Cecil Gabriel Garza v. State of Texas

• Court: Court of Appeals of Texas
• Decided: September 5, 2002
• Docket: 07-00-00561-CR
• Status: Published

Opinion

NO. 07-00-0561-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

SEPTEMBER 5, 2002

______________________________

GABRIEL GARZA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 99-431453; HONORABLE CECIL G. PURYEAR, JUDGE

_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.

Pursuant to a plea of guilty, appellant Gabriel Garza was convicted of burglary of a habitation with intent to commit theft and punishment was assessed at ten years confinement, probated for five years. Upon the State's application, community supervision was revoked for violations of the terms and conditions thereof, and the original punishment of ten years confinement was imposed. In presenting this appeal, counsel has filed an Anders ⁽¹⁾ brief in support of a motion to withdraw. Based upon the rationale expressed herein, the motion to withdraw is granted and the judgment is affirmed.

In support of his motion to withdraw, counsel has certified that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), he has diligently reviewed the record and, in his opinion, the record reflects no meritorious ground on which an appeal can be predicated. Thus, he concludes the appeal is frivolous and without merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also shown that he sent a copy of the brief to appellant, and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a pro se brief. Appellant did not file a pro se brief and the State did not favor us with a brief.

On January 20, 2000, appellant was convicted of burglary of a habitation with intent to commit theft and punishment was assessed at ten years confinement, suspended for five years. The State filed an application to revoke community supervision alleging that appellant had violated the conditions thereof by failing to (1) report as directed for the months of March, April, and May 2000; (2) pay court costs for the same months; and (3) pay community supervision fees for the same months. At the hearing on the State's application, appellant plead not true and after hearing evidence of the alleged violations, the trial court revoked community supervision and imposed the original sentence.

Appellate review of a revocation order is limited to determining whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Cr.App. 1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex.Cr.App. 1983). In a revocation proceeding, the State must prove by a preponderance of the evidence that appellant violated a condition of community supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Cr.App. 1993). If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking community supervision. Cardona, 665 S.W.2d at 494. In determining the sufficiency of the evidence to sustain a revocation, we view the evidence in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex.Cr.App. 1979). Moreover, when more than one violation is found by the trial court, the revocation order shall be affirmed if one sufficient ground supports it. Moore v. State, 605 S.W.2d 924, 926 (Tex.Cr.App. 1980); McCollum v. State, 784 S.W.2d 702, 704-05 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd).

By the Anders brief, counsel presents two arguable issues, to-wit: (1) whether the trial court erred in overruling appellant's objection to the State's motion to unseal and open juvenile records at the hearing on the motion to revoke, and (2) whether the trial court erred in finding that appellant violated the conditions of community supervision by failing to report, failing to pay supervision fees, and failing to pay court costs. However, after a discussion of the evidence and legal authorities, counsel concedes that no reversible error is presented.

Article 37.07 of the Texas Code of Criminal Procedure provides that notwithstanding Rule 609(d) of the Texas Rules of Evidence, evidence may be offered of an adjudication of delinquency based on a violation by the defendant of a felony or misdemeanor punishable by confinement in jail. Prior to the commencement of the hearing on the State's application to revoke, defense counsel objected to appellant's juvenile record being unsealed on the grounds of surprise and inadmissibility. The trial court overruled the objection and permitted the release of two delinquency adjudications. Further, the trial court gave defense counsel the opportunity to move for a continuance, but after discussing the matter with his client, counsel decided to proceed. We agree with counsel that no reversible error is presented by the trial court's ruling to unseal appellant's juvenile record.

Appellant's community supervision officer testified at the hearing that all terms and conditions of community supervision were discussed with appellant when he was first placed on community supervision and that appellant indicated he understood them. The officer further testified that for the months of March, April, and May 2000, appellant failed to comply with three conditions, to-wit: to report as directed, to pay installments on court costs, and to pay $40 per month for community supervision fees.

Appellant testified to explain why he had violated the terms of his community supervision. According to appellant, on March 11, 2000, he was helping his mother and stepfather move and had been told by his stepfather that some of the items he was moving were stolen property. While appellant was at his mother's house, police arrived to execute a search warrant and appellant fled fearing he would be arrested because he had failed to report to his community supervision officer for the month of March and had knowledge of the stolen property. He was arrested for evading arrest and criminal trespass and even after posting bond, admitted that he quit reporting as directed. Based upon the evidence, the State established by a preponderance of the evidence that appellant violated a condition of community supervision. Thus, the trial court did not abuse its discretion in revoking appellant's community supervision and imposing the original sentence.

We have also made an independent examination of the entire record to determine whether there are any other arguable grounds which might support this appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We have found no nonfrivolous issues and agree with counsel that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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NOS. 07-08-0502-CR, 07-08-0503-CR; 07-08-504-CR;

07-08-0505-CR; 07-08-0506-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JULY 15, 2010

ALFREDO SOLIS, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

NO. 57,754-C, 57,761-C, 57,762-C, 57,763-C, 57,764-C;

 HONORABLE ANA ESTEVEZ, JUDGE

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant Alfredo Solis appeals ten convictions for aggravated sexual assault of a child, sexual assault of a child, and indecency with a child by sexual contact.  Through one issue, he argues the trial court abused its discretion by ordering the jury-imposed sentences for three of the convictions to run consecutively.  We disagree, and will affirm.

Background

Indictments filed in five cases alleged appellant committed multiple sexual offenses against one child, his stepdaughter.  The cases were consolidated for trial. 

At trial appellant plead guilty to each of the indicted offenses.  After the State presented evidence, the court instructed the jury to return a verdict of guilty on each count.  The jury entered verdicts accordingly.  Appellant elected assessment of punishment by the jury.  During its deliberation on punishment, the foreman sent the court a note inquiring:

“1)       If given probation on one count of the lessor (sic) charges, does that ensure that if the defendant gets out he for sure will be on probation?

2)         If not does probation have to be given on all charges.(sic)”

The court responded with a supplemental charge instructing the jury to continue its deliberations.  The jury returned verdicts assessing two fifty-year sentences for aggravated sexual assault of a child,^[1] two twenty-year sentences for sexual assault of a child,^[2] five twenty-year sentences for indecency with a child by sexual contact,^[3] and one nine-year probated sentence for indecency with a child by sexual contact.

The State moved for consecutive sentencing and Athat [appellant=s] probation term not begin until he is paroled on the last sentence prior to that.@  Appellant objected to stacked sentences.  After the trial court made some comments, apparently based on the jury’s note, concerning the jury’s wishes regarding appellant’s eventual possible release from confinement, and further argument from counsel, the court “stacked” one of the fifty-year sentences, one of the twenty-year sentences and the probated sentence.  It ordered the remaining sentences run concurrently.  The effect of the court’s sentencing was seventy years confinement followed by nine years probation.  Appellant timely filed notice of appeal.

Issue

Appellant raises one issue on appeal:

Where a defendant in his mid-50s opts for jury sentencing, and where the trial court concludes from the punishment verdicts that the jury intended the defendant to be released at some time in the future, is the trial court entitled to frustrate that intention by cumulating the sentences of imprisonment to make release much less likely?^[4]

Discussion

Statute authorizes a trial court to cumulate sentences imposed for certain offenses arising out of the same criminal episode and prosecuted in a single criminal action.  Tex. Penal Code Ann. § 3.03 (Vernon Supp. 2009).  Those offenses include indecency with a child, and aggravated sexual assault and sexual assault of a child younger than seventeen.  Tex. Penal Code Ann. §§ 3.03(b)(2)(A); 21.11; 22.011; 22.021 (Vernon Supp. 2009); see DeLeon v. State, 294 S.W.3d 742 (Tex.App.—Amarillo 2009, pet. refused) (applying statute).

The Court of Criminal Appeals has indicated that a trial court’s decision to cumulate sentences constitutes an abuse of discretion only when cumulation is not permitted by statute.  See Beedy v. State, 250 S.W.3d 107, 110 (Tex.Crim.App. 2008) (Awhen a trial judge lawfully exercises the option to cumulate, that decision is unassailable on appeal@); Barrow v. State, 207 S.W.3d 377, 380-81 (Tex.Crim.App. 2006) (discussing trial court=s discretionary decision whether to cumulate sentences).  Accord Nicholas v. State, 56 S.W.3d 760, 764-65 (Tex.App.BHouston [14th Dist.] 2001, pet. refused) (noting, as a practical matter, an abuse of discretion occurs in sentencing for multiple offenses only if the trial court imposes consecutive sentences where the law requires concurrent sentences, where the court imposes concurrent sentences but the law requires consecutive ones, or where the court otherwise fails to observe the statutory requirements pertaining to sentencing); Revels v. State, No. 05-07-01555-CR, 2008 Tex. App. Lexis 9197, at *18 (Tex.App.BDallas Dec. 11, 2008, no pet.).

Appellant does not contend the trial court’s cumulation order in this case contravened the statute.  The trial court did not alter the individual sentences imposed by the jury, and none exceed the statutory range.  All the sentences were subject to cumulation.  Tex. Penal Code Ann. ' 3.03(b)(2)(B) (Vernon Supp. 2009).

Nonetheless, appellant contends the order was an abuse of discretion because of the peculiar circumstances.  He points to the trial court’s comment, which he contends indicates the court understood the jury intended that appellant eventually be eligible for release from imprisonment.  He then argues that, despite its understanding of the jury’s intention, the trial court ordered cumulation of sentences, making his eventual eligibility for release much less likely.  This action, appellant posits, must constitute an abuse of discretion.

Effectively, appellant’s argument is an iteration of the position rejected by the Court of Criminal Appeals in Barrow.  207 S.W.3d at 381-82.  There, Judge Meyers, in dissent, took the position that allowing the trial judge to cumulate jury-determined sentences contradicts a Texas defendant’s statutory right to have punishment assessed by the jury.  Id. at 382.  Addressing constitutional challenges to judge-ordered cumulation, the majority opinion pointed out that, by statute, Texas permits a defendant to opt for jury-assessed punishment but the Legislature also has assigned the decision whether to cumulate sentences to the trial court.  Id. at 380. 

Because the jury simply has no role in the decision whether sentences are to be served consecutively or concurrently when statute permits, and the decision is left to the discretion of the trial court, Barrow, 207 S.W.3d at 380,^[5] we are unable to agree that the jury’s intentions regarding appellant’s eventual eligibility for release could operate to limit the trial court’s discretion to order cumulation.^[6]  

We accordingly overrule appellant=s issue and affirm the judgments of the trial court.

                                                                                                James T. Campbell

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^[1]  Tex. Penal Code Ann. ' 22.021(a)(2)(B) (Vernon Supp. 2009).

^[2]  Tex. Penal Code Ann. ' 22.011(a)(2) (Vernon Supp. 2009).

^[3]  Tex. Penal Code Ann. ' 21.11(a)(1) (Vernon Supp. 2009).

^[4] The State contends appellant’s issue was not preserved for our review.  See Tex. R. App. P. 33.1; Pena v. State, 285 S.W.3d 459, 462-464 (Tex.Crim.App. 2009) (discussing preservation of error).  Although the State’s argument has some merit, we find appellant’s objection to the imposition of cumulative sentencing for the fifty-and twenty-year sentences was conveyed to the trial court, and was overruled by the court’s sentencing decision, so as to preserve the complained-of error for our review.

^[5] Cf. Gordon v. State, 633 S.W.2d 872, 879 n.16 (Tex.Crim.App. 1982) (citing O=Bryan v. State, 591 S.W.2d 464, 476, 478 (Tex.Crim.App. 1979) (AThe duration of confinement following its assessment of punishment is not a legitimate concern of a jury@). 

^[6] Although we need not address it, we agree with the State also that the jury foreman’s note is subject to more than one interpretation as an indicator of the jury’s thinking regarding appellant’s eventual release from confinement.