Opinion
No. 2-04-427-CR
Delivered: June 29, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from the 213th District Court of Tarrant County.
Panel A: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
Appellant, Oscar Eric Galvan, appeals his conviction for sexual assault of a child. In two points, he complains that the trial court erred by (1) improperly admonishing him, which rendered his guilty plea involuntary, and (2) failing to submit sex offender conditions of community supervision in the jury charge. Appellant, who was twenty-four, and complainant, who was fifteen, became acquainted through the internet, and later began to have lengthy telephone conversations. Complainant lived in Victorville, California, and appellant lived in Fort Worth, Texas. Appellant eventually decided to drive to California with his cousin to retrieve complainant. After they picked up complainant in California, appellant and his cousin drove her back to Fort Worth, where appellant rented a room at a motel, and he and complainant engaged in sexual intercourse. Appellant pleaded guilty to sexual assault of a child under seventeen. After hearing all the evidence, a jury assessed his punishment at seven years' confinement plus a $5,000 fine. Before this case was submitted on appeal, the State challenged the accuracy of the reporter's record with respect to the trial court's admonishments and appellant's request for jury instructions and asked for an extension of time to file its brief. Appellant did not respond to the State's motion. The State filed a joint certificate of conference and service, stating that appellant's counsel had no objection to the extension of time and that appellant's counsel did not agree that the reporter's record contained any inaccuracies that needed to be corrected. We abated this appeal and directed the trial court to conduct a hearing to determine whether the reporter's record accurately reflected that (1) before appellant entered his guilty plea, the trial court admonished him that he was charged with indecency with a child, and (2) defense counsel asked the trial court to include in the jury charge the sex offender conditions of community supervision set out in section 13D of article 42.12 of the code of criminal procedure. In addressing the first issue on abatement, the trial court heard testimony from the court reporter who had been responsible for the relevant portion of the record. The original record stated as follows:
Trial Court: In this indictment in Count 1 you are charged with the offense of * * * indecency with a child under 17. Do you understand what you are charged with?
[Appellant]: Yes, sir.The reporter testified that the original reporter's record was erroneous, "an error in transcription," that the asterisks in the original reporter's record indicated that corrections were needed, and that he had actually corrected the mistake before being asked to review his official court reporter's notes. He further explained that the mistake appeared in the printed pages contained in the original reporter's record because the erroneous version of those pages had been printed before the error had been found and corrected. The court reporter then testified that the trial court had actually informed appellant that the first count of the indictment stated that appellant was accused of having committed the crime of sexual assault of a child. He stated that there had been nothing in his official computerized notes that was "anywhere close" to indicating that appellant was charged with indecency with a child. The trial court heard additional testimony from the prosecutor, appellant's trial counsel, and appellant on the same issue. In conclusion, the trial court found the following:
[I]f the record were correct[,] the record would recite that [the court] admonished [appellant] for the offense of sexual assault of a child under the age of 17; that the first filing by the court reporter was an erroneous recitation of that event; that the supplemental filing is a correct recitation of that event; and [the trial court] order[ed] that the court reporter correct [sic] the inaccuracy by filing a certified correction with the appellate court.With regard to the second issue on abatement, the original reporter's record stated that appellant requested "the Court [to] include the conditions of probation under 42[.]12[,] Section 13 (d). There are some beginning with A-A1 and 2, B1-2 and C and D." In reviewing the accuracy of the record, the trial court heard testimony from the court reporter, appellant's trial counsel, and the prosecutor, and listened to the tape from the charge conference. The trial court concluded that the original reporter's record was accurate and that appellant's trial counsel had requested that the trial court charge the jury with the conditions of community supervision as stated in article 42.12 section 13D of the code of criminal procedure. In his first point, appellant argues that the trial court improperly admonished him on indecency with a child, rather than the sexual assault charge in the indictment, which rendered his guilty plea involuntary and violated his due process rights. The record, however, does not support this contention. The supplemental record and trial court's ruling at the abatement hearing indicate that appellant was properly admonished for pleading guilty to sexual assault. Appellant did not object to the trial court's findings at the abatement hearing nor does he complain on appeal that the trial court's ruling at the abatement hearing was erroneous. Because the corrected record does not support appellant's argument, and because appellant did not challenge the trial court's finding at the abatement hearing or affirmatively disprove its recitation, we overrule his first point. In his second point, appellant contends that the trial court erred by denying his request to include sex offender conditions of community supervision in the jury charge under section 13B of article 42.12, along with the regular conditions that were already included. The State contends that the original record and the trial court's ruling at the abatement hearing reflect that appellant requested that the trial court include the conditions of probation under section 13D, rather than 13B, and therefore, appellant's argument was not properly presented to the trial court and is not preserved for our review. In response, appellant contends that regardless of what the record reflects, the record is "contextually clear" that he requested that the sex offender conditions of supervision be included in the jury charge. Appellant, however, does not challenge the trial court's ruling at the abatement hearing that he requested the conditions of probation under section 13D. Therefore, his argument is not properly preserved for our review, and we need not apply Almanza to review the omission of the requested jury instruction. Therefore, we overrule appellant's second point. Having overruled all of appellant's points, we affirm the trial court's judgment.
See TEX. PENAL CODE ANN. § 22.011(a)(2) (Vernon Supp. 2005). Appellant contends that he pleaded guilty to indecency with a child. The supplemental reporter's record and the record from the abatement hearing, however, reflect that appellant pleaded guilty to sexual assault of a child under seventeen.
See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 13D (Vernon Supp. 2005).
Appellant did not file a supplemental brief after the abatement hearing.
TEX. R. APP. P. 33.1(a)(1)(A); cf. Routier v. State, 112 S.W.3d 554, 569 (Tex.Crim.App. 2003) (stating that a defendant must specifically object to inaccuracies in a reporter's record in order to sufficiently bring such a complaint on appeal), cert. denied, 541 U.S. 1040 (2004); Meek v. State, 851 S.W.2d 868, 870 (Tex.Crim.App. 1993) (stating that we must generally presume that the recitations in a trial court's judgment are correct, but to overcome this presumption, an appellant must object to the accuracy of the trial court's judgment or affirmatively disprove the recitation).
See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 13B (Vernon Supp. 2005) (providing that if a judge grants community supervision to a defendant for a sexual offense against a child, the judge shall establish a child safety zone applicable to the defendant by requiring as a condition of community supervision that the defendant not participate in or supervise programs in which children participate, and attend sex offender counseling) § 13D (stating that if a judge grants community supervision to a defendant convicted of certain offenses, one of which is sexual assault, and the nature of the offense warrants the establishment of a child safety zone, the judge may establish such a zone by requiring that the defendant not participate in or supervised programs in which children participate or go within a specified distance a place where children gather). Section 13D expressly states that it "does not apply to a defendant described by Section 13B." Id. § 13D(c).
See TEX. R. APP. P. 33.1(a); Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003); Johnson v. State, 803 S.W.2d 272, 292-93 (Tex.Crim.App. 1990), cert. denied, 501 U.S. 1259 (1991), overruled in part on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App. 1991); Foster v. State, 874 S.W.2d 286, 289 (Tex.App.-Fort Worth 1994, pet. ref'd) (all stating that where an appellant's argument on appeal does not comport with the argument raised at trial, his argument on appeal is forfeited).
See TEX. R. APP. P. 33.1; Posey v. State, 966 S.W.2d 57, 61-62 (Tex.Crim.App. 1998). Even assuming that appellant's assertion that his trial counsel's request for inclusion of the sex offender conditions of community supervision is "contextually clear" from the record, the trial court did not err by denying that request. See Yarbrough v. State, 742 S.W.2d 62, 64 (Tex.App.-Dallas 1987), pet. dism'd, improvidently granted, 779 S.W.2d 844 (Tex.Crim.App. 1989) (quoting Flores v. State, 513 S.W.2d 66, 69 (Tex.Crim.App. 1974)); McNamara v. State, 900 S.W.2d 466, 467 (Tex.App.-Fort Worth 1995, no pet.) (all holding that while it is considered good practice to enumerate in the court's charge the probationary conditions which the court may impose if probation is recommended by the jury, the failure to so enumerate the said conditions is not harmful to the accused or restrictive of the court's authority under the statute); see also Yarbrough v. State, 779 S.W.2d 844, 845 (Tex.Crim.App. 1989) (stating that "it appears that the decision of the [Dallas] Court of Appeals [finding no error in failing to include terms and conditions of probation in the charge] is correct and language to the contrary in Brass v. State, 643 S.W.2d 443 (Tex.App.-Houston [14th Dist.] 1982, pet. ref'd), is expressly overruled."). Appellant's reliance on Ellis v. State is misplaced because in that case the court held that it was harmful error not to include all the conditions of community supervision because the court's charge purported to include all of the available conditions of community supervision but, in fact, omitted a number thereof. Ellis v. State, 723 S.W.2d 671, 673 (Tex.Crim.App. 1986) In this case, the trial court's charge did not purport to include all possible conditions of community supervision.