Robert Sealy v. West Texas Truck Center D/B/A Amarillo Truck Center, Inc.

Opinion

NO. 07-06-0122-CV IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

OCTOBER 23, 2006

______________________________

ROBERT SEALY, APPELLANT

V.

WEST TEXAS TRUCK CENTER D/B/A AMARILLO TRUCK CENTER, INC., APPELLEE _________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;

NO. 91255-1; HONORABLE W. F. ROBERTS, JUDGE _______________________________

Before CAMPBELL and HANCOCK, JJ., and REAVIS, S.J. ⁽¹⁾

ON MOTION FOR REHEARING

Remaining convinced that our original disposition is correct, we overrule appellant's motion for rehearing and deny his request for reconsideration with these additional comments.

Sealy cites Wyatt v. McGregor, 855 S.W.2d 5, 18 (Tex.App.-Corpus Christi 1993, writ denied), in renewal of his contention that the trial court's failure to provide him an opportunity to amend his summary judgment evidence necessitates reversal of the trial court's grant of summary judgment in favor of West Texas. However, in Wyatt, the appellant presented an appellate issue generally challenging the trial court's grant of partial summary judgment and an issue challenging the trial court's failure to provide him an opportunity to amend his summary judgment evidence. See id. at 15. By generally challenging the summary judgment, the appellant in Wyatt presented the issue of the summary judgment to the appellate court in a manner that complied with Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). By contrast, Sealy failed to present an issue challenging the trial court's grant of summary judgment and, therefore, the dispositive issue in the appeal is not before this court.

Accordingly, Sealy's motion for rehearing is overruled.

Mackey K. Hancock

Justice

1. Don H. Reavis, Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

for multiple felonies in Lubbock County which culminated in a plea of guilty to nine felonies without benefit of a plea agreement. Prior to appellant's pleas of guilty, on September 1, 2005, the trial court held a pre-trial hearing on non-evidentiary matters. At that hearing, the State filed notices of intent to enhance the two third degree felonies alleging that, prior to committing those offenses, appellant had been convicted of two prior felony offenses, thereby enhancing the punishment range to 25 years to 99 years or life. The notice of enhancements were filed in the two cases alleging possession of cocaine of less than four grams but over one gram. (These are appellate cause nos. 07-06-0024-CR and 07-06-0020-CR.) Subsequently, appellant decided to forego trial and entered the guilty pleas referenced above. The guilty pleas were entered on November 2, 2005. At the time of the guilty pleas, appellant was admonished verbally and in writing as to the applicable range of punishment for all nine cases as enhanced. In each of the nine felonies appellant plead guilty to the primary offense and true to the enhancement allegations. After receiving the pleas of guilty, the trial court adjourned the proceedings and set the punishment hearing for a later date. On December 28, 2005, the trial court conducted the punishment hearing and assessed the punishment from which appellant now appeals.

State Jail Felonies

Appellant's first contention, concerning the state jail felonies, is that the trial court allowed the State to orally file enhancements for purposes of punishment on the day of the plea of guilty and thereby harming appellant by increasing the punishment that appellant was facing. In each of these cases, the trial court sentenced appellant to 20 years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant has couched his arguments in terms of a violation of appellant's due process rights as a result of inadequate notice provided by the State of its intention to seek an enhanced punishment.

However, before we can consider the merits of appellant's argument, we must first determine if appellant's complaint is properly before us. In order to complain on appeal about the action of the trial court, appellant must properly preserve the issue for appeal. Tex. R. App. P. 33.1(a). This is true even when appellant couches his arguments in terms of a constitutional argument. Ex Parte Alakayi, 102 S.W.3d 426, 434-35 (Tex.App-Houston [14^th Dist.] 2003, pet ref'd) (citing Saldano v. State, 70 S.W.3d 873, 887 (Tex.Crim.App. 2002)).

A complete review of this record reveals that at no time did appellant ever complain about the lack of notice of the State's intent to use his prior convictions for enhancement purposes on the seven state jail felonies. He neither objected to the use nor did he request any continuance alleging surprise. Further, appellant filed a motion for new trial and could have preserved the error by raising the issue in said motion. However, he failed to do so. Objections or motions promote the prevention of and/or correction of errors and thereby promote overall efficiency in the administration of justice. See Saldano, 70 S.W.3d at 887. Appellant has waived his complaint and presents nothing for our review.

Admonishments Prior to Pleas

Appellant next complains about the lack of proper admonishments prior to entering his pleas of guilty. A review of appellant's complaint reveals that his allegations of improper admonishment are aimed at the oral admonishments given by the trial court. Appellant points to several errors made by the trial court and an alleged total failure to admonish the appellant as to one of the pleas. However, appellant's contentions overlooks one important factor. Along with the oral admonishments, appellant executed written admonishments in all nine cases. Appellant makes no complaint about these admonishments being incomplete, inaccurate or wholly lacking. Appellant and his counsel signed all of the written admonishments and thereby acknowledged that they read and understood the consequences of the pleas of guilty being entered into. Further, the written admonishments stated that appellant waived the requirements of any oral admonishments. After reviewing the written admonishments, we have determined that they meet the requirements of article 26.13 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp 2005), see Ruffin v. State, 3 S.W.3d 140, 144-45 (Tex.App.-Houston [14^th Dist.] 1999, pet. ref'd). Once it has been established that the trial court complied with the statutory mandate on admonishments, the burden shifts to the appellant to affirmatively show that he was not aware of the consequences of his plea. Id. Having reviewed the entire record, we do not find any indications that appellant lacked knowledge of the consequences of his plea. See Burnett v. State, 88 S.W.3d 633, 638 (Tex.Crim.App. 2002) (reviewing court must review entire record to determine if anything suggests that appellant did not know the consequences of his plea). Accordingly, there is no error in the admonishments of appellant shown in the record. Appellant's issue is overruled.

Article 1.15 Texas Code of Criminal Procedure

Appellant's final complaint is that the trial court committed error when it did not enter an order of acquittal because the evidence was insufficient on the issue of mens rea under article 1.15 of the Texas Code of Criminal Procedure. Article 1.15 provides:

. . . it shall be necessary for the state to introduce evidence into the recordshowing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such cases consents. . . .

Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). Appellant was charged by indictment with the offense of Fraudulent Use or Possession of Identifying Information. Tex. Pen. Code Ann. § 32.51 (Vernon 2005). At the time of his arrest for the instant offense, appellant was in possession of the identification for one "Daniel Vidales." Appellant contends that, although he confessed to using certain counterfeit checks in the name of "Daniel Vidales," the state failed to produce the alleged victim at trial or otherwise prove that "Daniel Vidales" failed to consent to the use of identification or that he was even a real person. According to appellant's theory, this failure of evidence leads to the conclusion that the evidence was insufficient and, accordingly, to the requirement that the trial court enter an order of acquittal.

At the time of appellant's plea, he not only entered a plea of guilty to the offense, but he also signed a written judicial confession. The judicial confession signed by appellant provides in part, "I understand the foregoing allegations and I confess that they are true . . . ." This court has had the opportunity to address allegations similar to appellant's before. In an unpublished opinion, we have held that a written confession admitting the veracity of the allegations is sufficient to establish guilt. Overton v. State, 2006 Tex. App. LEXIS 397 (Tex.App.-Amarillo Jan. 18, 2006, no pet.) (not designated for publication) (relying on Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. [Panel Op.] 1980) (op. on reh'g)). We see no reason to alter our position and, accordingly, overrule appellant's contention.

Conclusion

Having overruled appellant's issues, the judgments of the trial court are all affirmed.

Mackey K. Hancock

Justice

Do not publish.