Opinion
NO. 02-17-00030-CR
10-05-2017
RONALD DESDUNE APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1483259R MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Ronald Desdune appeals from his conviction for murder and his sentence of forty-three years' confinement. In five issues, he argues that his conviction was "illegally obtained" and "invalid" because the amended reindictment did not allege an offense and was done without leave of court and without notice less than two days before arraignment. Desdune asserts that these defects in the amended indictment mandate a new trial. Because Desdune has waived each of his complaints, we affirm the trial court's judgment.
I. BACKGROUND
A. INDICTMENT
On October 6, 2014, Desdune was charged in a complaint with the capital murder of G.G., Desdune's daughter and a child under the age of ten, by intentionally or knowingly causing her death by hitting her with his hand or hands. See Tex. Penal Code Ann. § 19.03(a)(8) (West Supp. 2016); Tex. Code Crim. Proc. Ann. art. 15.04 (West 2015). On October 14, 2014, the trial court appointed counsel to represent Desdune.
See Tex. R. App. P. 9.8 cmt., 9.10(a)(3); 2d Tex. App. (Fort Worth) Loc. R. 7.
On December 16, 2014, a grand jury presented an indictment against Desdune, accusing him of the capital murder of G.G. See Tex. Code Crim. Proc. Ann. art. 20.19 (West 2015), art. 21.01 (West 2009). Desdune was served with a certified copy of the indictment on December 18, 2014. See id. arts. 25.01-.02 (West 2009). Throughout 2015, Desdune filed several pretrial motions, and the State waived its right to seek the death penalty. See id. art. 1.13(b) (West Supp. 2016). In 2016, the trial court held a status conference, and the State filed its witness list and a request for the disclosure of Desdune's experts.
B. REINDICTMENT
On January 12, 2017, the trial court held another status conference. The next day, a grand jury presented a reindictment, accusing Desdune of four offenses arising from his alleged involvement in G.G.'s death: capital murder, murder, injury to a child, and aggravated assault with a deadly weapon. See Tex. Penal Code Ann. §§ 19.02(b)(3), 22.02(a)(2) (West 2011), §§ 19.03(a)(8), 22.04(a) (West Supp. 2016). A preliminary initial-appearance proceeding regarding the reindictment was held on January 23, 2017. See Tex. Code Crim. Proc. Ann. art. 15.17(a) (West Supp. 2016).
It is unclear from the record but at some point, count two of the reindictment, which alleged Desdune had committed murder, was amended with handwritten interlineations and additions:
AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN THE COUNTY OF TARRRANT AND STATE [of Texas] ON OR ABOUT THE 8TH DAY OF SEPTEMBER, 2014, DID COMMIT OR ATTEMPT TO COMMIT AN ACT CLEARLY DANGEROUS TO HUMAN LIFE, NAMELY, BY STRIKING [G.G.] WITH HIS HAND AND/OR WITH OR AGAINST A HARD OBJECT OR SURFACE, WHICH CAUSED THE DEATH OF [G.G.], AND THE SAID DEFENDANT WAS IN THE COURSE OFDesdune concedes that his trial attorney initialed the paragraph by the handwritten changes. The prosecuting attorney's handwritten initials are also next to count two.OR IMMEDIATE FLIGHT FROMTHE COMMISSION OR ATTEMPTED COMMISSION OF A FELONY, NAMELY:INJURY TO A CHILD,KNOWINGLY OR RECKLESSLY CAUSING INJURY TO A CHILD.
C. TRIAL OF REINDICTMENT
On the first day of trial on January 30, 2017, and before jury selection began, the trial court stated on the record that Desdune had "signed some paperwork that indicates . . . that [Desdune is] aiming to enter a plea of guilty today . . . to Count Two of the amended indictment" but wanted a jury to assess his punishment. See id. art. 26.14 (West 2009). The "paperwork" consisted of written plea admonishments regarding count two, which contained the required warnings, several waivers, and Desdune's judicial confession. See id. art. 26.13 (West Supp. 2016). Desdune and his counsel had signed the admonishments and waivers, and Desdune had signed the judicial confession that same day. The trial court then arraigned Desdune on the murder count, and the State read count two of the amended reindictment aloud, which tracked count two as we previously quoted and included the handwritten additions and interlineations. See id. arts. 26.01, 26.03, 26.11 (West 2009). Desdune entered his guilty plea to count two of the amended reindictment, which the trial court accepted, finding that it was "intelligently, freely[,] and voluntarily entered."
The parties then immediately proceeded to jury selection, exercised their strikes, and selected a twelve-member jury. The trial court instructed the jury members to return the next day and adjourned the proceedings. The next day—January 31, 2017—the trial court administered the oath to the jury. See id. art. 35.22 (West 2006). The State then read count two of the amended reindictment in front of the jury, to which Desdune again pleaded guilty. After a three-day punishment trial, the jury found Desdune guilty of the murder of G.G. as instructed by the trial court and assessed his punishment at forty-three years' confinement. The trial court then sentenced Desdune in accordance with the jury's verdict and entered a judgment of conviction. The trial court certified that Desdune had the right to appeal because his guilty plea was not subject to a plea-bargain agreement. See Tex. R. App. P. 25.2(a)(2).
Desdune did not waive his right to appeal in his guilty-plea waivers.
II. ALLEGED DEFECTS
In three issues on appeal, Desdune argues that his conviction was "invalid" because the amended reindictment was not properly amended and did not allege an offense. He also contends in two issues that the amended reindictment was not served on him at least two days before his arraignment, which deprived him of the opportunity to object to the form of the amended reindictment and rendered his conviction "invalid." The State argues that Desdune has waived each of the alleged defects either by failing to timely object to the form or substance of the amended reindictment or by affirmatively waiving any defect as part of his guilty plea.
The State also points out that even if the amended reindictment did not sufficiently allege an offense, such a defect would not be jurisdictional and would be subject to its waiver arguments. See Teal v. State, 230 S.W.3d 172, 177, 181-82 (Tex. Crim. App. 2007).
Indeed, as part of his guilty plea, Desdune specifically waived any objection to the amended reindictment:
If I am proceeding on an amended indictment or amended felony information, I give up and waive any right I may have for further time to prepare for trial and any other rights I may have under Arts. 28.10 and 28.11 . . . . I specifically do not object to the amendment.See Tex. Code Crim. Proc. Ann. arts. 28.10-.11 (West 2006) (dictating procedures applicable to amending an indictment or information and requiring leave of court to amend). Desdune also waived "all rights given to [him] by law; whether of form, substance, or procedure under Art. 1.14." Article 1.14 provides that "a defect, error, or irregularity of form or substance in an indictment or information" is waived and forfeited if the defendant fails to raise the objection "before the date on which the trial on the merits commences." Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005). Here, Desdune wholly failed to object to the amended reindictment, which his attorney initialed and which was read to him before he pleaded guilty on the day before trial commenced. In fact, the first time he complained of the amended reindictment was in his appellate brief to this court. We take the legislature at its word and conclude that Desdune waived and forfeited any defect of form or substance in the amended reindictment. See id.; Neal v. State, 150 S.W.3d 169, 175-77 (Tex. Crim. App. 2004); Bleil v. State, 496 S.W.3d 194, 205-06 (Tex. App.—Fort Worth 2016, pet. ref'd); Trevino v. State, 470 S.W.3d 660, 662 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd).
We reject Desdune's argument that because these waivers were part of "the boilerplate admonishments," they were not effective. See Tex. Code Crim. Proc. Ann. art. 1.14(a). Desdune personally signed the waivers, stating that he understood their consequences, and several of the "boilerplate" waivers had been crossed out and initialed by Desdune's attorney and the prosecutor. See id. art. 26.13(d).
Desdune asserts that he did not have an opportunity to object to the amended reindictment because the amendment presumably occurred the day jury selection began—January 30, 2017. The record does not reflect the date the reindictment was amended; but even assuming the reindictment was not amended until that date, the trial on the merits did not commence until the trial court administered the oath to the jury, which occurred January 31, 2017. See Tex. Code Crim. Proc. Ann. arts. 1.14(b), 28.10(a); Westfall v. State, 970 S.W.2d 590, 592-93 (Tex. App.—Waco 1998, pet. ref'd). By that time, each alleged defect in the amended reindictment would have been apparent and could have been raised before the trial began, rendering Desdune's appellate complaints directed to the amended reindictment waived and forfeited. See Tex. Code Crim. Proc. Ann. art. 1.14(b); Davis v. State, No. 05-14-00378-CR, 2015 WL 1542211, at *7 (Tex. App.—Dallas Apr. 2, 2015, no pet.) (mem. op., not designated for publication); Gillette v. State, No. 07-12-00382-CR, 2013 WL 6073438, at *4 (Tex. App.—Amarillo Nov. 13, 2013, pet. ref'd) (mem. op., not designated for publication); Lebo v. State, 100 S.W.3d 417, 420 (Tex. App.—San Antonio 2002, pet. ref'd) (op. on reh'g).
III. CONCLUSION
Because Desdune did not object to the amended reindictment before the trial commenced and because he affirmatively waived any defects of form or substance in the amended reindictment as part of his guilty plea, his complaints directed to the amended reindictment are waived and forfeited. See id. art. 1.14; Tex. R. App. P. 33.1(a). We overrule Desdune's issues and affirm the trial court's judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: WALKER, MEIER, and GABRIEL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: October 5, 2017