanted to plead guilty before the jury was impaneled, so that the only issue before the jury would be punishment, but he was "not allowed" to do so. Instead, the jury was impaneled for the guilt/innocence phase of the trial, and appellant's guilty plea was taken the next morning. Appellant complains this was in contravention of article 26.14. He argues that impaneling the jury for the guilt/innocence phase of the trial, instead of the punishment phase, prejudiced his right to a fair trial.

Although appellant claims he wanted to plead guilty before the jury was impaneled, he made no objection to the procedure followed by the trial court, and has, therefore, not preserved his complaint for appellate review. See Tex. R. App. P. 33.1(a) (to preserve an issue for appeal, record must show that complaint was made to trial court by a timely request, objection, or motion stating the grounds for the ruling being sought with sufficient specificity to make the trial court aware of the complaint, and that the trial court ruled or refused to rule on the request, objection or motion). While it is true that certain types of fundamental error need not be preserved to be heard on appeal, appellant has neither argued nor briefed the application of this exception. See, e.g., Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (holding that a defendant's rights arise from rules falling into three categories: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented unless expressly waived; and (3) rights of litigants which are implemented only upon request; a defendant may generally complain on appeal of a denial of rights falling in the first two categories without preserving error, but rights in the third category are waived unless preserved by a timely motion or objection).

In addition, appellant has cited no case law supporting his interpretation of article 26.14, and we can find none. Once a defendant enters a guilty plea, either to the trial court or to the jury, the proceeding in the trial court becomes a unitary rather than a bifurcated proceeding. Carroll v. State, 975 S.W.2d 630, 631-32, 632 n. 1 (Tex. Crim. App. 1998); Williams v. State, 674 S.W.2d 315, 318 (Tex. Crim. App. 1984); Ricondo v. State, 634 S.W.2d 837, 841 (Tex. Crim. App. 1982)(op. on reh'g); Basaldua v. State, 481 S.W.2d 851, 853 (Tex. Crim. App. 1972). Because a guilty plea admits the existence of all facts necessary to establish the defendant's guilt, the duty of the fact finder is to assess punishment. Carroll, 975 S.W.2d at 632; In re State ex rel. O'Connell, 976 S.W.2d 902, 910 (Tex. App.--Dallas 1998, orig. proceeding).

We have found no law, either case law or statutory law, supporting the notion that the defendant has an absolute right to enter his guilty plea before impaneling a jury for the punishment phase. Appellant's sole issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

31st day of August, 2000.