Opinion
Nos. 05-06-01582-CR, 05-06-01583-CR, 05-06-01584-CR.
Opinion Filed May 20, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause Nos. F05-01462-H, F05-72893-H, F04-44037-H.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
Appellant waived trial by jury and pleaded guilty to three separate offenses: aggravated assault, felony theft, and state jail felony theft. The trial court heard punishment evidence, made affirmative findings in the aggravated-assault case that appellant used a deadly weapon and that the offense involved family violence, and assessed appellant's punishment at confinement for twelve years for the aggravated assault, confinement for eight years for the felony theft, and confinement for one year for the state jail felony theft. Appellant raises five issues in this consolidated appeal, in which he (1) argues that his pleas in each case were involuntary, (2) asks this court to delete the family violence finding for lack of adequate notice, and (3) challenges the legal and factual sufficiency of the evidence to support the family violence finding. In a single cross-point, the State asks this Court to modify the judgment in the aggravated-assault case to correct a clerical error. We overrule appellant's issues, grant the State's cross-point, modify the judgment in the aggravated-assault case and affirm that judgment as modified, and affirm the trial court's other judgments.
Appeal number 05-06-01583-CR, trial court cause number F05-72893-H.
Appeal number 05-06-01582-CR, trial court cause number F05-01462-H.
Appeal number 05-06-01584-CR, trial court cause number F04-44037-H.
Factual Background
Appellant signed a judicial confession in each of the underlying cases. In the state jail felony theft case, he confessed to theft of property valued over $1,500 but under $20,000. In the felony theft case, he confessed to two separate incidents of theft of property with an aggregate value of at least $20,000 but less than $100,000. In the aggravated assault case, he confessed to assaulting his girlfriend, Grace Okoro, by striking her with a gun and by choking her with his hands. Appellant pleaded guilty in open court to all three indictments and the trial court conducted a combined sentencing trial. During appellant's sentencing trial, Okoro testified that she dated and lived with appellant for "[a]pproximately eight months, somewhere around there." She testified to multiple incidents of violence by appellant, including occasions when appellant hit her and held a gun to her head. During one incident, appellant choked Okoro and said, "Die bitch, die." She passed out. Appellant testified during his sentencing trial. He admitted that he and Okoro fought on multiple occasions and stated that both of them had been injured in the fights. He gave inconsistent testimony about whether he ever assaulted Okoro with a gun. When asked, "So did you ever-is there a time where a shotgun was pointed at the mouth? What happened there?" appellant answered, "Oh man, it got worse really, because I had started taking esctasy. We were both taking esctasy." But later, when his attorney started to ask him, "You're telling the Judge this thing about the shotgun or hitting her in the head with the gun-" appellant interrupted him and stated, "No, I never touched her with any kind of firearm." On cross examination, the State questioned appellant about the details of the assault on Okoro. Appellant denied that he held a gun to Okoro, but admitted to choking her:[APPELLANT]: I struck her with my hand, yes. I didn't strike her with a gun.
[THE STATE]: You pled guilty to striking her with a gun.
[APPELLANT]: I'm pleading guilty to striking her with my hand.
[THE STATE]: To choking her?
[APPELLANT]: Yes, ma'am.
[THE STATE]: You choked her with your hands?
[APPELLANT]: Yes, ma'am.Appellant denied that Okoro passed out, or that he told her, "die bitch, die," but he admitted that in the photographs of Okoro introduced into evidence, Okoro is "[p]retty banged up" and "swollen."
Issues on Appeal
In his first issue, appellant argues that his plea in the aggravated-assault case was not knowing and voluntary "because he did not have a complete understanding of the nature of the charge against him." In his second issue, appellant argues that his convictions in all three cases must be reversed because the record does not affirmatively demonstrate that he "had a full understanding of his guilty pleas and their consequences." In his third issue, appellant argues that the affirmative finding of family violence must be deleted from the judgment in the aggravated-assault case because he did not receive prior notice that the State intended to seek that finding. In his fourth and fifth issues, appellant challenges the legal and factual sufficiency of the evidence to support the trial court's affirmative finding of family violence in the aggravated-assault case.Analysis A. Appellant's Guilty Pleas
First Issue In his first issue, appellant argues that his plea in the aggravated-assault case was not knowing and voluntary because he pleaded guilty "without understanding that such offense is committed only if he used a `deadly weapon,' namely, either a gun or his hand, during the commission of the offense, or that he caused `serious bodily injury' to the complainant." In response, the State argues that appellant did not preserve this issue for review. Alternatively, the State argues that his plea was knowing and voluntary, or that any alleged error is harmless. Appellant did not complain to the trial court about its acceptance of his guilty plea, either before or after his sentencing. Under Texas Rule of Appellate Procedure 33.1, a party must first complain to the trial court and obtain a ruling in order to preserve most complaints for appellate review. See Tex. R. App. P. 33.1. The court of criminal appeals and this Court have held that the rule 33.1 requirement of preservation of error applies to complaints about the voluntariness of a guilty plea. See Mendez v. State, 138 S.W.3d 334, 339, 350 (Tex.Crim.App. 2004); Aldrich v. State, 53 S.W.3d 460, 468-69 (Tex.App. -Dallas 2001), aff'd, 104 S.W.3d 890 (Tex.Crim.App. 2003). We conclude that appellant has not preserved this issue for appellate review. Nevertheless, we would overrule this issue because appellant's argument is contradicted by the record. Appellant argues that the record demonstrates that he "did not understand that, in order to be found guilty of aggravated assault, a defendant must use or exhibit a `deadly' weapon." This argument is contradicted at least twice in our record. First, appellant's indictment for aggravated assault charges that he committed aggravated assault on Okoro by various means, including by choking her "WITH DEFENDANT'S HAND, a deadly weapon." Second, during the sentencing proceedings, appellant's counsel explained that, because appellant denies that he assaulted Okoro with a gun, appellant originally intended to plead not guilty to the aggravated assault charge, but changed his mind when he realized that his hands could be a deadly weapon. Appellant's counsel explained that appellant "realizes now [that] choking with his hands could be a deadly weapon. I think that's finally what got him to change his mind in pleading." These statements in the record conclusively refute appellant's contention that he was unaware that he was pleading guilty to a charge that he used or exhibited a deadly weapon. We overrule appellant's first issue.Second Issue
In his second issue, appellant argues that the record in this case does not "affirmatively show that he had a full understanding of his guilty pleas and their consequences." In response, the State argues that the record reflects that appellant understood his pleas and their consequences. Appellant concedes that the trial court properly admonished appellant, both orally and in writing, but apparently argues that the trial court should have refused to accept appellant's guilty pleas or sua sponte withdrawn those pleas. Appellant, however, did not complain to the trial court at any time about the court's acceptance of his guilty pleas, including in his motion for new trial. Appellant does not contend that he preserved this issue for appellate review or describe why it may be raised for the first time on appeal. And the court of criminal appeals has held that in order to preserve a complaint that a trial court should have sua sponte withdrawn a guilty plea, the complaint must be raised in trial or in a motion for new trial. Mendez, 138 S.W.3d at 339, 350. We conclude that appellant has not preserved this issue for our review. See Tex. R. App. P. 33.1. Nevertheless, we would overrule this issue. Appellant makes the conclusory assertion that "it is readily apparent" from the record that he "did not understand the consequences of his guilty plea," but the only specific argument he makes is that the aggravated-assault indictment differs from appellant's testimony at trial, presumably because appellant denied using a gun to assault Okoro. Appellant, however, does not cite the record to demonstrate a lack of understanding as to the consequences of any of his pleas, nor does he make any specific arguments concerning his pleas to the theft indictments. Consequently, he has not sufficiently briefed this issue for appellate review. See Tex. R. App. P. 38.1. Moreover, the record demonstrates that the trial court admonished appellant orally and in writing, confirmed repeatedly that appellant understood what he was charged with and the rights he was waiving, advised him as to the punishment ranges for the offenses, and confirmed that his pleas of guilty were made freely and voluntarily. The record also contains uncontradicted testimony from Okoro and appellant that appellant choked Okoro with his hands as charged in the indictment. We overrule appellant's second issue.B. The Affirmative Finding of Family Violence in the Aggravated-Assault Case
Appellant's last three issues relate solely to his conviction for aggravated assault, and specifically to the issue of the affirmative finding that the assault involved family violence.Applicable Law
Article 42.013 of the code of criminal procedure requires a trial court to enter an affirmative finding of family violence when a defendant is convicted of assault involving family violence:In the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence, as defined by Section 71.004, Family Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case. Tex. Code Crim. Proc. Ann. art. 42.013 (Vernon 2006). Under section 71.004 of the family code, family violence includes dating violence, as defined by section 71.0021. Tex. Fam. Code Ann. § 71.004(3) (Vernon 2002). Under section 71.0021, dating violence includes acts of violence "against another individual with whom that person has or has had a dating relationship." Id. § 71.0021. An affirmative finding of family violence will affect a defendant's sentence only if the defendant has previously committed an act of family violence. See Tex. Penal Code Ann. § 22.01(b)(2) (Vernon Supp. 2007) (prior assault involving family violence increases subsequent assault involving family violence from class A misdemeanor to third-degree felony).Third Issue In his third issue, appellant argues that the finding must be deleted from the judgment because he never received notice that the State intended to seek that finding. In response, the State argues that appellant failed to preserve this issue for appellate review because he did not complain to the trial court about his lack of notice. Alternatively, the State argues that the State was not required to provide notice, or that any error was harmless. The record demonstrates that appellant did not object after the trial court announced its affirmative finding of family violence. Appellant also did not complain about his lack of notice in his motion for new trial. Appellant contends that he was not required to object to the trial court in order to preserve this issue for our review, but he does not cite any authority that directly supports this argument. Appellant has not demonstrated that this issue is an exception to the error-preservation requirements under rule 33.1. We conclude that appellant has not preserved this issue for our review. Moreover, we question whether appellant was entitled to prior notice of what he concedes is a first-offense family violence finding. See Thomas v. State, 150 S.W.3d 887, 888 (Tex.App.-Dallas 2004, pet. ref'd) ("We question, however, whether a defendant is entitled to any notice of the State's intent to seek a first-offense family violence finding that could not have any impact on punishment."). As the court of criminal appeals recently explained, under article 42.013 of the code of criminal procedure, the trial court is statutorily obligated to enter an affirmative finding of family violence in its judgment if the court determines that the offense involved family violence as defined by the family code. Butler v. State, 189 S.W.3d 299, 302 (Tex.Crim.App. 2006). This requirement does not depend on whether the defendant received formal notice. See Tex. Code Crim. Proc. Ann. art. 42.013. We overrule appellant's third issue.