Rogers v. State

956 S.W.2d 624, 1997 WL 624852
CourtCourt of Appeals of Texas
DecidedNovember 25, 1997
Docket06-96-00120-CR
StatusPublished
Cited by15 cases

This text of 956 S.W.2d 624 (Rogers v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rogers v. State, 956 S.W.2d 624, 1997 WL 624852 (Tex. Ct. App. 1997).

Opinion

OPINION

CORNELIUS, Chief Justice.

On April 29, 1996, Jeffery Dean Rogers was indicted for the offense of aggravated perjury. The indictment alleged that Rogers gave a false statement at a grand jury hearing regarding one of his investigations while he was a police officer for the City of Daing-erfield, Texas. Subsequently, on September 17,1996, Rogers pleaded guilty and was convicted by the trial court. Pursuant to a plea bargain agreement, the court assessed punishment at three years’ probation and a $300.00 fine.

In 1995, the county attorney had recused himself from the case because he learned that Rogers had filed an official complaint against him with the Texas Rangers. Concurrently, the district judge also recused himself. The administrative judge appointed the Honorable James B. Zimmermann to preside in this ease, and Judge Zimmermann appointed Bradley Lollar as the attorney pro tem. 1 On April 15,1996, Lollar took the oath as required by the Texas Constitution and Tex.Code Crim. PROG. Ann. art. 2.07 (Vernon 1977 & Supp.1997). The oath was in writing, was sworn to before a notary public, and was sent to the Secretary of State for filing. On April 29, 1996, Rogers was indicted by a *626 grand jury, at which time Lollar was present and represented the State. Lollar filed his oath with the clerk of the trial court on September 16,1996.

Rogers contends that the trial court should have removed Lollar. He cites two reasons. First, he contends that the trial court had no power to sua sponte appoint an attorney pro tern. Second, he contends that Lollar was not qualified to act as attorney pro tem because he did not file his oath with the district clerk until after the grand jury handed down the indictment. See Tex.Code Crim. Proo. ANN. art. 2.07.

First, we must determine whether we have jurisdiction of this appeal. Even if the parties to a suit do not challenge the court’s jurisdiction, the court must determine whether it has jurisdiction. Solis v. State, 890 S.W.2d 518, 520 (Tex.App.—Dallas 1994, no pet.). Rogers entered his guilty plea pursuant to a plea bargain agreement. Before he pleaded guilty, he argued two motions. These motions, however, are not included in the clerk’s record, and they were not read into the reporter’s record. The reporter’s record does show that the trial court heard and ruled on a written motion titled “Motion to Recuse or Disqualify the Special Prosecutor.”

In order for a defendant to appeal from a plea bargained conviction, the defendant must obtain the trial court’s permission to appeal any matter in the case except for jurisdictional issues and those matters raised by written motion and ruled upon before trial. Tex.R.App. P. 40(b)(1); Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.1994); Davis v. State, 870 S.W.2d 43, 46-47 (Tex.Crim.App.1994). This requirement is jurisdictional and must be complied with before an appellate court may review the alleged error on its merits. Further, the defendant must expressly state in a specific notice of appeal either that he had the trial court’s permission to appeal or that he raised his point of error by a pretrial written motion. Payne v. State, 931 S.W.2d 56, 57 (Tex.App.—Houston [14th Dist.] 1996, pet. ref'd); McLish v. State, 916 S.W.2d 27, 28 (Tex.App.—Houston [1st Dist.] 1995, pet. ref'd); Jacobs v. State, 903 S.W.2d 848, 850 (Tex. App.—Texarkana 1995, pet. ref'd). This specific notice of appeal cannot be amended to add the jurisdietionally required language that the defendant had the trial court’s permission or that the error was raised by a pretrial written motion ruled upon by the trial court. Jones v. State, 796 S.W.2d 183, 186-87 (Tex.Crim.App.1990); Haller v. State, 933 S.W.2d 262, 263 (Tex.App.—Corpus Christi 1996, no pet.). Rogers’ notice of appeal stated that the trial court granted permission to appeal, and those matters were raised by written pretrial motions and ruled on prior to trial. This statement, however, must be shown to be true in order to confer jurisdiction on this court to consider nonju-risdietional issues. Solis v. State, 890 S.W.2d at 520; Hutchins v. State, 887 S.W.2d 207, 210 (Tex.App.—Austin 1994, pet. ref'd). The record does show that the trial court gave express permission to Rogers to appeal the issues presented in his two pretrial motions. Thus, we do have jurisdiction.

Rogers has the burden to provide this court with a sufficient record to show whether there is error requiring reversal. Tex.R.App. P. 50(d); O’Neal v. State, 826 S.W.2d 172, 173 (Tex.Crim.App.1992); Revell v. State, 885 S.W.2d 206, 210 (Tex.App.—Dallas 1994, pet. ref'd); Callahan v. State, 814 S.W.2d 420, 423 (Tex.App.—Houston [14th Dist.] 1991, pet. refd). In order to preserve error for appellate review, a party must have presented the trial court with a timely request, objection, or motion stating specific grounds for the desired ruling, if the grounds were not apparent from the context. Moreno v. State, 900 S.W.2d 357, 359 (Tex.App.—Texarkana 1995, no pet.). After a careful reading of the record, we conclude that the bases for Rogers’ motion were not apparent from the record. Without the written motion in the record, we cannot review what the trial court ruled on. Generally, appellate courts presume that a trial court’s rulings are correct. Hardin v. State, 471 S.W.2d 60, 63 (Tex.Crim.App.1971); State v. Pierce, 816 S.W.2d 824, 831 (Tex.App.—Austin 1991, no pet.) (applying Tex.R.App. P. 50(d), which is binding on both civil and criminal appeals). Further, any omission in the record will be presumed to support the *627 trial court’s judgment. Hardin v. State, supra; State v. Pierce, supra; Haynes v. McIntosh, 776 S.W.2d 784, 785-86 (Tex.App.—Corpus Christi 1989, writ denied). Thus, without the written motion to disqualify the attorney pro tern, we cannot review what the trial court ruled on and we must presume that its ruling was correct. See generally Garcia v. State,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Alberto Alba Villarreal v. State
504 S.W.3d 494 (Court of Appeals of Texas, 2016)
Coleman v. State
246 S.W.3d 76 (Court of Criminal Appeals of Texas, 2008)
Coleman, Thomas
Court of Criminal Appeals of Texas, 2008
In Re Guerra
235 S.W.3d 392 (Court of Appeals of Texas, 2007)
Darnell Hartsfield v. State
Court of Appeals of Texas, 2006
Hartsfield v. State
200 S.W.3d 813 (Court of Appeals of Texas, 2006)
Donald L. Busby v. State
Court of Appeals of Texas, 1999
David Gordon Munson v. State
987 S.W.2d 905 (Court of Appeals of Texas, 1999)
Heath Lane Stephens v. State
Court of Appeals of Texas, 1998
Stephens v. State
978 S.W.2d 728 (Court of Appeals of Texas, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
956 S.W.2d 624, 1997 WL 624852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-state-texapp-1997.