NOT FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-552
STATE OF LOUISIANA
VERSUS
TOMMY PAUL BOURQUE
************
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR131520 HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE
SYLVIA R. COOKS JUDGE
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and James T. Genovese, Judges.
CONVICTION AFFIRMED. MOTION TO WITHDRAW GRANTED.
Michael Harson District Attorney - 15th Judicial District P.O. Box 3306 Lafayette, LA 70502-3306 (337) 232-5170 COUNSEL FOR APPELLEE State of Louisiana
Edward Kelly Bauman Louisiana Appellate Project P.O. Box 1641 Lake Charles, LA 70602 (337) 491-0570 COUNSEL FOR DEFENDANT/APPELLANT Tommy Paul Bourque COOKS, Judge.
Defendant, Tommy Paul Bourque, was charged by bill of information with
simple burglary of a pharmacy, a violation of La.R.S. 14:62.1; possession of a
firearm by a convicted felon, a violation of La.R.S. 14:95.1; the armed robbery of
Karen Hoffpauir, a violation of La.R.S. 14:64; and the armed robbery of Susan
Long, a violation of La.R.S. 14:64. Defendant entered a plea of not guilty. An
amended bill of information was subsequently filed to add Defendant’s aliases. A
second amended bill of information was filed, adding an additional count of armed
robbery of Sheena Linscomb, a violation of La.R.S. 14:64. Defendant was re-
arraigned on the amended bills of information on April 18, 2011, and entered a
plea of not guilty.
Defendant waived his right to trial by jury. The State moved to sever counts
one through four and proceeded to trial on count five, the armed robbery of
Linscomb. Thereafter, a bench trial commenced, and the trial court found the
Defendant guilty as charged. Defendant was sentenced to serve thirty years at hard
labor without benefit of probation, parole, or suspension of sentence. A motion for
appeal was granted.
Defendant’s appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging the record contains no
non-frivolous issues for appeal and requests this court grant his accompanying
motion to withdraw. Defendant was advised, via certified mail, that counsel filed
an Anders brief and that he was given until August 2, 2013, to file a pro se brief.
No brief was filed by Defendant. For the following reasons, we affirm
Defendant’s conviction and sentence and grant appellate counsel’s motion to
withdraw. FACTS
On December 8, 2010, Defendant robbed Sheena Linscomb, who was
working at the Hit and Run convenience store in Lafayette, Louisiana, while armed
with a gun. The robbery was captured on video, and Linscomb identified
Defendant at trial as the individual who robbed her. Karen Hoffpauir was allowed
to testify without objection that Defendant robbed her in the same fashion at
Cigarettes and Checks on November 10, 2010. The defense presented no evidence
at trial and Defendant was found guilty as charged.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, we review all appeals for
errors patent on the face of the record. After reviewing the record, we find there is
one error patent.
Louisiana Constitution Article 1, § 17, provides that “[e]xcept in capital
cases, a defendant may knowingly and intelligently waive his right to a trial by jury
but no later than forty-five days prior to the trial date and the waiver shall be
irrevocable.”
In State v. Bazile, 12-2243 (La. 5/7/13), __ So.3d ___,1 the court interpreted
the term “trial date” in La.Const. art. 1, § 17(a) to mean the initial trial setting.
In this case, the initial trial setting was April, 18, 2011. The Defendant
waived his right to a jury trial on September 24, 2012, more than forty-five days
after the initial trial setting.
In State v. T.T., 12-146 (La.App. 1 Cir. 9/21/12), 111 So.3d 71, the court
found that the timeliness of the jury waiver was discoverable as an error patent
under Article 920(2). Additionally, the court found any error with respect to
1 2013 WL 1880395. 2 defendant’s jury trial waiver was “a waivable trial error and not a non-waivable
structural defect.” Id. at 74. The court explained in pertinent part:
In State v. Brown, 2011-1044 (La.3/13/12), 85 So.3d 52 (per curiam), the Supreme Court found an error with respect to jury size to be a waivable trial error, and not a structural defect, in which defense counsel actively participated in, and failed to object to, the selection of a twelve-person jury instead of a six-person jury. The twelve- person jury in Brown ultimately returned a 10-2 verdict finding the defendant guilty, which was sufficient to convict the defendant under twelve-person jury rules, but which did not comport with the unanimous vote rule which applies to a six-person jury. See La. Const. art. 1, § 17(A); La.Code Crim. P. art. 782(A). The court found that it did not need to address whether the error in jury composition actually prejudiced the defendant’s case because defense counsel failed to object or to file a motion in arrest of judgment on this ground and because there is no longer a “supposition that errors in jury composition are invariably jurisdictional or structural in nature.” The Court cited with approval Justice Weimer’s concurrence in State v. Jones, 2005-0226 (La.2/22/06), 922 So.2d 508, 516, in which he stated that “[a] defendant should not have the opportunity of gambling on a favorable verdict from the larger jury and then resorting on appeal to an error that easily could have been corrected in the trial court at the outset of jury selection.”
Although the instant factual situation differs from that in Brown, the same underlying principles guide this Court in this case. Here, defendant requested, and was granted, a jury trial waiver on a date when his case was set for trial. Without deciding whether this error was corrected by the trial court’s simultaneous granting of defendant’s continuance, we find that defendant cannot raise this issue on appeal as a ground for reversal of his convictions and sentences because he requested, and therefore failed to object to, this waiver. Defendant had a right to be tried by jury, but he also had a concomitant right to waive a trial by jury. Even if defendant’s exercise of this parallel right might have been untimely under La. Const. art. I, § 17(A), any such error is not structural in nature and was waived when defendant elected to be tried before the trial judge in a bench trial. To allow defendant to knowingly and intelligently waive his right to trial by jury and then to reverse defendant’s convictions and sentences on appeal because of an untimely waiver, would be to allow defendant to seek a favorable outcome from the judge and then to resort on appeal to an error that he instigated in the trial court. Such an outcome would not be in the interests of justice. This assignment of error is without merit.
Id. at 74-75.
3 In the present case, Defendant requested a waiver of his right to a trial by
jury, and he did not object when it was granted, although it was an untimely
waiver.
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NOT FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-552
STATE OF LOUISIANA
VERSUS
TOMMY PAUL BOURQUE
************
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR131520 HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE
SYLVIA R. COOKS JUDGE
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and James T. Genovese, Judges.
CONVICTION AFFIRMED. MOTION TO WITHDRAW GRANTED.
Michael Harson District Attorney - 15th Judicial District P.O. Box 3306 Lafayette, LA 70502-3306 (337) 232-5170 COUNSEL FOR APPELLEE State of Louisiana
Edward Kelly Bauman Louisiana Appellate Project P.O. Box 1641 Lake Charles, LA 70602 (337) 491-0570 COUNSEL FOR DEFENDANT/APPELLANT Tommy Paul Bourque COOKS, Judge.
Defendant, Tommy Paul Bourque, was charged by bill of information with
simple burglary of a pharmacy, a violation of La.R.S. 14:62.1; possession of a
firearm by a convicted felon, a violation of La.R.S. 14:95.1; the armed robbery of
Karen Hoffpauir, a violation of La.R.S. 14:64; and the armed robbery of Susan
Long, a violation of La.R.S. 14:64. Defendant entered a plea of not guilty. An
amended bill of information was subsequently filed to add Defendant’s aliases. A
second amended bill of information was filed, adding an additional count of armed
robbery of Sheena Linscomb, a violation of La.R.S. 14:64. Defendant was re-
arraigned on the amended bills of information on April 18, 2011, and entered a
plea of not guilty.
Defendant waived his right to trial by jury. The State moved to sever counts
one through four and proceeded to trial on count five, the armed robbery of
Linscomb. Thereafter, a bench trial commenced, and the trial court found the
Defendant guilty as charged. Defendant was sentenced to serve thirty years at hard
labor without benefit of probation, parole, or suspension of sentence. A motion for
appeal was granted.
Defendant’s appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging the record contains no
non-frivolous issues for appeal and requests this court grant his accompanying
motion to withdraw. Defendant was advised, via certified mail, that counsel filed
an Anders brief and that he was given until August 2, 2013, to file a pro se brief.
No brief was filed by Defendant. For the following reasons, we affirm
Defendant’s conviction and sentence and grant appellate counsel’s motion to
withdraw. FACTS
On December 8, 2010, Defendant robbed Sheena Linscomb, who was
working at the Hit and Run convenience store in Lafayette, Louisiana, while armed
with a gun. The robbery was captured on video, and Linscomb identified
Defendant at trial as the individual who robbed her. Karen Hoffpauir was allowed
to testify without objection that Defendant robbed her in the same fashion at
Cigarettes and Checks on November 10, 2010. The defense presented no evidence
at trial and Defendant was found guilty as charged.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, we review all appeals for
errors patent on the face of the record. After reviewing the record, we find there is
one error patent.
Louisiana Constitution Article 1, § 17, provides that “[e]xcept in capital
cases, a defendant may knowingly and intelligently waive his right to a trial by jury
but no later than forty-five days prior to the trial date and the waiver shall be
irrevocable.”
In State v. Bazile, 12-2243 (La. 5/7/13), __ So.3d ___,1 the court interpreted
the term “trial date” in La.Const. art. 1, § 17(a) to mean the initial trial setting.
In this case, the initial trial setting was April, 18, 2011. The Defendant
waived his right to a jury trial on September 24, 2012, more than forty-five days
after the initial trial setting.
In State v. T.T., 12-146 (La.App. 1 Cir. 9/21/12), 111 So.3d 71, the court
found that the timeliness of the jury waiver was discoverable as an error patent
under Article 920(2). Additionally, the court found any error with respect to
1 2013 WL 1880395. 2 defendant’s jury trial waiver was “a waivable trial error and not a non-waivable
structural defect.” Id. at 74. The court explained in pertinent part:
In State v. Brown, 2011-1044 (La.3/13/12), 85 So.3d 52 (per curiam), the Supreme Court found an error with respect to jury size to be a waivable trial error, and not a structural defect, in which defense counsel actively participated in, and failed to object to, the selection of a twelve-person jury instead of a six-person jury. The twelve- person jury in Brown ultimately returned a 10-2 verdict finding the defendant guilty, which was sufficient to convict the defendant under twelve-person jury rules, but which did not comport with the unanimous vote rule which applies to a six-person jury. See La. Const. art. 1, § 17(A); La.Code Crim. P. art. 782(A). The court found that it did not need to address whether the error in jury composition actually prejudiced the defendant’s case because defense counsel failed to object or to file a motion in arrest of judgment on this ground and because there is no longer a “supposition that errors in jury composition are invariably jurisdictional or structural in nature.” The Court cited with approval Justice Weimer’s concurrence in State v. Jones, 2005-0226 (La.2/22/06), 922 So.2d 508, 516, in which he stated that “[a] defendant should not have the opportunity of gambling on a favorable verdict from the larger jury and then resorting on appeal to an error that easily could have been corrected in the trial court at the outset of jury selection.”
Although the instant factual situation differs from that in Brown, the same underlying principles guide this Court in this case. Here, defendant requested, and was granted, a jury trial waiver on a date when his case was set for trial. Without deciding whether this error was corrected by the trial court’s simultaneous granting of defendant’s continuance, we find that defendant cannot raise this issue on appeal as a ground for reversal of his convictions and sentences because he requested, and therefore failed to object to, this waiver. Defendant had a right to be tried by jury, but he also had a concomitant right to waive a trial by jury. Even if defendant’s exercise of this parallel right might have been untimely under La. Const. art. I, § 17(A), any such error is not structural in nature and was waived when defendant elected to be tried before the trial judge in a bench trial. To allow defendant to knowingly and intelligently waive his right to trial by jury and then to reverse defendant’s convictions and sentences on appeal because of an untimely waiver, would be to allow defendant to seek a favorable outcome from the judge and then to resort on appeal to an error that he instigated in the trial court. Such an outcome would not be in the interests of justice. This assignment of error is without merit.
Id. at 74-75.
3 In the present case, Defendant requested a waiver of his right to a trial by
jury, and he did not object when it was granted, although it was an untimely
waiver. Additionally, any error by the trial court in allowing the Defendant to
waive his trial by jury trial more than forty-five days after the initial trial setting
was harmless.
ANDERS ANALYSIS
Pursuant to Anders, Defendant’s appellate counsel filed a brief stating he
made a conscientious and thorough review of the trial court record and could find
no errors on appeal that would support reversal of the Defendant’s conviction or
sentence. Thus, counsel seeks to withdraw.
In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth
circuit explained the Anders analysis:
4 When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.
While it is not necessary for Defendant’s appellate counsel to “catalog tediously
every meritless objection made at trial or by way of pre-trial motions with a
labored explanation of why the objections all lack merit[,]” counsel’s Anders brief
must “‘assure the court that the indigent defendant’s constitutional rights have not
been violated.’ McCoy [v. Court of Appeals of Wisconsin, 486 U.S. [429] at 422,
108 S.Ct. [1895] at 1903 [(1988)].” State v. Jyles, 96-2669, p. 2 (La. 12/12/97),
704 So.2d 241, 241. Counsel must fully discuss and analyze the trial record and
consider “whether any ruling made by the trial court, subject to the
contemporaneous objection rule, had a significant, adverse impact on shaping the
evidence presented to the jury for its consideration.” Id. Thus, counsel’s Anders
brief must review the procedural history and the evidence presented at trial and
provide “a detailed and reviewable assessment for both the defendant and the
appellate court of whether the appeal is worth pursuing in the first place.” State v.
Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177.
In his Anders brief, appellate counsel pointed out that Linscomb identified
Defendant at trial and picked him from a photographic lineup after the robbery.
Additionally, store cameras captured the robbery on video. Appellate counsel
5 noted Defendant received a sentence of less than half of the maximum sentence of
ninety-nine years, the trial court noted his long record prior to imposition of
sentence, and the State declared its intent to file a habitual offender bill.
Pursuant to Anders, 386 U.S. 738, and Benjamin, 573 So.2d 528, we have
performed a thorough review of the record, including pleadings, minute entries, the
charging instrument, and the transcripts and have confirmed the statements made
by appellate counsel. Defendant was properly charged in the bill of information,
he was present and represented by counsel at all crucial stages of the proceedings,
the verdict was correct, and he received a legal sentence.
Our review of the record reveals no issues that would support an assignment
of error on appeal. Therefore, Defendant’s conviction and sentence are affirmed
and appellate counsel’s motion to withdraw is granted.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2-16.3.