Marquisha Frazier v. State

Opinion

AFFIRM; Opinion Filed June 5, 2013.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01360-CR No. 05-12-01361-CR No. 05-12-01362-CR

MARQUISHA ANTIONETTE FRAZIER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause Nos. F10-25636-L, F11-17550-L, F11-39844-L

MEMORANDUM OPINION Before Justices Moseley, Bridges, and Lang-Miers Opinion by Justice Moseley

Marquisha Antionette Frazier waived a jury and pleaded guilty to one burglary of a

habitation offense and two aggravated robbery offenses. See TEX. PENAL CODE ANN.

§§ 29.03(a), 30.02(a) (West 2011). The trial court assessed punishment at fifteen years’

imprisonment in each case. In six issues, appellant contends her guilty pleas were involuntary

and the trial court erred by failing to orally pronounce the sentences and to afford her the right of

allocution in each case. We affirm the trial court’s judgments. The background of the cases and

the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure

47.4 because the law to be applied in the cases is well settled.

In her first three issues, appellant contends her guilty pleas were involuntary because she

pleaded guilty believing the trial court would grant her community supervision. Appellant

asserts that because she had been diagnosed with adjustment disorder and several witnesses on

her behalf asked the trial court to give her another chance, she believed the trial court would

grant community supervision and an opportunity to get counseling. The State responds that

appellant failed to preserve her complaints for appellate review and, alternatively, the record

shows the trial court complied with the applicable requirements of article 26.13 of the code of

criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 26.13 (West Supp. 2012).

When considering the voluntariness of a guilty plea, we must examine the entire record.

See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). If the trial

court properly admonished a defendant before a guilty plea was entered, there is a prima facie

showing the plea was both knowing and voluntary. See id.

The record shows the trial court properly admonished appellant both orally and in

writing. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a), (c); Kirk v. State, 949 S.W.2d 769, 771

(Tex. App.—Dallas 1997, pet. ref’d). Appellant said she had “gone over all the papers” that she

had signed with her counsel. These papers include appellant’s judicial confessions and

stipulations of evidence as well as the plea agreements that contain written admonishments as to

the punishment range. During appellant’s testimony, she took responsibility for her actions and

called several witnesses who advocated for community supervision on appellant’s behalf. The

record does not support appellant’s complaint that she pleaded guilty only because she believed

she would receive community supervision. Moreover, the fact that appellant received greater

-2- punishment than she hoped for does not render her pleas involuntary. See Tovar-Torres v. State,

860 S.W.2d 176, 178 (Tex. App.—Dallas 1993, no pet.). We conclude appellant has not shown

her guilty pleas were involuntary. We resolve appellant’s first, second, and third issue against

her.

In her fourth, fifth, and sixth issue, appellant contends the trial court erred in failing to

orally pronounce the sentence and to afford her the right of allocution under code of criminal

procedure article 42.07. See TEX. CODE CRIM. PROC. ANN. art. 42.07 (West 2009). Appellant

asserts that because the trial court did not ask if there was any reason why the sentences should

not be pronounced, and never actually pronounced the sentences, the trial court committed error.

The State responds that appellant did not preserve this issue for appellate review and

alternatively, none of the statutory reasons that would have prevented the trial court’s imposition

of the sentence apply to appellant.

After evidence and argument was presented, the trial court stated it would find

appellant’s guilty pleas were “freely and voluntarily made” and “pursuant to that plea, the

Court’s going to find you guilty and in each case assess a term of 15 years. . . .” The trial court

did not ask if any reason under law existed as to whether or not appellant should be sentenced at

that time.

Appellant failed to object, either at the end of the proceeding or in her motions for new

trial, that she was denied her right to the pronouncement of sentence or her right to allocution.

Therefore, she has failed to preserve error for our review. See TEX. R. APP. P. 33.1; Tenon v.

State, 563 S.W.2d 622, 623–24 (Tex. Crim. App. [Panel Op. 1978). Accordingly, we resolve

appellant’s fourth, fifth, and sixth issue against her.

-3- We affirm the trial court’s judgment.

/Jim Moseley/ JIM MOSELEY JUSTICE

Do Not Publish TEX. R. APP. P. 47 121360F.U05

-4- Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

MARQUISHA ANTIONETTE Appeal from the Criminal District Court FRAZIER, Appellant No. 5 of Dallas County, Texas (Tr.Ct.No. F10-25636-L). No. 05-12-01360-CR V. Opinion delivered by Justice Moseley, Justices Bridges and Lang-Miers THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.

Judgment entered June 5, 2013.

-5- Court of Appeals Fifth District of Texas at Dallas

MARQUISHA ANTIONETTE Appeal from the Criminal District Court FRAZIER, Appellant No. 5 of Dallas County, Texas (Tr.Ct.No. F11-17550-L). No. 05-12-01361-CR V. Opinion delivered by Justice Moseley, Justices Bridges and Lang-Miers THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.

-6- Court of Appeals Fifth District of Texas at Dallas

MARQUISHA ANTIONETTE Appeal from the Criminal District Court FRAZIER, Appellant No. 5 of Dallas County, Texas (Tr.Ct.No. F11-39844-L). No. 05-12-01362-CR V. Opinion delivered by Justice Moseley, Justices Bridges and Lang-Miers THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.

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