









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-05-00129-CV

______________________________



IN THE GUARDIANSHIP OF BETTY JOANN ERICKSON,

AN INCAPACITATED PERSON






On Appeal from the County Court

Upshur County, Texas

Trial Court No. 170







Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter


O P I N I O N


	Betty Joann Erickson (Betty) was, by all accounts, a friendly, deeply religious, and stubborn
woman.  Some time after her husband's death in 2002, Betty's mental capacities began to diminish
with the onset of senility, though she still valued her independence.  She still maintained an office
at the million-dollar business she owned, though she let other people run the business.  In
August 2005, Betty left her office to go to a feed store.  She was missing for the next thirty hours,
apparently driving around East Texas before returning home confused and exhausted.
	Betty's two sons, both of whom live out of state, applied to have a temporary guardian
appointed for Betty.  One son, Jim, was deemed ineligible to serve as Betty's guardian.  On
August 25, 2005, the other son, David Capps (David), was appointed Betty's temporary guardian. 
Challenging David for both temporary and permanent guardianship were Betty's long-time friend
Victor Stolley (Stolley) and a young man who had become close to Betty since her husband's
death--Betty's then-twenty-four-year-old employee, Matthew Armstrong (Armstrong). 
	At the conclusion of a two-day hearing, the court appointed Stolley as Betty's permanent
guardian.  The court later entered an explicit finding that David had cruelly "and/or negligently"
treated Betty and ordered his removal as her temporary guardian.  David raises two issues on appeal: 
(1) the legal and factual sufficiency of evidence of cruel/neglectful treatment supporting the removal
of the temporary guardian of the person and the estate, and (2) the court's premature appointment of
Stolley as permanent guardian of the person. (1)  We find that the trial court did not have jurisdiction
to appoint the permanent guardian and, therefore, that appointment is void.  We further find that the
removal of the temporary guardian was within the trial court's discretion. 
Appointment of Permanent Guardian
	The qualification of a properly appointed permanent guardian terminates a temporary
guardianship.  See Blackburn v. Gantt, 561 S.W.2d 269, 272 (Tex. Civ. App.--Houston [1st Dist.]
1978, no writ).  If Stolley was properly appointed, David's first issue (the improper removal of the
temporary guardian) is moot.  See In re Guardianship of Berry, 105 S.W.3d 665, 666 (Tex.
App.--Beaumont 2003, no pet.); Douglas v. Proctor, 559 S.W.2d 912, 913 (Tex. Civ. App.--Waco
1977, no writ).  We, therefore, address David's second issue first: was the permanent guardian
properly appointed?  David contends the appointment of the permanent guardian of the person is
void because (1) under Section 633(f) of the Texas Probate Code, the trial court was not allowed to
appoint any permanent guardian until October 3, 2005, and (2) the trial court denied due process by
ruling on applications and motions for permanent guardian not yet set for hearing.
	A judgment is void when the trial court rendering it has no jurisdiction over the parties or
subject matter.  See Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987); In re Guardianship of
B.A.G., 794 S.W.2d 510, 511 (Tex. App.--Corpus Christi 1990, no writ); Wilkinson v. Owens, 72
S.W.2d 330, 335 (Tex. Civ. App.--Texarkana 1932, no writ).  "[A] void judgment is one entirely
null within itself, and which is not susceptible of ratification or confirmation, and its nullity cannot
be waived."  Easterline v. Bean, 121 Tex. 327, 49 S.W.2d 427, 429 (1932); accord B.A.G., 794
S.W.2d at 511; Wilkinson, 72 S.W.2d at 335.  A trial court's subject-matter jurisdiction is a question
of law an appellate court reviews de novo by examining the pleadings and any other evidence
relevant to the determination.  Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849,
855 (Tex. 2002). 
	The Texas Probate Code confers jurisdiction on county courts to appoint guardians for
incapacitated persons.  Tex. Prob. Code Ann. § 605 (Vernon 2003); see also Tex. Prob. Code
Ann. §§ 606, 677(a) (Vernon Supp. 2006).  As to the procedure in creating a permanent
guardianship, the Probate Code provides:
	The court may not act on an application for the creation of a guardianship until the
Monday following the expiration of the 10-day period beginning the date service of
notice and citation has been made as provided by Subsections (b), (c), and (d)(1) of
this section and the applicant has complied with Subsection (d-1) of this section.

Tex. Prob. Code Ann. § 633(f) (Vernon Supp. 2006).  Section 633 does not set out optional
procedures; only through compliance with Section 633 of the Texas Probate Code is the trial court's
jurisdiction invoked.  See B.A.G., 794 S.W.2d at 512-13 (as to then Section 130E of the Texas
Probate Code, now recodified at Tex. Prob. Code Ann. § 633 (Vernon Supp 2006)); Wilkinson, 72
S.W.2d at 334-35; Threatt v. Johnson, 156 S.W. 1137, 1139 (Tex. Civ. App.--Texarkana 1913, no
writ); accord Tex. Prob. Code Ann. § 684(c) (Vernon 2003) ("court may not grant an application
to create a guardianship unless the applicant proves each element required by this code").
	Stolley and Armstrong filed and served their permanent guardian application September 19,
2005.  The court could not, under Section 633(f), act on that application until October 3, 2005, which
was the Monday following the expiration of the ten-day period after service.  However, the court
held the hearing September 28, 2005.  The court rendered judgment in open court, as required under
Tex. Prob. Code Ann. § 650 (Vernon 2003), on September 29, 2005.  The court stated in open court
that "Stolley is named the permanent guardian of the estate" and then clarified "[t]he person and
estate."  On October 3, 2005, the court signed a written order regarding its earlier judgment.  For
purposes of our analysis, we note that judgment in this case was rendered by the court's oral
pronouncement of judgment in open court September 29, not by the later written order.  See In re
Marriage of Joyner, 196 S.W.3d 883, 886-87 (Tex. App.--Texarkana 2006, pet. filed) (written
judgment subsequent to oral one in open court is "purely a ministerial act"); see also In re
Guardianship of Schellenberg, 694 S.W.2d 50, 52 (Tex. App.--Corpus Christi 1985, no writ). 
	We find the actions from September 28 to September 29 "too early to confer on the trial court
jurisdiction" to order the permanent appointment.  See In re Estate of Bean, 120 S.W.3d 914, 919
(Tex. App.--Texarkana 2003, pet. denied); accord Wilkinson, 72 S.W.2d at 334.  Almost 100 years
ago, this Court stated of the guardianship jurisdictional requirements:  "compliance with the statute
is a condition precedent to the valid exercise of the power, and is jurisdictional."  Threatt, 156 S.W.
at 1139.  Any attempt by the trial court to exercise the special power of appointment of a guardian
without compliance with express statutory jurisdictional provisions is a nullity.  Id.
	Stolley asserts that the invited error doctrine prohibits David's complaint on appeal.  See Ne.
Tex. Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (1942).  Stolley contends
David waived any objection to the hearing of all motions on appointment of a permanent guardian
on September 28 because David had the matter set for hearing.  Stolley further contends that,
throughout the two-day hearing, the trial court heard testimony regarding Stolley's or Armstrong's
qualifications as a guardian so as to put all parties on notice of the appointment sought.  We are not
persuaded by Stolley's contentions. 
	The court had initially set hearings for September 26 and 28 on the following motions: 
(1) Armstrong's "Motion to Estop David Capps From Preventing Betty Joann Erickson From
Attending Church"; (2) Armstrong's motion for emergency hearing to change the temporary guardian
of Betty; (3) David's motion to modify agreed order (to show cause why Armstrong should not be
fired, and to compel Armstrong's production of Betty's business books and records); and (4) David's
motion to show cause why Armstrong and his wife, Leslie, should not be removed from the
residence and property of Betty.  As indicated in a letter by David's attorney, the hearings on these
motions were apparently consolidated to be heard September 28.  That letter stated:  "This letter is
to confirm with everybody that the hearing on the various motions, applications, counter-motions
and counter-applications which are presently on file will be heard by the Court on Wednesday,
September 28, 2005 . . . ."
	Stolley asserts this letter set for hearing the following additional applications, which were
not previously set:  (1) David's application and first amended application for appointment of
permanent guardian; (2) Armstrong's application for appointment of permanent guardian of the
person and estate; and (3) Armstrong and Stolley's first amended and alternative application for
appointment of permanent guardian of the person and estate.
	Section 635 of the Texas Probate Code provides that a "competent person who is interested
in a hearing in a guardianship proceeding, in person or by attorney, may waive in writing notice of
the hearing. . . .  A person who submits to the jurisdiction of the court in a hearing is deemed to have
waived notice of the hearing."  Tex. Prob. Code Ann. § 635 (Vernon 2003).  It is undisputed that
all interested parties were present at the September 28 hearing.  However, since guardianship entails
ongoing proceedings in courts sitting in probate, the parties' presence on one matter may not
necessarily serve as waiver on another.  We are not convinced that, at the beginning of the hearing,
either the court or counsel considered the permanent guardianship motions to be before the court in
addition to the motions for temporary guardian.  When the court recited which motions were before
it, only David asserted any incomplete recitation:
		THE COURT:  We're here on Matthew Armstrong's Motion to Change
Temporary Guardian and then on David Capps' Motion to Show Cause and Removal
of Armstrong from the Residence.
 
		[David's Attorney]:  And there is another Motion as far as Production of
Records, Show Cause on that as well.

Stolley's attorney failed to take this opportunity to include the applications for permanent guardian
among the considered motions. 
	Since the parties understood they were eliciting testimony on a potential new temporary
guardian, we are unconvinced that the parties' various references to "a guardian" throughout the
hearing must necessarily contemplate "a permanent guardian."  At the hearing, the few references
to guardians that differentiated between permanent and temporary indicated the parties understood
only temporary guardianship was before the court.  David's attorney expressly noted, in closing
remarks, that "we're not at permanent guardian.  We're only here for the motions that were set for
today."  Betty's attorney ad litem stated, in his closing remarks, that "at least on a temporary basis,
. . . perhaps we ought to have Lee Stolley be temporary guardian for a while."  The fact that the
proper time had not elapsed to allow the court to conduct a permanent guardianship proceeding
strengthens the argument that the parties were present September 28 for motions in regard to the
temporary guardianship only.
	Betty's attorney ad litem approached the hearing from the perspective of temporary
guardianship.  The record does not indicate that Betty and her attorney ad litem were even aware that
they were participating in a proceeding that would far more drastically restrict her liberty interest. 
See Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 499-500 (Tex. App.--Austin 2003, no pet.).
Compare Tex. Prob. Code Ann. § 875(b) (Vernon Supp. 2006) (recognizing temporary guardian's
limited powers and rights by noting "[t]he person retains all rights and powers that are not
specifically granted to the person's temporary guardian by court order") with Tex. Prob. Code Ann.
§ 769 (Vernon 2003) and Tex. Prob. Code Ann. §§ 767, 768, 770, 770A (Vernon Supp. 2006) (all
entitling a permanent guardian to very broad powers and rights over a ward). 
	Not only did Betty not consent to or waive the setting of the applications for permanent
guardian, she is not allowed to waive those jurisdictional requirements.  The Probate Code implies
that a proposed ward may not waive jurisdictional procedures.  See Tex. Prob. Code Ann. § 633(e)
("A person other than the proposed ward . . . may choose . . . to waive the receipt of notice or the
issuance and personal service of citation.") (Emphasis added); Tex. Prob. Code Ann. § 635 ("A
competent person who is interested in a hearing in a guardianship proceeding . . . may waive in
writing notice of the hearing.") (Emphasis added).  The few cases on point indicate that an interested
person may not waive guardianship proceeding jurisdictional requirements on behalf of an alleged
incapacitated person.  See In re Mask, 198 S.W.3d 231, 234 n.3 (Tex. App.--San Antonio 2006, no
pet. h.) ("attempted waiver of service by an incapacitated person would be ineffective" in
guardianship proceedings); Saldarriaga,121 S.W.3d at 499-500; B.A.G., 794 S.W.2d 510; Ortiz v.
Gutierrez, 792 S.W.2d 118, 120 (Tex. App.--San Antonio 1989, writ dism'd as moot) (waiver of
notice "not applicable to proceedings in which the mental or physical infirmity (incompetency) of
an individual is alleged"); Wilkinson, 72 S.W.2d at 336-37.
	The basic jurisdictional safeguards of Section 633 of the Probate Code must be strictly
followed to "take the drastic action of removing [an alleged incapacitated person's] ability to make
her own legal decisions.  The consequences are too great to risk a haphazard determination . . . ." 
Saldarriaga, 121 S.W.3d at 499.  The order appointing Stolley as permanent guardian of Betty's
person was in violation of the Probate Code's procedural safeguards, which were not waived by
David and not capable of being waived by Betty.  The order appointing the permanent guardian of
the person is void.
Removal of David as Temporary Guardian
	Since the order appointing a permanent guardian is void, we reach David's first issue--the
legal and factual sufficiency of the evidence supporting his removal as Betty's temporary guardian. 
	We review a court's removal of a guardian for abuse of discretion.  State ex rel. Tex. Dep't
of Mental Health & Mental Retardation v. Ellison, 914 S.W.2d 679, 682 (Tex. App.--Austin 1996,
no writ); accord Robinson v. Willingham, No. 03-05-00221-CV, 2006 WL 903734, at *3 (Tex.
App.--Austin Apr. 6, 2006, no pet.) (mem. op.) (appointment of guardian reviewed for abuse of
discretion); Trimble v. Tex. Dep't of Protective & Regulatory Serv., 981 S.W.2d 211, 214-15 (Tex.
App.--Houston [14th Dist.] 1998, no pet.); Douglas, 559 S.W.2d at 913 (court has authority to
terminate temporary guardianship if in best interest of person and estate).  Though David raises the
points of error as evidentiary sufficiency, legal and factual sufficiency are not independent, reversible
grounds of error in guardianship proceedings but are, instead, factors to consider in assessing
whether the trial court abused its discretion.  Robinson, 2006 WL 903734, at *3 (citing Trimble, 981
S.W.2d at 215).
	The test for abuse of discretion is not whether in the opinion of the reviewing court the facts
present an appropriate case for the trial court's action, but whether the court acted without reference
to any guiding rules or principles.  Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991);
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  The mere fact that
a trial court may decide a matter within its discretionary authority differently than an appellate judge
does not demonstrate such an abuse.  Downer, 701 S.W.2d at 242.  Moreover, the court of appeals
cannot substitute its judgment for the trial court's reasonable judgment even if it would have reached
a contrary conclusion.  Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992); Buller, 806 S.W.2d
at 226.  The trial court does not abuse its discretion if some evidence reasonably supports the trial
court's decision.  Furr's Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 379 (Tex. 2001).
	The judgment rendered in open court did not state any grounds for removing David as
temporary guardian.  In fact, it only appointed Stolley as permanent guardian.  Only later, in its
written order, after finding that (1) David had "cruelly treated and/or negligently treated" Betty "as
specified in Texas Probate Code § 761" and (2) "[t]he continuation of  . . . the Temporary Guardian
. . . would not be in the Proposed Ward's best interest," did the court state that David was removed. 
See Tex. Prob. Code Ann. § 761 (Vernon Supp. 2006).  The court later filed relevant findings of
fact and conclusions of law:  
		5.	The Court further finds by clear and convincing evidence that David
Capps has cruelly treated and/or negligently treated the Proposed Ward, as specified
in Texas Probate Code § 761.  The testimony heard in this case clearly proved that
David Capps injured the Proposed Ward by pushing her down and injuring her
shoulder, threatening to take her for everything she had and leave her with nothing,
and being verbally and mentally abusing to the Proposed Ward.

		6.	The Court further finds that the continuation of David Capps as
Temporary Guardian or the appointment of David Capps as the Permanent Guardian
would not be in the Proposed Ward's best interest. . . .

		. . . .
 CONCLUSIONS OF LAW

		. . . .

		2.	There is clear and convincing evidence that David Capps has cruelly
treated the Proposed Ward, as specified in Texas Probate Code § 761.

		3.	The continuation of David Capps as Temporary Guardian or the
appointment of David Capps as Permanent Guardian would not be in the Proposed
Ward's best interest.	
	Although the parties on appeal focus on the court's statement, in both the written order and
the findings of fact and conclusions of law, that David had cruelly and/or negligently treated Betty
"as specified in Texas Probate Code § 761," we note that the court never specified under which
probate section it was actually removing David.  Since David was a temporary, not permanent,
guardian, the court could remove him under several code provisions.  See, e.g., Tex. Prob. Code
Ann. §§ 761(a)(7), (c)(6)-(6-a) (all listing separate grounds for removal of permanent guardians
involving cruel treatment or neglect; and see Tex. Prob. Code Ann. § 875(k) (Vernon Supp. 2006)
(for removing contested temporary guardian to protect the ward).  The county court expressly stated
in open court that it was naming a new guardian "in order to protect [Betty] and to protect the estate." 
While this language directly tracks the reasons for a removal under Section 875(k) of the Probate
Code, "protecting the ward" is not a ground for removal of a guardian under Section 761.  The court
also stated--in its written order, findings of fact, and conclusions of law--that the continuation of
the temporary guardianship was not in the ward's best interest, and so terminated David's
guardianship of Betty again for grounds not authorized under Section 761.
	A trial court cannot abuse its discretion if it reaches the right result, even for the wrong
reason.  See In re Acevedo, 956 S.W.2d 770 (Tex. App.--San Antonio 1997, orig. proceeding);
Hawthorne v. Guenther, 917 S.W.2d 924, 931 (Tex. App.--Beaumont 1996, writ denied);
Luxenberg v. Marshall, 835 S.W.2d 136, 141-42 (Tex. App.--Dallas 1992, orig. proceeding).  We
are not bound by an incorrect statement of the law as it applies to a case.  Even though a trial court
gives an incorrect reason for its decision, the trial court's assignment of a wrong reason is not
reversible error.  Ace Drug Marts, Inc. v. Sterling, 502 S.W.2d 935, 940 (Tex. Civ. App.--Corpus
Christi 1973, writ ref'd n.r.e.).  We, therefore, review the removal to determine if the court abused
its discretion in removing David under any legally correct ground.
	We find that the court did not abuse its discretion in removing David under Section 875(k)
of the Probate Code, governing challenged and contested temporary guardianships. (2)  Tex. Prob.
Code Ann. § 875(k).  This section allows for the removal of a temporary guardian, via appointment
of a new temporary guardian, on a challenge, whether by motion of any interested party or on the
court's own motion, when "necessary to protect the proposed ward or the proposed ward's estate." 
Tex. Prob. Code Ann. § 875(k).  The strictly limited grounds for removal of permanent guardians
in Section 761 of the Probate Code are not applicable under Section 875 to temporary guardians. 
In fact, a court may remove a temporary guardian on a finding that to do so is in the ward's best
interest.  See Douglas, 559 S.W.2d at 913 (so finding for then-Probate Code Section 131, now
recodified at Section 875). 
	Beyond the hearsay (and double hearsay) evidence of the alleged pushing incident, ample
evidence supports the court's determination that Betty's best interest and protection were served by
removing the temporary guardian.  The testimony at the hearing indicated great hostility and mistrust
between David and Jim, on the one hand, and Armstrong, in particular, and his wife and Stolley on
the other.  Among the incidents in the first few weeks of David's temporary guardianship were the
following:  Stolley instructed Betty to not allow David in the house; Stolley told Betty her sons had
"stolen from God" (Betty's tithe); Armstrong's wife denied David and Jim entry to Betty's house;
Armstrong and/or Stolley told the home health "sitters" not to let David in the house; David
instructed a new "sitter" to lie to gain entry to Betty's house.  According to the evidence, David
reacted to these attempts to shut him out with verbal abuse and yelling, which frightened Betty. 
Betty, whether because of her vulnerability to influence from the challengers to the guardianship, or
for other reasons, was outspoken about her distrust of and anger toward her sons, along with her
desire to not have her sons near her.  The record includes a handwritten note from Betty to her sons
indicating that they cause her stress.  Betty's attorney ad litem indicated that he would prefer a new
temporary guardian to allow space to "heal some of those wounds."  The trial court was within its
discretion in reasonably finding this evidence sufficient to indicate that a change would protect
Betty's interest and person.  We, therefore, uphold the removal of the temporary guardian in the
proposed ward's interest under Section 875.  See Tex. Prob. Code Ann. § 875(k); Douglas, 559
S.W.2d at 913.
	We recognize that it may appear that the result of our decision today is to leave Betty in a bit
of a vacuum.  The temporary guardian is removed and the appointment of the permanent guardian
of the person is void.  Nonetheless, we are certain that Betty's attorney ad litem may protect her
interest in the brief period of time before the court, on remand, appoints a new guardian of the person
to protect Betty's interest in accordance with this opinion.
	We affirm the judgment in part and reverse in part and remand the cause to the trial court for
further proceedings consistent with this opinion.  



						Jack Carter
						Justice

Date Submitted:	July 26, 2006
Date Decided:		November 29, 2006
1. Stolley was appointed permanent guardian of Betty's estate and person.  During the
pendency of this appeal, Stolley was removed and Regions Bank was appointed as permanent
guardian of the estate.  Stolley is still the permanent guardian of Betty's person.  David states that
the subsequent removal of Stolley as permanent guardian of the estate "renders moot David Capps's
appeal" of the order appointing Stolley permanent guardian of the estate.  We thus consider that
David has abandoned as moot that part of the appeal contesting the appointment of Stolley as the
permanent guardian of the estate.  See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).
2. We emphasize that this opinion does not decide whether David did or did not "cruelly and/or
negligently treat" Betty.  We also note that, although the court found David had "cruelly and/or
negligently" treated Betty, the statute allows removal for one who neglects or cruelly treats a ward. 
See Tex. Prob. Code Ann. §§ 761(a)(7), (c)(6)-(6-a).  We emphasize that this opinion does not
decide whether the removal statute incorporates tort principles of negligence as a ground of removal. 
This opinion is limited to deciding if the trial court abused its discretion in removing a temporary
guardian on a determination that it was in the ward's best interest. 


kMark> 
 
 
 
 
 
 
 
 
                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-10-00003-CR
                                                ______________________________
 
 
                              ROCKY DWAYNE JENNINGS,
Appellant
 
                                                                V.
 
                                     THE STATE OF TEXAS, Appellee
 
 
                                                                                                  

 
 
                                       On Appeal from the 196th
Judicial District Court
                                                              Hunt County, Texas
                                                            Trial
Court No. 25714
 
                                                           
                                       
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                            Memorandum Opinion by Justice Moseley



                                                     MEMORANDUM 
OPINION
 
            Rocky
Dwayne Jennings confessed to police that he was guilty of aggravated robbery
with a deadly weapon.[1]  His attorney filed a motion to suppress his
written and oral confession to the crime. 
Instead of ruling on the motion to suppress, the trial court carried the
motion with the case.  Jennings
subsequently, after full admonishments from the court, entered a nonnegotiated
plea of guilty to the offense in front of the jury.  The issue of punishment tried to a jury
resulted in assessment of thirty-two years incarceration in the Texas
Department of Criminal JusticeInstitutional Division.  As his sole ground for appeal, Jennings
alleges the trial court erred in admitting his written and oral confessions
during the punishment phase because they were involuntary.  He does not challenge the voluntariness of
his plea of guilt.  
            Specifically,
Jennings claims he was intoxicated and his lack of signature on one page
rendered the initialed written confession involuntary.  The Texas Court of Criminal Appeals has held
that admission of guilt waives the right to challenge voluntariness of
confessions.  Lewis v. State, 911 S.W.2d 1, 45 (Tex.
Crim. App. 1995) (en banc); Simpson v.
State, 67 S.W.3d 327, 32930 (Tex. App.Texarkana 2001, no pet.).  In a concurring opinion written by Justice
Meyers in Fuller v. State, the
rationale for such a holding is explained:
[Appellant] claims that he did not voluntarily
waive his right to remain silent and his right to counsel because he was drunk
when the statement was taken and because he was not aware that his
brother-in-law, an attorney, had sent a fax directing officers not to interview
him.  However, by pleading guilty, he
waived the right to challenge on appeal the admission of his initial
confession.  His non-negotiated guilty
plea was the equivalent to him confessing to the jury.  While we are always concerned with the
voluntariness and accuracy of a confession, by pleading guilty, Appellant
confirmed the accuracy of his confession and the issue of voluntariness became
moot.  As such, he cannot now complain
that his confession to the police was admitted for the jury to consider during
the punishment phase.  
 
            The
situation would be different if there were a plea bargain agreement.  If his guilty plea was a result of a
negotiation between Appellant and the State, then it would be appropriate for
us to consider the voluntariness and admissibility of his confession to police.

 
253 S.W.3d 220, 23536 (Tex.
Crim. App. 2008) (Meyers, J., concurring) (footnote omitted).  We find that Jennings has waived his sole
point of error on appeal.  It is
overruled.[2]  
            We
affirm the trial courts judgment. 
 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
Date Submitted:          July
19, 2010
Date Decided:             July
22, 2010
 
Do Not Publish
 




[1]Jennings
also appeals an additional conviction for aggravated robbery with a deadly
weapon and unlawful possession of a firearm in our cause number
06-10-00004-CR.  The ground for appeal in
the consolidated companion case is substantively resolved herein.  


[2]We
also point out that Jennings failed to brief the issue of harm.  There is no suggestion as to why admission of
the confessions during the punishment phase contributed to the conviction or
punishment or affected Jenningss substantial rights.  See Tex. R. App. P. 44.2.


