Timothy Demarcus Flowers v. State

• Court: Court of Appeals of Texas
• Decided: January 8, 2014
• Docket: 09-13-00214-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________

NO. 09-13-00213-CR NO. 09-13-00214-CR NO. 09-13-00215-CR ________________

TIMOTHY DEMARCUS FLOWERS, Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause Nos. 12-13273, 12-13274, 12-13275 __________________________________________________________________

MEMORANDUM OPINION

Appellant Timothy Demarcus Flowers appeals his convictions for three

charges of violating a protective order. We affirm the trial court’s judgments of

conviction.

BACKGROUND

Pursuant to plea bargain agreements, Flowers pleaded “no contest” to three

charges of violating a protective order and pleaded “true” to the enhancement

1 allegations alleged in the indictment. In each case, the trial court found the

evidence sufficient to find Flowers guilty, but deferred further proceedings and

placed Flowers on community supervision for ten years. In each case, the State

subsequently filed a motion to revoke Flowers’s unadjudicated community

supervision, and Flowers pleaded “true” to two violations of the conditions of his

community supervision.

In all three cases, the trial court found that Flowers violated the conditions of

his community supervision, found Flowers guilty of violation of a protective order,

and assessed punishment at ten years of confinement. In trial cause number 12-

13274, the trial court ordered that Flowers’s sentence would run consecutively to

his sentence in trial cause number 12-13273, and in trial cause number 12-13275,

the trial court ordered that Flowers’s sentence would run consecutively to his

sentence in trial cause number 12-13274.

ISSUES

In trial cause number 12-13273, Flowers raises two issues challenging the

trial court’s failure to follow the plea bargain agreement upon revocation and

failure to permit Flowers to withdraw his plea of “no contest.” In trial cause

number 12-13274, Flowers raises one issue challenging the trial court’s cumulation

order. In trial cause number 12-13275, Flowers’s counsel filed an Anders brief.

2 Trial Cause Number 12-13273

We first address Flowers’s issues in trial cause number 12-13273. Flowers

contends that a written plea bargain agreement provided that the trial court would

place him on community supervision upon conviction. According to Flowers,

because the trial court declined to follow the plea bargain agreement and sentenced

Flowers to ten years of confinement, his sentence is invalid, and the trial court

should have permitted Flowers to withdraw his plea of “no contest.” Flowers cites

Zinn v. State, 35 S.W.3d 283 (Tex. App.—Corpus Christi 2000, pet. ref’d), Lopez

v. State, 996 S.W.2d 893 (Tex. App.—Corpus Christi 1999, no pet.), Papillion v.

State, 908 S.W.2d 621 (Tex. App.—Beaumont 1995, no pet.), and Article

26.13(a)(2) of the Texas Code of Criminal Procedure in support of his argument.

See Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) (West Supp. 2013). However,

none of these authorities deals with the situation presented in this case, i.e., a

purported plea bargain agreement pertaining to sentencing upon revocation of

deferred adjudication community supervision. See Zinn, 35 S.W.3d at 284-86;

Lopez, 996 S.W.2d at 895; Papillion, 908 S.W.2d at 621-24; see also Tex. Code

Crim. Proc. Ann. art. 26.13(a)(2).

The Court of Criminal Appeals has explained that “in the context of

revocation proceedings, the legislature has not authorized binding plea agreements,

3 has not required the court to inquire as to the existence of a plea agreement or

admonish the defendant pursuant to [article] 26.13, and has not provided for

withdrawal of a plea after sentencing.” Gutierrez v. State, 108 S.W.3d 304, 309-10

(Tex. Crim. App. 2003). “Even if the parties purport to have a plea bargain as to

the sentence to be assessed after adjudication, the trial court is not bound by the

rules that apply to plea bargains at an original sentencing; . . . ‘once the trial court

proceeds to adjudication, it is restricted in the sentence it imposes only by the

relevant statutory limits.’” Ex parte Huskins, 176 S.W.3d 818, 819 (Tex. Crim.

App. 2005) (quoting Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim.

App. 1999)).

Flowers pleaded “true” to three prior offenses under section 25.07 of the

Penal Code. The ten-year sentence imposed by the trial court was therefore within

the range of punishment authorized by statute. See Tex. Penal Code Ann. § 12.34

(West 2011) (The range of punishment for a third-degree felony is two to ten years

of confinement and a fine not to exceed $10,000.); Act of May 25, 2007, 80th Leg.,

R.S., ch. 1113 §2, 2007 Tex. Gen. Laws 3758 (current version at Tex. Penal Code

Ann. § 25.07(g)(1) (West Supp. 2013)) (Violation of a protective order is a third-

degree felony if the defendant has been previously convicted two or more times of

an offense under section 25.07.). The trial court was not obligated to follow the

4 purported plea-bargain agreement as to what Flowers’s punishment would be upon

revocation, nor was the trial court obligated to permit Flowers to withdraw his plea

of “no contest.” See Ex parte Huskins, 176 S.W.3d at 819; Gutierrez, 108 S.W.3d

at 309-10. Accordingly, we overrule Flowers’s issues and affirm the trial court’s

judgment of conviction in trial cause number 12-13273.

Trial Cause Number 12-13274

In trial cause number 12-13274, Flowers’s sole appellate issue asserts that

the trial court erred by ordering his sentence to be served consecutively to his

sentence in cause number 12-13273 because his sentence in 12-13273 is invalid for

the reasons already discussed above. As we explained in our discussion of trial

cause number 12-13273, Flowers’s sentence in cause number 12-13273 is not

invalid because the trial court was not obligated to follow the purported plea-

bargain agreement regarding Flowers’s punishment upon revocation, nor was the

trial court obligated to allow Flowers to withdraw his plea. See Ex parte Huskins,

176 S.W.3d at 819; Gutierrez, 108 S.W.3d at 309-10; see also Tex. Code Crim.

Proc. Ann. art. 42.08(a) (West Supp. 2006) (When a defendant has been convicted

in two or more cases, the trial court may order the sentences to run consecutively

or concurrently.). Therefore, the trial court did not err by ordering that Flowers’s

sentence in cause number 12-13274 run consecutively to his sentence in cause

5 number 12-13273. We overrule Flowers’s sole issue and affirm the trial court’s

judgment of conviction in trial cause number 12-13274.

Trial Cause Number 12-13275

As previously discussed, counsel filed a brief in trial cause number 12-

13275 that presents counsel’s professional evaluation of the record and concludes

the appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967); High v.

State, 573 S.W.2d 807 (Tex. Crim. App. 1978). We granted an extension of time

for Flowers to file a pro se brief, but we received no response from Flowers. We

have reviewed the appellate record in trial cause number 12-13275, and we agree

with counsel’s conclusion that no arguable issues support an appeal. Therefore, we

find it unnecessary to order appointment of new counsel to re-brief the appeal.

Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We

affirm the trial court’s judgment of conviction in trial cause number 12-13275. 1

AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice

1 Flowers may challenge our decision in trial cause number 12-3275 by filing a petition for discretionary review. See Tex. R. App. P. 68. 6 Submitted on December 16, 2013 Opinion Delivered January 8, 2014 Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.