Opinion
06-23-00170-CR
02-05-2024
STACY LYNN DAVIS, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: December 29, 2023
On Appeal from the 196th District Court Hunt County, Texas Trial Court No. 33697CR
Before Stevens, C.J., van Cleef and Rambin, JJ.MEMORANDUM OPINION
Charles van Cleef Justice
Stacy Lynn Davis entered an open plea of guilty, and the trial court convicted him of hunting certain wildlife resources without the consent of the owner and sentenced him to eighteen months' confinement in state jail. On appeal, Davis complains (1) that the trial court erred in convicting him of violating a pretrial intervention agreement and (2) that the indictment charging him under Section 61.022 of the Texas Parks and Wildlife Code was insufficient. Because his first issue is without merit and Davis has forfeited his complaint regarding the indictment, we affirm the trial court's judgment.
I. Background
The indictment in this case alleged that, on or about December 18, 2020, Davis "intentionally and knowingly hunt[ed] a wildlife resource, to wit: a deer on land and water owned by Porfirio Rodriguez without the consent of [Rodriguez] or his agent." On August 6, 2021, Davis entered into an agreement with the State to participate in a pretrial intervention program operated by the Hunt County Community Supervision and Corrections Department (CSCD). On that same date, the trial court granted the parties' "Agreed Motion for Continuance to Suspend Prosecution for Defendant's Participation in Pretrial Intervention Program" and reset the matter for February 6, 2023. Also on that date, Davis executed a judicial confession and a waiver of right to trial by jury and speedy trial. By notice dated January 5, 2023, the Hunt County CSCD notified the Hunt County district attorney that Davis was unsuccessfully discharged from the pretrial program because he had been indicted in Smith County for "[u]nlicensed" possession of a firearm by a felon.
See TEX. GOV'T CODE ANN. § 76.011(a)(1) (authorizing a community supervision and corrections department to "operate programs for . . . the supervision and rehabilitation of persons in pretrial intervention programs").
During trial before the court, Davis pled guilty to the charges as set forth in the indictment, and Davis's judicial confession was offered and admitted in support of his guilty plea. Victor Ramos, a community supervision officer with the Hunt County CSCD, testified that Davis was discharged from the pretrial intervention program because he was indicted for "unlicensed" possession of a firearm by a felon in Smith County.
Francisco Oviedo, a sergeant with the Smith County Sheriff's Department, testified that, on August 13, 2022, he conducted a traffic stop of Davis after he observed Davis's vehicle swerving side to side and across the center stripe several times. Oviedo testified that Davis's eyes were red and watery and that he was heavy footed, had difficulty balancing, smelled of alcohol, and urinated on himself. He patted down Davis and found a magazine containing 9-millimeter cartridges in his pocket. Oviedo then performed standard field sobriety tests on Davis, and he observed at least two clues on each of the tests, which Oviedo agreed meant Davis failed the tests. Oviedo arrested Davis because he believed Davis was intoxicated and conducted a search of the vehicle. During the search, he found a pistol loaded with a magazine that matched the magazine found in Davis's pocket on the back floorboard.
The State also introduced certified copies of five judgments of conviction and related documents. Tommy Grandfield, chief investigator with the Hunt County District Attorney's Office, identified Davis as the person convicted in those judgments by fingerprint comparison and other identifying information in the documents. Those judgments showed that Davis was previously convicted of five felonies: one unauthorized use of a motor vehicle, three burglaries of a habitation, and one burglary of a building.
Davis testified that he had been indicted in Smith County for drinking while driving and being a felon in possession of a firearm. He also testified that he was discharged from the pretrial intervention program about twenty or twenty-five days before it was completed. He maintained that he was doing well in the program and that he did the things required of him before the discharge.
After arguments of counsel, the trial court found Davis guilty of hunting certain wildlife resources without consent and sentenced him to eighteen months' confinement in state jail.
II. Davis's Complaint Regarding the Pretrial Intervention Agreement is Without Merit
In his first issue, Davis asserts the trial court erred in convicting him for violating his pretrial intervention agreement with the Hunt County CSCD. He argues that the trial for his alleged violation of the agreement was a violation of his due process rights because it was held without notice that it would be based, in part, on his alleged DWI violation. He also argues that there was insufficient evidence to support the conviction for violating the agreement because the evidence that he committed the offenses of DWI and unlawful possession of a firearm by a felon was insufficient to sustain a conviction.
Davis's brief does not contain any citation to the record that shows that the trial court convicted him for violating the pretrial intervention agreement. He cannot do so because of the nature of a pretrial intervention agreement, sometimes called a pre-trial diversion agreement. Such an agreement
refers to a written agreement the defendant and State enter into on or before the day of trial. The State agrees to dismiss the case if the defendant performs certain conditions within a specified period of time. Both the State and the defendant request that the trial court continue the present trial setting to a certain date in the future to give the defendant time to comply with the agreed conditions. The agreement is then presented to the trial court for its approval.... If the trial court approves the agreement, it grants the joint request for continuance and resets the trial to a certain date in the future.Fisher v. State, 832 S.W.2d 641, 643-44 (Tex. App.-Corpus Christi-Edinburg 1992, no pet.).
A pretrial intervention agreement differs from community supervision or deferred adjudication programs in several ways. Id. at 644. For instance, in those programs, when a defendant violates a term or condition of community supervision, "[a] trial court which hears a motion to proceed to final adjudication or to revoke [community supervision] is asked to find a violation of one of the terms of [community supervision]." Id. But, "[i]f the defendant fails to comply with the pre-trial diversion agreement, the trial court is not asked to find a violation of the agreement. That court, or the jury, is asked to find that the defendant committed the original charged offense." Id.
The record shows that this is the process that was followed and that the trial court was not asked to find, and did not find, that Davis violated the pretrial intervention agreement. Rather, the trial court found that Davis was guilty of the originally charged offense and entered a judgment of conviction on that charged offense. Because the trial court did not convict Davis of violating the pretrial intervention agreement, we find his first issue is without merit. We overrule this issue.
III. Davis Forfeited His Complaint Regarding the Indictment
Davis also asserts that the indictment charging him with hunting a deer without the consent of Rodriguez was insufficient to charge him with an offense because it does not specify that Davis did not have the "effective consent" of Rodriguez. He also asserts that this deficiency violates his right to due process.
To preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context. TEX. R. APP. P. 33.1(a)(1). Further, the trial court must have explicitly or implicitly ruled on the request, objection, or motion, or the complaining party must have objected to the trial court's refusal to rule. TEX. R. APP. P. 33.1(a)(2). "Generally, due process complaints must also be preserved for appeal." Coleman v. State, No. 06-18-00010-CR, 2018 WL 3636497, at *1 (Tex. App.-Texarkana Aug. 1, 2018, pet. ref'd) (mem. op., not designated for publication) (citing Shipp v. State, 292 S.W.3d 251, 261 (Tex. App.-Texarkana 2009, no pet.)).
Further, a defendant "forfeits the right to object to [a] defect, error, or irregularity" in an indictment, whether of form or substance, if he fails to assert his objection before the date the trial begins. TEX. CODE CRIM. PROC. ANN. art. 1.14(b); see Williams v. State, 356 S.W.3d 508, 519 (Tex. App.-Texarkana 2011, pet. ref'd). He also "may not raise the objection on appeal or in any other postconviction proceeding." TEX. CODE CRIM. PROC. ANN. art. 1.14(b); see Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990).
Because Davis did not assert his due process complaint at trial and did not object to any defect in the indictment before trial, he has forfeited these complaints. We overrule this issue.
IV. Disposition
For the reasons stated, we affirm the trial court's judgment.