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Sutton v. State

Court of Appeals Fifth District of Texas at Dallas
Aug 2, 2012
No. 05-10-01483-CR (Tex. App. Aug. 2, 2012)

Opinion

No. 05-10-01483-CR

08-02-2012

GARY LYNN SUTTON, Appellant v. STATE OF TEXAS, Appellee


Affirm in part; Vacate and Remand in part; Opinion Filed August 2, 2012.

On Appeal from the 380th District Court

Collin County, Texas

Trial Court Cause No. 380-82241-09

MEMORANDUM OPINION

Before Justices O'Neill, Richter, and Francis

Opinion By Justice Richter

Appellant Gary Lynn Sutton was charged with aggravated sexual assault of a child, indecency with a child by touching, indecency with a child by exposure, and sexual performance by a child. Appellant entered an open plea of guilty in each offense. The trial court found appellant guilty of all offenses and assessed punishment of life imprisonment on each aggravated sexual assault offense, twenty years imprisonment on each indecency with a child by touching offense, ten years imprisonment on each indecency with a child by exposure offense and ten years imprisonment on the sexual performance by a child offense.

The indictment contained twenty-two counts, five of which were abandoned by the State.

In two issues, appellant contends he did not enter his guilty plea voluntarily and was denied access to counsel regarding his waiver of a jury trial. The State raises a cross-point conceding count VII and count XX were barred by the statute of limitations at the time of the indictment. Accordingly, we vacate the trial court's judgment on counts VII and XX and affirm the trial court's judgment on the remaining offenses. The background of this case and the evidence adduced at the plea hearing are well known to the parties, and therefore we limit recitation of the facts to those necessary to address appellant's complaints on appeal. We issue this memorandum opinion because the law to be applied in this case is well settled. See Tex. R. App. P. 47.4.

Background

Appellant was accused of fondling R.C., his step-daughter, beginning when she was about five or six years-old. The sexual abuse continued and escalated with R.C. ultimately having two children fathered by appellant.

Appellant was indicted on twenty-two counts for sex offenses against R.C. On the day of trial, the State abandoned several counts and appellant entered an open guilty plea to all remaining counts of the indictment. The court found appellant guilty and after hearing testimony from R.C., her mother, and her brother, the trial court assessed punishment of life imprisonment on each aggravated sexual assault offense, twenty years imprisonment on each indecency with a child by touching offense, ten years imprisonment on each indecency with a child by exposure offense and ten years imprisonment on sexual performance by a child offense. Appellant filed a motion for new trial and motion in arrest of judgment which was denied by trial court order of January 7, 2011. Appellant now appeals.

Voluntariness of guilty plea

In his first issue, appellant claims his guilty plea was not given freely and voluntarily because he did not waive his right to a jury trial. The State responds that appellant failed to preserve his complaint for appellate review and, alternatively, the trial court properly admonished appellant before accepting the guilty plea.

We review the record as a whole and determine voluntariness by the totality of the circumstances. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). If a plea of guilty is based on misinformation conveyed by defense counsel, the plea is involuntary. Fimberg v. State, 922 S.W.2d 205, 207 (Tex. Civ. App.-Houston [1st Dist.] 1996, pet. ref'd). If the trial court properly admonished appellant before a guilty plea was entered, there is a prima facie showing the plea was both knowing and voluntary. Martinez, 981 S.W.2d at 197. No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (West Supp. 2011).

Here, the record shows the trial court admonished appellant both orally and in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (c) (West Supp. 2011); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1997, pet. ref'd). Appellant's signed waiver of rights and judicial confession was admitted into evidence. See Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. [Panel Op.] 1980) (op. on reh'g) (it is well settled that a judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea). During the plea hearing, appellant testified he understood the charges in the indictment, the punishment ranges for the offenses, and he entered a plea of guilty on each offense. Appellant testified he had not been coerced or promised anything for his pleas, and he understood the trial court would decide his punishment. Appellant never raised an inference suggesting his innocence; he never denied being the biological father of R.C.'s two children. The record is clear that appellant read and signed the written admonishments before trial. Therefore, we resolve the first issue against appellant.

Sixth Amendment Right to Counsel

In his second issue, appellant claims he was denied his constitutional right to effective assistance of counsel because appellant informed the court that he did not understand when asked "do you want a jury trial?" and probably needed to speak to his attorney. We have reviewed the record and conclude that it does not support appellant's argument.

In a plea proceeding, a defendant has a Sixth Amendment right to effective assistance of counsel. Ex parte Niswanger, 335 S.W.3d 611, 614 (Tex. Crim. App. 2011). However, not every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel. Morris v. Slappy, 461 U.S. 1, 11(1983). Broad discretion must be granted to trial courts on matters of continuances; only an unreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable request for delay" violates the right to the assistance of counsel. Id. at 11-12 (citing Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). During the arraignment proceedings, appellant pled guilty to each individual offense and was asked if he understood his rights, including the right to a jury trial. Appellant specifically stated he understood the paper he had signed (the open plea agreement) declared he was waiving his right to a jury trial. It was not until the admonitions were being read into the record that the following exchange took place:

COURT: And in your conversations with Mr. Sutton, considering those dates and the offenses alleged by the indictment to have occurred on those dates, were you able to form an opinion as to his competency on November 8, 1997, November 8, 1992?
DEFENSE COUNSEL: I believe he was competent.
COURT : All right. And in talking with Mr. Sutton today, going over the plea papers with him, do you have an opinion as to his competency to stand trial today?
DEFENSE COUNSEL: I do. I believe he is competent. I did go over exactly what we're doing today, that this is an open plea. That it will be up to you to determine punishment. And the range of punishment, I want to make sure that he understands on the record what's going on, what we're doing today, and that's the way he wants to handle this case.
COURT : All right. Let me ask you Mr. Sutton. I've told you all your rights. I've told you by signing these papers you waived those rights. Do you want a jury trial?
APPELLANT: I would think so.
COURT : Well, now, this is not what you told me just a moment ago. You told me that you wished to waive a jury trial. That means give up your right to a jury trial. Do you or do you not want a jury trial?
APPELLANT: Well, I don't know. I really don't know if I do or not. I don't understand to be honest.
COURT : Well, you understand that you have a right to have 12 people sit in that jury box over there and decide whether or not you're guilty of this offense. And if they do find that you're guilty of any one of these offenses, then you do have the right to have them assess punishment.
APPELLANT: Well, I don't know. I probably need to talk to her (defense counsel).
COURT : No. You need to make this decision. She's explained it to you. Now, she's asking me to explain it to you, which I'm trying to do to the best of my ability. And you either want a jury trial or you don't want a jury trial.
APPELLANT: Well, okay. I guess I don't.

Appellant never again suggested a need to speak independently to his counsel. Defense counsel never requested a recess or continuance to further meet with appellant. As a whole, the record reflects appellant was not denied access to defense counsel. Further, appellant fails to lead us to any authority showing the denial of access to counsel when the defendant's attorney is standing next to him. Since we find no constitutional error, we do not address a harm analysis. See Tex. R. App. P. 44.2. We resolve the second issue against appellant.

Statute of limitations

Even though the issue is not raised by appellant, in their reply brief, the State submits it erroneously prosecuted appellant for two offenses that were time barred by their statutes of limitation. "Article 44.01(c) provides that the State is entitled to appeal a ruling on a question of law if the defendant is convicted and appeals the judgment." Armstrong v. State, 805 S.W.2d 791, 793 (Tex. Crim. App. 1991) (en banc); Tex. Code Crim. Proc. Ann. art. 44.01(c) (West 2011).

In their first cross-point, the State claims the statute of limitations on Count VII of the indictment, the allegation of indecency with a child by exposure, alleged to have occurred on November 8, 1987, expired before appellant was indicted. It is clear from the record that the statute of limitation expired on November 8, 1997 for the offense of indecency with a child by exposure that occurred on November 8, 1987. We sustain the State's first cross-point.

See Act of 1987, 70th Leg., R.S., ch. 716, § 1, 1987 Tex. Gen. Laws 2591 (H.B. 494). Ten years later the legislature amended the limitations period for aggravated sexual assault and indecency with a child by contact. See Act of 1997, 75th Leg., R.S., ch. 740, § 1, (H.B. 921). However, the limitations period for indecency with a child by exposure remained only ten years and was barred in November 1997 as to the November 8, 1987 conduct alleged.

Further, the state submits it erroneously prosecuted appellant on Count XX of the indictment, the allegation of sexual performance by a child. The statute of limitation expired on or about November 1995 for the offense of sexual performance by a child alleged to have occurred on November 8, 1992. The legislature did lengthen the limitations period to 20 years from the victim's 18th birthday in 2007 but prior to the amendment the limitation period was the default three-year limitations period. We sustain the State's second cross- point.

See Act of 2007, 80th Leg., R.S., ch. 593, § 1.03, 2007 Tex. Gen. Laws 1122 (H.B. 8); See also Act of 1995, 74th Leg., R.S., ch. 476, 1995 Tex. Gen. Laws 643 (S.B. 698) (previously codified at Tex. Code Crim. Proc. Art. 12.01(5) and now codified at Tex. Code Crim. Proc. Art. 12.01(7)).

Conclusion

Having sustained the State's two issues, we VACATE the trial court's judgments on Count VII for indecency with a child by exposure and Count XX for sexual performance by a child and REMAND to the trial court to enter orders dismissing these Counts. Having

resolved appellant's two issues against him, we AFFIRM the remaining trial court's judgments.

MARTIN RICHTER

JUSTICE

Do Not Publish

Tex. R. App. P. 47

101483F.U05

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

GARY LYNN SUTTON, Appellant

V.

THE STATE OF TEXAS, Appellee

No. 05-10-01483-CR

Appeal from the 380th District Court of Collin County, Texas.

(Tr.Ct.No. 380-82241-09).

Opinion delivered by Justice Richter, Justices O'Neill and Francis participating.

Based on the Court's opinion of this date, the judgment of the trial court is VACATED as to the trial court's judgments on Count VII for indecency with a child by exposure and Count XX for sexual performance by a child and Counts VII and XX are REMANDED to the trial court to enter orders dismissing Counts VII and XX.

All remaining trial court's judgments are AFFIRMED.

Judgment entered August 2, 2012.

MARTIN RICHTER

JUSTICE


Summaries of

Sutton v. State

Court of Appeals Fifth District of Texas at Dallas
Aug 2, 2012
No. 05-10-01483-CR (Tex. App. Aug. 2, 2012)
Case details for

Sutton v. State

Case Details

Full title:GARY LYNN SUTTON, Appellant v. STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Aug 2, 2012

Citations

No. 05-10-01483-CR (Tex. App. Aug. 2, 2012)