Joshua Michael Long v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-15-00206-CR
NO. 09-15-00207-CR
NO. 09-15-00208-CR
NO. 09-15-00209-CR
_________________
JOSHUA MICHAEL LONG, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 13-01-00100-CR (Counts I, II, III, and IV)
__________________________________________________________________
MEMORANDUM OPINION
Appellant Joshua Michael Long appeals from the revocation of his deferred
adjudication community supervision and imposition of sentence for four counts of
possession of child pornography. In a single issue 1, Long argues that the trial court
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The trial court certified Long’s right to appeal from the judgment
adjudicating guilt, stating that this case “is not a plea-bargain case[,] and the
[d]efendant has the right of appeal[] as to punishment only.” (Italicized language
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erred when it denied defense counsel’s request to make an opening statement
during the hearing on the State’s motion to adjudicate guilt. We affirm.
Background
Long was charged by indictment with four counts of possession of child
pornography, a third-degree felony. See Tex. Penal Code Ann. § 43.26(a) (West
Supp. 2015).2 On February 4, 2014, Long entered pleas of guilty to all four counts.
handwritten in original). The record reflects that Long signed a waiver of his right
to appeal on February 4, 2014, prior to the trial court placing him on deferred
adjudication community supervision. Long executed the waiver without a plea
agreement or sentencing recommendation from the State; thus, the record does not
appear to show that the State gave any consideration for the waiver. There is also
no indication that Long signed a separate waiver of his right to appeal at any time
after the original plea proceeding. In order for a pre-sentencing waiver of the right
to appeal to be valid, the waiver must be part of a plea agreement containing an
agreement on punishment or the State must have given the defendant consideration
in exchange for the waiver. See Washington v. State, 363 S.W.3d 589, 589–90
(Tex. Crim. App. 2012) (per curiam); Ex parte Broadway, 301 S.W.3d 694, 697–
99 (Tex. Crim. App. 2009); Ex parte Delaney, 207 S.W.3d 794, 798–99 (Tex.
Crim. App. 2006). Because there is nothing in the record to indicate that Long’s
written waiver was bargained for, that any agreement existed as to Long’s
punishment, or that any consideration was given by the State for the waiver, we
conclude that Long’s waiver of his right to appeal is not enforceable. See
Washington, 363 S.W.3d at 589–90; Broadway, 301 S.W.3d at 697–99; Delaney,
207 S.W.3d at 798–99. Therefore, Long’s appeal is fully before this Court, and we
will not limit its scope as suggested by the trial court’s handwritten addendum to
the certification. See Nichols v. State, 349 S.W.3d 612, 615 (Tex. App.—
Texarkana 2011, pet. ref’d).
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The indictment alleged that Long committed the offenses at issue on or
about December 10, 2012. We note that the Texas Legislature amended section
43.26 of the Texas Penal Code in 2013 and 2015. Because the amended portions of
2
On May 23, 2014, the trial court found the evidence sufficient to find Long guilty
on each count, but the court deferred further proceedings without entering an
adjudication of guilt and placed Long on community supervision for a period of ten
years.
On November 13, 2014, the State filed a motion to adjudicate Long’s guilt,
alleging in ten counts that Long had violated the conditions of his community
supervision. Thereafter, the trial court held a hearing on the State’s motion to
adjudicate, during which Long entered pleas of “true” to seven of the counts
alleged in the State’s motion and “not true” to the remaining three counts. After
receiving evidence, the trial court found the allegations in five of the counts
alleged in the motion to adjudicate to be true. The trial court adjudicated Long
guilty of all four counts of possession of child pornography, sentenced him to nine
years in prison for each count, and ordered the sentences to be served
consecutively. This appeal followed.
Opening Statement
In his sole issue, Long argues that the trial court erred when it denied
defense counsel’s request to make an opening statement during the hearing on the
State’s motion to adjudicate guilt. At the outset of the adjudication hearing, before
the statute do not affect the disposition of this appeal, we cite to the current code
provision.
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the State began its presentation of evidence, the trial court called for the State to
make an opening statement. The prosecutor responded, “Judge, I’ll waive
opening.” Long then entered his pleas to the allegations contained in the State’s
motion to adjudicate. Immediately thereafter, defense counsel stated, “Judge, I’d
like to make a little opening argument even though [the prosecutor] waived hers.”
The trial court denied this request, stating: “You cannot. Unfortunately, if the State
doesn’t make an opening, you don’t have the right [to] make one either.” Long
claims that his attorney’s request to make an opening statement was timely and that
the trial court’s denial of that request constituted reversible error.
“The right to make an opening statement is a statutory right and not a
constitutional imperative or mandate.” Moore v. State, 868 S.W.2d 787, 788–89
(Tex. Crim. App. 1993). To support his argument that he had a right to make an
opening statement during the hearing on the State’s motion to adjudicate guilt,
Long relies on Espinosa v. State, which addressed a defendant’s right to present an
opening statement under article 36.01 of the Texas Code of Criminal Procedure.
29 S.W.3d 257, 258–60 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). Article
36.01 grants the defendant a statutory right to present an opening statement to the
jury. See Tex. Code Crim. Proc. Ann. art. 36.01(a)(5), (b) (West 2007). Under
article 36.01, defense counsel is entitled to make an opening statement either
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“immediately after the attorney representing the State makes the opening statement
for the State[,]” or immediately after the presentation of the State’s evidence. Id.;
accord Moore, 868 S.W.2d at 789. However, if the State chooses to waive its
opening statement, article 36.01 only entitles the defendant to make an opening
statement after the State concludes its presentation of evidence. Moore, 868
S.W.2d at 790–91. A trial court’s denial of a timely request to make an opening
statement under article 36.01 amounts to the “denial of a valuable right, and may
constitute error.” Id. at 789.
Article 36.01, however, specifies the order of proceedings in the guilt-
innocence stage of a criminal action before a jury. See Tex. Code Crim. Proc. Ann.
art. 36.01(a) (“A jury being impaneled in any criminal action . . . , the cause shall
proceed in the following order . . . .”); accord Penry v. State, 903 S.W.2d 715, 760
(Tex. Crim. App. 1995) (concluding that “[a]rticle 36.01 sets out the order of
proceedings at the [guilt-innocence] phase of trial” and “does not apply to the
punishment phase of trial”); Moore, 868 S.W.2d at 789 (“Article 36.01 sets out the
order of proceeding in any criminal action involving a jury[.]”); Reed v. State, 500
S.W.2d 497, 499 (Tex. Crim. App. 1973) (concluding that article 36.01 “specifies
the order of proceeding in a jury trial” and does not address the procedures
applicable in the penalty stage of a bifurcated trial when punishment is tried to the
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court alone); Clardy v. State, 436 S.W.2d 535, 537 (Tex. Crim. App. 1968)
(concluding that article 36.01 “relates to the order of proceeding in a jury trial” and
“has no reference to the procedure when the case is one in which a jury can be and
has been waived”); Love v. State, 69 S.W.3d 678, 680 (Tex. App.—Texarkana
2002, pet. ref’d) (noting that article 36.01 governs the guilt-innocence phase in a
jury trial); Thornton v. State, 957 S.W.2d 153, 156 (Tex. App.—Fort Worth 1997),
aff’d, 986 S.W.2d 615 (Tex. Crim. App. 1999) (“Article 36.01 guides only a trial
by jury.”). It has no application in a hearing to adjudicate guilt and assess
punishment that is conducted by the trial court in the absence of a jury. See Tex.
Code Crim. Proc. Ann. art. 36.01; cf. Detrich v. State, 545 S.W.2d 835, 837 (Tex.
Crim. App. 1977) (concluding that the requirements of article 36.01 “have no
application to hearings on motions to revoke” probation); Campbell v. State, 456
S.W.2d 918, 919–20 (Tex. Crim. App. 1970) (noting that article 36.01 does not
address the procedures that apply in a hearing on a motion to revoke probation).
Long has failed to cite, and we have not found, any statutory provision that
provides a defendant with the right to make an opening statement in a hearing to
adjudicate guilt or to assess the punishment of a defendant who has been placed on
deferred adjudication community supervision. See Tex. Code Crim. Proc. Ann.
arts. 37.03, § 3(d) (setting forth procedures applicable when the trial judge assesses
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punishment), 42.12, § 5(b) (West Supp. 2015) (setting forth procedure to be
followed when the defendant is alleged to have violated a condition of deferred
adjudication community supervision, including procedure for a hearing to
adjudicate guilt). We conclude that the trial court did not err in denying defense
counsel’s request to make an opening statement during the adjudication hearing.
We overrule Long’s sole issue and affirm the judgments of the trial court.
AFFIRMED.
__________________________________
CHARLES KREGER
Justice
Submitted on February 12, 2016
Opinion Delivered April 13, 2016
Do not publish
Before Kreger, Horton, and Johnson, JJ.
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