Devin Dasean Simmons v. State

Opinion

ACCEPTED 03-14-00707-CR 5683130 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/15/2015 4:18:27 PM JEFFREY D. KYLE CLERK No. 03-14-00707-CR

IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS TEXAS AT AUSTIN, TEXAS 6/15/2015 4:18:27 PM JEFFREY D. KYLE ******** Clerk

DEVIN DESEAN SIMMONS VS.

THE STATE OF TEXAS ********

ON APPEAL FROM THE 264th DISTRICT COURT OF BELL COUNTY, TEXAS Cause No. 71988

****** STATE'S BRIEF ******

HENRY GARZA DISTRICT ATTORNEY

BOBD.ODOM ASSISTANT DISTRICT ATTORNEY P.O. Box 540 Belton, Tx 7 6513 (254) 933-5215 FAX (254) 933-5704 DistrictAttorney@co.bell.tx.us SBA No. 15200000

Oral Argument Not Requested

1 TABLE OF CONTENTS

ITEM PAGE

Index of Authorities ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... 4

Statement Regarding Oral Argument .. .. .. .. .. .. .. .... .. .. .. .. .. .. .. .. .. ...... ...... 7

Statement of the Case ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... 7

Statement of Facts ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 8

Summary of State's Argument .... .. .. .. .. .. .... .. .. .. .. .. .. .. .. .. .. .. .. ...... .. .. .. .. ... 13

Argument and Authorities ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ..... 14

First Issue ... .. . .. . .. .... .. .... ... .. .... .. . .. . .. . .. ... . .. .... ... .. .... .. ... . .. .... ... .. . .. . 14 PLEAS TO ENHANCEMENTS INVOLUNTARY AS NOT KNOWINGLY ENTERED?

Facts ............................................................................... 15

Analysis and Application .............................................. 16

Harm.............................................................................. 17

Second Issue ... .. . .. .... .. . .. . .. . .. . .. ... . .. . .. . .. .... ... .. . .. . .. . .. .... .. . .. ... . .. ... . 19 EVIDENCE SUFFICIENT TO PROVE PRIOR CONVICTIONS FINAL?

Facts .............................................................................. 20

Analysis and Application ...... ...... ...... ...... ...... ...... ...... ... 21

Third Issue ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 24 PUNISHMENT CRUEL AND UNUSUAL AS DISPROPORTIONATE TO THE CRIME?

2 Preservation of Error .. .. .. .. .. .. .. .... ... .. .... .. ....... ... ... .. .. .. .. ... 25

Analysis and Application ............................................... 25

Fourth Issue .............................................................................. 28 TRIAL COURT ERR IN ALLOWING CO- DEFENDANT TO ASSERT PRIVILEGE AGAINST SELF-INCRIMINATION?

Facts ................................................................................ 29

Preservation of Error ...... ...... ...... ...... ...... ...... ...... ...... .... 31

Analysis and Application .. .. .. .. .. .. .. .. .. .... .. .. .. .. .... .. .. .. .. .. .. 33

Prayer................................................................................................. 39

Certificate of Compliance with Rule 9 ............................................. 39

Certificate of Service .. ... ... ... ... ... ... ... ... .... .. ... ... .... .. .... ... .. .... .. ... ... ... ..... 40

3 INDEX OF AUTHORITIES

CASES PAGE

Burnett v. State, 88 S.W.3d 633 ........................................................... 19 (Tx. Cr. App. 2002)

Castaneda v. State, 135 S.W. 3d 719 ................................................... 25 (Tx. App. Dallas 5th Dist. 2003, no pet.)

Chennaultv. State, 667 S.W. 2d 229 ................................................... 31,34 (Tx. App. Dallas 5th Dist. 1984, rev. ref.)

Davis v. State, 501 S.W. 2d 629 ........................................................... 34 (Tx. Cr. App. 1973)

Davison v. State, 405 S.W. 3d 682 ....................................................... 18-19 (Tx. Cr. App. 2013)

Ellis v. State, 683 S.W.2d 379 .............................................................. 32 (Tx. Cr. App. 1984)

German v. State, No. 03-03-00180-CR, 2003 Tex .............................. 33-34 App. LEXIS 7908 (Tx. App. Austin 3rct Dist. 2003 no pet.), not designated for publication

Gilmore v. State, No. 03-10-00740-CR, 2011 Tex............................. 25 App. LEXIS 6518 (Tx. App. Austin 3rct Dist. 2011 no pet.), not designated for publication

Grayson v. State, 684 S.W. 2d 691 .................................................. 33, 35-36 (Tx. Cr. App. 1984)

Harmelin v. Michigan, 501 U.S. 957 (1991) ....................................... 25

Harveyv. State, 611 S.W. 2d 108 ......................................................... 17, 21 (Tx. Cr. App. 1981)

4 Holland v. State, 802 S.W.2d 696 ......................................................... 32 (Tx. Cr. App. 1991)

Howard v. State, 429 S.W. 2d 155 ........................................................ 23-24 (Tx. Cr. App. 1968)

Lopez v. State, No. 03-06-00086-CR, 2008 Tex. ................................ 25 App. LEXIS 9700 (Tx. App. Austin 3rct Dist. 2008 rev. ref.), not designated for publication

Malloy v. Hogan, 378 U.S. 1 (1964) ..................................................... 36

Mitchell v. State, 238 S.W.3d 405 ........................................................ 32 (Tx. App. Houston 1st Dist. 2006 rev. ref.)

Moore v. State, 54 S.W.3d 529 ............................................................ 26 (Tx. App. Ft. Worth znct Dist. 2001 rev. ref)

Nabors v. State, No. 12-00-00371-CR, 2002 Tex. .............................. 23 App. LEXIS 4506 (Tx. App. Tyler 12th Dist. 2002, rev. ref.), not designated for publication

Ex Parte Rich, 194 S.W.3d 508 ......... ...... ... ... ..................... ............ ...... 21 (Tx. Cr. App. 2006)

Samuel v. State, 477 S.W.2d 611 ........................................................ 25 (Tx. Cr. App. 1972)

Taylor v. State, No. 03-14-00300-CR ................................................. 34 (Tx. App 3rct Dist), pending

OTHER

United States Constitution

Fifth Amendment..................................................................... 28-38

5 Texas Penal Code

Section 12.32 ........................................................................... 26

Section 12.35(a) ...................................................................... 21

Section 12.42(d) .................................................................. 7, 21, 26

Section 29.03 ........................................................................... 26

Texas Code of Criminal Procedure

Article 1.15 .............................................................................. 24

Article 26.13(a)(1) .................................................................. 16

Texas Rules of Evidence

Rule 801(d) .............................................................................. 37

Rule 802 .................................................................................... 37

Texas Rules ofAppellate Procedure

Rule 33.1 ................................................................................... 31

Rule 44.2(b) .............................................................................. 18

6 STATEMENT REGARDING ORAL ARGUMENT The State does not request oral argument.

STATEMENT OF THE CASE

The Appellant, Devin Desean Simmons, was charged by

indictment with the offense of Aggravated Robbery, individually and as

a party with Gini Lee Taylor. The indictment alleged that, while in the

course of committing theft of property, and with intent to maintain

control of that property, he intentionally, knowingly, or recklessly

caused bodily injury to Robert Patrick by shooting him with a firearm, a

deadly weapon. (CR-5).

The indictment also contained two additional paragraphs alleging

that the Appellant had been twice before finally convicted of felony

offenses for the purposes of enhancement of sentence as provided in

Section 12.42(d) of the Texas Penal Code.

The Appellant was tried before a jury in the 264th District Court of

Bell County, Texas, Judge Martha J. Trudo presiding, upon his plea of not

guilty (RR4-6). He was found guilty by the jury. (CR-99; RRS-94).

Upon the Appellant's election (CR-86) the trial court, without a

jury, considered the issue of punishment. The Appellant entered pleas

7 of true to the second and third paragraphs of the indictment alleging the

prior felony convictions. (RRS-96, 97; RR6-6). At the conclusion of the

evidence on sentencing the trial court found the enhancement

allegations in the indictment to be true and assessed punishment at 45

years in the Texas Department of Criminal Justice Institutional Division.

(RR6-46).

The Appellant gave timely notice of appeal (CR-113, 122) and the

trial court certified his right to do so. (CR-115).

STATEMENT OF FACTS

Retired Army CW02 Robert Patrick went to a strip club where he

met one of the dancers, Gini Lee Taylor, who introduced herself to him

by her professional name of "Candy". (RR4-15, 16, 19, 20). Candy asked

him if he was ready to spend some money and danced for him and

received a tip. (RR4-20). She struck up a conversation with Patrick and

told him that she was not making any money that night and mentioned

her children. (RR4-21).

Patrick left, but returned to the club parking lot at closing time

hoping to take another dancer to breakfast. Instead he again met Candy,

who asked for a ride home. (RR4-21, 22). She went back inside and

8 Patrick noticed a white or gray Chrysler sitting in the parking lot with

its motor running. When Candy came back out she stopped by the

Chrysler and then ran to his car and got in. (RR4-22, 23).

As they drove, Candy started talking about needing to make some

money and said that she needed $200.00. He told her that he had no

money. (RR4-23). Candy then asked him if he had a weapon in the car,

and, when he asked why she needed to know that, she claimed she had a

felony and would be in trouble if they got stopped. (RR4-23, 24).

She also asked him to stop at a convenience store for cigarettes.

He left her in the car with his cell phone because she said she needed to

call and make sure she could get into her apartment. He went inside

and got the cigarettes and an additional $100.00. (RR4-24).

When they arrived at her apartment, Patrick noticed that her front

door was ajar. He also noticed that a car was sitting in the parking lot

that looked just like the one at the club. (RR4-24, 25).

Candy went inside and Patrick was just ready to pull out of the

parking lot when he realized she still had his cell phone. He left his

money in his car (RR4-52) and went inside. She told him his phone was

on the couch as she walked out of his sight toward the back of the

residence. (RR4-26, 27).

9 Candy came back and said "come on, let's go" but he repeated that

he had no money. She asked him to come with her because she had

something to show him. (RR4-27).

As Mr. Patrick approached the threshold of the bedroom the

Appellant came out with a pistol in his hand and told him that he might

be going to die. The Appellant then hit Patrick in the head with the

pistol, stunning him and drawing blood. (RR4-28). The Appellant said

"you thought you were going to fuck tonight, but you are going to die".

(RR4-29).

The Appellant demanded that Patrick take everything out of his

pockets and he did so. He had $68.00 on his person. They had him

throw his wallet, keys, cell phone and money on the floor and asked him

where the rest of it was. He said that he had no more, but the Appellant

accused him of having it in his car and said they were going to get it.

(RR4-30).

As Mr. Patrick stepped from the room, the Appellant fired a shot

with the weapon and Patrick grabbed his hand and they began to

struggle for the weapon. (RR4-31). During the struggle, the Appellant

screamed at Candy to "hit the fucker". (RR4-31). She hit him with

something and dazed him, but he did not let go of the Appellant's arm.

10 Candy then took the gun from the Appellant's hand. (RR4-31).

The Appellant repeatedly yelled to her to put the gun to Patrick's head

so that she would not miss (RR4-32). Patrick stopped the struggle and

raised his hands. They had him sit on the couch. (RR4-32).

The Appellant said that they were going to be done now and that

he was going outside to get the "chopper", which Patrick took to be

another weapon of some kind. The Appellant told Candy to keep the

gun close to Patrick's head. (RR4-32).

Realizing it was his last chance, when the Appellant went outside

Mr. Patrick ran toward the bed room. Candy shot him; however, he

made it into the room and locked the door. (RR4-32, 52). He went to the

window but was unable to open it so he broke it and managed to crawl

out, cutting himself on the glass. (RR4-32). He crawled into some

shrubbery to hide and later managed to crawl to a nearby residence for

help. (RR4-33, 34).

Robert Patrick was taken to the hospital where he was found to

have a shattered hip bone from the gunshot that required repeated

reconstructive surgeries as well as a deep wound to his right arm from

the glass. He also had to have staples to close the head wound suffered

from the first blow. (RR4-34).

11 When the Harker Heights Police first went to the scene, believing

it to be a domestic disturbance, they saw Gini Lee "Candy" Taylor

parking the automobile belonging to Robert Patrick. Candy and the

Appellant then got into the Chrysler and left. (RR4-60, 61, 62, 64).

Officers subsequently served a search warrant on the apartment

and found a spent shell casing, a bullet hole in the wall of the back

bedroom, a bullet in the bathroom where it had gone through the wall,

and blood on the kitchen counter, bedroom door and wall, on the

venetian blinds, and noticed a broken window in the bedroom. They

also found a quantity of ammunition of the same caliber as the spent

shell. (RRS-9, 10). The bullet that struck Patrick was lodged in his body.

(RRS-16).

At trial the Appellant testified and claimed that he had returned

home to find Patrick in a compromising positon with his wife, Ginni Lee

Taylor, and they had fought. He said that Patrick had pulled the gun and

it went off during the fight (RRS-39, 40, 41). He denied pistol whipping

or hitting Patrick and said that when Candy picked up the gun he told

her not to shoot him but she did when he took off. (RRS-43, 44). He said

the live ammunition of the same caliber as that used to shoot the victim

that was found in the house belonged to his wife. (RRS-62).

12 SUMMARY OF STATE'S ARGUMENT

The trial court was not required to admonish the Appellant prior

to accepting his pleas of true to the enhancement allegations in the

indictment, however, the court did so twice and the Appellant assured

the court that his pleas were freely and voluntarily entered and that he

was pleading true because that which was alleged in the indictment was

true. The record clearly shows that the Appellant was fully aware of the

effect of the enhancements on the range of punishment in that the trial

court so advised him. He failed to object or raise the issue before the

court.

The Appellant's pleas of true relieve the State of its burden to

prove that the prior convictions alleged were final convictions. The

indictment so alleged and the Appellant admitted the truth of those

allegations. The Appellant testified that the prior convictions occurred

in the sequence alleged in the indictment.

The punishment assessed was well within the statutory range as

enhanced. The Appellant did not object or question the sentence when

it was assessed and nothing is presented for review. The sentence, in

the middle of the statutory range, was not disproportionate to the very

13 violent and premeditated crime and in light of the fact that this was the

Appellant's third felony conviction.

The Appellant called the co-defendant outside the presence of the

jury fully aware that she would assert her privilege against self-

incrimination. She consistently invoked the privilege. The Appellant

did not object nor request that the trial court compel her to testify nor

did he contest her right to do so. Her case was pending appeal and, thus,

not final and she still was entitled to the privilege. Nothing is presented

for review. Her single answer of "yes" when asked if she had sent letters

to the Appellant did not implicate her in the offense and could not have

had any confusing effect upon the jury as fact finder because the jury

never heard it. Nothing in the record remotely indicates that she should

have known she was waiving her rights by simply admitting the sending

of letters.

ARGUMENT AND AUTHORITIES

First Issue on Appeal

Were the Appellant's pleas of "true" to the enhancement

allegations of the indictment involuntary because they were not

knowingly and intelligently entered?

14 Facts

Based upon the Appellant's election to have his punishment

assessed by the trial court (CR-86), after the jury had returned its

verdict of guilty the trial court received his pleas to the allegations in the

second and third paragraphs of the indictment alleging two prior final

felony convictions in proper sequence for enhancement of the sentence

to 25 years to life.

After the prosecutor read each of those two paragraphs the

Appellant pled true to those allegations. (RRS-96, 97). Upon those pleas

the following occurred:

"THE COURT: Are you pleading true to each of these paragraphs freely and voluntarily?

THE DEFENDANT: Yes.

THE COURT: Has anybody made any promises to you, forced you, threatened you, or intimidated you in any way to get you to plead true?

THE DEFENDANT: No.

THE COURT: You are pleading true, Mr. Simmons, because you were previously convicted as alleged and for no other reason; is that correct?

THE COURT: And are you of sound mind and mentally competent to make such a plea today?

15 THE DEFENDANT: Yes.

THE COURT: And do you agree with his plea of true and that he is mentally competent Mr. White?

MR. WHITE (Appellant's trial counsel): I do, Your Honor.

THE COURT: I'll accept the defendant's pleas of true to paragraph 2 and 3." (RRS-97, 98)

The court then ordered a presentence report and recessed the hearing.

(RRS-98).

When the sentencing hearing reconvened more than two months

later the trial court noted that it could not remember if it had taken the

Appellant's pleas to the enhancement paragraphs and, once again, the

Appellant entered pleas of true to each of the paragraphs and affirmed

that he was doing so freely and voluntarily and that those pleas were

not the result of force, threats, or intimidation. (RR6-6).

Analysis and Application

The Appellant's complaint boils down to his contention that the

trial court did not admonish him at the time of his pleas to the

enhancement paragraphs as to the range of punishment and he cites

Article 26.13(a)(l) of the Texas Code of Criminal Procedure as his

authority.

16 That article sets out a number of admonishments required of the

trial court before accepting a plea of guilty or nolo contendere. The

article, however, is not applicable to pleas of "guilty" or "true" to

enhancement allegations in an indictment. Harvey v. State, 611 S.W.2d

108,112 (Tx. Cr. App. 1981). 1

The Appellant twice assured the trial court that he was pleading

"true" to the enhancement allegations in the indictment uninfluenced by

any pressure of any kind to do so. He also stated that he was entering

those pleas because he had been convicted as alleged. Apparently the

court was not obligated to, but is to be commended for, the efforts it

made to assure the voluntariness of the pleas. It certainly did not err in

accepting the pleas.

Harm

Even had the trial court erred in failing to admonish the Appellant

of the effect of the enhancement paragraphs upon the range of

punishment when it accepted the pleas of guilty, the Appellant has failed

to show that he was harmed.

1 "Of course, admonishing an accused who pleads "true" to the consequences thereof is to be commended but the Legislature has not seen fit to require a trial court to admonish an accused who enters a plea of "guilty" or "true" to an alleged prior conviction or convictions and we find no requirement in law demanding this occur". Harvey at 112.

17 Rule 44.2(b), Texas Rules of Appellate Procedure, requires that any

non-constitutional error that does not affect substantial rights be

disregarded. In assaying harm under that rule from a failure to

admonish the reviewing court must look to the record as a whole, to

determine whether the defendant was aware of the particular

information upon which he should have been admonished. Only a

completely silent record supports an inference that the defendant was

unaware. Davison v. State, 405 S.W.3d 682, 687-88 (Tx. Cr. App. 2013).

In this case, the record as a whole clearly establishes that the

Appellant was fully aware of the effect of the enhancement allegations

upon the range of punishment. At a pretrial proceeding four days prior

to the commencement of trial, the court told the Appellant:

"Now, you have a second and third paragraph which allege prior convictions in 2009 and 2011. If you're found guilty of the offense as a party with the aggravated robbery and those two paragraphs are true, that enhances your punishment range from a minimum of 25 years up to life in the penitentiary with a fine of up to $10,000.00, court costs, and any restitution, jointly and severally, with the other co-defendant. So you understand the punishment range for this offense?"

The Appellant replied "Yes, ma'am." (RR2-5).

Another factor the reviewing court may consider is the complete

failure of the Appellant to complain or raise an issue as to the range of

18 punishment at any time, including when his sentence was assessed. It

would have been reasonable to expect him to express some surprise or

to protest his punishment had he been unaware of the range applicable

due to the enhancements. His nonchalance is a factor that infers his

awareness of the range of punishment. Davison at 688-89. See also

Burnett v. State, 88 S.W.3d 633, 64042 (Tx. Cr. App. 2002).

The indictment contained two paragraphs alleging prior

convictions and placing the Appellant on notice that the State intended

to use them to enhance the range of punishment. The trial court

expressly told the Appellant that, if they were found to be true, the

range of punishment for his offense would rise to 25 years to life in

prison. The Appellant never protested nor claimed that he did not

understand what the court had clearly told him was the effect of the

enhancements. Even if the trial court had been required to so admonish

him; the record as a whole shows that he was aware of those

consequences and of the enhanced range of punishment. There were no

substantial right affected and the error was harmless.

Second Issue on Appeal

Was the evidence insufficient to prove that the previous

convictions alleged in the indictment were final convictions?

19 Facts

Paragraphs II and III of the indictment read as follows:

II.

And it is further presented in and to said court that prior to the commission of the offense alleged in paragraph I on the 12th day of December, A.D. 2009 in Cause Number 62,334 in the 27th District Court of Bell County, Texas the Defendant was convicted of the felony offense of Burglary of a Habitation.

III.

And it is further presented in and to said court that prior to the commission of the offense alleged in Paragraph II and after the conviction in Cause Number 62,334 was final, the defendant committed the felony offense of Possession of a Firearm by a Felon and was convicted on the 29th day of November A.D., 2011 in Cause Number 68,529 in the 426th District Court of Bell County, Texas. (CR-5)

After the verdict of guilty, these paragraphs were read to the

Appellant by counsel for the State at the behest of the trial court. The

Appellant then responded as to each paragraph that it was true. (RR5-

96, 97). He reiterated that plea at his sentencing hearing. (RR6-6).

During the Appellant's testimony at the guilt or innocence phase

of the trial his counsel asked him if he had been in trouble before and

the Appellant stated that he had been to prison twice; once for burglary

of a habitation and once for possession of a firearm. (RR5-3 7). In

20 response, on cross examination, the State asked the Appellant when he

got out of prison for his first conviction and he replied in 2010. (RR5-

48). The Appellant also stated that after he had finished serving his

sentence for the burglary of a habitation and was released he was

convicted and received a two year sentence for felon in possession of a

firearm. (RR5-48, 49).

When the accused enters pleas of "true" to enhancement

allegations in the indictment he removes the burden from the State to

prove that the alleged prior convictions were final. He cannot enter a

plea of true and then be heard to complain that the evidence is

insufficient to support that plea. Harvey at 111. The only exception to

that general rule is where the enhancement allegations themselves are

improper. Ex Parte Rich, 194 S.W.3d 508, 513 (Tx. Cr. App. 2006).

In this case the Appellant entered pleas of true to the allegations

to the two enhancement paragraphs. Section 12.42(d) of the Penal Code

provides that if it is shown on the trial of any felony offense other than a

State Jail Felony punishable under Section 12.35(a), that the defendant

has been previously finally convicted of two felony offenses, and that

the second previous felony conviction was for an offense that occurred

21 subsequent to the first previous felony offense having become final,

then the range of punishment is 25 years to life in prison. The

indictment in this case precisely pled that the Appellant had been so

previously convicted and was proper under the State in order to invoke

its provisions.

The Appellant pled "true" to each of the allegations in the

enhancement paragraphs after those paragraphs had been read to him.

The enhancements were not improper and his pleas alleviated the

State's burden to prove that he was finally convicted as alleged. Having

admitted the truth of those paragraphs he cannot now turn and

challenge the evidence to fulfill a burden that he waived.

Furthermore, it must be remembered that in his testimony and

initially under questioning by his own counsel, he admitted the alleged

prior convictions and then, on cross examination, acknowledged that he

committed and was convicted of the felony offense alleged in paragraph

II and served his time and then, after his release, he committed the

offense giving rise to the second prior felony offense contained in

paragraph III. Not only did he admit the truth of the allegations by his

pleas, he also did so in his testimony.

22 The Appellant attempts to distinguish his plea from those cases

holding that a plea alone is sufficient by noting that in Nabors v. State,

No. 12-00-00371-CR, 2002 Tex. App. LEXIS 4506 (Tx. App. Tyler 12th

Dist. 2002 rev. ref.), not designated for publication, the defendant stated

that he was pleading guilty because he was guilty and for no other

reason, whereas in this case the Appellant confirmed that he was

pleading true because he was " ... previously convicted as alleged and for

no other reason." (RR5-97).

This is a distinction without a difference. The Appellant does not

offer an explanation as to how pleading true because it is true differs in

pleading true because what was alleged was correct is different. While

the trial court and the Appellant did not use the words "is true" they

nonetheless established that he was pleading true because everything

alleged happened just as it was pled.

The Appellant's reliance upon Howard v. State, 429 S.W.2d 155

(Tx. Cr. App. 1968) is also misplaced. In Howard the defendant was

convicted by a jury and the trial court assessed punishment. In the

court's judgment the enhancement allegations were found to be true,

however, the only thing in the record to support that finding was a

notation on the docket sheet that the defendant had stipulated that he

23 was the same person convicted as alleged. There was no stipulation

contained in the record. There is no mention of a plea to the

enhancements in the case. Article 1.15 of the Code of Criminal

Procedure requires an agreement to stipulate be in writing and

approved by the trial court. Because there was nothing in the record to

support the finding of true the judgment was reformed to delete

references to the enhancement. Howard has no application to this case

where the Appellant entered pleas of true to the enhancement

allegations on the record and testified as to the matters contained in the

indictment.

The Appellant having entered pleas of true to the proper

allegations of previous convictions contained in the indictment, he had

relieved the State of its burden to prove those allegations and cannot

now complain that it has not done so.

Third Issue on Appeal

Did the sentence of 45 years in the penitentiary constitute cruel

and unusual punishment because it was disproportionate to the offense

committed?

24 Preservation of Error

The Appellant did not object to the sentence at the time it was

assessed nor did he raise the issue by a post-conviction motion. In

order to preserve alleged error based upon excessive or

disproportionate punishment, the defendant must have made a timely

request, motion or objection in the trial court. When he fails to do so

nothing is presented for review. Lopez v. State, No. 03-06-00086-CR,

2008 Tex. App. LEXIS 9700 (Tx. App. Austin 3rd Dist. 2008 rev. ref.), not

designated for publication, citing Castaneda v. State, 135 S.W.3d 719,

723 (Tx. App. Dallas 5th Dist. 2003 no pet.). See also Gilmore v. State, No.

03-10-00740-CR, 2011 Tex. App. LEXIS 6518 (Tx. App. Austin 3rd Dist.

2011 no pet.), not designated for publication. The Appellant has failed

to preserve this issue for review.

The length of a sentence in a criminal case is purely a legislative

prerogative. Harmelin v. Michigan, 501 U.S. 957, 962 (1991). Where the

punishment falls within the limits prescribed by a valid statute it is not

per se excessive, cruel, or unusual within the constitutional prohibition.

Samuel v. State, 477 S.W.2d 611, 614 (Tx. Cr. App. 1972).

25 Where the Appellant contends that his sentence is cruel and

unusual punishment because it is disproportionate to the crime

committed, the reviewing court must compare the gravity of the offense

against the harshness of the sentence in order to determine whether or

not the sentence is grossly disproportionate to the offense. Moore v.

State, 54. S.W. 3d 529, 542 (Tx. App. Ft. Worth 2nct Dist. 2001, rev. ref.).

Section 29.03 of the Texas Penal Code provides that aggravated

robbery as charged against the Appellant is a first degree felony. A first

degree felony is ordinarily punished by life or a term of years not more

than 99 and not less than 5. Section 12.32, Texas Penal Code. Where,

however, the defendant has been previously convicted of two felony

offense and the second prior conviction was for an offense committed

after the first prior conviction was final, the range of punishment is life

or a term of not more than 99 years or less than 25 years. Section

12.42(d) ofthe Penal Code.

Therefore, the Appellant's 45 year sentence is within the range of

punishment prescribed by the Legislature for both the primary offense

itself and as enhanced by his prior convictions. It is not, therefore, cruel,

unusual, or excessive per se.

26 Nor is it grossly disproportionate to the gravity of the offense.

There was evidence from which the jury could have reasonably found

that the aggravated robbery was premeditated and carefully planned.

That evidence includes the co-defendant's conversation with the victim

about needing money; the fact that she spoke to someone in a car

waiting in the parking lot before going with the victim and what was

apparently the same car waiting at her apartment; her inquires of the

victim intending to determine if he was armed; her request to stop at

the convenience store so that she could be left with the phone; and her

insistence that the victim come into the apartment and the bedroom

where the Appellant was waiting with his firearm.

The offense was one of great violence that resulted in very serious

and long lasting injuries from the gun shot and blows to the head

suffered by Mr. Patrick. The Appellant now attempts to place all of the

blame for that violence on his wife, Gini Lee Taylor, but conveniently

forgets the evidence showing that he fired the first shot when Patrick

moved to leave the room and then he struck Patrick on the head with

the weapon, telling him that he might be going to die. He also ignores

the fact that he called to his wife to hit Patrick as they struggled for the

gun and she did so. He also told her to get the pistol and after she did to

27 put it close to the victim's head so that she could not miss. Then, when

he went to get the "chopper" to be done with it, Patrick ran and Taylor

shot him in the hip. His allegation that "his co-conspirator acted

willingly and independently and was the sole cause of the most serious

injuries .... " (Appellant's Brief at 19) requires that all of the evidence be

ignored but his own self-serving testimony. Clearly the jury and the

trial court chose not to do so.

The gravity of this offense was great. The evidence supports a

conclusion that it was a premeditated offense that lead to great violence

inflicted upon Robert Patrick by both co-defendants in the course of

robbing him. Mr. Patrick was severely injured. Because of the

Appellant's record of two successive felony convictions, this case

became his third felony conviction. The range of punishment was thus

25 years to 99 years or life. The sentence of 45 years, therefore, is

actually in the middle of the statutory range provided by the legislature.

It is not disproportionate to the crime and it is not cruel and unusual

punishment.

Fourth Issue on Appeal

Did the trial court err in allowing the co-defendant to invoke her

Fifth Amendment right against self-incrimination?

28 Facts

During the guilt/innocence phase of the trial and after the State

had rested, the Appellant called his co-defendant, Gini Lee Taylor, as a

witness. This occurred entirely outside the presence of the jury.

Taylor's counsel was present to advise her. (RRS-29-31). The following

occurred:

"BY MR. WHITE (counsel for Appellant)

Q. Ma'am, what is your name?

A. Gini Taylor.

Q. And Ms. Taylor, are you currently in the Bell County jail?

A. Yes, sir.

Q. And how long have you been at the Bell County jail?

A. Eight months.

Q. And it's my understanding that you were involved in an aggravated robbery charge?

A. No. I choose to use my Fifth Amendment and not testify.

Q. And so the answer is not, no, you weren't involved, but, no, you're invoking your right to your Fifth Amendment?

29 Q. You're choosing to remain silent?

Q. So if I ask you any questions in regards to the offense or any facts, circumstances surrounding the offense, it is your intention to invoke your Fifth Amendment, right?

Q. Would it be futile on my part and a waste of time if I ask you any question, would you just insist on invoking Fifth Amendment, right?

Q. So if I ask you, in fact, who shot Robert Patrick, what would your answer be?

A. I don't have an answer for that.

Q. And that would be because why?

A. Because I chose not to testify." (RRS-29, 30).

The State had no questions of the witness, however, the court asked the

Appellant if he had anything else to ask:

Q. (By Mr. White): Ms. Taylor, have you written letters to my client since?

Q. And in those letters, did you discuss certain things with him in regards to what your testimony would be?

A. I choose not to talk about any of that, sir.

30 Q. And so you haven't included any letters, in fact, that you acted on your own and that it was not any direction or command or anything by my client, by Devin"

A. I choose not to speak on that.

MR. WHITE: That's all I have, Your Honor." (RRS-31).

Later, during the Appellant's own testimony, he attempted to

relate to the jury what his wife had said about disposing of the gun in

one of her letters and the trial court sustained the State's objection on

the grounds of hearsay. (RRS-45).

Preservation of Error

In order to preserve error a party must make a timely objection

on specific grounds and obtain a ruling from the trial court. Rule 33.1,

Texas Rules ofAppellate Procedure. Absent such an objection the error is

waived. Where there was no objection as to the propriety of the

invocation of a witness' privilege against self-incrimination under the

Fifth Amendment, nor a demand that she testify, that issue was waived

and could not be argued on appeal. Chennault v. State, 667 S.W.2d 229,

302 (Tx. App. Dallas 5th Dist. 1984 rev. ref.).

In this case the Appellant called his co-defendant, who invoked

her Fifth Amendment privilege. He did not contest her right to do so

31 and did not request a ruling from the trial court concerning her

invocation of that right. In fact he acknowledged her intention and right

to invoke the privilege from the outset. At the close of the hearing his

only request was to call her in front of the jury to have her invoke her

privilege. The trial court denied that request. 2 (RRS-29-32).

Having failed to make a specific and timely objection to the

witness's invocation of the Fifth Amendment privilege or even calling

for a ruling upon it validity by the trial court, nothing is presented for

review.

It also must be noted that in his brief the Appellant attempts to

blend an alleged violation of his Sixth Amendment right to confront the

witnesses against him into this ground of error. There was no objection

voiced to the trial court on any such violation. A defendant waives his

right to confront witnesses if he does not object at trial. Mitchell v. State,

238 S.W.3d 405, 408 (Tx. App. Houston 1st Dist. 2006 rev. ref.), citing

Holland v. State, 802 S.W.2d 696, 700 (Tx. Cr. App. 1991).

2 The assertion of the privilege cannot be the source of any inference by the jury either favorable or unfavorable to the prosecution or the accused and it is not error for the trial court to refuse a motion to require a witness to invoke the privilege before the jury. Ellis v. State, 683 S.W.2d 379, 382-83 (Tx.Cr.App. 1984).

32 Analysis and Application

The Fifth Amendment to the United States Constitution provides

that a person may not be compelled to give testimony that tends to

incriminate them. A witness cannot be compelled to answer unless it is

perfectly clear from a careful consideration of the circumstances that

the witness is mistaken in asserting the privilege and that the answer

cannot possibly tend to incriminate the witness. Grayson v. State, 684

S.W.2d 691, 696 (Tx. Cr. App. 1984); German v. State, No. 03-03-00108-

CR, 2003 Tex. App. LEXIS 7908 (Tx. App. Austin 3rct Dist. 2003 no pet.),

not designated for publication.

In this case Gini Lee Taylor was not called by the State, but by the

Appellant outside the presence of the jury. As soon as counsel for the

Appellant inquired about her involvement in the offense Ms. Taylor

immediately invoked her Fifth Amendment privilege against self-

incrimination and she continued to do so in response to every question

involving the offense. (RRS-29-32). The Appellant asked a number of

questions clearly establishing that she would continue to invoke that

privilege and that he was aware that she would do so from the outset.

Ms. Taylor confirmed that her case was on appeal and that her

attorney was present in court, that she had consulted him, and was

33 following his advice. When a witness invokes the Fifth Amendment

privilege on the advice of counsel no further inquiry by the trial court in

allowing that invocation is required. Chennault at 302; German, supra.

There was no question, however, that the witness' belief that

answering the Appellant's questions about whether she was involved in

the robbery; shot the victim; and did so without his participation would

tend to incriminate her was well founded. The protection against

compelled self-incrimination is not lost until the proceedings against the

witness have been finally terminated. Where the case against the

witness is on appeal that case has not been prosecuted to a final

conclusion and the witness may continue to assert the privilege. Davis v.

State, 501 S.W.2d 629, 630-31 (Tx. Cr. App. 1973). Gini Lee Taylor's

conviction as a party to the offense on trial was then on appeaP and she

had every right to assert the Fifth Amendment privilege not to

incriminate herself.

The Appellant claims, however, that Ms. Taylor waived her

privilege by answering a single question. He claims that her answer was

materially incriminating and, therefore, she can no longer decline to

answer other questions, but must make full disclosure on the subject.

3 See Gini Lee Taylor v. State, Cause No. 03-14-00300-CR in this court.

34 The question propounded to her was "Ms. Taylor, have you written

letters to my client since?" and her answer was "yes". (RR5-31). Then

when he followed up by asking her about the contents of those letters

she again asserted the privilege.

In the first place, it is extremely difficult to see how the question

as to whether she had written letters to the Appellant and her answer of

"yes" was materially incriminating to her. In the second, a waiver of the

privilege should be inferred from a witness' prior statements only if:

(1) the answer to the prior question has created a significant likelihood

that the fact finder will be left with, and prone to rely upon, a distorted

view of the truth; and (2) the witness had reason to know her answer

would be interpreted as a waiver of the Fifth Amendment privilege.

Grayson at 695.

Just as in Grayson, in this case the answer given by the witness

was outside the presence of the jury and, therefore, there was no chance

whatsoever that it would create a significant likelihood that the jury, the

fact finder, would be left with a distorted view of the truth. Grayson at

695.

Moreover, the record does not support any conclusion that Ms.

Taylor had reason to know that her bare admission that she had sent

35 the Appellant letters would be interpreted as a waiver of her privilege.

She invoked the Fifth Amendment privilege both before, and

immediately after the answer when the question turned to the offense

of which she had been convicted and concerning which an appeal was

then pending. In determining whether the witness really apprehends

the danger in answering a question, the court cannot be skeptical and

must remain acutely aware that incrimination in criminal case may be

achieved in obscure and unlikely inquiries. Grayson at 696, citing Malloy

v. Hogan, 378 U.S. 1, 13 (1964).

It also must be noted that the whole theory of waiver of the

privilege by answering the question confirming that she had sent letters

has been raised for the first time on appeal and was not argued to the

trial court.

The Appellant called Ms. Taylor outside the presence of the jury

and firmly and repeatedly established that she was asserting her Fifth

Amendment privilege against self-incrimination concerning the offense

on trial. He never requested that the trial court rule that she had

improperly asserted the privilege or to instruct her to testify and there

was no ruling by the court on that question. The only thing the

Appellant requested of the trial court was that he be allowed to call her

36 in front of the jury and have her assert the privilege in its presence.

That request was properly denied.

The Appellant has failed to preserve the issue and nothing is

presented for review. If, however, the Appellant has moved the court to

deny her the privilege and had the court refused it would not have

erred.

Attempting to show harm by the failure of the court to compel

Taylor's testimony on its own motion, the Appellant somehow ties this

to his attempt to testify that he did not know what happened to the gun

but that Ms. Taylor told him in a letter that she took it. The State

objected to the testimony as hearsay and the trial court sustained the

objection. (RRS-45). Hearsay is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted. Rule 801(d), Texas Rules of

Evidence. Rule 802 provides that hearsay is not admissible. The

Appellant offers no explanation as to why his testimony as to what Gini

Taylor said in a letter would not be inadmissible hearsay. Neither does

he contend that his attempt to tell the jury that Taylor said she got the

gun was for anything other than the truth of the matter asserted. He

does not cite any authority as to how Ms. Taylor's assertion of her Fifth

37 Amendment privilege concerning her letters would allow him to testify

to what she had said in them over a hearsay objection.

Finally, he also states that it is likely that he would have been

acquitted had the trial court, without a request that it do so, had denied

Gini Lee Taylor her Fifth Amendment rights and compelled her

testimony. This is purest speculation. He did not proffer the letters in

question for the record, assuming that he actually had them. Nothing in

the record indicates what those letters would have contained or what

Ms. Taylor may have said in them. His questions may imply that she

took responsibility for the crime, but that again is speculation. In any

event, the Appellant's testimony concerning the offense consisted

entirely of his assertion that his wife planned and executed the offense

all on her own without his participation. The jury clearly rejected that

and it is not unlikely that had Ms. Taylor attempted to "take the rap" the

jury would still have rendered the same verdict based upon Robert

Patrick's testimony clearly establishing active involvement by both co-

defendants.

38 PRAYER

The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

Respectfully Submitted,

jsj $a6 ~. fJrfmn BOB D. ODOM Assistant District Attorney P.O. Box 540 Belton, Tx 76513 (254) 933-5215 FAX (254) 933-5704 DistrictAttorney@co.bell.tx.us SBA No. 15200000

CERTIFICATE OF COMPLIANCE WITH RULE 9

This is to certify that the State's Brief is in compliance with Rule 9

of the Texas Rules ofAppellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 6, 504 words.

jsj $a6 2). flrfmn BOB D. ODOM Assistant District Attorney

39 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this brief has been

served upon, Robert L. Sirianni, Jr., Counsel for Appellant, by electronic

transfer via Email, addressed to him at Robert@brownstonelaw.com on

this 15th day of June, 2015.

jsj $a6 ~. 9rfmn BOB D. ODOM Assistant District Attorney