Hilda Hinojosa v. The State of Texas--Appeal from County Court at Law No. 2 of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-90-063-CR

HILDA HINOJOSA,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

AND

NO. 3-90-064-CR

JEANETTE WILLIAMS,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY,

NOS. 328-564 AND 316-698, HONORABLE STEVE RUSSELL, JUDGE

PER CURIAM

In a joint trial, Hilda Hinojosa and Jeanette Williams pleaded no contest to criminal trespass at an abortion clinic and were each sentenced by a jury to 180 days in the county jail and a $1,000.00 fine. 1981 Tex. Gen. Laws, ch. 596, 1, at 2385 [Tex. Pen. Code 30.05, since amended]. In twenty-two points of error, appellants contend that the trial court erred in: (1) rendering judgments based on constitutionally infirm pleas of no contest (points one through three); (2) issuing the court's charge on punishment (points four through nine); (3) improperly commenting on the weight of the evidence (point ten); (4) exceeding the court's jurisdiction (points eleven and twelve); (5) overruling an objection to the State's closing argument (points thirteen and fourteen); and (6) committing other errors (points fifteen through twenty-two). We will modify the judgment of conviction for appellant Hinojosa and, as modified, affirm. We will affirm the judgment of conviction for appellant Williams.

In point of error one, appellants allege that the trial court erred in rendering judgments based on constitutionally infirm pleas of no contest because appellants were not informed of the maximum range of punishment before their pleas were entered. In support of this contention appellants refer us to the opinion of the Dallas Court of Appeals in McMillan v. State, 703 S.W.2d 341 (Tex. App. 1985), rev'd on other grounds, 727 S.W.2d 582 (Tex. Cr. App. 1987). McMillan held that the record must affirmatively show that a defendant imprisoned for a misdemeanor offense was informed of at least the maximum term of imprisonment to which he was subject or his guilty plea will be rendered constitutionally invalid under both the fourteenth amendment of the federal constitution and article I, section 19 of the state constitution. U.S. Const. amend. XIV; Tex. Const. Ann. art. I, 19 (1984). (1)

The record in this cause indicates that appellants were informed of the punishment range during voir dire examination of the jury panel before they entered their no contest pleas in the presence of the jury. This is sufficient to meet the standard enunciated in McMillan: "[T]here is no constitutional requirement that the trial judge personally inform the defendant of the range of punishment. So long as the defendant is so informed, on the record, it is not constitutionally significant from what source he receives that information" McMillan, 703 S.W.2d at 344. We express no opinion, however, on whether the McMillan court was correct in holding that the state and federal constitutions require that a defendant be informed of the punishment range before he pleads guilty or no contest to a misdemeanor. Point of error one is overruled.

In points of error two and three, appellants allege that the trial court erred in rendering judgments based on constitutionally infirm pleas of no contest because the record does not affirmatively show that appellants intelligently and voluntarily waived their federal constitutional right against compulsory self-incrimination. We disagree. Appellants have failed to carry their burden by showing in the record that they did not understand the consequences of their pleas or that they were mislead in any way by the State or the trial court. Drake v. State, 756 S.W.2d 43, 45 (Tex. App. 1988, no pet.). We determine that the entire record, including the voir dire examination which appellants attended, supports the State's contention that appellants were competent and that they voluntarily and intelligently entered no-contest pleas. See Williams v. State, 522 S.W.2d 483 (Tex. Cr. App. 1975). Points of error two and three are overruled.

In points of error four through nine, appellants allege that the trial court fundamentally erred in issuing the court's charge on punishment. The State correctly responds that the trial court gave appellants an opportunity to object to the charge and appellants offered no objections. The predicate question, therefore, is whether points of error four through nine are fundamental errors such that the points have not been waived.

Article 36.19 of the Code of Criminal Procedure contains the standards for both fundamental error and ordinary reversible error. Tex. Code Cr. P. Ann. art. 36.19 (1981). If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is "calculated to injure the rights of defendant." On the other hand, if no proper objection was made at the trial, the judgment will be reversed only if the error is "fundamental"; it must create "egregious" harm such that the defendant "has not had a fair and impartial trial." In both situations the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Cr. App. 1984). After examining the record, we conclude that points of error four through nine are not fundamental error, if indeed the trial court committed any error. Points of error four through nine are overruled.

In point of error ten, appellants contend that the trial court erred in improperly commenting on the weight of the evidence by explaining why he did not view a videotape and why a photograph offered into evidence had multiple exhibit stickers on it. (2) Appellants failed to object to either comment and have waived their right to assert error. Furthermore, the alleged error, if any, is not fundamental. Tex. R. Cr. Evid. Ann. 103(a), (d) (Supp. 1991). Point of error ten is overruled.

In points of error eleven and twelve, appellants contend that the trial court erred in exceeding the court's jurisdiction. Appellants summarize their points as follows:

If the Trial Court determined Appellants to be guilty through acceptance of their pleas of no contest, it lacked the jurisdiction and authority to direct the Jury to find them guilty, and the Jury lacked the jurisdiction and authority to make such findings because of such prior determination (Point of Error 11). On the other hand, if the Trial Court did not determine Appellants to be guilty through acceptance of their pleas of no contest, it lacked the jurisdiction and authority to direct such findings because, under a broad reading of Thornton [601 S.W.2d 340, 348 (Tex. Cr. App. 1980)] the State was required to establish Appellants' guilt notwithstanding their pleas of no contest, and, hence, the Judgments at issue are void since based upon misdirected verdicts (Point of Error 12). Either one or the other scenario applies, and each scenario involves jurisdictional excess and impairment of Appellants' substantial rights.

Appellants' arguments are without merit. Article 1.15 of the Code of Criminal Procedure, which requires the State to introduce evidence into the record showing the defendant's guilt, by its own terms applies only to felony cases. Tex. Code Cr. P. Ann. art. 1.15 (1977). The rationale in Thornton is based on article 1.15. Appellants' pleas were sufficient to support their convictions without reference to other evidence. Brown v. State (Tex. Cr. App. 1974). If the trial court erred, appellants have failed to demonstrate how the jury's action harmed them since they had already pleaded no contest. Tex. R. App. P. Ann. 81(b)(2) (Supp. 1991). Points of error eleven and twelve are overruled.

In the alternative, in point of error eighteen appellants contend that the trial court fundamentally erred in issuing the court's charge on punishment relating to the definition of criminal trespass and applying the law to the facts. Appellants failed to preserve error in the trial court, and we conclude that point of error eighteen is not fundamental, if it is error. The point of error is overruled.

In points of error thirteen and fourteen, appellants contend that the trial court erred in overruling two objections to this portion of the State's closing argument:

MR. COLEMAN: Ya'll may have guessed already that this isn't the first one of these trials that I have prosecuted. I have, in fact, lost count of which number this is. I confess to you, though, that for some reason I am very nervous about this particular trial. I don't know exactly why. I don't know if it is because of the weather or the season or just because of ya'll, the particular jury. But I am very nervous.

I am concerned, really, because it is important to me personally, and I think in my responsibility to represent the State, that I have a certain amount of credibility with each of ya'll. Certainly what I say is not evidence.

MR. DUVALL: I object, Your Honor. His credibility is not an issue in this case and is outside the record.

THE COURT: Overruled.

. . .

MR. COLEMAN: . . . .

I submit to you this, that this is going to be the only chance you have to perform this responsibility. After you step down out of the jury box, when you come back with your verdict, you won't have anymore opportunity, and chances are that one of these people will be back out in front of another women's clinic.

MR. DUVALL: I object, Your Honor. There is no evidence to support that.

THE COURT: Overruled.

MR. COLEMAN: I suggest to you that if you give them 80 days, some of them may be back out there in 90 days, and I suggest to you this, that whatever punishment you issue, at least in the minds of these people, it is going to let them know how much you hold or how important and how dearly you hold the rights guaranteed by your United States Constitution.

Appellants did not object to the final portion of the jury argument quoted above.

Appellants' objected only that the State's closing argument impermissibly bolstered its credibility. Assuming the State's argument was erroneous, we determine beyond a reasonable doubt that the alleged error made no contribution to the conviction to the extent it related to the State's credibility. Tex. R. App. P. Ann. 81(b)(2) (Supp. 1991). Furthermore, appellants waived any error concerning the statement, "these people will be back out in front of another women's clinic," by failing to object to the statement, "if you give them 80 days, some of them may be back out there in 90 days." Tex R. Cr. Evid. Ann. 103 (Supp. 1990). Points of error thirteen and fourteen are overruled.

In point of error fifteen, appellants contend that the informations against them are fundamentally erroneous because the informations fail to describe the property where the criminal trespass occurred with sufficient certainty for double jeopardy purposes. See Tex. Const. Ann. art. I, 14 (1984); Tex. Code Cr. P. Ann. arts. 21.04, 21.09, 21.23 (1989). The informations described the property as follows: "That in the County of Travis, State of Texas, . . . [appellant] did then and there intentionally and knowingly remain on property of [Ms.] Karen LaFayette, the owner." Appellants admit that they neither objected to the informations nor sought to have them quashed. Instead, appellants claim that this alleged error may be raised for the first time on appeal because it relates to double jeopardy. See Jones v. State, 586 S.W.2d 542, 544 (Tex. Cr. App. 1979). We disagree.

Appellants waived their right to complain of the alleged defect in the informations by failing to object prior to trial. Tex. Code Cr. P. Ann. art. 1.14(b) (Supp. 1991); Studer v. State, 799 S.W.2d 263 (Tex. Cr. App. 1990). Even if the point of error had been preserved, appellants could not prevail because the State adequately alleged in the informations the location of the property where appellants trespassed. Reed v. State, 762 S.W.2d 640, 644-45 (Tex. App. 1988, pet. ref'd). Point of error fifteen is overruled.

In point of error sixteen, appellants contend that the trial court erred in allowing the State to introduce irrelevant, unfair, and prejudicial evidence that Austin Rescue, the group with which appellants are associated, had previously performed similar demonstrations. See Tex. R. Cr. Evid. Ann. 401, 403 (Supp. 1990). The State argues that the evidence was admissible to show appellants' motive, intent, absence of mistake, and common scheme or plan. See Tex. R. Cr. Evid. Ann. 404(b) (Supp. 1990). We agree.

The test before the adoption of the rules was whether the prosecution could show that the alleged acts were relevant to a material issue in the case and that the probative value of the evidence outweighed its prejudicial or inflammatory nature. See Templin v. State, 711 S.W.2d 30, 33 (Tex. Cr. App. 1986). This two-part evaluation is left to the trial judge, and absent a clear abuse of discretion the decision will not be disturbed on appeal. Id. The standard for review of the admissibility of evidence under rule 403 is still abuse of discretion. On the record before us, we cannot say that the trial court erred in admitting evidence of other acts to show appellants' motive, intent, absence of mistake, and common scheme or plan. Point of error sixteen is overruled.

In point of error seventeen, appellants contend that the trial court erred in admitting a videotape into evidence because the State failed to lay a proper predicate. Appellants admit that they failed to object to the admission of the videotape at trial, but argue that their failure to object did not operate to relieve the trial court of its duty to safeguard appellants' right to a fair proceeding. Appellants' argument is without merit. See Tex. R. Cr. Evid. Ann. 103(a) (Supp. 1990). Point of error seventeen is overruled.

In points of error nineteen, twenty, and twenty-one, appellant Hinojosa contends that the trial court erred in rendering judgment against her because: (1) the verdict and judgment fail to specify on which of two counts of the information she was adjudged guilty: (a) remaining on the property after receiving notice to depart (count one) and (b) entering the property without consent (count two); (2) the evidence is insufficient to support a conviction on count two; and (3) the charge is fundamentally erroneous because it failed to instruct the jury that appellant Hinojosa was charged in two counts and failed to instruct the jury in the proper method of returning a verdict. These arguments are without merit because appellant Hinojosa pleaded no contest to the information.

As a general rule a plea of guilty or no contest waives all nonjurisdictional errors. Helms v. State, 484 S.W.2d 925, 927 (Tex. Cr. App. 1972). A defendant who raises a nonjurisdictional defect or error by written pretrial motion may appeal nonjurisdictional errors even though the defendant entered a no contest or guilty plea. Tex. R. App. P. Ann. 41(b)(1) (Supp. 1991). This Court has held, however, that because rule 40(b)(1) applies only to pleas entered pursuant to article 1.15 of the Code of Criminal Procedure, its effect is limited to felony prosecutions. Collins v. State, 795 S.W.2d 777, 778 (Tex. App. 1990, no pet.). The Helms rule, therefore, prevents appellant Hinojosa from appealing all nonjurisdictional errors because she entered a plea of no contest to a misdemeanor. Points of error nineteen, twenty, and twenty-one are overruled.

Finally, in point of error twenty-two, appellant Hinojosa contends that the trial court erred in not giving her credit for the time she served in the Travis County jail. Tex. Code Cr. P. Ann. art. 42.03, 2(a) (Supp. 1991). The State agrees, and we sustain point of error twenty-two.

The judgment of conviction for appellant Hinojosa is modified to give her credit for the three days she has already served, and the judgment of conviction for appellant Hinojosa is

affirmed as modified. The judgment of conviction for appellant Williams is affirmed.

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Modified and, as Modified, Affirmed as to Cause No. 3-90-063-CR;

AND Affirmed as to Cause No. 3-90-064-CR

Filed: June 12, 1991

[Do Not Publish]

1. The holding in McMillan was based on constitutional rather than statutory grounds. It is still the law that the statutory admonishments of article 26.13 do not apply to misdemeanors. Tex. Code Cr. P. art. 26.13 (1989); see, e.g., McMillan, 703 S.W.2d at 343.

2. The trial court's comment concerning the videotape was as follows:

THE COURT: Normally when a video tape is show [sic], I will come around to the jury box, and stand there and watch it. But you have to realize I have seen this tape a few times. The fact that I am not coming back there does not indicate that it is not important. It is very important.

The trial court later made the following comment concerning the photograph:

THE COURT: Do you object if I tell the jury what is so funny?

MR. DUVALL: No. Go ahead.

THE COURT: There is [sic] a million exhibit stickers on that photograph because it has been introduced into evidence so many times, and it took him a while to figure out what exhibit it was in this trial.