Terry v. State

Full title: JEFFREY ALLEN TERRY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 17, 2007

No. 05-06-01123-CR (Tex. App. Aug. 17, 2007)

Opinion

No. 05-06-01123-CR

Opinion issued August 17, 2007. DO NOT PUBLISH Tex. R. App. P. 47

On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-49278-VN.

Before Chief Justice THOMAS and Justices RICHTER and LAGARDE¹.

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

SUE LAGARDE, Justice, Assigned.

Appellant Jeffrey Allen Terry was indicted for the first degree felony offense of delivery of methamphetamine in an amount over four grams. Tex. Health Safety Code Ann. § 481.112(a) (Vernon 2003). On June 5, 2006, appellant entered an open plea of guilty before the trial court to the charged offense². On June 30, 2006, the trial court heard punishment evidence after which it assessed appellant's punishment at the minimum sentence of five years in prison and a $1500 fine. The trial court also made an affirmative finding a deadly weapon was connected to the offense. Appellant now appeals, raising three issues. In issue one, appellant contends his due process rights were violated when the State filed a notice of its intent to seek a deadly weapon finding after he entered his guilty plea but prior to sentencing, and in issue two, appellant contends his guilty plea was rendered involuntary by the State's action complained of in issue one. In issue three, appellant contends the trial court abused its discretion by entering a deadly weapon finding because the State's notice was untimely. The State responds that any error was waived due to failure to object, and, alternatively, the notice was timely. The State further contends the trial court did not abuse its discretion by entering a deadly weapon finding in the judgment. For reasons that follow, we conclude nothing is presented for this court's review. We affirm.

2 The record contains a plea agreement indicating the appellant would enter a plea of guilty open as to deferred adjudication and community supervision. The State's recommendation was shown to be "5 TDC $5,000." By a file stamp, the written plea agreement was filed on June 5, 2006, at 10:48 a.m. The record also contains a Judicial Confession signed by appellant that was filed on June 5, 2006, at 10:48 a.m. The record also contains a written notice of the State's special plea of use or exhibition of a deadly weapon that was filed on June 5, 2006, at ll:36 a.m.

Procedural Background

On June 5, 2006, the case against appellant was called for trial. Both sides announced ready. The trial judge confirmed appellant's name and explained to him what he was charged with. The following exchange then occurred:

[Court]: Paperwork you and Mr. Cox have given me in this case tell me you're going to waive a jury and enter a plea of guilty to this particular charge. Am I reading that right?

[Appellant]: Yes, Your Honor.

[Court]: Are you doing all that freely and voluntarily?

[Appellant]: Yes, sir.

[Court]: Client competent, Mr. Cox?

[Defense Counsel]: He is, sir.

[Court]: Accept your plea if you make it, sir. I find you make it freely and voluntarily, you're competent to do so.

In the file is a statement by you in writing you've gone over certain rights you have in connection with this plea and you understand those rights. That happen that way?

[Appellant]: Yes, sir.

[Court]: Approve your admonishment. Plea bargain — there is no plea bargain in this case. Your attorney and you and the State's attorney have not agreed on any recommendation to make to me about what I should do with this case. I'm going to hear a little evidence today, make no decision about anything, pass the case, continue the case long enough for you to get to the probation people for a presentence investigation. You'll come back into court after that with Mr. Cox. You and he, prosecutor can present anything to me about what I should do with the case. You understand that?

[Appellant]: Yes, sir.

[Court]: Punishment range for this offense if you're found guilty, don't get probation is a prison sentence of not less than 5 nor more than 99 years, possible life sentence. You could be fined up to $10,000. Probation is in the picture as far as I'm concerned — that's what the PSI is all about — deferred adjudication probation where you're not found guilty of anything or straight — what we call straight probation where you're found guilty, assessed a 10 year sentence or less. Still probated. As I said, that's in play. Just don't know what I'm going to do. Don't know anything about you.

Thereafter, appellant's counsel waived formal arraignment and entered a plea of guilty on appellant's behalf. Appellant then personally pleaded guilty. Appellant's judicial confession was admitted into evidence, without objection. Each side rested. The case was then continued to a later date for further proceedings. On June 30, 2006, a punishment hearing was held. After the trial judge verified there was no plea bargain, the following occurred:

[Court]: Punishment range for this offense, if you are found guilty and don't receive probation, is 5-99 years in the penitentiary and a possible $10,000 fine.

Probation is in the picture. Deferred adjudication is available, and one possibility is to access [sic] a sentence of ten years or less. I can probate that. I don't know what I am going to do, because the purpose of coming back was so that probation could prepare a presentencing investigation report, which I have.

In fact, I have already discussed with my probation officer here. And also, I will allow you and Mr. Cox, and the prosecutor, to offer any additional evidence that either side wanted me to hear before I did anything in this case.

You understand it the same way I do?

[Appellant]: Yes, sir.

[Court]: Good enough.

Ms. Sica, does the State have any additional evidence?

[Prosecutor]: Your Honor, the State, I believe, made aware of the first half of it just again, is seeking a deadly weapon finding.

As well, I'd ask the Court to take judicial notice of the entire contents of the Court's file and of the presentencing investigation report.

[Court]: Mr. Cox, you are aware of that deadly weapon finding?

[Defense Counsel]: I'm aware of what the State is attempting.

[Court]: Okay. I've got the PSI report in front of me.

State rests on that?

[Prosecutor]: Yes.

Appellant testified in his own behalf. Appellant admitted he sold a little over five grams of methamphetamine to someone and that he took responsibility for his actions. Appellant admitted he had a prior felony conviction for unauthorized use of a motor vehicle about five and a half years before and that he did state jail time for that. Appellant also admitted he had "a bunch of misdemeanor cases." Those included possession of marijuana and burglary of a vehicle. Appellant also testified that on previous offenses, he had "either just taken county jail time" or in a couple of instances he "took probation and it got revoked." Appellant explained that his circumstances had now changed, he was more stable, and he now felt he could be successful on probation On cross-examination, appellant admitted that he had been "selling dope" for a few months. He gave the first name of his supplier and where he lived, although he admitted he had lied to the police officer about where his supplier lived. Appellant admitted he sold a quarter of an ounce for $350, that he made about "twenty bucks," and that he had a gun although he had no concealed hand-gun license because he was a convicted felon. Appellant testified he was not a drug user. Appellant was also asked about, and explained, a pending family violence assault case against him. Appellant's mother testified. She confirmed that appellant had interceded when her ex-husband was beating on her, and that she had been told by her ex-husband he was going to drop the family violence assault charges against appellant. She also testified appellant was living with her and that she believed he was turning his life around. After both sides rested and closed and arguments were presented to the trial court, the trial judge assessed appellant's punishment at five years in prison and a $1500 fine.

Appeal

Appellant contends on appeal the State's written notice of its intent to seek a deadly weapon finding was untimely inasmuch as it was filed after he pleaded guilty; that his plea of guilty was rendered involuntary thereby; and that the trial court abused its discretion by entering a deadly weapon finding. The State correctly acknowledges a defendant is entitled to written notice the State will seek an affirmative finding a deadly weapon was used. Ex parte Brooks, 847 S.W.2d 247, 248 (Tex.Crim.App. 1993) (per curiam) (citing Ex parte Patterson, 740 S.W.2d 766, 775 (Tex.Crim.App. 1987)). However, the State responds any error in the timing of the State's notice has been waived due to appellant's failure to object, and alternatively the notice was timely. The State further contends the trial court did not abuse its discretion by making a deadly weapon finding in the judgment. We disagree with the State appellant "waived" his right to such notice by failing to object at trial. See Tellez v. State, 170 S.W.3d 158, 162-163 (Tex.App.-San Antonio 2005, no pet.) (right to written notice of the State's intent to seek a deadly weapon finding is "waivable only;" rights that are "waivable only" cannot be forfeited and they are not extinguished by inaction alone.). However, we agree with the State that appellant has preserved nothing for our review in this case. Rule 33.1(a) of the Texas Rules of Appellate Procedure provides that, in order to present a complaint for appellate review, the record must show that "the complaint was made to the trial court by a timely request, objection, or motion that . . . stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint," and that the trial court ruled on the request, objection, or motion. Tex. R. App. P. 33.1(a)(1). A defendant "may not, for the first time on appeal, urge error not raised at trial." Nelson v. State, 607 S.W.2d 554, 555 (Tex.Crim.App. [Panel Op.] 1980). Cf. Threadgill v. State, 146 S.W.3d 654, 670 n. 5 (Tex.Crim.App. 2004) (relevancy issue not preserved for appellate review where appellant failed to object to relevancy of photographs introduced at punishment phase, citing Tex. R. App. P. 33.1). A fair reading of the record before us in this case suggests, as appellant asserted in his brief, that the plea hearing occurred before the State filed its written notice of intent to seek a deadly weapon finding. The State does not deny that allegation. It simply states the record does not affirmatively show what time the plea hearing occurred. The State's motion to seek a deadly weapon finding was neither mentioned nor alluded to by the trial judge during the hearing, nor did the trial judge admonish appellant of the consequences of such a motion. Moreover, the trial court, both at the initial plea hearing and again at the punishment hearing, stated "[p]robation is in the picture." However, community supervision was a sentencing option not available to one in appellant's circumstance if the trial court entered an affirmative deadly weapon finding. See Tellez, 170 S.W.3d at 162 (citing Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Vernon Supp. 2004)). The motion is file-stamped at 11:36 a. m., some forty-eight minutes after the plea agreement and judicial confession were filed at 10:48 a. m. on June 5, 2006. The record suggests, at a minimum, the trial judge was not aware of the State's motion to seek a deadly weapon finding during the plea hearing. Nevertheless, it is clear from the record appellant was aware he used a gun during the delivery of the methamphetamine. Appellant testified he did. When appellant's trial counsel was asked during the punishment hearing whether he was aware of "that deadly weapon finding," he responded he was aware "what the State is attempting."³ Moreover, from the point in the trial court when it is clear there had been a request by the State for the trial court to make a deadly weapon finding, neither appellant nor his defense counsel ever objected to the untimeliness of the State's motion, sought to withdraw appellant's plea of guilty as involuntary, moved for a continuance, nor filed a motion for new trial on the basis his plea was involuntary or that his due process rights had been violated by the State's untimely notice. Appellant cannot now for the first time complain on appeal. Nelson, 607 S.W.2d at 555. No error having been preserved and presented for our review, we affirm appellant's conviction.