Arch Ray Clark v. State

Affirmed and Memorandum Opinion filed September 2, 2008

Affirmed and Memorandum Opinion filed September 2, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00276-CR

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ARCH RAY CLARK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 1073668

M E M O R A N D U M   O P I N I O N

Appellant, Arch Ray Clark, pleaded Aguilty@ to the offense of violation of a protective order.  The trial court assessed punishment of two years= confinement.  All dispositive issues are clearly settled in law.   Accordingly, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I. Background

On February 22, 2006, the 257th District Court of Harris County entered a protective order prohibiting appellant from, inter alia, committing family violence against Misa Phillips, communicating directly with Phillips in a threatening or harassing manner, or engaging in conduct directed specifically toward Phillips that was likely to harass, annoy, alarm, abuse, torment, or embarrass Phillips.  On June 21, 2006, the State charged appellant with violating the protective order.

Appellant pleaded Aguilty@ and signed: (1) a written AWaiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession@ wherein he Awaive[d] the right of trial by jury@; and (2) written admonishments waiving Aall rights given to [appellant] by law@ and the Aright to a jury in this case.@  There was no agreed recommendation regarding punishment.  The trial court accepted appellant=s plea and found him guilty.

The trial court reset the case and ordered a pre-sentence investigation (APSI@) report.  At the punishment hearing, appellant and the State presented evidence, and the trial court assessed punishment of two years= confinement.

II. Analysis

In two issues, appellant contends (1) the trial court erred by assessing punishment because appellant did not validly waive his statutory right to have punishment decided by a jury, and (2) the trial court=s sentence violated appellant=s rights to due process of law under the United States Constitution and due course of law under the Texas Constitution.

A.        Texas Code of Criminal Procedure Article 26.14

A criminal defendant has no constitutional right to have a jury determine punishment.  Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006).  However, in Texas, a criminal defendant has a statutory right to have punishment decided by a jury unless the right is validly waived.  See Tex. Code Crim. Proc. art. 26.14 (Vernon 1989).

Appellant cites Smith v. State, in which the court held that waiver of the right to trial by jury on the issue of guilt does not necessarily waive the right to jury assessment of punishment.   See Smith v. State, 223 S.W.3d 690, 693 (Tex. App.CTexarkana 2007, no pet.).   Appellant argues he did not validly waive the statutory right provided by article 26.14 because he did not execute an express waiver.  However, we conclude Smith is factually distinguishable from this case.

Under the unique facts of Smith, the defendant=s written waiver originally stated AI give up my right to a jury both as to my guilt and assessment of my punishment.@  Id.  However, on the signed waiver form, the defendant crossed out the phrase Aand assessment of my punishment.@  Id.  Because the defendant struck this language, the Smith court held that the defendant maintained his statutory right to have a jury assess punishment, despite waiving his right to a jury trial on guilt.  Id.  By contrast, in this case, appellant signed a waiver stating AI waive the right of trial by jury.@  Further, appellant signed written admonishments waiving Aall rights given to [appellant] by law@ and the Aright to a jury in this case.@  Such written waivers, voluntarily signed, are sufficient to waive appellant=s statutory right to have a jury determine punishment.  See Edwards v. State, 663 S.W.2d 142, 143B44 (Tex. App.CHouston [1st Dist.] 1983, no pet.) (holding that defendant=s waiver of his Aright to a trial by jury in the case@ waived defendant=s rights to have jury assess guilt and punishment); see also Richard v. State, No. 14-07-00076-CR, 2008 WL 123873, at *1B2 (Tex. App.CHouston [14th Dist.] May 14, 2008, pet. ref=d) (mem. op.) (holding signed written plea waiving right to trial by jury coupled with signed written admonishments waiving Aall rights to [appellant] by law@ and the Aright to a jury trial in this case@ constituted valid waiver of article 26.14 right to have jury assess punishment).

Further, we note that under article 42.12, section 9, the court is required to order a PSI when it assesses punishment.  See Tex. Code Crim. Proc. art. 42.12, ' 9(a) (Vernon Supp. 2008).  In this case, appellant agreed to the preparation and publication of a PSI and participated in the court=s punishment hearing without objection.  Accordingly, the record indicates appellant knowingly, intelligently, and voluntarily waived his statutory right to have a jury assess punishment.  Appellant=s first issue is overruled.

B.        Due Process  

In his second issue, appellant contends the trial court=s sentence violated his rights to due process of law under the United States= Constitution and due course of law under the Texas Constitution.  Appellant argues that the trial court misunderstood terms of the protective order and its misunderstanding unduly affected assessment of punishment.

A court violates a defendant=s due process rights if it assesses a predetermined sentence, arbitrarily refuses to consider the entire punishment range, or refuses to consider mitigating evidence when determining punishment.  See McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983), overruled on other grounds by De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004).  However, when a defendant waives a jury trial, the trial court has discretion to assess punishment within the range provided by law.  Morano v. State, 572 S.W.2d 550, 551 (Tex. Crim. App. 1978).  Typically, assessment of punishment within the statutory range provided by the legislature will not be an abuse of discretion.  Id.;  Baldridge v. State, 77 S.W.3d 890, 893B94 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d.).  Further, when the trial court assesses punishment, the question of whether an accused is entitled to probation rests absolutely within the trial court=s discretion pursuant to the guidelines of the Code of Criminal Procedure, and no authority exists requiring that the accused receive such clemency.  See Rodriguez v. State, 502 S.W.2d 13, 14 (Tex. Crim. App. 1973).

In this case, although appellant disagreed with the trial court regarding the type of conduct proscribed under the protective order, he did not present a timely request, objection, or motion to complain regarding any alleged violation of due process under the federal constitution or violation of due course of law under the state constitution.  See Tex. R. App. P. 33.1.  Appellant=s failure to timely present these complaints to the trial court resulted in waiver of any error.  See id.

However, even assuming arguendo that the issue had been preserved, we cannot conclude the trial court abused its discretion in assessing appellant=s sentence.  Here, the protective order prohibited appellant from committing violence, communicating directly in a threatening or harassing manner, or engaging in conduct that was likely to harass, annoy, alarm, abuse, torment, or embarrass Phillips.  During appellant=s punishment hearing, the following exchange occurred:

THE COURT: And when was the last time that you communicated with [your children]?

APPELLANT: I haven=t communicated with them since September of >06.

THE COURT: And then what about your wife?

APPELLANT: I haven=t communicated with her since just after . . . in jail I had a phone call, which I believe was in January.

APPELLANT=S COUNSEL: What was the purpose of that?

APPELLANT: The purpose of that was just to - -

APPELLANT=S COUNSEL: Have her appear at your plea date?

APPELLANT: Yes.

. . .

THE COURT: Okay.  Why didn=t you just get your lawyer to do that?

APPELLANT: I=m sorry?

THE COURT: Why didn=t you get your lawyer to do that?

APPELLANT: Well, he=s been handling all these, you know, details.

THE COURT: I mean, you were in custody because you=re having phone contact with her and then you called her from the jail?  I mean, did I hear that right?  Is that what you said?

APPELLANT: Well, I called - - I made one phone call from the jail, from here.  I felt that I didn=t - -

THE COURT: To her.

APPELLANT: Well, there was - -

THE COURT: Is that right?

APPELLANT: Yes.  But as far as I understood, your Honor, there wasn=t an order that I not make a phone call to her at that time.

THE COURT: Wow, [appellant].  What is it about no contact that you don=t get?  There=s still a protective order in place.

APPELLANT: But the protective order that I was under didn=t stipulate no contact whatsoever.  It stipulated I could not go within a certain distance of the house and her place of employment and so on and so forth.  It didn=t stipulate I could not speak to her or be anywhere near her person.

THE COURT: But remember when your bond got raised because you were having phone contact with her.  That=s when you went back to jail.  And then from jail you called her again.

APPELLANT: Well, I did, in fact, call her, your Honor; but it wasn=t because I knowingly violated any kind of order.  At that time I was not aware that I was under an order that forbode [sic] me from calling her.  If I may, your Honor, the order that I was under - -

THE COURT: Just as a suggestion, it might have been a really good idea to check on that before you made that call.

APPELLANT: Yes.

Appellant contends this exchange demonstrates the sentence assessed was unduly influenced by the trial court=s misunderstanding of terms in the protective order. However, we cannot conclude from this record that the trial court=s misunderstanding, if any, of terms in the protective order unduly affected the sentence.  During the punishment hearing, appellant admitted to charges in the indictment; namely, striking Phillips with his hand, in violation of the protective order.  Additionally, the record indicates that appellant was previously convicted for the offense of assault on a family member.  Further, under the Penal Code, violation of a protective order by committing an assault is classified as a third degree felony, punishable by a term of imprisonment not less than two years or more than ten years.  See Tex. Pen. Code Ann. ' 25.07 (Vernon 2003 & Supp. 2008); Tex. Pen. Code Ann. ' 12.34 (Vernon 2003). After appellant pleaded Aguilty@ to felony violation of a protective order, the trial court sentenced him incarceration for two yearsCthe minimum sentence prescribed by the Penal Code.  See Tex. Pen. Code Ann. ' 12.34.  Finally, as stated above, there is no authority requiring the trial court to impose community supervision or deferred adjudication.  See Rodriguez, 502 S.W.2d at 14.

Accordingly, we cannot conclude the trial court abused its discretion in assessing punishment.  Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed September 2, 2008.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).