Caffery v. State

Full title: DAVID WAYNE CAFFERY, Appellant v. THE STATE OF TEXAS

Court: Court of Criminal Appeals of Texas

Date published: Jun 29, 2005

No. PD-132-05 (Tex. Crim. App. Jun. 29, 2005)

Opinion

No. PD-132-05

Delivered: June 29, 2005. DO NOT PUBLISH.

On Appellant's Petition for Discretionary Review from the Seventh Court of Appeals, Montgomery County.

OPINION

PER CURIAM.

Appellant was convicted of aggravated sexual assault, and his punishment was assessed at 20 years. The court of appeals affirmed the conviction. Caffery v. State, No. 07-03-0437-CR (Tex.App.-Amarillo, delivered September 30, 2004). Appellant filed a petition for discretionary review. On appeal, Appellant argued that the trial court erred by interviewing State's witnesses in camera-without Appellant's presence or knowledge-before the trial court decided to reject the plea bargain. Appellant contends this violated his rights to: 1) be present at the proceedings; 2) counsel; 3) due process; 4) confrontation and cross-examination; and 5) a public trial. The State responded that error was not preserved because after Appellant learned of the in camera interviews, he did not object but pled guilty to a jury and raised this issue in a motion for new trial. Appellant's reply to the State's reply argued the rights that were violated were either systemic or could not be waived by failing to object. The court of appeals held that by failing to object, Appellant waived any error in the trial judge's failure to recuse herself or declare a mistrial. The court of appeals did not address Appellant's argument that the trial court's actions violated rights that could not be waived by the failure to object. Tex.R.App.Pro 47.1 provides:

The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal. Where the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the court's decision and the basic reasons for it.

The court of appeals' opinion inadequately addressed Appellant's arguments. Therefore, we grant Appellant's petition for discretionary review, vacate the court of appeals' judgment, and remand to that court for reconsideration of Appellant's third point of error.