Robinson v. State

appellate may An court reverse a if, trial court for discretion abuse record, searching it is clear that arbitrary

the trial court’s decision was Landry v. Travelers Ins.

unreasonable.

Co., (Tex.1970).

Hence, party complains of abuse bring

of discretion has the burden to forth Eng record such abuse. Kennedy, lander Co. (Tex.1968); 50(d). Tex.R.App.P. Ab record, reviewing sent such a court presume

must that the evidence before the judge adequate support Pierce, Mays decision.

154 Tex. 487 ample

York opportunity had to see adequate

that an record was made. In

stead, objection it failed to make an whеn ‍​‌‌‌‌​‌​​​‌‌‌​​​‌​‌​​​‌​​​​‌​‌​‌​‌​‌‌​​‌‌​‌‌‌‌​​‍granted court first the ad litem fees.

It failed to obtain a statement of facts at hearing which fees were dis piece cussed. As to the one of evidence it have,

did regarding facts case,

Simon’s work on the York failed to

see that properly document was filed part and made a of the record.

This accordingly presume Court must

that the trial adequate court had evidence justify

before it to guardian its award of ad

litem fees. The of the Court of

Appeals is reversed. The trial court’s $25,000 $12,000

award plus in event of

appeal guardian ad litem fees is rein-

stated.

Wayne Mandlebert

ROBINSON, Appellant, Texas, Appellee.

The STATE of 66967. Appeals Texas,

Court of Criminal

En Banc.

Sept. any right

vide a basis for or relief. 12 Tex. Jur.3d, Constitutional Law at 548 any cases in n. collected 33 thereof. event, effectively rejected has Court argumеnts by appellant. now advanced (Tex.Cr. Carr v. (On App.1987) Court’s own Motion Re for State, v. Denson hearing); 733 891 S.W.2d (On Appellant’s (Tex.Cr.App.1987) Motion State, Luedke v. Rehearing); for 711 S.W. 657, Perez (Tex.Cr.App.1986); ‍​‌‌‌‌​‌​​​‌‌‌​​​‌​‌​​​‌​​​​‌​‌​‌​‌​‌‌​​‌‌​‌‌‌‌​​‍2d 658-659 State, v. (Tex.Cr.App.1984); Kelley, Orange, appellant. Donald B. for State, 668 (Tex.Cr. v. 411 Paris S.W.2d State, Wright, Atty. and, Rosebury v. C. 0. App.1984); William Co. & James 659 Jenkins, Howard, Stephen Jr. & C. Asst. 655 Appellant’s S.W.2d Huttash, Atty’s., Orange, points Co. Robert and second error first are over Austin, Atty., State’s for State. ruled.

Apрellant’s point third of error as serts error in the trial court’s to refusal grant requested his instruction on volun OPINION release, Code, tary V.T.C.A. Penal PER CURIAM. 20.04(b), guilt phase at the of the trial. § aggravated was convicted of court, objection, The trial over submitted kidnapping; convicting jury found an charge punishment phase. such a at the allegation prior felony of a conviction 20.04(b), supra, ag provides Section рurposes enhancement, “true” for V.T. gravated kidnapping, is reduced to a “sec Code, 12.42(c), C.A. Penal and assessed § degree” felony voluntarily if ond “the actor punishment at 40 imprisonment. Ap- and in releases victim alive a safe pellant complains now of the denial of his place.” It now this is well settled that motion to alleged dismiss for violation of an exception subsection does not create to right statutory trial, speedy to his re- the offense and that failure to so release quested jury voluntary instruction on re- an aggravated the victim is not element of guilt phase trial, at lease his motion Rather, kidnapping. proof of such release quash to paragraph enhancement punishment. Butler only mitigates indictment, and of the trial ad- court’s 820, (Tex.Cr. 822-823 “pen packet” mission of a рunish- at the 831, 541 Smith App.1983); S.W.2d phase ment of trial.1 We will affirm. (On State’s motion denied, error,2 937, In his first points two cert. rehearing) 430 U.S. appellant 1565, contends that the trial court re The 97 S.Ct. 51 L.Ed.2d 783 versibly issue; erred when it denied his case motion evidence in this raised dismiss for Speedy refusing charge violation of the Trial court did not err Act, 32A.02, Article majority guilt phase, submitting V.A.C.C.P. A but it at Wright recently of this Court punishment phase. declared that statute Cf. entirety. (submis unconstitutional and void its Meskell v. 246, stage guilty plea); S.W.2d sion at Cr.App.1987). 772, An unconstitutional statute Williams v. 1986) inception pro Christi, is void from its (T ex.App.—Corpus and cannot no PDR. prior error,” Previously "grounds 1. This case arose to the effective date of 2. called Tex.R. Leg., p. 40.09(9), Acts 67th ch. 102. V.A.C.C.P. Crim.Proc. Rule now, appeal 74(d) prop- Tex.R.App.Proc. Direct Court was therefore See 210(b), Rules September er. See 4.01 and Articles V.A.C.C.P. effective therein, appellant Appellant’s point of cited third error over claim otherwise. ruled. point his fourth of error It is settled law this how argues that of his denial court’s ever, overwhelming or even sufficient quash allega- enhancement “motion withstanding, finding evidence

tion in the indictment for reasons improper prior “true” is where the convic conviction was void as matter law” alleged for purposes tion enhancement is was error. Hall, void. compare Platter (Tex.Cr.App. A. (as rehearing). ‍​‌‌‌‌​‌​​​‌‌‌​​​‌​‌​​​‌​​​​‌​‌​‌​‌​‌‌​​‌‌​‌‌‌‌​​‍corrected on denial of alleges The indictment may A conviction be held void on was convicted in District Criminal Judicial alia, if, inter attack collateral the accused County August Court of Jefferson on upon plea guilty is a convicted without 11, burglary 1974 of a 1973 of a December wаiving pursu right jury first to trial his house, former Penal Code Art. in 1.13, 1.15, ant Articles to 1.14 and V.A.C. Cause No. and that conviction such State, Boyd v. C.P., 660 S.W.2d 820 prior final the became to commission the rights appearance, Cr.App.1983), or his to primary prove allega- To these offense. pursu confrontation and crossexamination tions, copies the State introduced certified 1.15, supra, Rodriguez ant to Article “penitentiary рacket,” of a hereinafter (Tex.Cr.App.1976), of, containing inter “pen packet,” copies State, 555 (Tex.Cr. Valdez v. alia, indictment, judgment the and sen- Brewster v. App.1977), tence, conforming allegations to the in the (Tex.Cr.App.1980); the trial court whol bearing and enhancement count the Cause ly pursuant to admonish the accused fails 31,270. among No. Also the contents of 26.13(a), supra, prior receipt tо to Article packet, pen and introduced into evi- Smith, guilty plea, S.W. therewith, page dence was a of a two (Tex.Cr.App.1984), 2d or otherwise alia, inter containing form document a “substantially Article comply,” fails to 26.- agreement stipulate and to evi- Taylor statute, 13(c), supra, with dence, trial, jury appearance, waivers (Tex.Cr.App.1980), confrontation and cross-examination of wit- Hurtwitz required by ness and admonishments J., (Clinton, concurring) 26.13, V.A.C.C.P., signed ap- and denied, 1102, 106 S.Ct. cert. 474 U.S. proved by appellant, his and counsel 88 L.Ed.2d 919 31,- judge, bearing trial but the Cause No. 271. Evidence adduced presence Appellant argues that his conviction out of 31,270 documents, jury of the that No. is void two reasons. showed these Cause regardless First, testimony, out of the cause noted on he contends that his numbers thereof, presence jury, in the he did not face were filed trial of the that executing papers court’s file of the of Cause No. or written “recollect” “recall” 31,270. Additionally, being pursuant State submitted waivers or admonished copies 26.13(a), guilty plea, fingerprints by supra, prior certified taken Art. to his police together day on the of his arrest for the with fact that the written offense, among primary fingerprint card found and waivers and admonishments in, for, photograph, purportedly appellant, purportedly made papers and 31,270 pen expert in the packet found and testimo- Cause No. in fact bear the cause No. ny fingerprints 31,277, discharged that both were taken from his burden of 1.13, 1.15, 1.14, the same individual. This evidence was of Articles violation Second, 26.13, in the clearly support jury’s sufficient to find- alter- V.A.C.C.P. ing allegations native, if he was admоn- that enhancement were maintains true, e.g., Beck guilty plea, see S.W.2d ished to his the conviction 209-210 for violation of Article cases nonetheless void 26.13, supra, improper range of discharge because an did not that viz: 2-10 given, was years im- by showing copies burden that the of the prisonment years. rather than 2-12 See waivers and admonishments “filed Code, former Penal 1309.3 Art. of”, papers supra, Art. and “in the file of”, papers supra, of the Art. Assuming arguendo appel that 31,270 purport on their face to relate to raised,4 quash timely lant’s motion to proof a different cause. Such reject appellant’s arguments. we both of affirmatively appropriate show that waiv The formal and sentence in ers and admonishments were not executed 31,270 recites inter alia: Cause No. by appellant givеn by or the trial court in appellant appeared counsel, person, with 31,270. most, Cause No. At it shows “having jury elected to waive a herein that the file Court’s for that cause did not requested ... by jury trial be waived contain of these documents some 8 by and this cause be tried and before the entry of the and sen court;” that counsel for the State and the But, tence. it is settled proof that such judge approved consented to and alone is discharge appel not sufficient waiver, writing, prior appellant’s plea lant’s Lopez v. e.g., burden. guilty; “having duly been 447-448 arraigned plead- before the court ... [then] Breazeale, supra, and Williams v. guilty ed charge to the contained herein, indictment filed thereupon the [and] testimony Addition of Court from admonished the Defendant of the consequences of he did not plea guilty having said “recall” or the “recollect” but persisted Defendant pleading waiver, in executed guilty.” such a or indeed that he The State introduced a judg- of this did anything” not “remember about the ment and during sentence the proceedings court 31,270, in Cause No. phase of the trial of the instant cause and does not Har e.g., alter that result. adequately appellant identified with that vey, supra, Williams, at supra, at document. State, 598-599; Garcia v. 630 S.W.2d 729-730 (Tex.App. Antonio circumstances, Under these “this Court — San PDR refused. indulge will every presumption in favor of regularity [and truthfulness] the[se] documents ... This means that the recita B. tions binding are in the absence of direct However, judgment and sentence is proof falsity.” of their Breazeale v. concerning silent appellant’s waiver of 683 S.W.2d 450 rights appearancе, to confrontation (States Motion for Rehearing). Conse crossexamination of witnesses. It states quently, once the State introduced these that, only appellant pled guilty, evidence, documents into burden “[t]he then State introduced defendant, to the “evidence ... make shift[ed] [to] an guilt” affirmative showing any “accepted” and the court defect in the that [his] judgment.” Johnson v. evidence “as a basis for its verdict.” Con- (Tex.Cr.App.1987). Vega sequently, question See also this cannot be resolved 707 S.W.2d (Tex.Cr.App. in the same manner as the in others this 1986) (On error, State’s motion rehearing); point i.e., for by determining whether Harvey an rebutted affirmative recitation Cr.App.1972). judgment in the Compare, and sentence.5 Appellant Todd, did not elect to be sentenced parte under Code, the 1974 Penal Adams, but even if he had and Ex incorrect, admonishment would still have been S.W.2d 257 applicable punishment range under the new 5. The recitation that "evidence” was received $10,000.00 being code and a fine. accepted and formed the basis for the ver however, 4. See alia, Garcia v. dict should not be taken to mean inter (Tex.Cr.App.1976); Hill v. testimony documentary sworn or ‍​‌‌‌‌​‌​​​‌‌‌​​​‌​‌​​​‌​​​​‌​‌​‌​‌​‌‌​​‌‌​‌‌‌‌​​‍authenticated appellant’s hearing counsel testified Willhoite 1982), quash (14th) that had ob (Tex.App. no P.D.R. on the motion —Houston court, (Recitation in in judgment in tained the documents 31,270, writing, approved including defendant’s waiver court’s file for Cause No. rights confrontation and appearance, page the two waiver and admonishments was form, appellant’s of State’s witnesses cross examination two weeks before trial. compliance Art. Generally, prior knowledge sufficient to show with would re such though supra, judge’s signature even any claim that a variance between the but itself). appear did not on form allega in the enhancement cause numbers judgment on and those and sen tions however, Manifestly, written waivers impermissibly impeded preparation of tence rights, appellant “con- to which these or his defense otherwise harmed ac 1.15, suрra, writing”, in which Art. sent[ed] See, Freda, supra, Cole, supra, cused. writing”, in “approved by the court were Williams, supra. principled findWe no id., proper in all and which were otherwise holding that a in cause basis variance respects for the variance save and alleged between that in the indict numbers numbers, were in fact “filed in the cause judgment ment and that on the and sen of”, 1.15, supra, papers Art. file of is not reversible error such circum tence Moreover, 31,270. parties all stances, but that variance between that was convicted agree in fact and sentence and that on on indict- prior felony alleged as is. the written waiver form claim ment. in fact conviction was secured violation most, appellant At raises a factual rights appearance, confrontation discrеpancy as issue to whether oc of witnesses. Rath- and crossexamination given in because these waivers were curred er, precluded his claim is that the State properly filed cause number prove using documents to waiv- from these cause, among an papers for that but compliance er with Art. and consent mistakenly incorrect cause number supra, solely of the in the because variance face; they on their or because were written number of the cause on face 31,277 given in and not in cause number form. and the waiver mistakenly cause but were number papers for the latter cause. among If the had the filed the variance been between is, evidences a alleged That document cause number in the enhancement whether number noted waiver in that cаuse proper and the and count that on formal conviction, the placed in and on of which it was sentence file Clerk or in that by if he could retained the District would obtain reversal on the document See, Freda v. noted surprise”. “prejudicial show itself. face of court, evidentiary a full 42 The trial 704 S.W.2d (Tex.Cr. hearing quash, resolved Cole v. 82 on the motion to 611 S.W.2d State, supra. But, dispute in the former scenario App.1981); this favor of Williams any (Tex.App 775 introduced to the exclusion evidence was . —Hous refused; compliance 1984) stipulated (14th) so Art. evidence with ton P.D.R. Shell 1.15,supra, unnecessary. While it is some (stipula is law consti times said in civil that a just as ... if "view[ed] tions evidence must be evidence, a waiver of see Sanroc Co.Inti v. tutes testified.”) surpris It the witness had so is not Inc., Transportation, Roadrunner courts, thereforе, ing, cluded, Court in that Texas this (1st) (Tex.Civ.App. no — Houston stipulations as have sometimes treated and, Ray, generally, McCormick and 1A writ See, 448; e.g., Lopez, at evidence. Ed.) (3d § Law Evidence it is Texas Valdez, collected S.W.2d at and cases law, a matter of Texas settled as criminal 2d, Digest Stipulations, 742-788. Texas “stipulation,” as term at least used in Art. Thus, that "evidence” was the mere recitation agreements 1.15,supra, as to includes inter alia judg upon as a basis for introduced and relied be, testimony particular evidence or would what court, dispense by with the ment not does court, open presented full in without con if compliance with Art. need secure waivers ceding the truthfulness of that evidence or oth 1.15,supra. waiving proof. need for erwise Stewart August 20, County not on 1974 of the against appellant. Appеllant has addition- offense of sexual abuse. That offense why that resolution was erroneous. al shown See, Williams, 598-599; alleged as and was not a basis for enhance- 605 S.W.2d at Aaron, (Tex. Rather, these records parte cf. Ex ment. were offered appellant’s prior Cr.App.1985); compare, Hughes v. as criminal evidence 3, supra. Appel- (Tex.Cr.App.1976). record. 533 S.W.2d 824 trial, argues objected lant at аnd now on appeal, proper- C. these records were not 3731a, under Article V.A. ly authenticated respect allegedly in With to the C.S., therefore and were inadmissible. admonishment, punishment it is un correct giv disputed range that the essence, complaint, in is that Appellant’s en, imprisonment, incor was and sentence offered with However, rect. the actual sentence as pen packet did not conform in all re- years, sessed in this cause was six well spects to that found in the court’s files. actual stated maximum within both the court, appellant’s copy filed with the for the offense. Under such circumstanc misspelled “Wayen” rath- name is twice as es, this Court has held that such an admon “Wayne,” and “sexual” er than abuse “substantially complies” ishment with “su misspelled copy xual abuse.” In the requirements supra. of Article See pen packet, “Wayne” is introduced with the State, supra Taylor v. progeny. its misspelled only once and “sexual abuse” compliance prima constitutes “a facie Such jury’s presence, not at all. Out of the knowing voluntary plea testimony appellant elicited from a Jeffer- guilty. The shifts to the burden then County District Clerk’s record’s custo- son plea defendant to show that hе entered the dian that the mistakes on the court’s understanding consequences without appeared out” and to have been “whited his action and was thus harmed.” Ex pen packet copy and that corrected Gibauitch, parte changes these could not have occurred af- also, Whitten Cr.App.1985). See the Dis- ter the document was filed with Appel trict Clerk’s office. On basis alleged prоved plea has lant or pen pack- argues the documents in the 31,270 product of a was not have ever true et “could been plea bargain reasonably which would of- on file” in the clerk’s the instruments agreed correctly not have had he been ad properly authenti- fice and so were never Therefore, he has not monished. shown 3731a, for admission under Article cated by that “he was misled or harmed supra. Smith, supra admonishment.” accompanied pen packet The Hurwitz, Compare, supra.6 79. Department from the Texas by a certificate Appellant’s point fourth of error is over- comply of records of Corrections custodian ruled. 3731a, 4, supra, at ing and with Article § error, testing copies of the official point In his final of com- that portion therein true and cor рlains of the introduction of that of records contained are originals packet containing copies records and nota- rect of the on file with pen Department This is appellant pled guilty that Texas of Corrections. tions 31,366 degree of authentici convicted in Cause No. sufficient to show and was that stat ty required for admission under the Criminal District Court of Jefferson case,” supra Weеkley th[at] “on the facts of cites Article 6. 96, support id., range claim. applicable of his where aggravated Weekley, reversed an In this court years imprisonment the de- and fact was 5-99 kidnapping conviction because it found that an years incarceration sentenced to 25 fendant was prior acceptance of the de- admonishment obviously distinguishable Weekley is in TDC. guilty plea аpplicable punish- fendant’s that the Gibauitch, See, e.g., Taylor and on its facts. range years imprisonment did ment was 2-20 supra. both compliance" under not constitute “substantial document, including Appellant’s point judg ute for each final error is over- 31,366. No. ruled. ment and sentence in Cause Blokes v. See, being No present, reversible error we (Tex.Cr.App.1982); Todd v. 598 S.W. judgment affirm the of conviction. Aar

2d 2192-293 (Tex.Cr. on v. P.J., ONION, MeCORMICK, J. Frеda, App.1976); part overruled in su concur in the results. Tinsley pra, J., TEAGUE, dissents because 1985) (Tex.App. PDR re Worth — Fort believe where a case is fused; Vessels v. and also S.W. presently pending on motion for . (On appel 2d yet rehearing, and has not been ruled (rules rehearing) ‍​‌‌‌‌​‌​​​‌‌‌​​​‌​‌​​​‌​​​​‌​‌​‌​‌​‌‌​​‌‌​‌‌‌‌​​‍motion for ad lant’s upon, such case should not be used mission under former Article 3731a are authority. as This relates to the proof under same for convictions majority disposition opinion’s points 3, supra, and enhancement of error one numbers and two. allegations). Indeed, appellant’s complaint is not packet pen in the are documents original judg

not authentic Rather, complaint

ment and sentence. are not accurate they copies.

is that This

complaint goes weight of the evi admissibility. dence not to its WEBB, III, Appellant, Lee Clark Evans v. (T 1984) ex.App. PDR; no Worth — Fort Telephone Bell Voss Southwestern cf. Texas, Appellee. The STATE Co., (Tex.Civ.App . —Hous No. 1008-85. ref’d, (holding ton n.r.e. writ [1st] Tex.R.Evid., requirements once Texas, Appeals of Court of Criminal 806(b) satisfied, were Rule mechanical ac En Banc. operator curacy computer skill of Oct. weight admissibility went records.) computer summary of business regard, noteworthy it is also correctly name is

appellant’s spelled in the heading style formal

case

and sentence and that correctly spelled

the offense is also in the immediately preceding that

sentence con “su

taining phrase xual abuse.” Con

sequently, discrepancies between the in the court’s files pen packet

and that in the are due to

obvious clerical mistakes and do rebut reliability

the external indicia of inherent provide

an official record and which category for admission of that

basis Porter v.

hearsay evidence. (Tex.Cr.App.1979) appeal (Tex.Cr.App.1981), remand 623 denied, 965, 102 rt. 456 U.S. S.Ct. ce 72 L.Ed.2d 491

Case Details

Case Name: Robinson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 16, 1987

Citation: 739 S.W.2d 795

Docket Number: 66967

Court Abbreviation: Tex. Crim. App.