Ridgway v. State

Full title: MATTHEW RIDGWAY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 7, 2009

No. 05-08-00493-CR (Tex. App. Jul. 7, 2009)

Opinion

No. 05-08-00493-CR

Opinion Filed July 7, 2009. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-33038-P.

Before Justices FITZGERALD, LANG, and SMITH.

OPINION

Opinion By Justice BEA ANN SMITH[fn1]. [fn1] The Honorable Bea Ann Smith, Justice, Court of Appeals, Third District of Texas at Austin, Retired, sitting by assignment.

Matthew Ridgway pleaded guilty to possession with intent to deliver methamphetamine and was sentenced to eight years in prison. In three issues, he claims his guilty plea was involuntary and argues the trial court abused its discretion by admitting certain photographs and entering a deadly weapon finding. We affirm the trial court's judgment.

Discussion

Guilty Plea

In his first issue, appellant argues his guilty plea was involuntary because he entered the plea "while laboring under the false impression that the trial court would grant him probation."

Law

Appellant raises his complaint about the voluntariness of his guilty plea for the first time on appeal. The general rule is that, in order to preserve a complaint for appellate review, a timely, specific objection and a ruling by the trial court is required. Tex. R. App. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App. 2004). However,

[t]he rules that require a timely and specific objection, motion, or complaint do not apply to two relatively small categories of errors: violations of "rights which are waivable only" and denials of "absolute systemic requirements." Such errors may be raised for the first time on appeal.

Examples of rights that are waivable-only include the rights to the assistance of counsel, the right to trial by jury, and a right of appointed counsel to have ten days of trial preparation which a statute specifically made waivable-only.

Absolute, systemic requirements include jurisdiction of the person, jurisdiction of the subject matter, and a penal statute's being in compliance with the Separation of Powers Section of the state constitution.

Aldrich v. State, 104 S.W.3d 890, 895 (Tex.Crim.App. 2003). The voluntariness of a guilty plea cannot be raised for the first time on appeal. See Mendez, 138 S.W.3d at 339 n. 5 ("Because a challenge to the voluntariness of a guilty plea does not implicate one of the `fundamental' requirements identified by the Supreme Court, an appellant must properly preserve such a complaint for appellate review"). The trial court also has no duty to conduct some special proceeding or to sua sponte withdraw a guilty plea when evidence inconsistent with guilt is introduced. Mendez, 138 S.W.3d at 350; Aldrich, 104 S.W.3d at 895.

Application

Although appellant does not claim the trial court should have sua sponte withdrawn his guilty plea or conducted some other proceeding, he nonetheless argues that his guilty plea was involuntary and asks this Court to set aside the guilty plea. At the punishment hearing, appellant explained the circumstances of the offense and attempted to persuade the trial court to grant him probation. Appellant never denied that he was guilty of the offense; he sought neither acquittal nor withdrawal of his guilty plea, and he did not argue he should be convicted of a lesser crime. He subsequently filed a motion for new trial yet did not allege his plea was involuntary. Because appellant did not challenge the voluntariness of his guilty plea at trial or in the motion for new trial, his complaint was not preserved for appellate review. Furthermore, even if we were to conclude appellant preserved his claim for review, his plea was voluntary. According to the record, he was admonished of his constitutional and statutory rights both in writing and orally by the trial court at the plea hearing. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (d) (Vernon Supp. 2008). This was a prima facie showing that the guilty plea was knowing and voluntary, and the burden then shifted to appellant to show he did not fully understand the consequences of his plea. Mallet v. State, 65 S.W.3d 59, 64 (Tex.Crim.App. 2001); Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). Appellant has failed to meet this burden. His eight-year sentence was well within the punishment range provided by law for a first degree felony offense and was, in fact, only three years above the minimum term of imprisonment. See Tex. Health and Safety Code Ann. § 481.112(d) (Vernon 2003) (possession with intent to deliver four or more but less than two hundred grams of methamphetamine is a first degree felony); Tex. Penal Code Ann. § 12.32 (Vernon 2003) (first degree felony offense punishable by a term of between five and ninety-nine years in prison and optional fine not to exceed $10,000). Although appellant may have wanted to be placed on probation, there is nothing in the record to support appellant's assertion that he entered his guilty plea only because he thought the trial court would place him on probation. Moreover, the fact that appellant may have desired such an outcome does not render the guilty plea involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex.App.-Dallas 1993, no pet.) ("A plea is not rendered involuntary simply because a defendant received a greater punishment than he anticipated"). We overrule appellant's first issue.

Admissibility of Photographs

In his second issue, appellant argues the trial court abused its discretion by admitting, at the sentencing hearing, six photographs of the contents of a storage unit.

Background

Irving Police Sergeant Kirk Lecroy testified that, on December 23, 2006, at approximately 2:00 a.m., he was traveling near Esters and Northgate roads when he saw two men sitting in a sport utility vehicle (SUV) parked outside of a storage unit. When the men saw Lecroy, he "could see panic in their eyes," so he "pulled in to check it out." After entering the storage area, Lecroy saw the passenger, Bowen, ² get out of the SUV and walk quickly towards him. Appellant, who was driving the SUV, got out of the vehicle and also started walking towards Lecroy. Because there were people on both sides of him, Lecroy thought "they were gonna try to fight with me or something like that." Appellant's hands were in his pockets, and Lecroy said, "Let me see your hands." Appellant did not remove his hands from his pockets, which alarmed Lecroy. At this point, "back-up officers arrived." Officers searched appellant and found a handgun tucked into his pants. After the two suspects were taken into custody, officers also found methamphetamine in appellant's pocket. Bowen, who had the key to the storage unit and gave officers permission to search it, told them that he and appellant were headed to the storage unit together. They were not in the storage unit and it was not open when Lecroy saw them. Officers searched the vehicle and photographed its contents. Inside the vehicle, officers found a five gallon bucket and a black bag. The contents of the black bag included a propane tank, camping oil, a radio, batteries, pliers, tubing, fans, paper towels, and Tupperware containers.³ Lecroy testified that these items are commonly used to manufacture methamphetamine and that methamphetamine is often made in a bucket. He also testified that he could smell ether and other chemicals inside the bucket. Lecroy did not know if the items in the black bag originally came from the storage unit; they were in the vehicle when he first saw them. Officers also searched the storage unit and photographed its contents. Lecroy testified that he found "items that were consistent with manufacturing of methamphetamine in the storage shed," but he did not describe these items on the record. The photographs of the storage unit's contents, State's exhibits twenty-one through twenty-six, show various buckets and containers, an extension cord, "professional drain opener," bottles containing unknown liquids, and a bottle of muriatic acid. When the State offered into evidence all twenty-five of the photographs of the contents of the vehicle and the storage unit, State's exhibits two through twenty-six, appellant objected to exhibits twenty-one through twenty-six because they depicted items in the storage unit that were tied only to Bowen, not to appellant. The trial court overruled the objection. Appellant testified that he received the methamphetamine found on his person from Bowen in exchange for taking Bowen to pick up the items from the storage unit that were found in his car. Appellant also claimed the items in his car belonged to Bowen, that they had retrieved those items from the storage unit, and that appellant was taking Bowen and the items back to Bowen's house. Appellant stated that he got out of his car initially because Bowen did so and that he did not walk over to Lecroy but instead complied with Lecroy's order to "[g]et over there by the curb." By that time, according to appellant, two other police vehicles had arrived and those officers approached him. Appellant denied reaching inside his pockets and claimed he told the officers that he had a gun, at which point they "took [him] down" and seized the weapon.

Standard of Review

A trial court's decision to admit evidence is reviewed under an abuse of discretion standard of review. Winegarner v. State, 235 S.W.2d 787, 790 (Tex.Crim.App. 2007). A trial court does not abuse its discretion so long as its decision is within the zone of reasonable disagreement. Id.

Law

During the punishment phase of trial, the trial court has broad discretion to admit any evidence it "deems relevant to sentencing," including a defendant's prior criminal record, his general reputation, his character, opinions as to his character, the circumstances of the offense for which he is being tried, and extraneous offenses that are shown to have been committed by him. See Tex. Code Crim. Proc. Ann. Art. 37.07, § 3(a) (Vernon Supp. 2008); Jones v. State, 111 S.W.3d 600, 607 (Tex.App.-Dallas 2003, pet. ref'd). Extraneous offense evidence is admissible for any relevant purpose at punishment, but only if the State can offer proof that would allow a reasonable fact-finder to conclude, beyond a reasonable doubt, that the defendant could be held criminally responsible for that act. Delgado v. State, 235 S.W.3d 244, 252 (Tex.Crim.App. 2007). Evidence is relevant if it assists the fact finder to assess an appropriate sentence. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). However, even relevant evidence should be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See id. at 266.

Application

The photographs of the items found in the storage unit, along with the photographs of the items found in appellant's car, were relevant to punishment because they showed the circumstances and context of the offense. Lecroy saw appellant sitting with Bowen in a car parked in front of the storage shed, and police officers photographed numerous items from the car that were used to manufacture methamphetamine. Appellant testified that those items had been retrieved from the storage unit. Bowen had a key to the storage unit, and inside the storage unit officers found additional items that were used in the manufacture of methamphetamine. Since the trial court was determining appellant's punishment for possession of methamphetamine with intent to deliver, the context in which the offense was committed, including evidence connecting appellant to the manufacture of methamphetamine, was relevant to this case. Thus, the trial court did not improperly consider State's exhibits twenty-one through twenty-six in assessing punishment. Furthermore, even if we were to conclude the trial court erred in admitting the photographs, the error was harmless. We do not reverse a ruling based on non-constitutional error that does not affect "substantial rights." Tex. R. App. P. 44.2(b). If, after examining the record as a whole, we determine that any error had a slight or no effect on the jury, then we will not overturn the trial court's ruling. Neal v. State, 256 S.W.3d 264, 284 (Tex.Crim.App. 2008); Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). In this case, the evidence includes twenty-five photographs of various items that were used to manufacture methamphetamine and only six photographs depicting items from the storage unit are in dispute. There is no indication in the record that State's exhibits twenty-one through twenty-six had any particular influence on the trial court in determining appellant's punishment. At sentencing, the court stated that appellant's possession of a gun while committing the offense was the reason the court would not place him on probation: "Mr. Ridgeway, the gun in this case is what really — why this is not a probation case." We therefore conclude the six photographs in question did not have a substantial effect on the trial court's punishment decision. We overrule appellant's second issue.

Deadly Weapon Finding

In his third issue, appellant contends the trial court erred in making a deadly weapon finding because the notice in the record bears an incorrect name and is not file-marked.

Background

According to the record, the State served defense counsel with a copy of its "Notice of the State's Special Plea of Use or Exhibition of a Deadly Weapon" on March 14, 2008. This notice incorrectly identifies the defendant as "Timothy Brantley" and bears no file-mark, but the trial court and cause number are correct. On that same day, March 14, 2008, the parties entered into an open plea agreement whereby appellant agreed to plead guilty to a first-degree felony without an agreement on punishment. The plea agreement also contains a handwritten notation that appellant "pleads true to allegation of deadly weapon," and the document was signed by appellant, appellant's trial counsel, the prosecutor, and the trial judge.⁴ On March 19, 2008, appellant entered a plea of guilty and was admonished by the trial court. Appellant's plea was accepted by the court. When appellant was sentenced April 4, 2008, the court noted that appellant had entered a plea of guilty and pleaded "true" to "an allegation of `deadly weapon.'" After a break in the proceedings, appellant was admonished as follows:

THE COURT: Okay. This is Cause F07-33038, Matthew Paul Ridgeway. Mr. Ridgeway, I don't know how far I got. But this is a case which you and another — a plea of guilty in front of another judge. It was a First Degree felony case, possession with intent to deliver methamphetamines. There was a deadly weapon allegation, which I understand you pled "true" to. That judge should have admonished you or told you that the punishment range for this offense was a 5 to life or 99-year prison sentence, a possible ten thousand-dollar ($10,000) fine, the effect of that weapon, if it's found to be true, that you must serve at least half of any sentence that I impose if I don't place you on probation.

So you covered all that with the other judge?

[APPELLANT]: Yes, sir.

The record does not show that appellant was confused about the possibility of a deadly weapon finding or that he asked for a continuance based on inadequate notice. According to the transcript of the sentencing hearing, appellant objected to the deadly weapon finding but did not provide a reason for the objection.

Law

"A defendant is entitled to notice that the State will seek an affirmative finding that a deadly weapon was used during the commission of the charged crime." Brooks v. State, 847 S.W.2d 247, 248 (Tex.Crim.App. 1993) (per curiam) (citing Ex parte Patterson, 740 S.W.2d 766, 775 (Tex.Crim.App. 1987)). "Such notice need not be contained in the indictment under which the defendant is ultimately tried." Brooks, 847 S.W.2d at 248 (citing Patterson, 740 S.W.2d at 776); see also Flenteroy v. State, 187 S.W.3d 406, 411 (Tex.Crim.App. 2005). "Rather, the defendant is simply `entitled to notice in some form that the use of a deadly weapon will be a fact issue at the time of prosecution.'" Brooks, 847 S.W.2d at 248 (quoting Ex parte Beck, 769 S.W.2d 525, 526 (Tex.Crim.App. 1989)); see also Ex parte Minott, 972 S.W.2d 760, 762 (Tex.Crim.App. 1998). The notice must be in writing. Brooks, 847 S.W.2d at 248. In Patterson v. State, 138 S.W.3d 643, 647 (Tex.App.-Dallas 2004, no pet.), we declined to adopt a "definitive rule" for timeliness, concluding that notice provided twenty minutes before jury selection began was not adequate. In reaching this conclusion, we noted the different result in Nolasco v. State, 970 S .W.2d 194, 197 (Tex.App.-Dallas 1998, no pet.), where we concluded that notice received a few hours before the start of voir dire was sufficient. But in Nolasco, the appellant did not request a continuance to prepare against the new allegations and admitted he had knowledge of the weapon in the case, which was the subject of a motion to suppress. Id. at 197; see also Patterson, 138 S.W.3d at 647 n. 2. The appellant also made no claims of surprise or prejudice. Nolasco, 970 S.W.2d at 197. We concluded that the appellant's "failure to request a continuance to remedy his perceived inadequate notice problem defeats any due process claim he might have." Id.

Application

Assuming without deciding the State's written notice was inadequate because it was not file-marked and did not contain appellant's correct name, the record shows that appellant received actual notice of the deadly weapon finding. In Ex parte Minott, Minott complained about the State's failure to provide written notice of a deadly weapon finding but the plea agreement included an agreement that a deadly weapon finding would be made. Ex parte Minott, 972 S.W.2d at 761. The court of criminal appeals concluded that "when a defendant pleads guilty as part of a plea agreement, and the inclusion of an affirmative finding of a deadly weapon is a part of that agreement, the defendant has received actual notice of the State's intention and the right to written notice is waived." Id. at 762. Here, as in Minott, a deadly weapon finding was part of the plea agreement, so appellant received actual notice and waived the right to written notice. Moreover, appellant did not complain about either the timeliness or adequacy of the notice and did not seek a continuance, nor does he now claim surprise or prejudice. Therefore, the right to written notice was waived and the trial court did not err in entering the deadly weapon finding. We overrule appellant's third issue.

Conclusion

Having overruled all three issues on appeal, we affirm the trial court's judgment.