Opinion
NO. 01-17-00575-CR
04-26-2018
OMAR DUARTE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court Harris County, Texas
Trial Court Case No. 549347
MEMORANDUM OPINION
In August 1990, Omar Duarte pleaded guilty, without a sentencing recommendation, to the charged offense of "aggravated delivery of a controlled substance." After he failed to appear at the scheduled sentencing hearing, the trial court, in 1991, found Duarte guilty and assessed his punishment, in absentia, at 35 years in prison and a $50,000 fine. Twenty-six years later, in August 2017, Duarte appeared at a hearing before the trial court. The trial court formally sentenced Duarte to the punishment assessed in 1991: 35 years in prison and a $50,000 fine. On appeal, Duarte raises one issue challenging his sentence.
The appellate time requirements begin to run on the sentencing date. See Pruitt v. State, 737 S.W.2d 622, 623 (Tex. App.—Fort Worth 1987, pet. ref'd).
We affirm.
BACKGROUND
In December 1989, Appellant Omar Duarte was charged with the offense of delivery of between 28 grams and 200 grams of heroin, a controlled substance. On August 13, 1990, Duarte pleaded guilty to the charged offense. The written plea admonishments, signed by Duarte, informed him that the possible punishment range for the charged offense was "not more than 99 years" and "not less than 5 years" and a fine up to $50,000. Duarte, his counsel, the State's attorney, and the trial court also signed a "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession," in which Duarte waived his right to a jury trial.
The trial court withheld a finding of guilt at the time of Duarte's plea in order to permit a presentence investigation to be conducted. An "Agreed Setting" reflects that Duarte's sentencing hearing was scheduled for October 19, 1990. A docket sheet entry for that dates reflects, "At 10:30 a.m.[,] the Bailiff called the Defendant's name at the Courthouse door. The Defendant failed to answer in this cause. BOND FORFEITED-ALIAS CAPIAS TO ISSUE."
The trial court issued an alias capias for Duarte's arrest, which was stamped "unexecuted" on August 2, 1991. On that same date, the trial court found Duarte guilty of the charged drug offense and assessed his punishment, in absentia, at 35 years in prison and a $50,000 fine. The docket sheet indicates that a court reporter was waived. The trial court signed a judgment of conviction on that day. On the judgment, the court noted that finding of guilt and imposition of sentence had been in absentia.
The trial court issued another alias capias for Duarte's arrest in 1993. The sheriff executed the alias capias by arresting Duarte in April 2017. On June 26, 2017, Duarte appeared before the trial court for sentencing. Duarte told the court that he had not appeared at the sentencing hearing in 1990 because his then-attorney had told him that the trial court had given him probation and that he did not need to appear. Duarte said that he had not "understood anything." The trial court told Duarte, "I don't believe you at this time."
The trial court also stated, "This is the time that you will be sentenced, as you should have been 26 years ago." In accordance with the punishment assessed 26 years earlier, the trial court informed Duarte that he was sentenced to 35 years in prison and that a fine of $50,000 fine was assessed against him. The court informed Duarte that he had a right to an appeal and to appointed appellate counsel.
Duarte then stated to the trial court, "I ask you to give me opportunity because I didn't do anything wrong. For 27 years I have been a good citizen." Duarte's attorney added, "[H]e's behaved and done well for 27 years and hasn't violated the law."
The trial court responded,
That's not what we're talking about. We're talking about the fact that you failed to return to court to find out what your sentence was. You knew that you were supposed to come here 26 years ago and hear what Judge Wilkinson would say. He could have given you probation. Who knows now? But at this point—at that point the judge must have been disappointed that you didn't come to court to find out. So, he sentenced you to 35 years in the Texas Department of Corrections and a 50,000-dollar fine. This is all on you. You did not return. And then you did not turn yourself in and you're asking for special treatment at this time? You're lucky that they're not filing new charges on you.
A notation dated June 26, 2017 appears on the August 2, 1991 judgment indicating that the trial court "affirmed" the judgment and ordered the judgment executed. Duarte did not file a motion for new trial.
This appeal followed. Duarte presents one issue in which he contends that the 1991 trial court "erred in refusing to consider the entire range of punishment when sentencing" him. Duarte intimates that it was error for the trial court to assess his punishment in absentia. He also argues that the 2017 trial court erred because it did not give him "a full punishment hearing" and consider the "mitigation evidence, any presentence investigation report or [his] behavior in the intervening time."
ANALYSIS
On appeal, Duarte asserts that the trial court violated his due-process rights because it "failed to consider the full range of punishment when sentencing Appellant to 35 years confinement in [prison] and a $50,000 fine, as there is no indication in the record that the presentence investigation report that had been ordered was actually prepared and/or considered in assessing punishment." As the State points out, the record does not show that Duarte raised this complaint in the trial court either at the time of sentencing or later in a motion for new trial.
"Most appellate complaints must be preserved by a timely request for relief at the trial level." Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013). Even constitutional rights—including the right of due process—may be waived if the proper request, objection, or motion is not asserted in the trial court. See Hull v. State, 67 S.W.3d 215, 218 (Tex. Crim. App. 2002); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). Accordingly, Duarte's claim that the trial court's sentencing process denied him due process has not been preserved for our consideration. See TEX. R. APP. P. 33.1(a) (providing that, to preserve error for appeal, record must show that complaint was made to trial court and that trial court ruled on request or refused to rule and that "complaining party objected to the refusal"); see also Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.—Texarkana 2002, pet. ref'd) (concluding that appellant's due-process challenges, which claimed trial court erred by refusing to consider entire range of punishment or refusing to consider evidence pertaining to punishment, was waived because no objection asserted).
Duarte also intimates that the trial court should have heard evidence at the 2017 hearing and reconsidered the punishment assessed in 1991. Duarte states that "denial of due process in the instant case was particularly egregious in that the trial court had . . . proceeded to assess punishment in absentia." Duarte cites case authority providing that due process requires "'full and complete notification' of the charges alleged with a reasonable opportunity to meet the charges by defense or explanation." Papakostas v. State, 145 S.W.3d 723, 726-27 (Tex. App.—Corpus Christi 2004, no pet.) (citing Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979); Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969)).
We note that "[a] defendant who does not receive notice of a hearing because of his own misconduct will not be heard to complain of a lack of notice on appeal." Id. at 727 (citing Taylor v. United States, 414 U.S. 17, 18, 94 S.Ct. 194, 195 (1973); Sanchez v. State, 842 S.W.2d 732, 733 (Tex. App.—San Antonio 1992, no pet.)). At the 2017 hearing, Duarte told the trial court that he had not appeared at the sentencing hearing years before because he had been misled by his then-attorney to believe that the trial court had already given him probation. After hearing this explanation, the trial court stated that it did not believe Duarte. The court indicated that it believed that Duarte had voluntarily absented himself from the sentencing hearing. Duarte cites to nothing in the record to show that the trial court abused its discretion in reaching this conclusion. See Smith v. State, 494 S.W.3d 243, 253 (Tex. App.—Texarkana 2015, no pet.) (providing that trial court's decision whether defendant voluntarily absented himself from trial is reviewed for abuse of discretion); see also Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984) (holding that, "[s]ince the trial court could have reasonably inferred from the information before it that appellant voluntarily absented himself, the court did not abuse its discretion in denying appellant's motion for continuance and proceeding with trial").
Duarte also asserts that, at the 2017 hearing, the trial court erred because it did not give him "a full punishment hearing" or consider "mitigation evidence, any presentence investigation report or Appellant's behavior in the intervening time." However, when a defendant voluntarily absents himself after pleading to the indictment, the trial may proceed to the conclusion of trial without the defendant personally being present. See TEX. CODE CRIM. PROC. ANN. art. 33.03 (West 2006). Thus, because he voluntarily absented himself after pleading guilty, the trial court was entitled to proceed in 1991 with the assessment of Duarte's punishment. See id.; see also Papakostas, 145 S.W.3d at 725 (recognizing that, to prohibit court from assessing punishment when defendant voluntarily absents himself, would "permit [defendant] to benefit from his misconduct" and would run the risk that evidence could be lost in defendant's absence). Duarte offers no argument to show why the trial court in 1991 could not assess his punishment or to show why the trial court erred in 2017 when it did not reconsider his punishment.
At most, Duarte was entitled to be present for the pronouncement of the sentence. See TEX. CODE CRIM. PROC. art. 42.03 (West Supp. 2017); Larez v. State, No. 02-01-421-CR, 2003 WL 253614, at *2 (Tex. App.—Fort Worth Feb. 6, 2003, no pet.) (mem. op., not designated for publication) (holding trial court did not err when it assessed appellant's punishment in absentia, after he had pleaded guilty and failed to appear at sentencing hearing, and then orally pronounced sentence two years later when appellant was brought before court on bench warrant). Here, the record shows that Duarte was present when the trial court pronounced his sentence in 2017. He has not shown that he was entitled to anything more.
We overrule Duarte's sole issue.
CONCLUSION
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Justices Jennings, Keyes, and Higley. Do not publish. TEX. R. APP. P. 47.2(b).