Huseman v. State

• Decision Date: 03 November 1999
• Citation: 17 S.W.3d 704
• Parties: (Tex.App.-Amarillo 1999) TIMOTHY LEWIS HUSEMAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE NO. 07-98-0232-CR
• Court: Texas Court of Appeals

Page 704

17 S.W.3d 704 (Tex.App.-Amarillo 1999)

TIMOTHY LEWIS HUSEMAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE

NO. 07-98-0232-CR

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

November 3, 1999

Discretionary Review Refused May 3, 2000.

PANEL C, FROM THE 64TH DISTRICT COURT OF HALE COUNTY; NO. A12869-9712; HONORABLE JACK R. MILLER, JUDGE

Before QUINN and REAVIS and JOHNSON, JJ.

Don H. Reavis, Justice

Appellant Timothy Lewis Huseman pled guilty¹ to aggravated assault with a deadly weapon and the jury assessed punishment at 15 years incarceration and a $10,000 fine. Appellant now appeals his conviction presenting seven points of error. Appellant contends the trial court erred in: 1) refusing to allow him to withdraw a guilty plea, waiver of jury trial, and stipulation of evidence, 2) failing to read the indictment in open court and not permitting appellant to enter a plea, 3) denying appellant's motion for change of venue and mistrial due to excessive publicity, 4) not quashing the jury panel due to the inclusion of a check-off on the jury questionnaires for contributing jury service fee to the Crisis Center, 5) denying challenges for cause to three jurors, 6) admitting into evidence the post-operative photographs, appellant's oral statement, and prior incidents of domestic violence, and 7) excluding evidence of the victim's past behavior.² Based upon our review of appellant's first two points which we consider together, the judgment of the trial court must be reversed and the cause remanded for a new trial.

Except for noting that appellant was convicted of aggravated assault with a deadly weapon upon his former wife, a detailed historical statement of the facts is not necessary to our disposition. The jury was qualified, selected, and seated on May 5, 1998,³ for trial on appellant's plea of not guilty. Then, on May 6, before the jury was seated and the State proceeded, appellant announced his desire to withdraw his plea of not guilty, and that he desired to proceed upon a plea of guilty with his election for the jury to set punishment. After appropriate admonishment by the court, appellant signed a stipulation of evidence. When the jury was seated and the indictment read, appellant pled guilty. Rudina Heard Huseman, the victim, was called to testify the morning of May 7 and was on the witness stand when the trial court announced that it was time to take the noon recess. However, as she was stepping down from the witness stand, she asked one of the jurors what was written on her juror's badge.⁴ following the granting of a mistrial, the case was set to commence on May 19. However, this setting was vacated due to the death of the victim's mother, and the case was again reset for trial on June 16.

On June 16, counsel appeared and before the jury arrived, the court considered numerous pre-trial matters. The pre-trial conference concluded with counsel for appellant presenting a written motion to withdraw his guilty plea, and recant his judicial stipulation and waiver of jury trial. During argument out of the jury's presence, among other things, appellant's counsel urged that appellant should be "restored to his original position" prior to the mistrial and the guilty plea. Before ruling on appellant's motion, the trial court granted a recess to allow State's counsel to research the question. After the recess, upon noting that the trial court considered the effectiveness of the guilty plea, waiver of a jury trial, and adjudication of guilt on May 6, notwithstanding the prior mistrial,⁵ the trial court denied appellant's motion because it was untimely presented, and proceeded to trial without any plea being made before the jury was seated. The trial court did, however, note appellant's objection and gave him a continuing objection. Following presentation of the evidence and the trial court's instructions and charge, the jury returned its verdict finding appellant guilty as instructed and set his punishment.

By his first point of error, appellant contends the trial court was required to permit him to withdraw his guilty plea. By his second point, he contends the trial court erred because it failed to accept his plea of not guilty. By his argument, appellant reasons that in effect, the granting of a mistrial restored the status of the prosecution to the same position as it was before the commencement of the trial on May 6. We agree and will discuss these points together. In our analysis, we are required to determine (1) whether the trial court had the authority to grant a mistrial as to the punishment phase only, (2) the legal effect of granting the mistrial, and (3) whether the conviction is null and void because appellant was not allowed to enter a plea during the June proceeding.

We first consider whether the trial court had authority to grant a mistrial limited to the punishment phase only. In State v. Bates, 889 S.W.2d 306, 310 (Tex.Cr.App. 1994), the Court affirmed a decision by the Eastland Court of Appeals holding that a trial court does not have authority to grant a new trial as to the punishment stage only, because of the specific language in article 44.29 of the Texas Code of Criminal Procedure Annotated (Vernon Supp. 1999). See also State v. Hight, 907 S.W.2d 845, 846 (Tex.Cr.App. 1995), following Bates and holding that only appellate...