Daniel Ray Siler v. State

• Court: Court of Appeals of Texas
• Decided: June 24, 2005
• Docket: 06-04-00089-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00089-CR

DANIEL RAY SILER, Appellant

 

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 03F0677-202

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

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            Daniel Ray Siler appeals from his conviction on his open plea of no contest to a charge of engaging in organized criminal activity. In a companion case, he also appeals from his conviction for money laundering—also based on an open plea of no contest. Shortly before his conviction in these two cases, Siler pled guilty in the United States District Court for conspiracy to possess with intent to distribute marihuana, and the federal judge sentenced him to seventy-one months' imprisonment. The state trial court sentenced him to seven years for the organized crime charge and five years for money laundering. The state court ordered those two sentences to run concurrently, but consecutive to the federal sentence.

            Siler's attorney has filed an appellate brief in which she concludes, after a review of the record and the related law, the appeal is frivolous and without merit. She summarized pretrial and trial activities in her brief. The brief contains a professional evaluation of the record and contains five points of error that arguably support reversal. This meets the requirements of Anders v. California, 386 U.S. 738 (1967).

            Counsel provided a copy of her brief to Siler December 30, 2004, and Siler was also provided with a copy of the record. On April 4, 2005, Siler filed a pro se response to his counsel's Anders brief. The State has not filed a response.

            Counsel raises five arguable issues.

            Counsel first argues that the sentence cumulation is invalid because the oral pronouncement of sentence contains none—and the trial court's judgment includes only some—of the elements that the Texas Court of Criminal Appeals has recommended be present in an order cumulating sentences. See Young v. State, 579 S.W.2d 10 (Tex. Crim. App. 1979). But, though that court has listed five elements that should go into a cumulation order—(1) the trial court case number of the prior  conviction,  (2)  the correct  name  of  the  trial  court  in  which  the  prior  conviction  was rendered, (3) the date of the prior conviction, (4) the length of the prior sentence, and (5) the nature of the prior conviction—it has characterized them as only recommendations, not requirements. Williams, 675 S.W.2d at 763–64; Faison v. State, 59 S.W.3d 230, 238 (Tex. App.—Tyler 2001, pet. ref'd). A cumulation order is valid if it describes the prior convictions sufficiently "to give notice both to the defendant and to the Department of Corrections exactly which sentences the instant sentence is cumulated with." Williams, 675 S.W.2d at 764. In this case, the cause number of the prior conviction and the trial court from which it came are specified in the order. In Williams, the court found a cumulation order which sets out the cause number and the correct name of the trial court rendering the prior conviction is sufficient. Error has not been shown.

            Counsel also argues that the plea of no contest was involuntary because Siler was not warned there was a possibility that the sentences might be stacked on his federal sentence. If a plea agreement had been in place involving this situation, then Siler might be entitled to relief. See McFadden v. State, 544 S.W.2d 159 (Tex. Crim. App. 1976); Thi Van Le v. Perkins, 700 S.W.2d 768, 774 (Tex. App.—Austin 1985, orig. proceeding), mand. denied, Perkins v. Third Court of Appeals, 738 S.W.2d 276 (Tex. 1987). But a trial court is not obligated to inform an accused pleading guilty or nolo contendere of its discretion to cumulate sentences when admonishing him or her of the consequences of a plea. Simmons v. State, 457 S.W.2d 281, 283 (Tex. Crim. App. 1970); see Eubanks v. State, 599 S.W.2d 815, 816 (Tex. Crim. App. 1980). Error has not been shown.

            Counsel also argues that the trial court abused its discretion by cumulating the state sentences with the federal sentence. The decision regarding whether a sentence will run concurrently or consecutively is within the discretion of the trial court. Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2004—2005); Edwards v. State, 106 S.W.3d 833, 845 (Tex. App.—Dallas 2003, pet. ref'd). A trial court abuses its discretion when it applies an erroneous legal standard or when no reasonable view of the record supports the trial court's conclusion under the correct law and facts viewed in the light most favorable to its legal conclusion. DuBose v. State, 915 S.W.2d 493, 497–98 (Tex. Crim. App. 1996), overruled on other grounds, Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997). Effectively, in this context, in the absence of a clear violation of law, a trial court has absolute discretion to cumulate sentences. Smith v. State, 575 S.W.2d 41 (Tex. Crim. App. 1979); Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). There was evidence before the trial court about the type of crime involved, its effect, and Siler's role as a facilitator for the activity. We cannot say that the court acted without reference to the law in reaching its conclusion.

            Counsel also argues that the trial court abused its discretion by admitting audiotapes into evidence during the sentencing proceeding. She articulates no reason for those audiotapes to have been excluded, and none is apparent.

            Counsel also argues that Siler did not receive effective assistance of counsel at trial. She reviewed the actions taken by trial counsel preparing for the sentencing hearing and points out that a motion was filed by the State to cumulate (or stack) the state sentences onto the federal sentence, noting Siler's assertion that an objection should have been filed to this motion. Applying the usual standards under Strickland, we recognize that ineffective assistance can only rarely (if ever) be shown solely by the record of the trial. It is not shown by this record. The appellate record does not mention any discussion, much less any agreement, about whether the sentences would be concurrent or consecutive. With the record before us, we cannot foreclose the possibility that trial counsel had a reason for his actions at or before the sentencing hearing. We therefore cannot find ineffective assistance based on this record, and any further review of this matter is necessarily for the Texas Court of Criminal Appeals through post-conviction habeas corpus proceedings, if any.

            Siler, in his response to counsel's Anders brief, raises a number of issues. Many of those are disposed of by our discussions of the propriety of the cumulation order. Beyond those issues, however, Siler contends the plea proceedings between this case and the federal prosecution were so intertwined as to constitute a single action, and thus cumulation would be improper. The record does not address this matter in any regard, and we cannot rule based on speculation.

            Siler also argues that the trial judge was disqualified because he was a person interested in the case. None of Siler's allegations on this point are supported by the record. Accordingly, those contentions are likewise not adequately before us.

            Siler further argues that the trial court erred by failing to follow a plea agreement and by failing to compel the State to abide by the agreement. As mentioned above, the record affirmatively shows that no plea agreement existed and that an open plea was accepted.

            Siler also contends the trial court erred by sentencing him without first obtaining a presentence investigative (PSI) report under Article 42.12, Section 9(i) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9(i) (Vernon Supp. 2004–2005). That section explains the type of information that must be provided in a PSI report when a defendant appears to have a mental impairment, as observed by the trial court or on suggestion of a party. The language quoted by Siler in his brief, and on which he relies as showing that a PSI is mandatory if mental impairment is observed, is no longer in the statute. The provision in effect at the time of Siler's trial no longer makes a PSI report mandatory in that circumstance:

A presentence investigation conducted on any defendant convicted of a felony offense who appears to the judge through its own observation or on suggestion of a party to have a mental impairment shall include a psychological evaluation which determines, at a minimum, the defendant's IQ and adaptive behavior score. The results of the evaluation shall be included in the report to the court as required by Subsection (a) of this section.

Id. The effect of the amendment was to remove language indicating a PSI "shall be" prepared when a felony offender appears to suffer from mental impairment. The revised language provides that, if the trial court in its discretion orders a PSI report to be prepared, the report must contain a psychological evaluation of the defendant if said defendant has exhibited mental impairment. Holloman v. State, 942 S.W.2d 773, 776 (Tex. App.—Beaumont 1997, no pet.). Further, the right to have a PSI report prepared before sentencing in a felony case can be forfeited by inaction. Id.; Wright v. State, 873 S.W.2d 77, 83 (Tex. App.—Dallas 1994, pet. ref'd). Therefore, for both of these reasons, the trial court did not err in sentencing Siler without previously having a PSI report prepared.

            Siler also argues the trial court erred by failing to grant him a hearing on his motion for new trial and denying the motion. A defendant is entitled to a hearing on his or her motion for new trial, and a trial court abuses its discretion by failing to hold a hearing, if the motion raises matters which are not determinable from the record and on which relief may be available. Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993); Callahan v. State, 937 S.W.2d 553, 560 (Tex. App.—Texarkana 1996, no pet.). In this case, the grounds raised are connected with the present argument that there was a plea agreement that should have been honored by the State and that counsel was ineffective for failing to object to its absence. This is, however, directly contrary to Siler's own statements at the plea proceeding that he was pleading no contest in an open plea. The trial court questioned Siler extensively about this intention, and ultimately the trial judge left the courtroom for several minutes so that Siler and trial counsel could confer about the dangers of Siler's proposed course of action. In the written admonishments, language that would have run all sentences concurrently was struck out and replaced with the phrase "Open Plea." There was considerable discussion about the plea, and the trial court specifically asked Siler if he understood that there was no plea agreement and that he was therefore exposed to the entire punishment range. Under these facts, the trial court did not err by failing to conduct a hearing on the motion for new trial.

            We have reviewed the record. We agree with appellate counsel that there is no reversible error in this case and that the arguable issues raised are not meritorious. We therefore grant her motion to withdraw as counsel.

            We affirm the judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          June 6, 2005

Date Decided:             June 24, 2005

Do Not Publish

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00060-CV

                                                ______________________________

                             IN THE INTEREST OF A. L. W., A CHILD

                                                                                                  

                                        On Appeal from the 71st Judicial District Court

                                                           Harrison County, Texas

                                                           Trial Court No. 05-0110

                                                                                                   

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

                                                          Opinion by Justice Carter

                                                                   O P I N I O N

I.          Factual and Procedural History

            After a conservatorship of a child has been established, it cannot be attacked in less than one year unless the movant states under oath that the child is endangered, or under other facts not relevant here.  Tex. Fam. Code Ann. § 156.102 (West Supp. 2011).  Here, the governing conservatorship order was entered in November 2010, and on March 1, 2011, Anthony North filed a petition to modify that order.  An ex parte temporary restraining order was issued which enjoined the child’s mother, Ashley Weaver Napier, from, among other things, removing the child from North’s possession until a hearing could be held.  A hearing was held on April 18, and the trial court entered temporary orders.  A few weeks later, the trial court granted Napier’s motion to dismiss North’s petition, finding that the attached affidavit failed to contain sufficient sworn allegations.

            On appeal, North argues that the trial court erred by granting Napier’s motion to dismiss his petition to modify because:  (1) the allegations of North’s affidavit were sufficient; and (2) “a temporary hearing had already been conducted and temporary orders had been entered by the trial court.”

            We reverse and remand the case to the trial court because the April hearing was an implicit finding that the allegations in North’s affidavit were sufficient.

II.        Implicit Finding

            Three days prior to the April hearing, Napier filed a motion to dismiss North’s petition on the grounds that the allegations in the affidavit attached to the petition were insufficient.  The April hearing resulted in new temporary orders.  A few weeks later, on May 5, 2011, the trial court held a hearing on the motion to dismiss, and after hearing the arguments of the parties and taking the matter under advisement, dismissed North’s petition because, the court found, the affidavit failed to allege that “[t]he child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development.” 

            Section 156.102 of the Texas Family Code provides, in relevant part:

            (a)        If a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child is filed not later than one year after the earlier of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit shall execute and attach an affidavit as provided by Subsection (b).

            (b)        The affidavit must contain, along with supporting facts, at least one of the following allegations:

                        (1)        that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;

                        (2)        that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or

                        (3)        that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.

            (c)        The court shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation listed in Subsection (b) are stated in the affidavit.  If the court determines that the facts stated are adequate to support an allegation, the court shall set a time and place for the hearing.

Tex. Fam. Code Ann. § 156.102.^[1] 

            We review a trial court’s decision regarding custody, control, and possession matters involving a child under an abuse of discretion standard.  Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Voros v. Turnage, 856 S.W.2d 759, 760–61 (Tex. App.—Houston [1st Dist.] 1993, writ denied).  A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles.  K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Holtzman v. Holtzman, 993 S.W.2d 729, 734 (Tex. App.—Texarkana 1999, pet. denied).

            To evaluate the sufficiency of the supporting affidavit, the trial court was required to look at the sworn facts and determine whether, if true, they justified a hearing on the petition to modify.  See Mobley v. Mobley, 684 S.W.2d 226, 229 (Tex. App.—Fort Worth 1985, writ dism’d).  A petitioner is entitled to a hearing on his or her motion to modify if he or she swears to facts adequate to support a finding that (1) the child’s physical health may be endangered or his or her emotional development significantly impaired by the present environment, or (2) the sole managing conservator either seeks to modify sole managing conservatorship or has relinquished care, control, and possession of the child for at least six months and modification is in the child’s best interest.  Id.

            If the affidavit is not filed or is insufficient, Section 156.102(c) requires the trial court to deny the motion to modify and refuse to schedule a hearing on its merits.  Tex. Fam. Code Ann. § 156.102(c).  However, the trial court does not have to make a specific finding on the record that the affidavit was sufficient to warrant a hearing; the fact that the court set the hearing was, itself, proof that it regarded a filed affidavit as adequate.  In re J.K.B., 750 S.W.2d 367 (Tex. App.—Beaumont 1988, no writ) (ruling under previous statute); In re S.A.E., No. 06-08-00139-CV, 2009 WL 2060087 (Tex. App.—Texarkana July 17, 2009, no pet.) (mem. op.).  Even if a court erroneously holds a hearing despite the absence of an affidavit, any error is rendered harmless if the testimony admitted during the hearing would support an allegation that the children’s environment may significantly impair their emotional development.  In re A.C.S., 157 S.W.3d 9, 18–19 (Tex. App.—Waco 2004, no pet.).

            In his affidavit, North stated, in relevant part,

            On or about February 17, 2011, Ashley Napier voluntarily placed our child with me, due to the police being called out to her residence with Robert Napier because of domestic violence and that Ashley threatened to kill herself and her daughter.

            . . . .

            Ashley signed a safety plan stating that she would leave [the child] with me until March 22, 2011.

            I am afraid that if Ashley gets [the child] back, he will be in danger of being hurt by Ashley.

The parties dispute the sufficiency of these allegations, and in addition, North contends that the April hearing rendered Napier’s motion to dismiss moot because testimony was heard regarding the same allegations contained in the affidavit.

            At the outset of the April hearing, the following discussion took place between the trial court and Napier’s attorney, Michael L. Bernoudy, Jr.:

            THE COURT:  Okay.  I can tell you right now the only thing I am going to hear this afternoon will be the issue on the Motion to Modify.  Then I will entertain the Motion to Contempt.^[2]

            MR. BERNOUDY:  When you say the “issue”, I thought the last time you were going to take up the temporary restraining orders as well. 

            THE COURT:   Yes.  What I am saying is, the contempt matter, I am not going to address this afternoon. 

Napier failed to raise the issue of the motion to dismiss that she had filed three days prior to the hearing. 

            During the April hearing, Cassity Caviler with Child Protective Services (CPS), testified that in February 2011, Ashley reported that her husband,^[3] Robert Napier, had abused her and that Robert had “made a call^[4] stating that Ashley had made threats . . . [t]o harm herself and the children.”  She also testified that CPS had investigated^[5] the February incident and that if the allegations were true, she would recommend that the children go back due to serious concerns about domestic violence and Napier’s drug history.  Jeannie Weaver, Napier’s mother, testified that after the February incident, she saw the bruises that Napier accused Robert of causing.  The bruises were “on her back . . . both knees, up and down her legs, . . . and I don’t remember if she had any on her arms or not.” 

            During questioning, the trial court characterized the hearing as “a real custody fight.”  After five witnesses had testified and the trial court intended to recess the proceedings, the court said, “I don’t [want] to take the hearing back up until the [medical] records^[6] are turned over,” “[t]his is an ideal point to break . . . . ,” and the court told the parties to “[s]et this matter for another hearing once those [medical] records are in.”

            By setting and conducting the hearing, the trial court implicitly found the facts in the affidavit were adequate to support the allegation; otherwise, the trial court was required to deny the hearing.  Napier’s failure to bring her motion to dismiss to the court’s attention effectively waived the motion.  Accordingly, we reverse the trial court’s order dismissing North’s petition and remand the case for further proceedings.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          November 28, 2011

Date Decided:             December 9, 2011

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^[1]Here, it is undisputed that Section 156.102 applies because North’s petition was filed less than a year after the November 1, 2010, custody orders, and the petition seeks to modify the party to designate the child’s primary residence and the terms of conservatorship and possession. 

^[2]Napier had previously filed a motion for contempt against North.  The motion for contempt is not at issue in this appeal.

^[3]The record indicates that at the time of the hearing, a divorce was pending between Ashley and Robert Napier.

^[4]The call was presumably made to CPS.

^[5]The record does not indicate that the investigation was completed or whether it had reached any conclusion or recommendation.

^[6]Napier had recently been injured in a car accident.