Jiles III, Henry v. State ( 2003 )


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  • Affirmed and Memorandum Opinion of May 8, 2003 Withdrawn and Substituted Memorandum Opinion filed June 12, 2003

    Affirmed and Memorandum Opinion of May 8, 2003 Withdrawn and Substituted Memorandum Opinion filed June 12, 2003.

     

     

    In The

     

    Fourteenth Court of Appeals

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    NO. 14-02-00649-CR

    NO. 14-02-00650-CR

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    HENRY JILES, III, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

    ________________________________________________________________

     

    On Appeal from the 209th District Court

    Harris County, Texas

    Trial Court Cause No. 893,423 & 899,190

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    S U B S T I T U T E D   M E M O R A N D U M   O P I N I O N

     

                The opinion issued in this case on May 8, 2003 is withdrawn, and the following opinion is issued in its place.

                Henry Jiles, III, appeals his convictions for cocaine delivery and aggravated sexual assault on the grounds that: (1) the judgment adjudicating him guilty of cocaine delivery was based on a superseded motion to adjudicate; and (2) in entering appellant’s plea of guilt to aggravated sexual assault, the trial court failed to admonish him of the requirements to register as a sex offender.   We dismiss his appeal of the cocaine delivery conviction and affirm the aggravated sexual assault conviction.


                                           Adjudication of Guilt for Cocaine Delivery

                After appellant pled guilty to cocaine delivery, the trial court placed him on deferred adjudication community supervision for two years.  The State thereafter filed a motion to adjudicate and then an amended motion to adjudicate, and the trial court adjudicated appellant’s guilt and sentenced him to two years confinement.

                Appellant’s sole issue challenging this conviction contends that his plea of true was to the allegations in the State’s original motion to adjudicate, which was superseded and nullified by the amended motion, to which he never entered a plea.  Therefore, appellant contends that the finding of guilt was erroneously based on the nullified original motion.

                However, no appeal may be taken from a trial court’s determination to proceed with an adjudication of guilt.  Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2003).  Thus, a defendant who is placed on deferred adjudication but subsequently adjudicated guilty may not raise on appeal contentions of error in the adjudication of guilt process.  Connolly  v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Accordingly, we have no jurisdiction to consider appellant’s challenge to the trial court’s adjudication of his guilt, and his appeal of the conviction for cocaine delivery is dismissed.

                                               Plea Admonishment on Sexual Assault

                Appellant’s sole issue challenging his aggravated sexual assault conviction contends that the trial court failed to admonish him of the requirements to register as a sex offender.  See Tex. Code Crim. Proc. Ann. art. 26.13(a)(5), (h) (Vernon Supp. 2003).

                Absent evidence of impropriety, a reviewing court is required to indulge every presumption in favor of the regularity of the proceedings and documents in the lower court.  See Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000).  A defendant bears the burden of overcoming this presumption,[1] even where he waives a court reporter at a plea

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    hearing.  Lopez v. State, 25 S.W.3d 926, 928-29 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

                In this case, appellant’s guilty plea documents, which he signed on March 5, 2002, contain the following statement, which he also separately initialed:  “I WAIVE the right to have a court reporter record my plea.”  The plea document further states that this waiver was made before the court accepted his plea.

                Appellant’s Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession contains the following statement signed by the trial judge: “I admonished the defendant of the consequences of his plea . . . .”  The trial court’s docket sheet entry for that date also states that the trial court admonished appellant of the consequences of his plea. Lastly, the trial court’s judgment states that “the Defendant was admonished by the Court as required by law.”

                Consistent with the waiver in appellant’s plea documents, a reporter’s record was not prepared for the March 5 proceeding at which appellant entered his plea (but only for the punishment hearing conducted on May 31, 2002, after the presentence investigation was completed).  Because appellant has cited no portion of the record affirmatively showing that the trial court failed to properly admonish him when his plea was entered, he has not overcome the presumption of regularity of his plea documents and judgment reflecting that he was properly admonished. Accordingly, his sole point of error challenging his aggravated sexual assault conviction is overruled, and the judgment of the trial court is affirmed.

     

                                                                            /s/        Richard H. Edelman

                                                                                        Justice

     

    Judgment rendered and Substituted Memorandum Opinion filed June 12, 2003.

    Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

    Do Not Publish — Tex. R. App. P. 47.2(b).

     



    [1]           Nicholas v. State, 56 S.W.3d 760, 770 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

Document Info

Docket Number: 14-02-00649-CR

Filed Date: 6/12/2003

Precedential Status: Precedential

Modified Date: 9/12/2015