February 22, 2007. DO NOT PUBLISH — TEX. R. APP. P. 47.2(B).
On Appeal from the 208th District Court Harris County, Texas, Trial Court Cause No. 968321.
Panel consists of Chief Justice HEDGES and Justices FOWLER and EDELMAN.
Appellant, Franklin William Lambert, appeals from an order adjudicating his guilt for aggravated robbery and assessing his punishment at twenty years in prison. We dismiss his appeal in part and affirm the trial court's judgment.
I. Factual and Procedural BackgroundIn October 2004, appellant pleaded guilty, without an agreed punishment recommendation, to aggravated robbery. The trial court found the evidence substantiated appellant's guilt, deferred a finding of guilt, and placed appellant on deferred adjudication community supervision for eight years. Appellant did not appeal that order. Approximately three months later, the State moved to adjudicate appellant's guilt. The State filed an amended motion to adjudicate in August, 2005. Following a hearing, the trial court found appellant guilty and sentenced him to 20 years' confinement in the Texas Department of Criminal Justice, Institutional Division.
II. Analysis of Appellant's IssuesA.Jurisdiction and the Constitutionality of Article 1.15 In his first two issues, appellant contends that article 1.15 of the Texas Code of Criminal Procedure, which prescribes the procedure for guilty plea proceedings, violates his federal and state constitutional rights to compulsory process because it requires the State to produce evidence to support the judgment of guilt and prohibits the trial court from considering any evidence offered by appellant. In his third and fourth issues, appellant asserts that both the federal and state constitutions require an express waiver of the right to compulsory process. The State responds that we have no jurisdiction to consider these issues. We agree with the State and dismiss appellant's first four issues for lack of jurisdiction. The Texas Court of Criminal Appeals has held that "a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed." Manuel v. State, 994 S.W.2d 658, 661B62 (Tex.Crim.App. 1999). But, if the original judgment is void, the general rule does not apply. See Nix v. State, 65 S.W.3d 664, 667 (Tex.Crim.App. 2001). This "void judgment" exception allows an appellant to raise error regarding his original plea hearing after revocation of probation if the error is one that would render the original judgment void. Id. at 667B68. It applies in Arare situations" in which the trial court had no power to render the judgment. Id. at 668. A judgment of conviction is void when: (1) the document purporting to be a charging instrument does not satisfy the constitutional requisites of a charging instrument; (2) the trial court lacks subject matter jurisdiction over the offense; (3) the record reflects there is no evidence to support the conviction; or (4) counsel was not appointed for an indigent defendant who had not waived the right to counsel. Id. The Court of Criminal Appeals has stated, "While we hesitate to call this an exclusive list, it is very nearly so." Id. Appellant contends the trial court committed fundamental error in accepting appellant's guilty plea for aggravated robbery because article 1.15 unconstitutionally denies his federal and state rights to compulsory process by prohibiting him from presenting evidence. However, appellant does not argue that this alleged fundamental error falls within one of the four categories the Court of Criminal Appeals has identified in Nix as situations in which the Atrial court had no power to render the judgment" and thus the judgment was void. See id. Nor has appellant demonstrated that the trial court's acceptance of his guilty plea otherwise resulted in a void judgment. The rights of an accused are separated into three categories with regard to waiver of those rights: (1) absolute requirements and prohibitions which cannot be waived; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request. Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). All but the most fundamental rights may be forfeited if not insisted upon by the party to whom they belong; many constitutional rights fall into this category. See id.; see also Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App. 2004) (stating that "[e]xcept for complaints involving systemic (or absolute) requirements, or rights that are waivable only, . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)"). We are confident that the Court of Criminal Appeals would conclude that the right to compulsory process in the context of a guilty plea under article 1.15 is a right that may be forfeited. Thus, the trial court's acceptance of appellant's guilty plea did not result in fundamental error. Moreover, we note that appellant, at the time of his plea, signed a written waiver in which he affirmatively waived the appearance, confrontation, and cross-examination of witnesses. The right to have witnesses appear is subsumed within the right to compulsory process, and we construe appellant's waiver as a waiver of his right to compulsory process. See Vanderburg v. State, 681 S.W.2d 713, 717 (Tex.App.-Houston [14th Dist.] 1984, pet. ref'd) (construing appellant's verbal waiver of his constitutional right to have witnesses appear in person as a waiver of his right to compulsory process). Thus, appellant was required to appeal at the time the trial court placed him on deferred adjudication. See Manuel, 994 S.W.2d at 661B62. He did not do so. Appellant's appeal after adjudication and revocation is untimely, and we have no jurisdiction to address his first two issues.
B. Express Waiver of Compulsory ProcessIn his third and fourth issues, appellant contends the trial court fundamentally erred in proceeding to judgment because there is no evidence in the record that he expressly waived his federal and state constitutional rights to compulsory process. However, In Vanderburg, we held there was no requirement under either federal or Texas law that a defendant expressly waive his right to compulsory process. 681 S.W.2d at 717. Because there is no requirement that a defendant expressly waive his right to compulsory process, there is no fundamental error. Moreover, as discussed in the previous section, appellant's affirmative waiver of his constitutional right to have witnesses appear effectively constituted a waiver of the right to compulsory process. Because appellant failed to timely appeal at the time he entered his plea and was placed on deferred adjudication probation, we have no jurisdiction over his third and fourth issues. See Manuel, 994 S.W.2d at 661B62. C. Sua Sponte Withdrawal of Guilty Plea In his fifth issue, appellant contends the trial court reversibly erred by failing to sua sponte withdraw his guilty plea because he testified at the hearing on the State's motion to adjudicate guilt that he did not use a weapon during the offense, and he had filed pro se motions seeking discovery of any weapon used. According to appellant, the record raises an issue concerning whether his plea was voluntary. A trial court has no duty to withdraw a defendant's plea of guilty sua sponte after the defendant has waived a jury, even if the evidence fairly raises an issue as to the innocence of the defendant. See Thomas v. State, 599 S.W.2d 823, 824 (Tex.Crim.App. 1980); Moon v. State, 572 S.W.2d 681, 682 (Tex.Crim.App. 1978) (op. on reh'g). As the trier of fact, the trial court may, without withdrawing the plea, decide the issue, either finding the defendant not guilty or guilty as it believes the facts require. Thomas, 599 S.W.2d at 824. Thus, no valid purpose would be served by requiring a trial court to withdraw a guilty plea. See Moon, 572 S.W.2d at 682. Relying on Payne v. State, appellant asserts the trial court erred in not permitting him to withdraw his plea. See 790 S.W.2d 649, 650B51 (Tex.Crim.App. 1990). In Payne, the defendant presented evidence indicating that he was guilty of a lesser offense during sentencing, after he had entered a guilty plea. Id. However, Payne involved a timely motion by the defendant to withdraw the guilty plea. Therefore, Payne does not support appellant's position. The trial court was not required to sua sponte withdraw appellant's prior plea of guilty based on his testimony at the adjudication hearing. We overrule appellant's fifth issue.
D. Issues Relating to Appellant's SentenceIn his sixth and seventh issues, appellant contends his twenty-year sentence constitutes cruel and unusual punishment in violation of his federal and state constitutional rights. See U.S. Const. amends. VIII, XIV; Tex. Const. art. I, § 13. However, appellant did not object to the sentence as violating his constitutional rights at the time it was announced. Nor did he raise these arguments in a post-trial motion. The constitutional right to be free from cruel and unusual punishment may be waived, as here. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Curry v. State, 910 S.W.2d 490, 497 (Tex.Crim.App. 1995); Nicholas v. State, 56 S.W.3d 760, 768 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Therefore, appellant failed to preserve his complaints for appeal.
ConclusionWe are without jurisdiction to consider appellant's issues one through four, and we dismiss that portion of the appeal. Having overruled appellant's fifth, sixth and seventh issues, we affirm the judgment of the trial court. Judgment rendered and Memorandum Opinion filed February 22, 2007.
The statute provides in relevant part:
No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea [waives his right of trial by jury]; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents to an oral stipulation of the evidence and testimony Y Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.
TEX. CODE CRIM. Proc. art. 1.15.
Appellant acknowledges our holding in Vanderburg, but requests that we follow the decisions of other jurisdictions that require an express waiver of a defendant's right to compulsory process. As in Vanderburg, however, we refuse to broaden this state's policy to require an express waiver. See Vanderburg, 681 S.W.2d at 717.