The appellant pleaded guilty to two indictments for impersonating a public servant, one of which alleged that she demanded that someone open a door so that she could arrest the occupants of a room, and the other of which alleged that she told someone else to turn around and be arrested. She pleaded true to allegations of a prior felony conviction. Her written judicial confessions were received in evidence. There was no plea-bargain agreement. Her oral testimony was that she falsely claimed to be a police officer so that she could get back into a motel room where the other people were. The court found that the evidence was sufficient to prove the appellant guilty, and it set the case for "sentencing" three weeks later.
When the parties returned to court, a different judge was presiding. The appellant testified that she still wanted to plead guilty and be sentenced by the court, and that she wanted probation so that she could take care of her grandmother. Her counsel asked her if she wanted to say anything else. She began by admitting "that I said I was a police officer, I am guilty of saying that," but she denied telling anyone "to turn around and place their hands behind their back." She told the court about being arrested, and that she told the officers she "did it to save myself because the guys were trying to rape me." Then she related her conversation with the motel manager.
The court interjected, "You've already pled guilty. I can't find you not guilty."
The appellant replied, "No, I'm guilty of saying it."
The court said, "I'm just trying to decide what I should do to you."
The appellant repeated, "I'm guilty of saying it."
Then she testified about her criminal history, which included a deferred-adjudication probation for burglary, which was revoked after she committed another felony and a misdemeanor.
She called her employer and elicited his hearsay testimony about her out-of-court description of her offenses. This description differed significantly from the appellant's testimony. She had told her employer that she went to the motel to attend a party, but she "found out she was the only party," and there were no "other girls…. They weren't there so she just wanted to go. That's when she said that." That is, she told her employer that she impersonated a police officer in order to escape from the motel room, although she testified when she pleaded guilty that she had impersonated a police officer to get back into the motel room.
After hearing arguments, the judge simply noted appellant had previously received deferred adjudication for a prior offense, her probation had been revoked for that offense, and he did not consider her to be a good candidate for probation. The court sentenced the appellant to five years' imprisonment. After being sentenced, appellant again pleaded with the court that she did not "deserve to go back to TDC because I just said those words" and that she "didn't know what else to say ... at the time." The visiting judge, however, refused to reconsider his decision.
On appeal she argued that the evidence raised the defense of necessity. She claimed, "The court (unknowingly) abused its discretion in not rejecting appellant's plea of guilty," (1) and that she did not receive effective assistance of counsel. The divided court of appeals affirmed. The petition on which we granted review raised two issues.
The first issue is whether, when a defendant has waived trial by jury and pleaded guilty, a trial court has a duty to conduct some sort of proceeding when evidence that is inconsistent with guilt is introduced. The appellant would call such a proceeding "a Moon review," referring to Moon v. State, 572 S.W.2d 681 (Tex. Cr. App. 1978). Our opinion in Moon was not long:
The appellant asserts that the evidence is insufficient to sustain his conviction for murder and his plea of guilty should have been withdrawn and a plea of not guilty should have been entered for him by the trial court. Although the appellant made a judicial confession sufficient to sustain the conviction for murder, additional evidence, which was not withdrawn, clearly raises the issue of self-defense and voluntary manslaughter. Therefore, the only question presented for review is whether the appellant's plea of guilty should have been withdrawn by the court and a plea of not guilty entered.
In a long line of authorities this Court has held that when the evidence introduced makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required on its own motion to withdraw the defendant's guilty plea or nolo contendere plea and enter a not guilty plea for the defendant. [Citations omitted.] This rule has been recognized and applied even when a jury has been waived and the plea is before the court without a jury. [Citations omitted.]
Prior to January 1, 1966, the effective date of the 1965 Code of Criminal Procedure, the rule was properly applied when the jury had been waived and a plea of guilty entered before the court as well as when a plea of guilty had been entered before a jury. Prior to the effective date of the 1965 Code of Criminal Procedure, a defendant could not waive a jury and enter a plea of not guilty before the court. Article 11, V.A.C.C.P. 1925. If the defendant waived a jury trial and entered a plea of guilty before the court and it became necessary for the court to withdraw the defendant's plea of guilty, the court was required to impanel a jury to hear the not guilty plea. [Citation omitted.]
The 1965 Code of Criminal Procedure provides that a defendant may waive a jury trial and enter a plea of not guilty before the court in all except capital cases. Articles 1.13 and 1.14, V.A.C.C.P. There now seems to be no valid reason for the court to withdraw the guilty plea and enter a plea of not guilty for the defendant when the defendant enters a plea of guilty before the court after waiving a jury. It is the duty of the trial court to consider the evidence submitted and as the trier of the facts the court may find the appellant guilty of a lesser offense and assess the appropriate punishment or it may find the defendant not guilty. It would serve no purpose to withdraw the plea of guilty and enter a not guilty plea. Those cases in which this Court has reached a different result are overruled to the extent they conflict with the opinion in this case.
The appellant has tried to turn Moon on its head by saying that it requires a court in such a circumstance "to ascertain whether the plea is voluntary or not and whether the defenses the pleader asserts contain any validity …. [Sh]e ha[s] called this a 'Moon review.'" (2)
Moon did not impose a new requirement on the trial court; it removed an old requirement. It did so because "it is apparent that the doctrine requiring a trial court to sua sponte withdraw a guilty plea when evidence was adduced that either made evident the defendant's innocence or reasonably and fairly raised an issue as to his guilt was rooted upon the proposition that the trial court was vested only with the authority to resolve legal questions." (3) That is to say, when only juries could decide fact issues in a felony case, the raising of a fact issue required the summoning of a jury. When trial courts gained the fact-finding authority, there was no reason for them to do anything more than "consider the evidence submitted and as the trier of the facts" (4) decide that the evidence did not create a reasonable doubt as to guilt, or "find the appellant guilty of a lesser offense and assess the appropriate punishment or it may find the defendant not guilty," (5) just as a jury would have done under the pre-1966 procedure.
It is simply incorrect to read Moon as requiring anything more than a decision that a guilty-pleading defendant was guilty as he pleaded, guilty of a lesser included offense, or not guilty. Whether to undertake any additional inquiry into the voluntary and knowing nature of the plea was left "solely within the province of the trial court." (6)
Moon did not create a requirement of a review proceeding in the course of a plea of guilty. It merely recognized the obvious duty of a court to consider the evidence that is before it.
The problem in this case is not the failure to provide some "Moon review" that Moon does not require. It is that the visiting judge mistakenly thought that the judge who took the guilty plea three weeks earlier had found the defendant guilty as she pleaded -- which would have been one of the outcomes that Moon actually requires when a court hears evidence that raises an issue of guilt. When the judge revealed his mistaken understanding by saying, "I can't find you not guilty," the appellant's only response was to testify, "No, I'm guilty of saying it." Her counsel said nothing.
Our rules for appellate review require:
As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; … and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. (7)
This rule restates Texas law that has always been thus, and that is similar to the law of every state and of the United States. (8)
We have previously recognized two general policies for requiring specific objections. "First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony." Stated more broadly, objections promote the prevention and correction of errors. When valid objections are timely made and sustained, the parties may have a lawful trial. They, and the judicial system, are not burdened by appeal and retrial. When a party is excused from the requirement of objecting, the results are the opposite.
For these reasons we have said, "All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong. Many constitutional rights fall into this category. When we say 'that even constitutional guarantees can be waived by failure to object properly at trial,' we mean that some, not all, constitutional rights may be forfeited." (9)
The rules that require a timely and specific objection, motion, or complaint do not apply to two relatively small categories of errors: violations of "rights which are waivable only" and denials of "absolute systemic requirements." Such errors may be raised for the first time on appeal. (10)
Examples of rights that are waivable-only include the rights to the assistance of counsel, the right to trial by jury, and a right of appointed counsel to have ten days of trial preparation which a statute specifically made waivable-only. (11)
Absolute, systemic requirements include jurisdiction of the person, jurisdiction of the subject matter, and a penal statute's being in compliance with the Separation of Powers Section of the state constitution. (12)
We set out this analysis in 1993 in Marin v. State. (13)
Marin has been a watershed decision in the law of error-preservation. After Marin we have held that a right [under the Double Jeopardy Clause to be free of multiple punishments] that formerly was thought to be "waivable only" actually requires an objection at trial. We have held that some requirements [statutory requirements of verdict by twelve jurors, and of concurrent sentencing for offenses tried in a single criminal action] that were formerly held to be absolute requirements are not. We have held that a party may be estopped from relying on an absolute requirement. On the other hand, we have recognized three more absolute requirements since Marin: a constitutional requirement that a district court must conduct its proceedings at the county seat, the constitutional prohibition of ex post facto laws, and certain constitutional restraints on the comments of a judge. (14)
The question in each case is whether the event in the trial court was one to which the appellant was required to have made a timely, specific objection at trial. An appellant is required to object unless the right to avoid this type of event is a right that is either waivable-only or an absolute, systemic requirement. (15) In this case the event was the trial judge's expression of the misapprehension that a different judge had found the appellant guilty when she pleaded guilty.
The resolution of a lawsuit is not often accomplished in a single appearance in court. The usual procedure is that each case comes before the court in a series of hearings, among which are interposed a series of hearings in a multitude of other cases. It is no wonder, then, that judicial lapses of memory about past procedures are everyday occurrences in trial courts. Notations on docket sheets are the primary source of the case's history. The parties are often in a position to remind the court of the procedural posture of the case. Such reminders, like most objections, serve to call the court's attention to error as it occurs, while it can be corrected. Avoidance of mistakes is neither an absolute, systemic requirement, nor a right that requires an affirmative waiver. We think that a court's mistaken assumption that what usually happens in a case had happened in this case, is not an event that may be complained of for the first time on appeal.
Here the appellant not only remained silent about the pendency of a decision on guilt, she repeatedly denied any claim of being anything short of guilty. She sought neither acquittal nor withdrawal of her plea nor conviction of a lesser offense; her only thought was to be given another probation. This, in light of the appellant's criminal history, the sentencing judge was disinclined to do. No one contends that this decision was unreasonable, or that the outcome of the trial would have been different if the judge had been reminded that the court had not yet made a finding of guilt.
Because the record fails to show the presentation of her complaint to the trial court and the trial court's ruling on it, which are prerequisites to appellate review, we hold that the appellant may not present the claim for the first time on appeal.
This failure to present a complaint to the trial court brings us to the second issue in the appellant's petition: whether she was denied the effective assistance of counsel when her attorney did not request a Moon review.
To resolve that issue we would have to decide whether counsel's performance fell below an objective standard of reasonableness, and, if it did, whether there is a reasonable probability that, but for that unprofessional performance, the result of the trial would have been different. As we have said repeatedly, appellate courts can rarely decide the issue of unreasonable performance because the appellate record rarely speaks to the strategic reasons that counsel may have considered. For example, we recently decided that an appellate record did not show that counsel rendered ineffective assistance by failing to ask for withdrawal of a guilty plea when the defendant's testimony was inconsistent with guilt, or by failing to take other actions, since each of these decisions could have been a reasonable strategy. (16) The proper procedure for raising such a claim is almost always habeas corpus. In such a proceeding the appellant could undertake to prove both that (1) her counsel's silence fell below the standard of reasonable professionalism, and (2) that the result of the trial would have been different if counsel had taken some action such as informing the court that the issues of guilt were still undecided, or requesting that the appellant be permitted to withdraw her pleas, or arguing that the appellant should have been found not guilty or guilty of lesser offenses, or asking that the adjudication of guilt be deferred while the appellant was placed on probation.
The court of appeals correctly affirmed the judgments of the trial court, and we affirm its judgment.
En banc.
Delivered May 14, 2003.
Publish.
Aldrich v. State, 53 S.W.3d 460, 466 (Tex. App. -- Dallas 2001).
2. Petition, at 9.
7. Tex. R. App. P. 33.1(a).