Opinion
02-22-00177-CR
08-17-2023
Jon Charles Berg, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1740247R
Before Bassel, Womack, and Wallach, JJ.
MEMORANDUM OPINION
Dana Womack, Justice.
I. Introduction
Appellant Jon Charles Berg was convicted in a bench trial of felony assault of a family member (impeding breath or circulation) and misdemeanor assault of a family member. Finding that Berg was a habitual offender, the trial court sentenced him to twenty-five years in prison for the felony charge and one year in the county jail for the misdemeanor offense, to run concurrently. In one point of error, Berg complains that the trial court proceeded to trial without taking his plea.
II. Background
Berg was originally indicted for assault family violence against Alyssa Sanchez by impeding her breathing and (in count two) for unlawfully restraining her. There was also a habitual-offender notice. Later, Berg was re-indicted. The new indictment was the same except for the inclusion of a third count of misdemeanor assault family violence against Alyssa. Berg signed a jury waiver which also indicated his desire to plead "not guilty."
At the beginning of Berg's bench trial, the trial court arraigned him, explaining only the charges contained in the original indictment. Berg waived a formal reading of the indictment, and his attorney entered pleas of "not guilty" to the two original counts and "not true" to the enhancements. The trial court admonished Berg concerning his jury waiver and accepted his pleas.
At this point, the prosecutor realized that the wrong indictment had been read. The trial court reviewed the re-indictment with Berg and explained the third new misdemeanor count (along with its enhancement). The court then turned to pretrial matters-neither Berg nor his attorney raised any objection to the absence of a plea to this re-indictment.
At trial, Alyssa testified that she had been in a dating relationship with Berg since 2020. In May of that year, Berg and Alyssa got into an argument about financial issues. It ended with Berg grabbing Alyssa by the throat and picking her up off her feet. Alyssa could not breathe and was still experiencing pain in her throat the next day.
In June of 2020, while Berg was in the process of moving out of the apartment they shared, he again choked Alyssa, pushing her into the bathtub. Alyssa ended up on the floor, trying to crawl away from Berg. He then picked her up by her calves.
Another assault took place in November. During an argument, Berg straddled Alyssa's back, put his right arm around her throat, and pulled upwards. Alyssa's back arched and she called it the most painful thing she had ever felt. Berg also threatened to kill her. The next morning, Alyssa was able to push her way through the door and leave, despite Berg trying to slam the door on her. Alyssa called the police.
The trial court found Berg guilty of both the felony and misdemeanor assaults, but acquitted him of the unlawful-restraint charge. Having found that he was a habitual offender, the trial court sentenced Berg to twenty-five years in prison for the felony and one year in the county jail for the misdemeanor.
III. Discussion
The Code of Criminal Procedure requires a plea to be entered in every criminal case. Tex. Code Crim. Proc. Ann. arts. 26.12, .13. "It is well settled in this state that a plea must be entered in every criminal case and if no plea is entered, the trial is a nullity, since there is no issue for the jury or the court." Lumsden v. State, 384 S.W.2d 143, 144 (Tex. Crim. App. 1964). But the Rules of Appellate Procedure state that we are required to presume "that the defendant pleaded to the indictment or other charging instrument" unless the matter was "disputed in the trial court" or "the record affirmatively shows the contrary." Tex.R.App.P. 44.2(c)(4); Lincoln v. State, 307 S.W.3d 921, 922 (Tex. App.-Dallas 2010, no pet.). Recitals contained in the judgment create a presumption of regularity and truthfulness absent an affirmative showing to the contrary and are binding in the absence of direct proof of their falsity. Johnson v. State, 72 S.W.3d 346, 349 (Tex. Crim. App. 2002); Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984). "A silent record will not suffice as an affirmative showing and thus will not overcome presumptions of regularity." Lincoln, 307 S.W.3d at 923 (citing Breazeale, 683 S.W.2d at 450).
In Berg's case, both the "Certificate of Proceedings" (summarizing Berg's pleas and the subsequent bench trial) and the judgments (including the judgment of acquittal in the unlawful-restraint charge) reflect that Berg pleaded "not guilty" to the charges against him. Further, Berg indicated his desire to plead "not guilty" in his signed jury waiver. Before delivering its verdict, the trial court announced that Berg had entered pleas of "not guilty." On appeal, Berg bears the burden of proving that these recitals are not true. Id. at 924. Berg argues that he was "never allowed to enter a plea," but there is nothing in the record to substantiate this claim. To the extent that Berg asserts there was no plea at all, a "silent record" will not overcome a presumption of regularity. See Washington v. State, 550 S.W.3d 340, 341 (Tex. App.- San Antonio 2018, no pet.).
In addition, Berg failed to dispute or object to any possible absence of a plea, and there is nothing in the record suggesting that he was not allowed to plead. Further, the record reflects that Berg was silent when he was found guilty and when he was sentenced. Nothing in the record supports an inference that "he did not have an opportunity to consider his plea in this case or that he intended to enter a plea other than 'not guilty.'" Harvey v. State, 605 S.W.3d 812, 816 (Tex. App.-Houston [1st Dist.] 2020, no pet.). Accordingly, we presume that he pleaded to the indictment. Id.; Fields v. State, 507 S.W.3d 333, 335-36 (Tex. App.-Houston [1st Dist.] 2016, no pet.) ("On such a silent record, and given that Fields did not object in the trial court that he had not been properly arraigned, we must presume that he was properly arraigned.").
Finally, as in Lincoln, Berg "had a trial in which issues were fully contested, and it is apparent [he] took the position [he] was not guilty." Lincoln, 307 S.W.3d at 923.
Berg testified and claimed that he did nothing wrong. He denied lifting Alyssa over his head, he said he was merely defending himself against Alyssa when she attacked him in the bathroom, and he characterized Alyssa as "obsessive" and often "volatile." According to Berg, Alyssa awakened him and began hitting and kicking him-he denied "get[ting] on her back and pull[ing] her neck with [his] right arm, UFC style" or choking Alyssa in any way. Berg also testified that, in another instance, Alyssa hit him with her fists resulting in various injuries to his face. During his closing argument to the trial court, defense counsel emphasized the contrasts between the victim's testimony and Berg's own, argued that no injury had actually taken place, and pointed out that Berg's testimony was corroborated by photos taken by the police-ostensibly of his injuries. See Smith v. State, 620 S.W.3d 445, 457 (Tex. App.-Dallas 2020, no pet.) (relying in part on defendant's contesting of charge and counsel's argument to trial court that defendant was not guilty in presuming that defendant pleaded "not guilty"); Lincoln, 307 S.W.3d at 923 (noting defendant's testimony denying intent and defense counsel's argument to trial court that State had not proven guilt beyond a reasonable doubt to support holding that defendant failed to show that plea was not entered). Berg has failed to carry his burden to show that the trial court's recital in the judgments is contrary to the truth. See Lincoln, 307 S.W.3d at 924 (quoting Breazeale, 683 S.W.2d at 451).
IV. Conclusion
Having overruled Berg's point of error, we affirm the trial court's judgment.