Edward Anthony Bishop v. State

Opinion

NUMBER 13-17-00298-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

EDWARD ANTHONY BISHOP, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Hinojosa Memorandum Opinion by Justice Rodriguez

By two issues, appellant Edward Anthony Bishop challenges the revocation of his

community supervision. Bishop asserts that his trial counsel was ineffective for failing to

raise a double jeopardy claim, and that his sentences violated the prohibition on cruel and

unusual punishment. We affirm. I. BACKGROUND

On January 11, 2011, a San Patricio County grand jury returned an indictment

against Bishop charging him with two offenses, both state jail felonies. Count 1 of

indictment alleged that on May 26, 2010, Bishop and Norma Jean Salinas burglarized a

building by intentionally entering the building without the consent of the owner and

committing or attempting to commit theft of property, “including a Sokkia transit level,

owned by . . . James France.” See TEX. PENAL CODE ANN. § 30.02(a)(3), (c)(1) (West,

Westlaw through 2017 1st C.S.).1

Count 2 alleged that on May 26, 2010, Bishop and Salinas committed theft of

property valued at $1,500 or more but less than $20,000—“to wit: a Sokkia transit

level”—owned by James France. See id. § 31.03(a), (e)(4)(A) (West, Westlaw through

2017 1st C.S.); see also 2015 Tex. Sess. Law Serv. Ch. 1251, § 5 (H.B. 1396)

(VERNON’S) (elevating the theft value range from $1,500–$20,000 to $2,500–$30,000).

Counsel for Bishop did not object to the charges on grounds of double jeopardy.

Instead, on February 18, 2011, Bishop filed a judicial confession to both offenses and an

application for community supervision. On March 18, 2011, the trial court deferred

adjudication and placed Bishop on community supervision for a period of three years.

In December of 2011, the State filed a motion to revoke Bishop’s community

supervision. The trial court signed a capias ordering that Bishop be arrested pending a

hearing on the State’s motion to revoke.

1 The State has explained that a Sokkia transit level is a piece of surveying equipment. 2 The capias contained a notation in the sheriff’s return indicating that Bishop was

served with a copy of the State’s motion to revoke on April 18, 2017, over five years after

it was filed. The return stated that Bishop was arrested on January 20, 2017 and served

with the State’s motion while in county jail.

On May 15, 2017, the trial court held a hearing on the State’s motion to revoke.

Bishop submitted an open plea of true to the State’s allegations and signed a judicial

confession. The trial court revoked Bishop’s community supervision, adjudicated guilt

for both the burglary and theft counts, and sentenced Bishop to two years in state jail.

This appeal followed.2

II. INEFFECTIVE ASSISTANCE OF COUNSEL

By his first issue, Bishop asserts that he received ineffective assistance of counsel

during the original proceeding because his trial counsel failed to object on the basis of

double jeopardy.

In general, a defendant placed on deferred adjudication community supervision

may appeal issues relating to the original plea proceeding only in appeals taken when

community supervision is first imposed. Manuel v. State, 994 S.W.2d 658, 661–62 (Tex.

2 Bishop’s three-year term of community supervision was to expire in 2014, well before he was

arrested and served with a copy of the State’s motion to revoke in 2017. However, a court retains jurisdiction to proceed with an adjudication of guilt, regardless of whether the period of deferred adjudication community supervision has expired, if before the expiration of the supervision period: (1) the attorney representing the State files a motion to proceed with the adjudication; and (2) a capias is issued for the arrest of the defendant. TEX. CODE CRIM. PROC. ANN. art. 42A.108 (West, Westlaw through 2017 1st C.S.); Ex parte Moss, 446 S.W.3d 786, 791 (Tex. Crim. App. 2014). Despite the delay in arresting and serving Bishop, the State timely filed its motion to revoke Bishop’s community supervision, and the trial court timely issued a capias in 2011, before the expiration of Bishop’s community supervision. See TEX. CODE CRIM. PROC. ANN. arts. 23.01–.02 (West, Westlaw through 2017 1st C.S.) (describing the nature and requirements of a capias). Bishop does not challenge the timing of the adjudication. Accordingly, we conclude that the trial court had jurisdiction to order the revocation, despite the expiration of Bishop’s term of community supervision. See Moss, 446 S.W.3d at 791. 3 Crim. App. 1999). The primary exception to the Manuel rule is the “void judgment

exception,” Nix v. State, 65 S.W.3d 664, 667–68 (Tex. Crim. App. 2001) (en banc), but

this exception does not embrace “ineffective assistance of counsel claims and involuntary

plea claims.” Id. at 669; see Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001);

Ebiana v. State, 77 S.W.3d 436, 438 (Tex. App.—Corpus Christi 2002, pet. ref’d).

Accordingly, Bishop’s complaint cannot be reviewed on appeal from revocation.

We overrule Bishop’s first issue.

III. CRUEL AND UNUSUAL PUNISHMENT

By his second issue, Bishop argues that his sentence of two years constitutes cruel

and unusual punishment prohibited by the Eighth Amendment to the United States

Constitution. See U.S. CONST. amend VIII. Bishop acknowledges that his sentence

falls within the prescribed range of a valid statute, but complains that the trial court chose

a punishment at the upper end of that punishment range. But see Trevino v. State, 174

S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. ref’d) (“Punishment which falls

within the limits prescribed by a valid statute is not excessive, cruel, or unusual.”).

The State responds that Bishop waived this issue by failing to preserve it in the

trial court. We agree.

To preserve an error for appellate review, a party must make a timely and specific

objection in the trial court and either obtain an adverse ruling or object to the trial court’s

refusal to rule. TEX. R. APP. P. 33.1(a). Under Texas law, a claim of cruel and unusual

punishment regarding a sentence that falls within the prescribed punishment range is

subject to error-preservation requirements. See Ladd v. State, 3 S.W.3d 547, 570 (Tex.

4 Crim. App. 1999); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (en banc);

Trevino, 174 S.W.3d at 927–28 & n.4.

Because Bishop made no objection to the disparity, cruelty, or excessiveness of

his sentence, which fall within the limits of a valid statute, his second issue is not

preserved for our review. See TEX. R. APP. P. 33.1(a).

IV. CONCLUSION

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 24th day of May, 2018.