Young, III, Philip Franklin v. The State of Texas--Appeal from 29th District Court of Palo Pinto County

11th Court of Appeals

Eastland, Texas

Opinion

Philip Franklin Young, III

Appellant

Vs. Nos. 11-01-00410-CR, 11-01-00411-CR, 11-01-00412-CR, & 11-01-00413-CR -- Appeals from Palo Pinto County

State of Texas

Appellee

Appellant entered an open plea of guilty to four charges of sexual assault of a child with each charge being enhanced by two prior felony convictions. The trial court assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 45 years for each charge with the sentences to run concurrently. Appellant brings four points of error on appeal. We affirm.

Appellant=s first point of error addresses a handwritten statement which he prepared. Prior to his arrest, appellant voluntarily appeared for questioning at the sheriff=s office. He brought a handwritten statement with him to the sheriff=s office which purportedly contained his version of the events in question.[1] An investigator in the district attorney=s office questioned appellant regarding the events. Appellant testified that he gave his handwritten statement to the investigator but that the investigator ignored it. Appellant subsequently signed a formal statement which the investigator prepared as a result of the interview. The investigator apparently did not retain appellant=s handwritten statement.

Appellant filed a pro se motion to suppress the formal statement prepared by in investigator.[2] In his motion, appellant sought to suppress the statement on numerous grounds pertaining to the voluntariness of the statement. However, appellant did not seek to have the formal statement suppressed based on the loss of appellant=s handwritten statement. After a hearing, the trial court denied the motion. The State did not offer the formal statement during the guilt/innocence stage of the proceedings, and appellant did not object to the admission of the formal statement during the punishment phase.

The trial court did not commit reversible error in connection with appellant=s handwritten statement. Assuming that this statement contained self-serving portions upon which appellant wanted to rely, the rule in Texas is that self-serving declarations are not admissible in evidence as proof of the facts asserted. Allridge v. State, 762 S.W.2d 146, 152 (Tex.Cr.App.1988). There are exceptions to this general rule which permit introduction of such proof under the following instances: (1) when part of the statement is previously offered by the State; (2) when the statement is necessary to explain or contradict acts or declarations first offered by the State; or (3) when the accused=s self-serving declaration was part of the res gestae of the offense or arrest. Allridge v. State, supra at 152. The first and second exceptions are not applicable because no evidence was offered during the guilt/innocence phase other than appellant=s judicial confession. Furthermore, the statement was not part of the res gestae because it was not spontaneously given by appellant but, rather, was prepared by him after a period of reflection and deliberation prior to his arrival at the sheriff=s office. See Allridge v. State, supra at 152. Appellant=s handwritten statement, therefore, would not have been admissible. Appellant=s first point of error is overruled.

In his second point, appellant complains of the admission during the punishment phase of a letter he wrote his wife. The letter, written while he was incarcerated, contained derogatory statements regarding the prosecutor, the investigator, and the local court system. Appellant contends that the letter should have been excluded on the basis that it was obtained from him in violation of his correspondence rights. Appellant did not object to the admission of the letter on this basis at trial. Instead, he objected on the basis that the State had not timely disclosed its intent to offer the letter.[3]

The Texas Commission on Jail Standards has adopted an inmate correspondence plan set out in 37 TEX. ADMIN. CODE ' 291.2 (2002). As per the plan, correspondence to and from government officials, court officials, the media, and the inmate=s attorney is privileged. All other correspondence is considered nonprivileged and, therefore, may be opened and read by jail officials. Accordingly, appellant could not have had a reasonable expectation of privacy with respect to the contents of the letter. Moreover, appellant filed letters addressed to his attorney with the district clerk=s office wherein he made similar statements regarding his perception of the fairness of the local court system. Appellant=s second point of error is overruled.

Appellant attacks his conviction in Cause No. 11-01-00412-CR on the basis that he did not waive his right to confront witnesses or agree to a stipulation of the evidence. The record reveals that a written guilty plea memorandum was prepared for each of the four charges to which appellant pleaded guilty. Each guilty plea memorandum contained numerous paragraphs identifying each right or protection waived by appellant. Each paragraph was followed by a set of lines for the signatures of appellant and his trial counsel. Appellant was required to sign his name on 44 different signature lines in order to complete the guilty plea memorandum for the four charges. Appellant failed to sign two of the signature lines on the guilty plea memorandum prepared for Cause No. 11-01-00412-CR.[4] One of the signature lines which appellant missed followed a paragraph which set out the defendant=s waiver of the right of appearance, confrontation, and cross-examination of witnesses. This paragraph also stated that the defendant consented to the stipulation of the evidence.[5] Thus, it appears that appellant=s failure to sign the signature blank in question was a clerical error given the number of spaces which appellant needed to sign and his execution of the same signature blank on the other guilty plea memorandums.

TEX. CODE CRIM. PRO. ANN. art. 1.15 (Vernon Supp. 2000) provides that evidence may be stipulated if the defendant Aconsents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents [to a stipulation of the evidence].@ The complete failure to observe the requirements of Article 1.15 is error. See Whitmire v. State, 33 S.W.3d 330, 335 (Tex.App. B Eastland 2000, no pet=n). We do not find a complete failure to observe the requirement of Article 1.15 in Cause No. 11-01-00412-CR. The opening paragraph of the guilty plea memorandum in question recited that appellant waived all rights secured by law and agreed to a stipulation of the evidence. Furthermore, appellant signed below a paragraph entitled AWaiver of Rights@ wherein he waived Aany and all rights secured the Defendant by law, whether of substance or of procedure, and states that any error which may have been committed is harmless.@ We, therefore, find that appellant executed a valid waiver under Article 1.15.

Moreover, even if the requirements of Article 1.15 were not observed, reversible error did not occur. The error which appellant asserts is subject to harm analysis under TEX.R.APP.P. 44.2(b) to determine whether the violation Aaffected substantial rights.@ Johnson v. State, 72 S.W.3d 346, 348 (Tex.Cr.App.2002). A substantial right of appellant was not affected by the alleged error. The only evidence presented at the hearing on his guilty pleas was his own judicial confession of the facts alleged in the indictments. Appellant did not object to the admission of his judicial confession. Furthermore, appellant was not denied the right to confront any witnesses because no witnesses testified at the guilt/innocence phase. Accordingly, Point of Error No. 3 is overruled.

Appellant complains in his fourth point that the trial court erred in failing to grant appellant=s pro se motions to terminate his attorney and to obtain a continuance. This contention is without merit. The record reveals that the trial court specifically asked appellant on the day of trial if he wanted a hearing on his motion for continuance and his motion to terminate his attorney. Appellant advised the trial court at that time that he no longer wanted to pursue those matters. Appellant=s fourth point of error is overruled. See TEX.R.APP.P. 33.1(a).

The judgments of the trial court are affirmed.

PER CURIAM

July 25, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]The appellate record does not disclose the contents of appellant=s handwritten statement.

[2]Appellant was represented by counsel at the time the pro se motion was filed.

[3]Appellant does not complain of the lack of disclosure on appeal.

[4]Appellant=s trial counsel signed the two sets of signature lines which appellant failed to sign.

[5]The other signature line missed by appellant followed a paragraph which requested that a presentence investigation report not be prepared. The two signature lines which appellant did not sign were located on the same page.