DocketNumber： 10-09-00360-CR
Filed Date： 3/10/2010
Status： Precedential
Modified Date： 5/4/2016
IN THE
TENTH COURT OF APPEALS
No. 10-09-00360-CR
Cheyenne Pate,
Appellant
v.
The State of Texas,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 8660-A-1
ABATEMENT ORDER
The trial court memorialized its denial of Cheyenne Pate’s motion for postconviction DNA testing by a docket entry. Because this docket entry does not constitute an appealable order, Pate’s notice of appeal is premature, and we will abate this appeal for entry of a written order and a certification of the defendant’s right of appeal.
The time to perfect an appeal in such a case runs from the date “the trial court enters an appealable order.” Tex. R. App. P. 26.2(a)(1). A court “enters an appealable order” in this context by signing a written order memorializing its ruling. See State v. Shaw, 4 S.W.3d 875, 877-78 (Tex. App.—Dallas 1999, no pet.); State v. Acosta, 948 S.W.2d 555, 556 (Tex. App.—Waco, order) (per curiam). A docket sheet entry does not constitute an appealable order. State v. Garza, 931 S.W.2d 560, 562 (Tex. Crim. App. 1996); State v. Cox, 235 S.W.3d 283, 285 (Tex. App.—Fort Worth 2007, no pet.); Shaw, 4 S.W.3d at 878.
Because there is no written order, Pate’s notice of appeal is premature. See Tex. R. App. P. 27.1(b); State v. Brown, 187 S.W.3d 839, 840 (Tex. App.—Waco 2006, order) (per curiam). Nevertheless, it appears that the trial court intended to render an appealable order. Therefore, we abate this cause to the trial court for further consideration. See Brown, 187 S.W.3d at 840. If the court intended to render an appealable order, then it should sign and enter an appropriate written order to effectuate its intent. Id.
In addition, we note that no certification of the defendant’s right of appeal is included in the clerk’s record. Rule of Appellate Procedure 25.2(a)(2) provides in pertinent part, “The trial court shall enter a certification of the defendant’s right of appeal each time it enters a judgment of guilt or other appealable order.” Tex. R. App. P. 25.2(a)(2) (emphasis added). Subsection (d) of the same rule then provides in pertinent part:
The certification should be part of the record when notice is filed, but may be added by timely amendment or supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order of the appellate court under Rule 34.5(c)(2). The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules.
Id. 25.2(d).
Therefore, if the trial court intended to render an appealable order, then it must also sign and enter a certification of the defendant’s right of appeal. See 25.2(a)(2), (d), 34.5(c)(2).
The trial court shall, within twenty-one days after the date of this Order: (1) conduct a hearing if necessary; (2) make and sign appropriate orders and a certification of the defendant’s right of appeal, if applicable; and (3) deliver any such signed documents to the trial court clerk. See Brown, 187 S.W.3d at 840-41.
The trial court clerk shall: (1) prepare a supplemental clerk’s record containing all orders and any certification of the defendant’s right of appeal which the trial court renders or makes; and (2) file the supplemental clerk’s record with the Clerk of this Court within thirty days after the date of this Order. Id.
PER CURIAM
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray dissenting)
Appeal abated
Order issued and filed March 10, 2010
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[CRPM]
pan style="font-size: 12pt"> Appellant was formally charged with three counts of aggravated sexual assault. Due to an inability of the parties to reach a plea agreement, the case was set on the court’s contested docket. Thereafter, the defense filed several pre-trial motions, including a motion requesting notice of the State’s intent to offer evidence of extraneous offenses and a request that punishment be assessed by a jury.
The court called Appellant’s case for trial on October 24, 1997 and assembled a venire panel. Appellant’s counsel requested a recess, after which he indicated to the court that Appellant wished to change his plea and withdraw his prior election for a jury assessment of punishment in favor of assessment by the court. The State then apprized the court of its agreement to waive counts two and three of the indictment in exchange for Appellant’s plea of guilty. The court admonished Appellant in accordance with Article 26.13(b) of the Texas Code of Criminal Procedure and accepted Appellant’s guilty plea. The sentencing hearing was set for the following week.
At the sentencing hearing, the State’s primary witness was the complainant. She testified that Appellant began abusing her when she was eight years old, soon after Appellant moved in with her mother. She indicated that the abuse began with inappropriate touching of her genitalia. According to her testimony, the complainant was too frightened to report the incidents due to threats made by the Appellant. When the complainant was approximately twelve years old, the abuse escalated to forced sexual intercourse. She reiterated that her failure to report the abuse was caused by her continual fear of the Appellant, who threatened to “kill [her]” and “burn down [her] house” if she ever revealed his conduct to anyone. The complainant’s family became aware of the abuse only after the complainant became pregnant at age 14.
The State’s other witness at the sentencing hearing was Detective D.Y. Dillard, the arresting officer. Dillard testified that he advised Appellant of his rights and took a statement from him soon after his arrest. The State introduced Appellant’s statement, which was admitted into evidence without objection. The statement reflects Appellant’s position that the complainant initiated sexual relations with him. The State called no further witnesses and the defense rested without having called any. The court sentenced Appellant to 75 years incarceration.
Appellant filed a motion for new trial in which he challenged, among other things, the voluntariness of his guilty plea. Appellant requested a hearing, but the motion was overruled by operation of law and Appellant appealed. We ordered the appeal abated for a hearing on Appellant’s motion for new trial, so that a record could be developed regarding Appellant’s claim that his guilty plea was involuntary. Ainsworth v. State, 10-97-397-CR (Tex. App.—Waco May 12, 1999, order)(not designated for publication). After a hearing, the trial court denied the motion and forwarded the record. We now consider Appellant’s remaining issues presented for review.
ISSUES PRESENTED
In his first issue, Appellant complains that the trial court erroneously admitted evidence of the complainant’s pregnancy in violation of Article 37.07(3)(g) of the Texas Code of Criminal Procedure. In his remaining issues, Appellant contends that his ingestion of prescription medication on the day of his guilty plea rendered his plea involuntary and therefore the trial court abused its discretion in failing to order a new trial.
EXTRANEOUS CONDUCT EVIDENCE UNDER ARTICLE 37.07(3)(g)
Before trial, Appellant filed a motion under Article 37.07(3)(g) of the Texas Code of Criminal Procedure requesting that the State provide notice of its intent to introduce evidence of extraneous offenses during the punishment phase.
In response, the State filed a “Notice of Intent to Introduce Extraneous Conduct.” Among the various allegations contained therein, the State included an allegation that “[i]n 1991, in Tarrant County, Texas, Defendant penetrated the female sexual organ of [complainant], a child under 14 years of age, with his penis on more than one occasion.” The notice further revealed the State’s intent to introduce evidence that “[e]ach of the above acts occurred also in 1992, 1993, 1994, and 1995 on many occasions, all in Tarrant County, Texas.”
During the punishment phase, the prosecutor questioned the complainant regarding events transpiring after Appellant moved out of her residence, and the complainant responded that she became pregnant. Defense counsel objected on grounds that the State failed to provide notice under Article 37.07 of its intent to introduce evidence of the complainant’s pregnancy. Although the objection was sustained, the prosecutor was allowed to question the complainant regarding the circumstances surrounding her pregnancy, at which time she indicated that it was the result of non-consensual sexual intercourse with the Appellant. The trial court then changed its ruling and overruled Appellant’s Article 37.07 objection. Appellant asserts that the trial court’s allowance of this line of questioning violated Article 37.07 of the Code of Criminal Procedure.
Article 37.07(3)(a) permits the State to introduce evidence “as to any matter the court deems relevant to sentencing,” including evidence of extraneous crimes or bad acts shown beyond a reasonable doubt to have been committed by the defendant. Tex. Crim. Proc. Code Ann. art. 37.07 § 3(a) (Vernon Supp. 2000).
Article 37.07(3)(g) states:
On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Criminal Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.
Id. § 3(g)(Vernon Supp. 2000). The purpose of section 3(g) is to avert unfair surprise by allowing the defendant sufficient time to prepare in advance for the introduction of the extraneous conduct evidence at trial. Nance v. State, 946 S.W.2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d).
The document filed by the defendant in this case was styled a “Motion for Notice of Rule 404(b) T.R.C.E. (Other Crimes) and Article 37.07, T.C.C.P. Punishment Evidence (Extraneous Offenses).” It was addressed “To The Honorable Judge of Said Court,” and included a form order with a space to indicate whether the motion was granted or denied as well as a space for the signature of the “presiding judge.” Although the State timely provided notice of its intent to introduce Article 37.07 evidence, the defendant failed to obtain a ruling on its motion. The Court of Criminal Appeals has recently reaffirmed its position that a motion requesting court action is insufficient to give rise to a corresponding duty on the part of the State to provide notice under Article 37.07. See Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998); Simpson v. State, 991 S.W.2d 798 (Tex. Crim. App. 1998). The Mitchell court noted that “the opposite rule could encourage defendants to bury requests in voluminous motions, hoping the State would either overlook it or believe it [sic] the request to be contingent on a court order.” See Mitchell, 982 S.W.2d at 427. Because it was presented as a motion requesting action on the part of the trial court, and because Appellant never secured a ruling from the trial court, Appellant’s request for notice was insufficient to trigger a duty on the part of the State to provide the notice requested. Appellant cannot now be heard to complain that the notice provided by the State failed to reveal the State’s intent to introduce evidence of the complainant’s pregnancy. Appellant’s first issue is overruled.
VOLUNTARINESS OF APPELLANT’S GUILTY PLEA
In his remaining issues, Appellant asserts that his guilty plea was involuntary as a result of his ingestion of certain prescription medications on the day of his plea. Therefore, Appellant argues, the trial court’s failure to order a new trial violated the 5th and 14th Amendments to the U.S. Constitution, Article 1 § 19 of the Texas Constitution, and Article 26.13(b) of the Texas Code of Criminal Procedure.
In order to comply with the requirements of Constitutional due process, a guilty plea must be voluntarily and intelligently made. See Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). To achieve this end, the Code of Criminal Procedure requires that the court admonish the defendant in accordance with Article 26.13 prior to accepting a guilty plea. See Tex. Code Crim. Proc. Ann. art 26.13. Substantial compliance with Article 26.13 shifts the burden to the defendant to make an affirmative showing that his plea was involuntary. Id. art 26.13(c). Such a showing requires proof that Appellant lacked either the ability to consult with his lawyer with a reasonable degree of rational understanding, or a rational and factual understanding of the proceedings against him. See Tex. Code. Crim. Proc. Ann. art. 46.02 § 1A(a) (Vernon Supp. 2000); Arista v. State, 2 S.W.3d 444, 446 (Tex. App.—San Antonio 1999, no writ). When considering whether the trial court abused its discretion in failing to order a new trial based on Appellant’s claim of an involuntary plea, we examine the record as a whole. Williams v. State, 522 S.W.2d 483, 486 (Tex. Crim. App. 1975).
The pertinent record in this case consists of Appellant’s plea hearing and the hearing on Appellant’s motion for new trial. At the plea hearing, Appellant’s counsel called the Appellant to the stand in an effort to establish his understanding of the circumstances surrounding the decision to plead guilty. Appellant affirmed that, due to his religious convictions and contrary to advice of counsel, he had originally decided to reject the State’s plea offer of 35 years and was prepared to go to trial. Appellant also affirmed that, upon further consultation with defense counsel, he had agreed to change his plea to that of guilty with full understanding that the State had withdrawn its former offer. The court then proceeded to admonish the Appellant on the record according to Article 26.13 of the Code of Criminal Procedure, emphasizing that the lack of a plea agreement availed the court of the full range of punishment. After Appellant repeatedly affirmed his understanding of the consequences of his plea, the court accepted the plea and set a sentencing hearing.
The only evidence brought forth by Appellant at the hearing on his motion for new trial was his own testimony. He testified that on the day of his plea, he had been administered 250 milligrams of Thorazine and 200 milligrams of Prozac. He claimed that the medication slowed his thinking and speech so that he could not fully understand what was being said to him during the proceedings. However, appellant also testified that he heeded his attorney’s advice that it would be favorable to plead guilty to count one of the indictment in exchange for the State dropping counts two and three.
Appellant’s trial counsel, Mr. Ed Canas, was called by the State and testified at the hearing. Mr. Canas testified that, in the course of his representation of Appellant, he had communicated each of the State’s plea offers to Appellant and discussed the nature of an “open plea” and the range of punishment to which Appellant could potentially be subjected. He further indicated that Appellant appeared to understand the plea proceedings and exhibited no signs of mental deficiency. Most notably, Mr. Canas testified that the ultimate decision to plead guilty was Appellant’s, and was motivated in large part by the State’s agreement to drop counts two and three of the indictment, each of which carried a potential life sentence.
Considering the entire record, the trial court could properly have concluded that Appellant maintained the ability to consult with his counsel to a reasonable degree of rational understanding of the proceedings. He therefore failed to rebut the presumption that his plea was entered knowingly and voluntarily. The trial court did not abuse its discretion in overruling Appellant’s motion for new trial.
The judgment of the trial court is affirmed.
TOM GRAY
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed August 23, 2000
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