Lara v. State

• Decision Date: 15 October 1987
• Docket Number: No. 01-86-0505-CR,01-86-0505-CR
• Parties: Juan LARA, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 823

740 S.W.2d 823

Juan LARA, Appellant, v. The STATE of Texas, Appellee.

No. 01-86-0505-CR.

Court of Appeals of Texas Houston (1st Dist.).

Oct. 15, 1987.

Neil C. McCabe, Houston, for appellant.

John B. Holmes, Jr., Harris County Dist. Atty., Linda A. West, Claire Connors, Harris County Asst. Dist. Attys., Houston, for appellee.

Before WARREN, HOYT and DUNN, JJ.

OPINION ON REHEARING

DUNN, Justice.

Our prior opinion of June 11, 1987, is withdrawn, and the following is substituted.

A jury found the appellant guilty of murder, found an enhancement paragraph true, and assessed punishment at confinement for life.

The sufficiency of the evidence is not challenged.

In point of error one, the appellant argues that the trial court erred by failing to have the indictment read to the jury, and by failing to have the appellant plead to the charge in front of the jury at the commencement of the guilt-innocence phase. The appellant's argument is based on Tex.Code Crim.P.Ann. art. 36.01 (Vernon 1981) and Tex.R.App.P. 80(d). Article 36.01(1) states:

A jury being impaneled in any criminal action, the cause shall proceed in the following order:

1. The indictment or information shall be read to the jury by the attorney prosecuting.

Tex.R.App.P. 80(d) states:

(d) Presumptions in Criminal Cases

The court of appeals shall presume ... that the defendant was arraigned; that he pleaded to the indictment....

The appellant timely filed and timely presented to the trial court a formal bill of exception. Therein the appellant stated:

As duly recorded in the docket sheet, on the date of trial, June 25, 1986, 'At 10:20 a.m. defendant was arraigned out of the present [sic] of the jury.' The indictment was not read and the defendant did not enter a plea in the presence of the jury before the presentation of the state's case or at any time thereafter during trial. See Warren v. State, 693 S.W.2d 414, 416 (Tex.Crim.App.1985) (such error when discovered after trial, can be preserved by bill of exception).

The trial judge signed the bill of exception only after adding the statement, "Corrected, with consent of counsel, to incorporate Judge's Response." The judge's response is as follows:

Having returned from trial in Galveston County, the undersigned Judge makes the following response:

I.

Standard operating procedure in this Court is to arraign the Defendant before the jury.

II.

In the trial in question, the Court specifically remembers the request of the defense attorney to arraign the defendant outside the presence of the jury. This was done, pursuant to his request.

III.

This Court has no independent recollection of whether a second arraignment was held in the presence of the jury.

IV.

This Court has a very specific memory of defense counsel, Mr. Elizondo, and his co-counsel, Mr. Charlton, implying to the Court each day of the trial that error had been committed early in the trial and that all the time and effort that we were expending was a waste. No objection to any alleged procedural omission was lodged. The trial, if I remember correctly, took 5 days.

(Emphasis added.)

The State argues that two presumptions are applicable in this case. The first is the presumption of the regularity of the judgment. The judgment in this case states in part:

The indictment was read to the jury and the defendant entered a plea of not guilty thereto.

The State also argues that Tex.R.App.P. 80(d) creates a statutory presumption that the appellant pleaded to the indictment.

The State is correct, except that these presumptions can be defeated if the error has been brought to the attention of the trial court, or if there is an affirmative showing to the contrary. Sharp v. State, 707 S.W.2d 611, 616 (Tex.Crim.App.1986). In the case before us, because there was no objection at trial, we must decide whether there exists an affirmative showing in the record to overcome these presumptions. See Warren v. State, 693 S.W.2d 414, 416 (Tex.Crim.App.1985).

A bill of exception is a proper method to show error in the record. Warren, 693 S.W.2d at 416. However, this particular bill of exception is inadequate to defeat the presumptions, because the judge's response does not specifically and affirmatively approve the assertion in the appellant's bill of exception that "the defendant did not enter a plea in the presence of the jury before the presentation of the State's case or at any time thereafter during trial."

When a formal bill of exception is presented for the trial judge's allowance and signature, the trial judge has two choices. If the trial judge finds the bill to be correct, the judge merely signs the bill with no comments. Tex.R.App.P. 52(c)(5). If the judge corrects the bill, as in this case, this is a finding that the bill is incorrect pursuant to Tex.R.App.P. 52(c)(6). If the party does not agree to these corrections, "the judge shall return the bill to him with his refusal endorsed thereon, and shall prepare, sign, and file with the clerk such bill of exception or will, in his opinion, present the ruling of the court as it actually occurred." Tex.R.App.P. 52(c)(7). If the appellant did not agree with the trial judge's suggested corrections, the appellant should have availed himself of Tex.R.App.P. 52(c)(8), which states as follows:

Should the party be dissatisfied with said bill filed by the judge, he may, upon procuring the signatures of three respectable bystanders, citizens of this State, attesting to the correctness of the bill as presented by him, have the same filed as part of the record of the cause....

There is no bystanders' bill in the record. Because of the trial judge's corrections to the bill of exception, the appellant has not overcome either the presumption in article 44.24(a), or the presumption of regularity of the judgment.

On motion for rehearing, the appellant cites Warren Petroleum Corp. v. Pyeatt, 275 S.W.2d 216 (Tex.Civ.App.--Texarkana 1955, writ ref'd n.r.e.), as authority for the proposition that a bill containing the judge's correction stating that she had no "independent recollection" must be considered as approved without qualification.

The appellant's reliance on Warren Petroleum is misplaced because the issue before the Texarkana Court of Appeals was whether the bill of exception preserved error. The court held that the bill of exception was defective because it did not show that error had been preserved by an objection to the argument complained of, and any error was therefore waived. In dicta, the appeals court discussed the trial judge's comments to the bill and stated that "a conditional qualification of a bill will not be considered. The qualification must be plain and positive; otherwise, the bill will be considered as approved without qualification." Warren Petroleum, 275 S.W.2d at 219-20. As authority for this statement, the court of appeals cites Graham v. State, 72 Tex.Cr.R. 9, 160 S.W. 714 (1913); Jolley v. Brown, 191 S.W. 177 (Tex.Civ.App.--Amarillo 1916, no writ); Walton v. Walton, 191 S.W. 188 (Tex.Civ.App.--Galveston 1916, no writ); Irwin v. State Nat'l Bank of Ft. Worth, 224 S.W. 246 (Tex.Civ.App.--Fort Worth 1920, no writ); Southland Life Ins. Co. v. Norwood, 76 S.W.2d 166 (Tex.Civ.App.--Fort Worth 1934, writ dism'd); and Texas Employers Ins. Association v. McNorton, 92 S.W.2d 562 (Tex.Civ.App.--Dallas 1936, writ dism'd), 132 Tex. 168, 122 S.W.2d 1043 (Comm'n App.1939, opinion adopted).

In Graham, the court qualified the bills of exception with statements that were "independent" of the facts set out in the bill, and also were not supported in the record. Therefore, the Court of Criminal Appeals considered the bills of exception as though they were not qualified. Graham, 160 S.W. at 715.

In Jolley, the appeals court held that the qualifications of the trial court were "simply a statement to this Court why the ruling of the trial judge was not reversible." Jolley, 191 S.W. at 179. The appeals court stated that the qualification "neither denies, modifies, nor in any way explains the facts set out in the bill." Id. The appeals court, therefore, considered the bill as though it was not corrected by the trial court.

In Walton, the appellant filed a bill of exception to preserve the testimony of a witness that was excluded when the court sustained an objection asserting that the witness was incompetent. 191 S.W. at 188. The trial court qualified the bill by stating that he had not been told the substance of the witness' testimony at the time of the ruling. Walton, 191 S.W. at 189-190. The court of appeals held that this qualification was irrelevant to the bill itself, and therefore, it considered the bill as though there were not corrections. Walton, 191 S.W. at 190.

The appellant's reliance on Irwin is also misplaced because the trial judge in Irwin "allowed" the bill of exception stating that

the court has no recollection at this time of having been requested to file same [findings of fact and conclusions of law], but from the statement of the attorney representing the defendant, J.E. Black, that he made such request, the court presumes that he did so.

Irwin, 224 S.W. at 247 (emphasis added). The trial judge in Irwin affirmatively approved the bill based upon his confidence and trust in counsel. In the case before us, the trial judge never specifically and affirmatively agreed that the indictment was not read and that the appellant did not enter a plea in the presence of the jury.

In Southland, the trial judge approved a bill of exception, "but wrote thereon his certificate that he had no individual recollection that counsel was to prepare later a statement of what the answer to the question objected to would be, but got his information thereon from 'the record.' " 76 S.W.2d at 168. This bill was apparently requested during trial, but allowed to be completed after trial. The judge's statement merely indicates the source of his knowledge that he had agreed to allow the bill to...