Phillip Larry New v. The State of Texas--Appeal from 194th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-97-089-CR

PHILLIP LARRY NEW,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 194th District Court

Dallas County, Texas

Trial Court # F96-1900-QM

O P I N I O N

Phillip New was indicted for aggravated robbery, which was enhanced by a prior felony conviction to which he pled true. Tex. Pen. Code Ann. 29.03 (Vernon 1994). New executed a written judicial confession and trial was before the court on his plea of guilty. This was an open plea as no agreement was reached on punishment. Being found guilty as charged, New was sentenced to life in prison. Appointed appellate counsel filed an Anders brief, urging that nothing in the statement of facts supported a point of error on appeal, and filed a motion to withdraw. We granted counsel s motion. New filed a pro-se brief asserting ten points of error. After considering his points, we will affirm the judgment.

Deferred Adjudication Probation

New s eighth, ninth, and tenth points rely on his assertion that he was ineligible for any type of probation because his minimum sentence was fifteen years, and thus, he was harmed because he believed when he entered his plea that he was eligible for deferred adjudication probation. Article IV, section 11A of the Texas Constitution empowers trial courts "to suspend the imposition or execution of a sentence and to place the defendant upon probation" after conviction. West v. State, 702 S.W.2d 629, 634 (Tex. Crim. App. 1986) (opinion withdrawn in part on procedural grounds). The Legislature has prescribed methods the courts may use to grant post-conviction probation. Id. Each form of probation is independent of the other, in the sense that a defendant may be eligible under the statute for one form, but not the other. Id.

The eligibility requirements for deferred adjudication are set out in section 5(a) of article 42.12, which reads, in pertinent part:

Except as provided by Subsection (d) of this section, when in the judge s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision.

. . .

In a felony case, the period of community supervision may not exceed ten years.

See Tex. Code Crim. Proc. Ann art. 42.12 5 (Vernon Supp. 1998). In Cabezas v. State, the Court of Criminal Appeals considered the question of whether a defendant who pled nolo contendere to delivery of cocaine weighing at least 400 grams may receive deferred adjudication, because the minimum term for the punishment of the crime is greater than 10 years. See Cabezas v. State, 848 S.W.2d 693 (Tex. Crim. App. 1993). The trial court found that the best interest of society and the appellant would be served by deferring adjudication of guilt under article 42.12, section 5. However, the court later determined that deferred adjudication probation was not an available option, and entered a guilty finding, assessing punishment at the statutory minimum term of fifteen years confinement and a fine of $1,500.00. The court of appeals had affirmed the conviction, holding that, where the minimum punishment of a crime exceeds 10 years, deferred adjudication is not available. Id.

The Court of Criminal Appeals, however, differentiated between the three types of criminal probation court ordered, jury, and deferred adjudication explaining that they can best be understood when contrasted with each other, because each probation contains different eligibility requirements, exclusions for defendants convicted of certain crimes, and limits on the term lengths available. Id. at 694. The Court noted:

A defendant is eligible for court ordered probation, "when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public as well as the defendant will be subserved," and "where the maximum punishment assessed against the defendant does not exceed ten years imprisonment." Art. 42.12 Sec. 3. A defendant is also eligible for probation from a jury upon its recommendation where the "defendant has never before been convicted of a felony in this or any other State[,]" and where the punishment assessed by the jury does not exceed ten years. Art. 42.12 Sec. 4(a). Deferred adjudication is available when a court determines "in its opinion the best interest of society and the defendant will be served ..." Art. 42.12 Sec. 5(a).

Id. Unlike court ordered and jury probation, because there is no adjudication of guilt and no assessment of punishment, the minimum and maximum sentence length is in no way controlling on the issue of whether a defendant is eligible for deferred adjudication probation. Id.

Furthermore, the Court has previously held that where a defendant is not eligible for one form of probation, that does not preclude him from another form of probation available under the statute. Id; West, 702 S.W.2d at 634. In West, the Court held that even though a defendant who pled guilty to aggravated sexual assault was foreclosed of the option of court-ordered probation under section 3g, that did not necessarily foreclose the option of deferred adjudication under section 5. West, 702 S.W.2d at 634.

Unlike section 3 court-ordered probation, there is nothing in section 5 that limits the eligibility of deferred adjudication where the minimum sentence is greater than ten years. Cabezas, 848 S.W.2d at 695. Additionally, the Court pointed out, the legislature has specifically excluded certain crimes which contain minimum punishments. Id. Subsection (d) specifically excludes the option of deferred adjudication probation for defendants charged with certain crimes which carry minimum punishments of 15 and 20 years. See id; Tex. Code Crim. Proc. Ann. art. 42.12 5(d). There would be no purpose for the exclusion of these offenses if a punishment of over ten years was itself sufficient to preclude deferred adjudication. Cabezas, 848 S.W.2d at 695.

Thus, New is right when he states that he was not eligible for regular probation under article 42.12, section 3, because the statute bars defendants convicted of aggravated robbery from receiving this form of probation. Tex. Code Crim. Proc. Ann. art. 42.12, 3g(a)(1)(F). However, nothing in the statute bars a trial court from granting deferred adjudication to a defendant charged with aggravated robbery, even when he pleads true to a prior felony conviction, because the minimum possible sentence (which is increased because of the plea of true) does not control whether a defendant is eligible for deferred-adjudication probation.

In his eighth point, New complains that the State did not honor its plea bargain. Specifically, he complains that the State agreed to leave the issue of probation open, thereby influencing him to plead guilty. New urges that the State did not honor its plea bargain because he was statutorily ineligible for any type of probation under section 3 of article 42.12 and, as such, the bargain was legally void. As stated above, this assertion is wrong. New admits in his brief, and the evidence establishes, that he and his attorney hoped only for deferred-adjudication probation. Because the only type of probation he hoped for was deferred, and because he was eligible for such probation, New s argument has no merit.

Also in support of his eighth point, New complains that the State did not keep its agreement because it argued against probation during trial. However, because New entered an open plea of guilty, there was no plea bargain; specifically, there was no agreement as to punishment. Furthermore, our reading of the record reveals nothing which indicates that the State agreed to leave the question of probation open. The only evidence of such a deal to which New points is the appearance of the word open on the front of the plea form. We find that the hand-written word open was intended to refer to the plea itself, and does not refer to the question of probation or punishment. Because the State never agreed not to oppose probation, this argument fails. We overrule point eight. Likewise, because his ninth and tenth points rely on the assertion that he was ineligible for any type of probation, they are similarly overruled. //

Admonishments

New s fourth point argues that the trial court erred in failing to admonish him prior to the entry of his guilty plea as required by article 26.13(a) of the Code of Criminal Procedure. Article 26.13(a) reads:

(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:

(1) the range of the punishment attached to the offense;

(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contendere;

(3) the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial; and

(4) the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.

Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon 1989) (emphasis added). Had the trial court properly admonished him, New asserts, he would have known that he was statutorily ineligible for deferred adjudication. Not only is New incorrect in asserting that he was ineligible for deferred adjudication, but he also misreads article 26.13. Article 26.13(a) requires the trial court to admonish the defendant before accepting a plea of guilty or nolo contendere. The trial court did so. Further, the record shows that New was admonished in writing, as provided for in section (d) of article 26.13, well before he entered his plea of guilty. Because the trial court did not violate the mandates of article 26.13, point four is overruled.

In point seven, New argues that the trial court failed to inquire as to the existence of any plea bargain agreement, as mandated by article 26.13(a)(2) of the Code of Criminal Procedure. We find that the court did make such an inquiry. During its admonitions, the court noted that this was an open plea, i.e., that there was no plea-bargain agreement. We find that this is substantial compliance with article 26.13. See Gamez v. State, 506 S.W.2d 618, 619 (Tex. Crim. App. 1974). New specifically complains that because the court did not tell him that the agreement to leave the issue of probation open would not be followed, he did not know that a ten-year deferred sentence was not statutorily possible. As stated earlier, this assertion is incorrect. Point seven is overruled.

In his fifth point, New complains that the court erred in failing to admonish him as to the minimum sentence prior to his signing of the stipulations on the enhancement allegations. He urges that it was error to not admonish him that by signing the stipulations he would receive a statutorily mandated fifteen-year minimum sentence, and thereby be ineligible for deferred adjudication. See Tex. Pen. Code Ann. 12.42(c) (Vernon Supp. 1998). Again, in addition to New s being incorrect about being ineligible for deferred adjudication, our review of the record indicates that the court did admonish New. After he pled guilty and true, the court stated:

The case presents itself to me as an open plea. While I m confident in my belief Mr. Lender has explained to you the ramifications or the meaning of that term, by law I must explain it to you at this time as well. If you persist in pleading guilty and true, by law, the Court will be required to assess your punishment somewhere within the range provided by law. The penalty range of which I must be dealing be not less than 15 years in the penitentiary nor more than 99 years in the penitentiary or life in the penitentiary. Do you understand that? Yes or no?

. . .

Now, Mr. New, on the other hand, if the State is obligated to prove the first portion of the indictment, not the enhancement portion, the penalty range for aggravated robbery alone in the State of Texas is not less than five nor more than 99 years or life and an optional fine not to exceed $10,000. If Ms. Miller is able to prove that portion of the indictment, have the ability to prove the enhancement allegations, the minimum punishment then becomes not less than 15 years in the state penitentiary nor more than 99 years or life. Do you understand the penalty range under those varying circumstances, sir?

At this time New waived arraignment and reasserted his pleas of guilty and true. Because we find that the court did admonish New that the minimum punishment would be fifteen years and, again, find that he was still eligible for deferred adjudication, point five is overruled.

New complains in point six that the trial court erred in failing to make a finding of guilt. We find that the written judgment contained in the record affirmatively states that the judge found New guilty as charged. As to whether the absence of an oral pronouncement of guilt renders the written judgment void, the Court of Criminal Appeals has already addressed this question:

When the trial judge, after admonishing the appellant, accepting the appellant s pleas, and hearing the State s evidence, held the assessment of punishment in abeyance and ordered a presentence investigation, he necessarily implied that he had found the appellant guilty in each case. We hold that the trial judge s action renders the written judgments sufficient as supported by the records.

Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim. App. 1978) (emphasis added). Point six is overruled.

Legal Sufficiency

In point three, New complains that the evidence is insufficient to support his conviction in light of the fact that the complainant did not testify. He urges that the State s merely asking the court to take judicial notice of the defendant s signed voluntary written judicial confession and stipulation of evidence and defendant s signed, voluntary written plea of true to the second paragraph and [of] a factual summary contained in the back of the court s file and the pre-sentence report along with his open plea of guilty is not enough.

The standard of review for challenges to sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979)).

New complains that because the documents listed above were never marked as exhibits, there is no way to determine if these documents actually refer to the cause in question. Further, he claims that the entire concept of judicial notice is unconstitutional because it improperly relieves the State of its burden. As to his first argument, we note that each document has the trial court s cause number on it and each is file marked by the trial court clerk. Each can be found in the Clerk s Record. Secondly, we disagree that judicial notice relieves the State of its burden of proof. Matters must be undisputed before they are judicially noticed and thereby become evidence. Furthermore, a judicial confession alone is sufficient to support a conviction. Johnson v. State, 722 S.W.2d 417, 422 (Tex. Crim. App. 1986) (on rehearing), overruled in part on other grounds, McKenna v. State, 780 S.W.2d 797 (Tex. Crim. App. 1989); Hoffman v. State, 922 S.W.2d 663, 672 (Tex. App. Waco 1996, pet. ref d). Additionally, New testified and admitted his guilt in open court. A judicial admission of guilt will waive any complaint about the legal sufficiency of the evidence. McGlothlin v. State, 896 S.W.2d 183, 186 (Tex. Crim. App. 1995); Hoffman, 922 S.W.2d at 672. Point three is overruled.

Ineffective Assistance of Appellate Counsel

In his first and second points, New claims that his appellate counsel was ineffective because he failed to advance the non-frivolous grounds of error found in points three through ten of this opinion and because he failed to advise New of his right to file a petition for discretionary review with the Court of Criminal Appeals. Because we find that appellate counsel met the requirements of Anders, and because we find points three through ten to be without merit, we overrule points one and two. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

Having overruled all of New s pro-se points as being without merit, the judgment is affirmed.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed December 23, 1997

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