IN THE TENTH COURT OF APPEALS
No. 10-18-00361-CR
MICHAEL TROY EVANS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas Trial Court No. 2018-208-C2
MEMORANDUM OPINION
In three issues, appellant, Michael Troy Evans, challenges his conviction for theft
of more than $2,500, but less than $30,000. See TEX. PENAL CODE ANN. §§ 31.03(a),
(e)(4)(A), 31.09. We affirm.
I. BACKGROUND
In the instant case, Evans was charged by indictment with theft of more than
$2,500, but less than $30,000. Pursuant to a plea agreement with the State, Evans pleaded guilty to the charged offense. The trial court accepted Evans’s guilty plea and found him
guilty of the charged offense. The State’s original offer was twelve months’ incarceration
in State Jail, and the trial judge indicated that he was “assessing punishment at 12 months
in a State Jail facility.”
The trial court then inquired as to whether there was any reason under the law
that Evans should not be sentenced at that time. Evans requested that he be given a
reasonable amount of time before having to report back for sentencing, so that he could
finalize his grandmother’s estate in South Texas. The trial court granted Evans’s request
and reset the sentencing hearing. At that time, Evans also agreed to additional terms in
the plea agreement that provided the trial court could sentence him within the full range
of punishment if he failed to appear for the sentencing hearing and that he could not
withdraw his guilty plea.
Thereafter, Evans failed to appear for the sentencing hearing. The trial court
forfeited Evans’s bond, issued a judgment nisi, and ordered a capias issued for Evans’s
arrest. Evans was apprehended and brought before the court. At that hearing, the trial
court sentenced Evans to twenty-four months’ incarceration in State Jail. The trial court
certified Evans’s right to appeal, and this appeal followed.
Evans v. State Page 2 II. DOUBLE-JEOPARDY
In his first issue, Evans contends that the trial court exceeded its authority and
violated his rights under the Double Jeopardy Clause of the United States Constitution
by increasing his sentence more than thirty days after assessing punishment.
A double-jeopardy claim must generally be raised in the trial court to preserve
error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643-46 (Tex. Crim. App. 2000);
Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. ref’d). However, a
double-jeopardy claim may be raised for the first time on appeal when (1) the undisputed
facts show the double-jeopardy claim violation is clearly apparent from the face of the
record, and (2) enforcement of the usual rules of procedural default serves no legitimate
State purpose. See Gonzalez, 8 S.W.3d at 643; see also Rangel, 179 S.W.3d at 70.
The record reveals that Evans did not object to his sentence on double-jeopardy
grounds in the trial court. Furthermore, Evans’s double-jeopardy claim is not apparent
from the face of the record. Indeed, the record contains the agreement between the State
and Evans pertaining to Evans’s request to remain free on bond to allegedly finalize his
grandmother’s estate. Specifically, Evans agreed that, if he did not appear for the
sentencing hearing, the trial court could impose a sentence within the full range of
punishment and that he could not withdraw his guilty plea. More importantly, the
agreement provided that Evans’s failure to appear constituted a voluntary waiver of all
Evans v. State Page 3 complaints under article 1.14 of the Code of Criminal Procedure. See TEX. CODE CRIM.
PROC. ANN. art. 1.14.
Moreover, the record reflects that Evans was sentenced in open court, was
represented by counsel at all times, and was given a full opportunity to make objections
at the sentencing hearings. Accordingly, we conclude that there is a legitimate State
interest in enforcing the usual rules of procedural default in this case. As such, we further
conclude that Evans has not preserved his Double-Jeopardy complaint in this issue. See
Gonzalez, 8 S.W.3d at 643; see also Rangel, 179 S.W.3d at 70. We therefore overrule his first
issue.
III. EVANS’S “FAILURE TO APPEAR”
In his second issue, Evans argues that the trial court abused its discretion by
increasing his sentence because he “failed to appear.”
At the sentencing hearing conducted after Evans was apprehended, the trial court
assessed punishment at twenty-four months’ incarceration in State Jail. The trial court
then asked whether there was any reason, under the law, that Evans should not be
sentenced at that time. Evans himself responded with excuses for his failure to appear,
but offered no legal reason preventing sentencing at that time. Later, the trial court
inquired about Evans’s prior waiver of his right of appeal. Evans himself then responded,
“Yes, sir. I just don’t understand why you’re—why you upped it on me. I mean, this
is—this is the deal.”
Evans v. State Page 4 A review of the record demonstrates that Evans did not proffer a legal objection to
his punishment and sentence when they were assessed. Moreover, appellant did not file
a motion for new trial in which he raised this complaint. Accordingly, we conclude that
Evans failed to preserve error. See TEX. R. APP. P. 33.1(a); see also Burt v. State, 396 S.W.3d
574, 577 (Tex. Crim. App. 2013); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth
2009, pet. ref’d).
To the extent that it can be argued that Evans’s own “objections” to the sentence
preserved error, we note that the agreement between Evans and the State pertaining to
Evans’s request to remain free on bond to allegedly finalize his grandmother’s estate
provided that should Evans fail to appear for the sentencing hearing, the trial court was
authorized to impose a sentence within the full range of punishment. The agreement also
provided a voluntary waiver of all complaints pursuant to article 1.14 of the Code of
Criminal Procedure, see TEX. CODE CRIM. PROC. ANN. art. 1.14, and stated that Evans
stipulated “that for purposes of appeal the punishment actually assessed and imposed
by the trial court will not and does not exceed the punishment recommended by the
prosecutor and agreed to by the Defendant.” Accordingly, we conclude that Evans’s
second issue lacks merit.1 We overrule Evans’s second issue.
1 It is also true that a defendant has no right to hybrid representation. See Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). Further, a trial court is free to disregard any pro se motions presented by a defendant who is represented by counsel, as was the case here. See id.; see also Hazelwood v. State, 838 S.W.2d 647, 649 (Tex. App.—Corpus Christi 1992, no pet.) (“Once an accused is represented by counsel, the trial court is entitled to look solely to the accused’s counsel and is not required to consider pro se pre-trial motions which were filed when the accused was represented by counsel.”). Therefore, because
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IN THE TENTH COURT OF APPEALS
No. 10-18-00361-CR
MICHAEL TROY EVANS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas Trial Court No. 2018-208-C2
MEMORANDUM OPINION
In three issues, appellant, Michael Troy Evans, challenges his conviction for theft
of more than $2,500, but less than $30,000. See TEX. PENAL CODE ANN. §§ 31.03(a),
(e)(4)(A), 31.09. We affirm.
I. BACKGROUND
In the instant case, Evans was charged by indictment with theft of more than
$2,500, but less than $30,000. Pursuant to a plea agreement with the State, Evans pleaded guilty to the charged offense. The trial court accepted Evans’s guilty plea and found him
guilty of the charged offense. The State’s original offer was twelve months’ incarceration
in State Jail, and the trial judge indicated that he was “assessing punishment at 12 months
in a State Jail facility.”
The trial court then inquired as to whether there was any reason under the law
that Evans should not be sentenced at that time. Evans requested that he be given a
reasonable amount of time before having to report back for sentencing, so that he could
finalize his grandmother’s estate in South Texas. The trial court granted Evans’s request
and reset the sentencing hearing. At that time, Evans also agreed to additional terms in
the plea agreement that provided the trial court could sentence him within the full range
of punishment if he failed to appear for the sentencing hearing and that he could not
withdraw his guilty plea.
Thereafter, Evans failed to appear for the sentencing hearing. The trial court
forfeited Evans’s bond, issued a judgment nisi, and ordered a capias issued for Evans’s
arrest. Evans was apprehended and brought before the court. At that hearing, the trial
court sentenced Evans to twenty-four months’ incarceration in State Jail. The trial court
certified Evans’s right to appeal, and this appeal followed.
Evans v. State Page 2 II. DOUBLE-JEOPARDY
In his first issue, Evans contends that the trial court exceeded its authority and
violated his rights under the Double Jeopardy Clause of the United States Constitution
by increasing his sentence more than thirty days after assessing punishment.
A double-jeopardy claim must generally be raised in the trial court to preserve
error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643-46 (Tex. Crim. App. 2000);
Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San Antonio 2005, pet. ref’d). However, a
double-jeopardy claim may be raised for the first time on appeal when (1) the undisputed
facts show the double-jeopardy claim violation is clearly apparent from the face of the
record, and (2) enforcement of the usual rules of procedural default serves no legitimate
State purpose. See Gonzalez, 8 S.W.3d at 643; see also Rangel, 179 S.W.3d at 70.
The record reveals that Evans did not object to his sentence on double-jeopardy
grounds in the trial court. Furthermore, Evans’s double-jeopardy claim is not apparent
from the face of the record. Indeed, the record contains the agreement between the State
and Evans pertaining to Evans’s request to remain free on bond to allegedly finalize his
grandmother’s estate. Specifically, Evans agreed that, if he did not appear for the
sentencing hearing, the trial court could impose a sentence within the full range of
punishment and that he could not withdraw his guilty plea. More importantly, the
agreement provided that Evans’s failure to appear constituted a voluntary waiver of all
Evans v. State Page 3 complaints under article 1.14 of the Code of Criminal Procedure. See TEX. CODE CRIM.
PROC. ANN. art. 1.14.
Moreover, the record reflects that Evans was sentenced in open court, was
represented by counsel at all times, and was given a full opportunity to make objections
at the sentencing hearings. Accordingly, we conclude that there is a legitimate State
interest in enforcing the usual rules of procedural default in this case. As such, we further
conclude that Evans has not preserved his Double-Jeopardy complaint in this issue. See
Gonzalez, 8 S.W.3d at 643; see also Rangel, 179 S.W.3d at 70. We therefore overrule his first
issue.
III. EVANS’S “FAILURE TO APPEAR”
In his second issue, Evans argues that the trial court abused its discretion by
increasing his sentence because he “failed to appear.”
At the sentencing hearing conducted after Evans was apprehended, the trial court
assessed punishment at twenty-four months’ incarceration in State Jail. The trial court
then asked whether there was any reason, under the law, that Evans should not be
sentenced at that time. Evans himself responded with excuses for his failure to appear,
but offered no legal reason preventing sentencing at that time. Later, the trial court
inquired about Evans’s prior waiver of his right of appeal. Evans himself then responded,
“Yes, sir. I just don’t understand why you’re—why you upped it on me. I mean, this
is—this is the deal.”
Evans v. State Page 4 A review of the record demonstrates that Evans did not proffer a legal objection to
his punishment and sentence when they were assessed. Moreover, appellant did not file
a motion for new trial in which he raised this complaint. Accordingly, we conclude that
Evans failed to preserve error. See TEX. R. APP. P. 33.1(a); see also Burt v. State, 396 S.W.3d
574, 577 (Tex. Crim. App. 2013); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth
2009, pet. ref’d).
To the extent that it can be argued that Evans’s own “objections” to the sentence
preserved error, we note that the agreement between Evans and the State pertaining to
Evans’s request to remain free on bond to allegedly finalize his grandmother’s estate
provided that should Evans fail to appear for the sentencing hearing, the trial court was
authorized to impose a sentence within the full range of punishment. The agreement also
provided a voluntary waiver of all complaints pursuant to article 1.14 of the Code of
Criminal Procedure, see TEX. CODE CRIM. PROC. ANN. art. 1.14, and stated that Evans
stipulated “that for purposes of appeal the punishment actually assessed and imposed
by the trial court will not and does not exceed the punishment recommended by the
prosecutor and agreed to by the Defendant.” Accordingly, we conclude that Evans’s
second issue lacks merit.1 We overrule Evans’s second issue.
1 It is also true that a defendant has no right to hybrid representation. See Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). Further, a trial court is free to disregard any pro se motions presented by a defendant who is represented by counsel, as was the case here. See id.; see also Hazelwood v. State, 838 S.W.2d 647, 649 (Tex. App.—Corpus Christi 1992, no pet.) (“Once an accused is represented by counsel, the trial court is entitled to look solely to the accused’s counsel and is not required to consider pro se pre-trial motions which were filed when the accused was represented by counsel.”). Therefore, because
Evans v. State Page 5 IV. WITHDRAWAL OF EVANS’S GUILTY PLEA
In his third issue, Evans asserts that the trial court abused its discretion by denying
his motion to withdraw his guilty plea.
After accepting Evans’s guilty plea, finding him guilty, and sentencing him to
twenty-four months’ incarceration in State Jail, the trial court inquired about Evans’s
waiver of his right to appeal. Evans himself responded, “Well, I’d like to withdraw
everything . . . and go to trial.” It is this exchange that Evans relies upon in this issue to
show that he should have been allowed to withdraw his guilty plea.
To the extent that the statements above constituted a request for the withdrawal
of Evans’s guilty plea, we once again reference the agreement between Evans and the
State pertaining to Evans’s request to remain free on bond to allegedly finalize his
grandmother’s estate, which provided that, should Evans fail to appear, the trial court
could refuse to allow Evans to withdraw his guilty plea. See Hallmark v. State, 541 S.W.3d
167, 170 (Tex. Crim. App. 2017) (“Likewise, because the ‘no show/full-range-of-
punishment’ condition was a part of Appellant’s plea agreement, and she did not show
up for sentencing as she agreed to do, the trial judge was following the plea agreement
when she considered the full range of punishment, and Appellant had no right to
withdraw her plea.”). Furthermore, the agreement also contained a voluntary waiver of
Evans, not his counsel, “objected” to the imposed sentence, the trial court was entitled to disregard Evans’s “objections.”
Evans v. State Page 6 all complaints under article 1.14 of the Code of Criminal Procedure. See TEX. CODE CRIM.
And finally, as mentioned earlier, a defendant has no right to hybrid
representation, and trial courts are free to disregard pro se motions presented by a
defendant represented by counsel. See Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim.
App. 2007); see also Hazelwood v. State, 838 S.W.2d 647, 649 (Tex. App.—Corpus Christi
1992, no pet.). Evans was represented by counsel during the entire sentencing hearing,
and counsel did not make a request for the withdrawal of the guilty plea. Moreover, the
record does not demonstrate that the trial court ruled on Evans’s purported request to
withdraw his guilty plea. We therefore overrule Evans’s third issue.
V. CONCLUSION
Having overruled all of Evans’s issues on appeal, we affirm the judgment of the
trial court.
JOHN E. NEILL Justice
Evans v. State Page 7 Before Chief Justice Gray, Justice Neill, and Senior Justice Scoggins2 Affirmed Opinion delivered and filed February 17, 2021 Do not publish [CR25]
2The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.
Evans v. State Page 8