TOMMY EDWARDS, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed July 23, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00587-CR
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TOMMY EDWARDS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-47874-R
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OPINION
Before Justices Wright, O'Neill, and Francis
Opinion By Justice O'Neill
        Appellant Tommy Edwards, Jr. appeals his conviction for murder. After appellant pleaded guilty to the offense with no agreement about punishment, the trial court assessed punishment at life confinement. In three issues, appellant contends (1) his jury waiver was not knowing and voluntary, (2) his guilty plea was not knowing and voluntary, and (3) the trial court erred in admitting hearsay at sentencing. For the following reasons, we affirm appellant's conviction.
        The victim Alveda Edwards was appellant's estranged wife. At the time of Alveda's death, she and appellant had been married for over twenty-five years and had two children. Appellant was a violent and abusive father and husband. Alveda had left appellant several times over the years, but she always returned because he threatened to harm her and her family, including their daughter, if she did not. The last time Alveda left appellant, she obtained employment, was attending college and was living in her own apartment. She maintained contact with appellant but, for her own safety, she did not tell him where she was living. One weekend, Alveda refused to answer appellant's phone calls. He left several threatening messages and called her a “dead woman.” The following week, Alveda finally told appellant she wanted a divorce. Appellant told Alveda that he understood and he did not call her for the rest of the week. The following Sunday, appellant shot Alveda in the parking lot of her church. She died later that day.
        After the offense, appellant surrendered to police. In a videotaped confession, appellant admitted killing Alveda. After the trial court denied a motion to suppress the confession, appellant waived his right to a jury trial and pleaded guilty. In his first issue, appellant contends his jury waiver was not knowingly and voluntarily made. We disagree.
        A defendant must expressly and knowingly waive his right to a jury trial. Guillett v. State, 677 S.W.2d 46, 49 (Tex. Crim. App. 1984). Here, appellant was specifically informed he had a right to a jury trial and appellant expressly and unequivocally waived that right, both in writing and orally. Appellant nevertheless asserts his waiver was not knowing and intentional because, despite the express waiver, the record shows he believed he was going to have a jury trial. Appellant relies on an exchange that occurred after he waived his right to a jury trial and entered his plea. Specifically, in questioning appellant about his competency, the trial judge asked appellant whether he understood the function of the court “in general.” Appellant answered “yeah, we're going to do the jury trial.” He, however, also stated that he understood that, in this case, he had waived his right to a jury trial and entered a plea of guilty.
        On appeal, appellant contends the above exchange shows he did not realize he had waived his right to a jury trial. However, in context, it is clear appellant was simply discussing his understanding of the general operations of a court. The record as a whole clearly shows he knew he had a right to a jury trial and expressly waived that right. Appellant does not dispute that he was competent and could effectively waive that right. We conclude the record adequately reflects appellant knowingly and intentionally waived his right to a jury trial. We resolve the first issue against appellant.
        In his second issue, appellant contends he did not knowingly and intentionally plead guilty. At the plea hearing, appellant stated that he understood the charges against him and the range of punishment. He said he understood there was no plea bargain and the trial court could assess punishment anywhere in the range of punishment. He said he understood he had a right to a jury trial and that he wished to waive that right. The trial court also admonished appellant in writing in accordance with article 26.13(a) of the code of criminal procedure. Appellant entered a plea of guilty to the indictment and told the trial court his guilty plea was free and voluntary.
        Proper admonishment by the trial court creates a prima facie showing that the defendant entered a knowing and voluntary plea. McGill v. State, 200 S.W.3d 325, 333 (Tex. App.-Dallas 2006, no pet.). Once a prima facie showing is made, the burden shifts to the defendant to show he did not knowingly enter his plea. Id. Here, appellant was properly admonished and he does not contend otherwise. Instead, he asserts his guilty plea was not knowing and voluntary because he entered the plea believing that if he did not plead guilty, the prosecutor would determine his guilt. To support this assertion, appellant again relies on statements he made when the trial court was questioning him about his competency. In particular, when asked about the function of the prosecutor, appellant responded the prosecutor “determines my guilt or innocence . . .” The trial judge interrupted and explained that was “more the jury.” Appellant responded the prosecutor “plays a part” and can “determine the amount of time I get or they could offer a plea bargain or not.” According to appellant, this exchange shows that he believed the prosecutor would have been the fact finder if he pleaded not guilty. We disagree with appellant's characterization of the statement. Instead, the exchange shows appellant's perception of the prosecutor's role in charging him and the plea bargaining process. We conclude appellant has not shown he was not aware of the consequences of his plea. We resolve the second issue against appellant.
        In the third issue, appellant contends the trial court erred in admitting hearsay at the sentencing phase. Appellant and the victim's daughter, Tomisha testified that after her mother died, she found a piece of paper in her mother's room. On the piece of paper, the victim wrote what appears to be goodbye messages to her loved ones. She signed it “Alveda Rettig Edwards 1962- 200-.” Appellant objected to the writing based on hearsay. The State asserted it was admissible to show the victim's “state of mind.”
        Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted. Tex. R. Evid 801(d). Hearsay statements are generally inadmissible. Tex. R. Evid. 802. However, there are a number of exceptions to this general rule. See Tex. R. Evid. 803. Under the “state of mind” exception, a statement is not excluded by the hearsay rule if it is:
 
        A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
 
Tex. R. Crim. Evid. 803(3).
        Thus, a statement that would otherwise be admissible under the state of mind exception to the hearsay rule is inadmissible if it is a “a statement of memory or belief” offered to “prove the fact remembered or believed.” See id; Gibbs v. State, 819 S.W.2d 821, 837 (Tex. Crim. App.1991). According to appellant, Alveda's statement was inadmissible because it was offered to show a fact remembered or believed; specifically, that appellant killed Alveda. At the sentencing phase, it was undisputed that appellant killed the victim. The statement was not offered to prove the fact remembered or believed, but as punishment evidence to show the emotional pain and turmoil appellant had inflicted on the victim over the course of her life. We conclude the statement was admissible under the “state of mind” exception to the hearsay rule. We resolve the third issue against appellant.
        We affirm the trial court's judgment.
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070587F.U05