Moore v. State
| Decision Date | 20 February 2014 |
| Docket Number | No. 10-12-00275-CR,10-12-00275-CR |
| Parties | RICHARD DON MOORE, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Court of Appeals of Texas |
From the 54th District Court
McLennan County, Texas
MEMORANDUM OPINIONIn five issues, which can be categorized as two, appellant, Richard Don Moore, challenges the trial court's decision to revoke his community supervision. We affirm.
In July 2007, appellant was indicted for unlawful possession of methamphetamine in an amount greater than one gram but less than four grams, a third-degree felony. See TEX. HEALTH & SAFETY ANN. § 481.115(a), (c) (West 2010). As part of a plea bargain with the State, appellant pleaded guilty to the charged offenseand waived his right to appeal. The trial court accepted appellant's guilty plea, sentenced him to five years' incarceration in the Institutional Division of the Texas Department of Criminal Justice with a $1,000 fine, suspended the imposed sentence, placed appellant on community supervision for five years, and assessed court costs at $437 and restitution at $1,199.15.
Thereafter, on August 4, 2008, the trial court amended the conditions of appellant's community supervision to waive community-supervision fees of $55 from February 2008 to July 2008, because appellant had already paid for and completed drug school. In any event, because appellant violated the conditions of his community supervision by committing the offense of criminal trespassing, among other things, the trial court amended the conditions of appellant's community supervision once again on November 29, 2010. At this time, the trial court ordered appellant to: (1) pay all costs and fees incurred since the date of sentencing to the McLennan County District Clerk at a rate of $15 per month; and (2) serve thirty days in the McLennan County jail.
Subsequently, on March 8, 2012, the State filed a motion to revoke appellant's community supervision, alleging eleven violations. Included in the State's motion were allegations that:
The remaining allegations pertained to the financial obligations of appellant's community supervision.
On June 28, 2012, the trial court conducted a hearing on the State's motion to revoke. At the hearing, the State abandoned allegations 5 and 6, which pertained to the incidents transpiring on or about February 18, 2012. Furthermore, appellant pleaded "true" to the remaining allegations contained in the State's motion to revoke and agreed to waive his right to appeal. The trial court accepted appellant's plea of "true," adjudicated appellant guilty of the underlying unlawful-possession offense, and sentenced appellant to five years' incarceration with a $1,000 fine. The trial court also imposed $402 in court costs—which also contained a line item for reimbursement of court-appointed attorney's fees—and assessed restitution at $1,199.15, less the amount paid of $1,125.
On July 27, 2012, this Court received a number of pro se filings from appellant, including a "Petition for Appeal" and several letters indicating that he is indigent. The trial court appointed appellate counsel for appellant; however, because the trial court's certification indicated that appellant did not have the right of appeal, counsel filed a motion to withdraw.
Appellant's counsel also filed an alternative motion requesting that this matter be abated and remanded to the trial court for reconsideration of appellant's waiver of his right of appeal, especially in light of the concurring and dissenting opinion issued in Adcock v. State, No. 10-12-00291-CR, 2012 Tex. App. LEXIS 10582, at **6-14 (Tex. App.—Waco Dec. 20, 2012, no pet.) (mem. op., not designated for publication) (Gray, C.J., concurring and dissenting). In response, on February 7, 2013, this Court granted appellant's request to abate this appeal and subsequently remanded the matter to the trial court for reconsideration of appellant's waiver of his right of appeal.
On February 15, 2013, the trial court conducted a hearing on our abatement order. At this hearing, appellant asserted that he signed the waiver of his right of appeal only because he was pressured to do so by previous trial counsel. Appellant emphasized that he wanted to appeal the trial court's judgment revoking his community supervision. At the conclusion of the hearing, the trial court entered a judgment nunc pro tunc modifying the judgment revoking appellant's community supervision to delete court-appointed attorney's fees as court costs against appellant. The trial court also corrected appellant's back-time credit. However, believing it was not directed to do so, the trial court did not make any other rulings in the case.
On May 2, 2013, this Court once again abated and remanded this matter to the trial court to "hold any necessary hearings and to rule on any request by Moore to withdraw his waiver of appeal or to grant him permission to appeal." Approximately a week later, the trial court, without a hearing, entered findings stating that appellant did not knowingly, intelligently, and voluntarily waive his right of appeal and thatappellant should be allowed to withdraw his waiver of appeal. As a result, the trial court signed an amended certification of appellant's right of appeal indicating that appellant did, indeed, have the right of appeal in this matter. However, the trial court did not make any finding regarding appellant's plea of "true" to the allegations contained in the State's motion to revoke. This appeal followed.
In his first issue, appellant contends that the trial court violated his right to due process and due course of law by basing the revocation of his community supervision on violations that had been previously considered. Specifically, appellant argues that the first four allegations contained in the State's motion to revoke had already been considered when the trial court chose to modify, rather than revoke, appellant's community supervision. The State counters that appellant did not preserve this issue for review.
Generally, to preserve error for appellate review, a complaining party must make a timely and specific objection in the trial court and obtain a ruling. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Preservation is required for due-process complaints. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (). The preservation rule "ensures that trial courts are provided an opportunity to correct their own mistakes atthe most convenient and appropriate time—when the mistakes are alleged to have been made." Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002).
"[C]omplaints concerning procedural due process are not preserved for appeal if the appellant did not make a due process objection at the time of revocation." Gipson v. State, 395 S.W.3d 910, 916 (Tex. App.—Beaumont 2013, pet. granted) (). More specifically, Texas courts have held that complaints about the revocation of community supervision are preserved by objection during the revocation hearing or by motion for new trial. Harris v. State, 160 S.W.3d 621, 626 (Tex. App.—Waco 2005, pet. dism'd) (); see Baxter v. State, 936 S.W.2d 469, 471-72 (Tex. App.—Fort Worth 1996), pet. dism'd as improvidently granted, 960 S.W.2d 82 (Tex. Crim. App. 1998) (per curiam).
Texas Rule of Appellate Procedure 21.4(a) provides that a "defendant may file a motion for new trial before, but no later than 30 days after, the date when the trial court imposes or suspends sentence in open court." TEX. R. APP. P. 21.4(a). Texas courts have held that the provisions governing the filing of original and amended motions for new trial are mandatory, exclusive, and must be complied with in all respects. State v. Lewis, 151 S.W.3d 213, 219 (Tex. App.—Tyler 2004, pet. ref'd) (citing Drew v. State, 743 S.W.2d207, 223 (Tex. Crim. App. 1987)). Moreover, the court, in exercising its particular authority, is a court of limited jurisdiction. Id. (citing Drew, 743 S.W.2d at 223). "When there is no jurisdiction, the power of the court to act is as absent as if it did not exist." Id. (citing Drew, 743 S.W.2d at 223). Accordingly, a late motion for new trial fails to vest the trial court with jurisdiction over the issues included in the motion. Id. (...
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