Yazdchi v. State

428 S.W.3d 831, 2014 WL 1375461, 2014 Tex. Crim. App. LEXIS 538
CourtCourt of Criminal Appeals of Texas
DecidedApril 9, 2014
DocketPD-0007-13, PD-0008-13
StatusPublished
Cited by199 cases

This text of 428 S.W.3d 831 (Yazdchi v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yazdchi v. State, 428 S.W.3d 831, 2014 WL 1375461, 2014 Tex. Crim. App. LEXIS 538 (Tex. 2014).

Opinions

OPINION

ALCALA, J.,

delivered the opinion of the Court,

in which KELLER, P.J., MEYERS, KEASLER, HERVEY, and COCHRAN, JJ„ joined.

In this case, we address whether a defendant is eligible for felony community supervision from a jury when his prior community supervision, which he received under a straight probation and which was terminated by a discharge order that permitted him to withdraw his plea of guilty, dismissed the indictment, and set aside the verdict, becomes resurrected by the conviction in the present case.1 See Tex.Code CRIM. Proo. art. 42.12, § 20(a). Suggesting that we answer this question affirmatively, Ali Yazdchi, appellant, argues in his petition for discretionary review that the court of appeals erred by holding that the trial court properly refused his pretrial sworn motion for community supervision on the ground that he was ineligible for community supervision from a jury. See Yazdchi v. State, Nos. 01-10-01090-CR, 01-10-01091-CR, 2012 Tex.App. LEXIS 9316, 2012 WL 5381211, at *6 (Tex.App.-Houston [1st Dist.] Nov. 1, 2012) (mem. op., not designated for publication). Based on our examination of the plain meaning of the statutory language in Article 42.12, Section 20(a), we agree with the court of appeals’s holding that appellant was ineligible for community supervision due to a prior felony conviction. See Tex.Code Crim. Proo. [834]*834art. 42.12, § 20(a).2 We also agree with the court of appeals that appellant failed to preserve his complaint that the trial court erred by permitting the State to impeach him with evidence of his prior community supervision, and therefore, we do not reach the merits of that complaint. We affirm the judgment of the court of appeals.

I. Background

A. Prior Community Supervision and Order of Early Termination

In November 2000, appellant pleaded guilty to aggregate theft and elected to have the judge assess punishment without an agreed recommendation. See Tex. Penal Code § 31.03(a), (e)(7). The judge assessed appellant’s punishment at ten years’ imprisonment but suspended his sentence and placed him on straight probation with ten years’ community supervision. See Tex.Code Crim. Proc. art. 42.12, § 3(a), (b)(1). In February 2003, the judge terminated appellant’s community supervision after he had completed two- and-a-half years of the probationary period. See id. § 20(a). In his discharge order, the trial judge permitted appellant to withdraw his plea of guilty, dismissed the indictment against him, and set aside the judgment of conviction. See id. The order, in relevant part, stated,

And it is ordered, adjudged, and decreed: That defendant be and is hereby permitted to withdraw his/her plea of guilty or Nolo Contendere and the indictment or information by which the defendant is charged by and the same is hereby dismissed and the Judgment of conviction is hereby set aside according to law.

B. The Present Case

About five years after appellant had satisfactorily completed his probation, he was indicted for two third-degree felonies that [835]*835he committed in 2006: falsely holding oneself out as a lawyer and aggregate theft of over $20,000 and under $100,000. See Tex. Penal Code §§ 31.03(a), (e)(5); 31.09; 38.122(a). Appellant, although not actually an attorney, introduced himself as a lawyer to the people at a strip club that he frequented. The complainant, who worked at that club, approached appellant for help in collecting insurance proceeds after a serious car accident caused her severe injuries. On her behalf, appellant wrote several demand letters to the insurance companies of both drivers involved, stating that he represented the complainant and seeking each company’s payment for medical, auto repair, and towing expenses. By the end of 2006, he had collected over $50,000 from the insurance companies that he deposited into his personal bank account. Appellant never tendered any money he collected to the complainant.

Appellant was tried for both offenses at a single trial in November 2010. Prior to trial, the parties filed pretrial motions and had discussions with the trial court about the legal consequences stemming from the early termination of appellant’s prior community supervision. Appellant filed a motion in limine seeking a hearing to determine, in part, whether the prior convictions listed in the State’s notice were “final convictions.” Appellant also filed a pretrial motion for community supervision acknowledging his earlier community supervision for felony theft that had been set aside, but later changed that election to be sentenced by the trial-court judge, apparently after the judge determined that appellant would be ineligible for community supervision from the jury. See Tex.Code Crim. Proc. arts. 37.07, § 2(b); 42.12, § 4(e).

Before the commencement of trial, the court held a hearing outside the presence of the jury for the purpose of documenting an off-the-record, pretrial colloquy from the previous day, during which the parties had discussed whether appellant was eligible for community supervision from a jury. Appellant introduced the prior discharge order for purposes of the hearing and summarized its contents. The record, in relevant part, states,

[Defense counsel]: Further, based on— and the court has indicated that the Court’s viewpoint was that there was, in fact, a felony conviction of [Appellant], and—
[Trial court]: I think that, yes. Just so I can articulate it on the record .... I think the question is, could the defendant swear to a motion that he has never before been convicted of a felony in this state or any other state, or the federal court in order to be able to ask for probation before the jury. And my position was that he has been convicted of a felony, regardless of the language in the early termination of that probation. So, I don’t think he is eligible to go before the jury to ask for probation.
[Defense counsel]: Thank you. And, as a result of that opinion by this Honorable Court, I — I did file a Motion for Probation and also — however, I had previously filed a motion or an ... election of punishment to go to the jury, and as a result of this opinion by this Honorable Court, I filed an amended election of punishment to go to the Court based upon this opinion and this ruling. So, for that reason, I needed to get this on the record....

[836]*836Appellant never requested any ruling from the trial court on the matter of whether his prior community supervision could be used to impeach his testimony if he were to testify at trial. At trial, appellant did not testify. The State, therefore, had no occasion to seek to admit impeachment testimony against appellant, and the trial court never ruled on whether appellant’s prior conviction would be permitted as impeachment evidence. See Tex.R. Evid. 609(a). The jury subsequently convicted appellant of both offenses. In accordance with appellant’s election for the trial court to impose sentence, the trial court sentenced him on each charge to concurrent ten-year prison terms.

Appellant filed original and supplemental motions for new trial for each of his convictions.

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

Related

Daryl Joe v. the State of Texas
Court of Appeals of Texas, 2023
Humberto Ortiz Balderas v. the State of Texas
Court of Appeals of Texas, 2023
Calvin Wilson Graves v. the State of Texas
Court of Appeals of Texas, 2023
Curtis Michael Parks v. the State of Texas
Court of Appeals of Texas, 2023
Oscar Davila Rodriguez v. the State of Texas
Court of Appeals of Texas, 2022
Creed Jones v. the State of Texas
Court of Appeals of Texas, 2021
Dustin Ray Randig v. State
Court of Appeals of Texas, 2021
Christopher Michael Crim v. State
Court of Appeals of Texas, 2020
Jose Salvador Aguilar v. State
Court of Appeals of Texas, 2020
Arturo Arreola Gamiz v. State
Court of Appeals of Texas, 2020
Senn, Michael Ray
Court of Criminal Appeals of Texas, 2020
Rodriguez, Abel Diaz
Court of Criminal Appeals of Texas, 2020
Lopez, Rito Gregory Jr.
Court of Criminal Appeals of Texas, 2020
Kimberly Roming v. State
Court of Appeals of Texas, 2020
Charles Edward Smith v. State
Court of Appeals of Texas, 2019
Richard Melvin Hack v. State
Court of Appeals of Texas, 2019
Martin Armijo, Jr v. State
Court of Appeals of Texas, 2019
Diamond Deshay Chatman v. State
Court of Appeals of Texas, 2019
Calvert, James
Court of Criminal Appeals of Texas, 2019

Cite This Page — Counsel Stack

Bluebook (online)
428 S.W.3d 831, 2014 WL 1375461, 2014 Tex. Crim. App. LEXIS 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yazdchi-v-state-texcrimapp-2014.