Price v. State
| Decision Date | 15 November 1994 |
| Docket Number | No. 05-91-00346-CR,05-91-00346-CR |
| Citation | 890 S.W.2d 478 |
| Parties | John Wiley PRICE, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
James D. McCarthy, Hughes & Luce, L.L.P.; Phyllis A. Jackson, P. Jackson & Associates; and (Ronald L. Goranson, of counsel), Milner, Goranson, Udahsen & Wells, Dallas, for appellant.
Sue Korioth, Asst. Dist. Atty., for appellee.
Before BAKER, 1 MALONEY and WHITTINGTON, 2 JJ.
John Wiley Price pleaded guilty to misdemeanor criminal mischief ("the billboard case") after a plea-bargain agreement with the State. Following that agreement, the trial judge placed appellant on six-months' deferred-adjudication probation. While on probation, the State charged appellant with a second misdemeanor criminal mischief for damaging a windshield wiper on a motor vehicle ("the windshield-wiper case"). The jury convicted appellant on that charge, and the trial judge sentenced him to seventy-five days in jail and a $1,000 fine. On the State's motion to proceed with an adjudication of guilt in the billboard case, the trial judge considered the evidence he had heard in the windshield-wiper case, revoked appellant's probation, adjudicated his guilt, and sentenced him to seventy-five days in jail. The judge ordered the sentences in the two cases to run concurrently.
On original submission, we reversed appellant's conviction in the billboard case. We held that the trial judge's failure to provide Following Robinson v. State, 790 S.W.2d 334, 335-36 (Tex.Crim.App.1990), we allowed the parties to rebrief. Appellant filed a supplemental brief and now challenges the trial judge's failure to "admonish" him under section 5(a) on state statutory grounds as well as state and federal constitutional grounds. He also maintains, in his original brief filed in this Court, that the trial judge's decision to proceed with an adjudication of guilt in the billboard case was fatally flawed because it was based on a proceeding (the windshield-wiper case) that itself denied him due process. We find each of appellant's arguments to be without merit. Accordingly, we affirm the trial court's judgment.
appellant with the information required by article 42.12, section 5(a) of the Texas Code of Criminal Procedure rendered appellant's plea involuntary. See Price v. State, 846 S.W.2d 37, 40 (Tex.App.--Dallas 1992), rev'd, 866 S.W.2d 606 (Tex.Crim.App.1993). The court of criminal appeals reversed our decision, holding that the failure to provide such information prior to placing appellant on deferred-adjudication probation did not render appellant's plea involuntary. Price, 866 S.W.2d at 613. The court of criminal appeals remanded the case to this Court for further proceedings
Appellant was charged by information in the billboard case with misdemeanor criminal mischief. The information in the billboard case alleged that on March 18, 1990, appellant knowingly and intentionally caused damage of $200 or more but less than $750 to several billboards advertising cigarettes. Appellant signed a judicial confession that tracked the language of the information. He also entered into a written plea-bargain agreement that provided he would plead guilty and receive six months' deferred-adjudication probation and a $100 fine. On September 14, 1990, the trial judge placed appellant on six months' deferred-adjudication probation and assessed a $100 fine. The judge did not inform appellant of the possible consequences of violating probation under article 42.12.
On February 5, 1991, the State moved to proceed with an adjudication of guilt in the billboard case. The State alleged that on December 7, 1990, appellant violated his probation by committing two class-B misdemeanors. Specifically, the State asserted that appellant had (1) knowingly and intentionally damaged a windshield wiper on a motor vehicle, causing a pecuniary loss of $20 or more but less than $200; and (2) knowingly and intentionally obstructed a place used for the passage of persons and vehicles without legal privilege or authority.
Appellant pleaded not guilty to the charges in the windshield-wiper case and not true to the allegations in the State's amended motion to proceed in the billboard case. The trial judge heard the motion to proceed immediately following the jury verdict convicting appellant in the windshield-wiper case. The parties stipulated that the evidence admitted in the windshield-wiper case was the same evidence the State would introduce at the hearing on the State's motion to proceed. The parties requested the trial judge to take judicial notice of, and render his decision on, the record in the windshield-wiper case. The judge accepted the parties' stipulation, took judicial notice of the record in the windshield-wiper case, and found both allegations in the State's amended motion to be true. The trial judge then found appellant guilty of misdemeanor criminal mischief in the billboard case and assessed his punishment at seventy-five days' confinement in the Dallas County jail.
On original submission to this Court, appellant argued that the trial judge's failure to instruct him on the consequences of violating his probation, as required by article 42.12, section 5(a), rendered his plea involuntary and void. He also argued that the failure amounted to a denial of his due process rights under both the United States and Texas constitutions. Finally, appellant argued that the trial judge's decision to adjudicate guilt in the billboard case was fatally flawed because it was based entirely on the outcome of the windshield-wiper case, a proceeding which he contends denied him due process. We concluded that the trial judge's failure to instruct appellant under section The State appealed our decision to the court of criminal appeals. That court reversed our decision, holding that section 5(a) did not require a trial judge to give the information included in section 5(b) to a defendant prior to placing the defendant on deferred-adjudication probation. Price, 866 S.W.2d at 613. The court of criminal appeals held that the failure to provide such information did not affect the voluntariness of appellant's plea. Id. That court did not address the remainder of appellant's arguments, noting that we had not reached those points on original submission. The court of criminal appeals remanded the case to this Court for further consideration of appellant's remaining arguments. In his brief on remand, appellant raises many of the same arguments he raised on original submission. He also asserts one additional argument: that the trial court's improper reference to a repealed statute in the probation order entered in the billboard case rendered his original plea null and void. We will address in turn each of the arguments remaining from appellant's original brief in this Court and those additional arguments made in his supplemental brief on remand.
5(a) rendered his plea involuntary. See Price, 846 S.W.2d at 40. Thus, we did not consider appellant's remaining arguments. We reversed appellant's conviction and remanded the case to the trial court
In his first point of error on remand, appellant maintains his guilty plea is void as a matter of state statutory law. Appellant makes two arguments under this point. First, he claims the plea proceeding was improper because it was conducted under article 42.13, section 3d(a) of the Texas Code of Criminal Procedure, a statute which was repealed at the time of appellant's plea hearing. 3 Second, he claims the plea proceeding violated article 42.12, section 5(a) of the Texas Code of Criminal Procedure because the trial judge wholly failed to comply with the statute's mandatory requirement that appellant be advised of the consequences of violating his probation. Appellant maintains that the complete failure to apprise him of the consequences of violating probation requires reversal in this case. We disagree with appellant on both these points and, accordingly, overrule his first point of error on remand.
Appellant first argues his plea proceeding was void and in violation of the separation of powers doctrine. He reasons that the trial judge infringed upon the legislature's exclusive power to create a system of deferred adjudication by following a statute that the legislature had expressly repealed. Appellant refers us to the probation order entered in the billboard case. The order recites that appellant "elected to proceed under Article 42.13 Sec. 3d(a) of the Code of Criminal Procedure" and that the trial judge placed appellant on probation "in accordance with Article 42.13 Sec. 3d(a)." It is undisputed that article 42.13, section 3d(a) was no longer in effect at the time of appellant's plea proceeding. Nevertheless, we note that appellant never complained in the trial court that he was being placed on deferred adjudication under a repealed statute. Moreover, he never complained, as he does now, that the trial judge's order was improper or violated the separation of powers doctrine.
We conclude that appellant waived any complaint based on the erroneous order by failing to raise his objections in the trial court when the order was entered. See Janecka v. State, 823 S.W.2d 232, 244 (Tex.Crim.App.1992) (op. on reh'g). The purpose of the contemporaneous objection rule is to give trial judges the opportunity to correct errors in the trial court when those errors are made. See Janecka, 823 S.W.2d at 244. Here, the improper statutory recitation in Appellant's reliance on Ex parte Spaulding, 687 S.W.2d 741 (Tex.Crim.App.1985), Smith v. State, 479 S.W.2d 680 (Tex.Crim.App.1972), Smith v. State, 424 S.W.2d 228 (Tex.Crim.App.1968), and Compian v. State, 363 S.W.2d 468 (Tex.Crim.App.1963) to show that the probation order in this case was "void at its inception" is misplaced. Those cases are...
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