Summary
upholding conviction where defendant confessed in a jury waiver to the offense charged in the indictment even though defendant's judicial confession stated a different offense date
Summary of this case from Butler v. StateOpinion
No. 05-01-01929-CR.
Opinion Filed January 29, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F97-21046-PR. AFFIRM.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
OPINION
Jeffrey Moraski appeals his conviction for aggravated sexual assault. After appellant pleaded guilty without an agreement as to punishment, the trial court placed appellant on deferred adjudication community supervision for six years. Subsequently, appellant pleaded true to the allegations contained in the State's motion to adjudicate. The trial court then adjudicated appellant guilty and assessed punishment at seventeen years' confinement. In two points of error, appellant contends the judgement is void and the trial court erred in denying his motion for new trial. We overrule appellant's points of error and affirm the trial court's judgment. In his first point of error, appellant contends the judgment is void because there is a variance between the date of the offense contained in the judicial confession and the date stated in the indictment. We disagree. Although the indictment alleges the date of the offense as February 27, 1997 and the document entitled "Judicial Confession" states the offense date as February 27, 1998, the "Judicial Confession" is not the only evidence in the record supporting appellant's plea. Also contained in the record is a Jury Waiver. That document, signed by appellant, states in part that appellant admits and judicially confesses that he is the person named in the charging instrument and that he is "guilty of the offense of aggravated sexual assault exactly as alleged in the charging instrument including any amendments or modifications thereto and I confess that I did unlawfully commit the said offense in Dallas County, Texas on the 28th day of February, 1997." Because there is evidence in the record supporting appellant's guilty plea, we conclude appellant's complaint lacks merit. See Boiles v. State, 662 S.W.2d 170, 172 (Tex.App.-Austin 1983, no pet.). In his second point of error, appellant contends the trial court erred by denying his motion for new trial. According to appellant, the trial court relied on inadmissible evidence when it determined the evidence presented in support of appellant's motion for new trial was not "newly discovered." Appellant did not object at the time the trial court questioned S.K about whether appellant knew her age at the time of the offense. Thus, appellant has failed to preserve his complaint that the trial court asked leading questions and elicited hearsay testimony from S.K. See Moore v. State, 907 S.W.2d 918, 920-23 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd) (trial court's questioning of witness not fundamental error and must be objected-to in order to preserve error for appeal). Further, because appellant failed to object, S.K.'s testimony could be considered by the trial court as probative evidence, to be assessed and weighed along with, and equal to, the other evidence admitted at trial. See Fernandez v. State, 805 S.W.2d 451, 455-56 (Tex.Crim.App. 1991). When the trial court found the evidence in support of appellant's motion for new trial was not "newly discovered," it expressed its belief that it found S.K.'s testimony that appellant knew she was fourteen-years-old to have more probative value than appellant's testimony that he did not know S.K.'s age at the time of the offense. Because the record supports that appellant knew S.K.'s age at the time of the offense, we conclude that the trial court did not abuse its discretion by determining that additional evidence of S.K's age was not "newly discovered" and by denying appellant's motion for new trial. We overrule appellant's second point of error. Accordingly, we affirm the trial court's judgment.