Kelsey Rawls v. The State of Texas--Appeal from 41st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

KELSEY RAWLS,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-04-00047-CR

Appeal from the

41st District Court

of El Paso County, Texas

(TC# 980D05372)

O P I N I O N

This is an appeal from a judgment adjudicating guilt. The court adjudicated appellant guilty of the offense of aggravated robbery and assessed punishment at ten years imprisonment. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

At the punishment stage of the adjudication hearing, the following exchange occurred regarding a prior conviction:

DEFENSE:We object to the admission of State s Exhibit Number 3 on its face. The judgment is defective and therefore, I think the defect would render it void and the matter has not been addressed. We would require a writ of habeas corpus to address the issue, but in the body--if I can explain briefly to the Court the judgment.

STATE:In offering State s Exhibit 3, Your Honor, the prior conviction--the pen packet for the prior conviction for this defendant, I believe we have a stipulation that the defendant is, in fact, one in the same person that that pen packet refers to, but I understand the defense counsel has an objection as to the--as to technical defects in the prior judgment; is that correct?

COURT:State s Exhibit 1, 2 and 4 are admitted into evidence. Now, what is it that you re saying is defective about State s Exhibit 3?

DEFENSE:Your Honor, the judgment shows that he waived his right to a jury trial, but it alleges that he pleaded not guilty. And there s no showing on the judgment that the Court heard evidence sufficient to find him guilty beyond a reasonable doubt. The judgment in that sense is backward. If Your Honor would compare it with the judgment Your Honor signed in the case at bar, you ll see the difference. Basically, the judgment in that other case says that he pleaded not guilty and the Court accepted his plea of not guilty and then goes on to find him guilty. There is no showing that he had a trial--a bench trial-- at least under circumstances where it does show that he waived his right to a jury trial.

. . .

COURT:Court is going to overrule your objections. State s Exhibit 3 is also admitted into evidence.`

Later in the proceeding, there was the following exchange:

COURT:Let me ask the state, if the Court does revoke the probation and send this young man to prison, are you going to dismiss the burglary of a habitation or is he going to sit in the County jail waiting for you all to get a trial date to get that case to trial?

STATE:I suspect we ll be dismissing that, Your Honor.

COURT:Suspect?

STATE:Well, according to what he goes down for. If he goes down for a small amount of time that my chief feels that like we could get out more on the burglary--[sic]

COURT:I m not asking what your chief likes. What I m trying to do is what s best for this man and also what s best for the county.

STATE:Of course. Absolutely.

COURT:And I don t want him sitting in the County jail because if I send him to prison, I m going to put on there that they give him substance abuse and alcohol counseling. He cannot get it at the County jail. He needs to go somewhere where he can get it.

STATE:I understand, Your Honor, and I will--I believe we will be dismissing those charges, yes.

II. DISCUSSION

In Issue No. One, Appellant asserts that the court erred by admitting evidence of a void judgment. Specifically, Appellant contends that the judgment contained in State s Exhibit Number 3 is void because the record reflects that there is no evidence to support the conviction.

The State establishes a prima facie case of proof of a prior conviction by introducing copies of the judgment and sentence in each case used for enhancement and connecting them with the defendant. Johnson v. State, 725 S.W.2d 245, 247 (Tex.Crim.App. 1987). Once the State properly introduces a judgment and sentence and identifies Appellant with them, this Court will presume regularity in the judgments. The burden then shifts to the defendant, who must make an affirmative showing of any defect in the judgment. Id.

In the present case, the judgment indicates that Appellant pleaded not guilty to the charged offense and waived a jury. The judgment then states:

Whereupon the Defendant proceeded to trial before the Court, who having heard and considered the pleadings and evidence offered, is of the opinion therefore that the said Defendant is guilty of the offense charged against him.

The judgment clearly indicates that the judge heard and considered the evidence adduced at trial. Appellant has failed to demonstrate an affirmative defect in the judgment. Accordingly, Issue No. One is overruled.

In Issue No. Two, Appellant argues that the court erred in admitting evidence which was outside the record. Specifically, Appellant maintains that the court violated his due process rights by considering the matter concerning the dismissal of the burglary charge. The State asserts that Appellant has failed to preserve this issue on appeal. We agree.

We note that Appellant did not object when the court made its inquiries concerning the dismissal of the burglary case. As Appellant failed to object at any time regarding the court s consideration of the burglary dismissal, he has failed to preserve the issue on appeal. See Perez v. State, 129 S.W.3d 282, 289-90 (Tex.App.--Corpus Christi 2004, no pet.). Issue No. Two is overruled.

Having overruled each of Appellant s issues on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

August 4, 2005

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)