Maurice Montail Thompson v. State

• Court: Court of Appeals of Texas
• Decided: February 25, 2014
• Docket: 07-13-00231-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-00231-CR ________________________

MAURICE MONTAIL THOMPSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from Criminal District Court Number Four Tarrant County, Texas Trial Court No. 1315176D; Honorable Michael Thomas, Presiding

February 25, 2014

MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Appellant, Maurice Montail Thompson, was convicted in a bench trial of the

offense of retaliation and sentenced to four years confinement.1 By a sole issue, he

maintains the retaliation charge was never properly joined because he did not enter a

1 TEX. PENAL CODE ANN. § 36.06(a)(1)(A) (West 2011). Appellant was charged with intentionally or knowingly threatening to harm Officer John Lucas by an unlawful act in retaliation for or on account of his service as a public servant. plea to the indictment during the joint hearing on the State’s motion to proceed with

adjudication of guilt on the charge of assault on a family member.2 We affirm.

BACKGROUND

Appellant and his fiancée had been involved in a romantic relationship for a year

and a half. During the evening hours of Valentine’s Day in 2013, they argued and she

left to “cool off.” When she returned to their apartment, Appellant learned she had been

out with a male friend and another argument ensued. It escalated into a physical

altercation—he put his hands around her neck, struck her with his fist and hit her head

against a wall. She fought back to defend herself. After the fight, they walked to a

nearby store. She called 911 and nonchalantly spoke with the dispatcher so as not to

raise Appellant’s suspicion but wanted the dispatcher to hear what was transpiring. The

two began walking back to their apartment.

The dispatcher sent out a domestic disturbance call and police officers arrived at

the apartment complex. Appellant’s fiancée waited outside for officers to arrive. The

primary officer interviewed her and decided to arrest Appellant. He was handcuffed and

asked to sit on the stairs. Officer John Lucas assisted and stayed with Appellant while

the primary officer returned to the patrol car to retrieve a family violence packet and

camera. Appellant’s fiancée was asked to go upstairs and get some identification.

2 The hearing was a joint hearing on the retaliation charge and on the State’s motion to adjudicate Appellant guilty for assaulting his fiancée in a separate offense. The revocation of Appellant’s deferred adjudication in the other case is the subject of a separate appeal. See Thompson v. State, No. 07-13- 00230-CR, 2014 Tex. App. LEXIS __ (Tex. App.—Amarillo Feb. 25, 2014, no pet. h.) (issued this same date).

2 Officer Lucas testified that when the primary officer walked away, Appellant

began screaming and cussing at his fiancée and jumped to his feet as she came down

the stairs. Fearing another assault against the fiancée, Officer Lucas gave verbal

commands for Appellant to stop. When his commands went unheeded, he grabbed

Appellant and placed him against the wall. Appellant pushed off the wall and came

towards him. At that point, Officer Lucas took Appellant to the ground to restrain him.3

According to Officer Lucas, Appellant threatened to look him up and “f--- you up.”

Appellant testified and denied threatening Officer Lucas. He also testified the

injuries on his fiancée’s face were caused when she barricaded herself in the bathroom

during their argument. He denied assaulting her on the evening of February 14th.

ANALYSIS

Appellant’s sole complaint is that the issue of retaliation was never joined

because he did not enter a formal plea at the bench trial. The State counters that

Appellant procedurally defaulted his complaint. We agree with the State.

First of all, we note that the offense the subject of this proceeding is the same

offense that was the subject of the third alleged violation of Appellant’s community

supervision in the proceeding described in footnote 2 above. In this joint hearing,

Appellant did enter a plea of “Not True” to those allegations. While this fact alone may

have sufficiently joined the issue, we note article 36.01 of the Texas Code of Criminal

Procedure prescribes the order of proceedings in a jury trial, not a bench trial. See TEX.

3 Both Appellant and his fiancée testified Officer Lucas was overly aggressive.

3 CODE CRIM. PROC. ANN. art. 36.01(a).4 See also Thornton v. State, 957 S.W.2d 153,

156 (Tex. App.—Fort Worth 1997), aff’d 986 S.W.2d 615 (Tex. Crim. App. 1999) (noting

that article 36.01 guides only a trial by jury). Article 36.01 provides that the indictment

or information shall be read to the jury and a plea entered to join the issue between the

State and the defendant. See id. See also Peltier v. State, 626 S.W.2d 30, 31 (Tex.

Crim. App. 1981). But see Shelton v. State, No. 01-85-0292-CR, 1986 Tex. App. LEXIS

12762 at *8 (Tex. App.—Houston [1st District] Apr. 3, 1986, no pet.) (stating that where

the accused has been arraigned and fully apprised of the charges against him, it was

not error to omit reading the indictment). The rationale for the rule is to inform the

defendant and the jury of the charges at issue and to allow the jury to hear the

defendant admit or refute the charges. See Martinez v. State, 155 S.W.3d 491, 495

(Tex. App.—San Antonio 2004, no pet.).

Furthermore, a violation of article 36.01(a) is not the type of error that may be

raised for the first time on appeal. See Lee v. State, 239 S.W.3d 873, 876 (Tex. App.—

Waco 2007, pet. ref’d) (holding that an objection is required to preserve error regarding

an article 36.01(a) complaint). The error must be brought to the trial court’s attention to

preserve it for appellate review. See TEX. R. APP. P. 33.1(a)(1). See also Cantu v.

State, 939 S.W.2d 627, 646 (Tex. 1997).

When the hearing commenced, the trial court read the allegations brought by the

State in the motion to proceed and Appellant entered his pleas to those allegations.

Thereafter, the State called its first witness, Appellant’s fiancée, and the trial proceeded.

The indictment on the retaliation charge was not read and Appellant was not asked to

4 Chapter 36 of the Code is entitled “The Trial Before the Jury.”

4 enter a plea to that charge. Appellant did not lodge an objection to the trial court’s

failure to request a plea. We conclude that error, if any, is not properly before us. See

Lee, 239 S.W.3d at 876. Accordingly, Appellant’s sole issue is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle Justice

Do not publish.