Jerry Paul Lundgren v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00085-CR
JERRY PAUL LUNDGREN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY COURT AT LAW OF WISE COUNTY
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DISSENTING OPINION
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I cannot join the majority’s thoughtful opinion and must respectfully dissent.
This court has repeatedly held that when a defendant is placed on
community supervision, even as the result of a plea bargain, that defendant must
file a motion for new trial to complain of conditions of community supervision,
involuntariness of a negotiated plea, or ineffective assistance of counsel or that
the punishment is infirm. 1 Yet the majority now says that because Appellant
entered into a negotiated plea and waived his right of appeal, he cannot do what
we have told him he must do to preserve certain claims: pursue a motion for new
trial. 2 The reason given is that he cannot benefit from a rule of procedure that is
meant to make pursuit of certain complaints more onerous. 3 The majority also
suggests that Appellant was bound by the conditions of community supervision
until he filed his motion for new trial, and then he may have been relieved of
those obligations until the motion for new trial was overruled by operation of law. 4
The majority also states that we must disregard the final judgment stating that
1
See Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001)
(“[M]eritorious claims of involuntary pleas may be raised by other procedures:
motion for new trial and habeas corpus.”); Donovan v. State, No. 02-11-00033-
CR, 2012 WL 3030562, at *2–3 (Tex. App.—Fort Worth July 26, 2012, no pet. h.)
(motion for reh’g and reh’g en banc pending) (holding that “[t]o preserve error for
appellate review [regarding conditions of community supervision], a party must
make a timely and specific objection or motion at trial,” “[pursue a] motion to
amend” or “present[] written objections to the trial court at any point between the
time the conditions [are] imposed and the adjudication hearing”; Kim v. State,
283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (holding failure to
object to sentence at time of imposition or to complain of sentence in motion for
new trial forfeits complaint); Edwards v. State, 280 S.W.3d 441, 443 (Tex. App.—
Fort Worth 2009, pet. ref’d) (“The record before us contains no motion for new
trial. Although a motion for new trial is not a prerequisite to a successful
ineffective assistance of counsel claim, evidence presented at a motion for new
trial hearing may offer insight into defense counsel’s motives behind her actions
and may rebut the strong presumption of reasonable professional assistance.”).
2
See Majority Op. at 8.
3
See id.
4
See id. at 7–8.
2
community supervision terms did not commence until June 22, slightly more than
five months after Appellant’s January 14 arrest. 5 Would the majority hold that
Appellant’s community supervision could be revoked for a violation that occurred
before he filed the motion for new trial that we have held is required had that
motion for new trial been granted on grounds of an involuntary plea, ineffective
assistance of counsel, or the trial court’s failure to comply with the plea bargain
agreement?
The Texas Court of Criminal Appeals has explained that when, at the time
of sentencing for the primary offense, the defendant still had time to file a motion
for new trial in the proceeding involving the prior conviction, the prior conviction
was not final and “was subject to being vitiated merely by the defendant’s
subsequent filing of a motion for new trial or a notice of appeal.” 6
Similarly, in the case now before this court, Appellant waived his right to
appeal but did not waive his right to file a motion for new trial. The judgment in
the case was not final until mandate issued. 7 The final judgment states that the
terms of community supervision began on June 22. The new offense occurred
the previous January. No one claims that the prior judgment was final on
January 14 for the purpose of affecting sentencing in another trial. And although
5
See id. at 9.
6
Milburn v. State, 201 S.W.3d 749, 752–54 (Tex. Crim. App. 2006).
7
See Ex parte Johnson, 12 S.W.3d 472, 473 (Tex. Crim. App. 2000) (“Prior
to the mandate, a judgment is not final.”).
3
the violation occurred before Appellant filed his motion for new trial, the State did
not file its petition to proceed to adjudication until after Appellant had filed his
motion for new trial.
I frankly do not understand the majority’s hypothetical stalking and
Washington marijuana scenarios. 8 Nor do I understand the majority’s conclusion
that
the filing of the motion for new trial in each of these cases [stalking
and going to Washington to possess marijuana] retroactively stamps
a "King's X” on these clear and intentional violations of the terms and
conditions of community supervision and eviscerates the trial court’s
power to enforce its order. Not only would Appellant’s position
forgive all these past violations, but the defendants in our
hypotheticals would have free reign to continue these transgressions
for up to 75 days after their community-supervision sentences are
imposed. 9
Specifically, I do not understand the majority’s statement that Appellant’s
“interpretation of the law would obligate a trial court to release a defendant
placed on community supervision and risk that the defendant will commit a
catastrophic violation.” 10 Catastrophic violation? What does that mean? A new
offense? Would not the penal code be as effective a deterrent as a condition of
community supervision when the maximum punishment on the primary offense
8
See Maj. Op. at 12–14.
9
Id. at 13.
10
Id. at 14.
4
has already been set at 365 days? A catastrophic failure to pay fees? A
catastrophic failure to report?
Respectfully, if we abandon the rules of procedure to avoid “retroactively
stamp[ing] a ‘King’s X’” on violations of terms and conditions of community
supervision, we take an inappropriate shortcut that undermines the rule of law.
Lundgren waived his right to appeal. If the State had wanted to condition the
plea bargain on the conviction’s becoming final immediately upon suspending
imposition of sentence and placing Lundgren on community supervision, the
State could have conditioned the agreement on waiver of filing a motion for new
trial as well as upon waiver of appeal. If the trial court had wanted the terms and
conditions of community supervision to be immediately binding, the trial court
could have released Appellant on a personal bond with the conditions of
community supervision imposed as conditions of bond. Neither the State nor the
trial court took such action.
Nor do I understand why Appellant would have had “free reign to continue
these transgressions for up to 75 days.” All the trial court had to do was to deny
the motion for new trial immediately rather than choosing to wait for the motion to
be overruled by operation of law.
Appellant used rules of procedure to his benefit. The majority holds that
he cannot use the rules of procedure to manipulate the system for his benefit.
Respectfully, the rules do not change just because a defendant, or the State for
that matter, reaps an unintended benefit that we do not approve of. The
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application of statutes, rules of evidence, and even rules of procedure must be
consistent, no matter who benefits. Normally, a judgment means what it says. 11
Normally, a defendant may file a motion for new trial. 12 Normally, a judgment is
not final until mandate has issued, which has still not happened in the case
before us. Do we add the caveat that these rules apply unless Appellant
benefits?
Respectfully, I must dissent.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: August 22, 2013
11
See Gonzales v. State, 309 S.W.3d 48, 52 (Tex. Crim. App. 2010) (“As
our analysis shows, the court of appeals’ conclusion that the 1987 judgment was
not a final conviction conflicts with a plain reading of the instrument itself.”).
12
See Tex. R. App. P. 21.
6