Vic Eric Ponce v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 29, 2021
• Docket: 07-20-00174-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00173-CR No. 07-20-00174-CR

VIC ERIC PONCE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 119th District Court Concho County, Texas1 Trial Court Nos. DSM-18-02007, DSM-18-02008, Honorable Ben Woodward, Presiding

July 29, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Vic Eric Ponce, appellant, was charged in two separate indictments with the

offense of delivery of a controlled substance in a drug-free zone.2 Appellant entered an

1 Originally appealed to the Third Court of Appeals, sitting in Austin, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Third Court of Appeals and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3. 2 See TEX. HEALTH & SAFETY CODE ANN. § 481.134(b),(d) (West 2017). open plea of guilty to each indictment, waived his right to a jury trial, and elected to have

the trial court assess punishment. By his appeal, appellant contends the trial court erred

in holding a single trial for the two charges because the State failed to give notice of

consolidation as required by Texas Health & Safety Code section 481.132(b). Finding no

error, we affirm the judgment of the trial court.

Factual and Procedural Background

Appellant was charged by two separate indictments with the offense of delivery of

methamphetamine to an undercover officer in a drug-free zone on June 6, 2018, and

June 13, 2018. The indictments were filed in separate cause numbers. In May of 2019,

a status report bearing both cause numbers was filed in each case requesting a non-jury

setting for a guilty plea without a recommendation. The status report was signed by

appellant, his trial counsel, and the prosecutor.

Both cases proceeded to trial on January 30, 2020. The trial court called each

case and appellant pleaded guilty to each indictment. After hearing evidence, the trial

court found appellant guilty of both offenses and assessed punishment for each offense

at nine years’ confinement in the Texas Department of Criminal Justice, the sentences to

run concurrently. Appellant timely filed this appeal.

Discussion

In his sole issue, appellant contends the trial court erred in conducting a single trial

for the two offenses charged in separate indictments in the absence of the State’s

compliance with Health & Safety Code section 481.132(b). The State argues that

2 appellant waived his right to notice by failing to object and consented to a single trial for

both indictments.

The State is permitted to prosecute a defendant in a single criminal action for all

offenses arising out of the same criminal episode. TEX. HEALTH & SAFETY CODE ANN.

§ 481.132(b) (West 2017).3 If a single criminal action is based on more than one charging

instrument within the jurisdiction of the trial court, the state shall file written notice of the

action not later than thirty days before trial. Id. A “criminal episode” is defined by section

481.132(a), in part, as the “commission of two or more offenses” under chapter 481 when

the “offenses are the repeated commission of the same or similar offenses.”

§ 481.132(a)(2). According to section 481.132(f), “[t]his section provides the exclusive

method for consolidation and joinder of prosecutions for offenses under this chapter.”

§ 481.132(f).

In this case, appellant proceeded to trial under both indictments and never

objected, either before or during the proceedings, to the consolidation of the charges. To

preserve an error for appellate review, the record must show that: (1) a complaint was

made by a timely request, objection, or motion, (2) sufficiently specific to make the trial

court aware of the complaint, (3) and the trial court ruled on the complaint either implicitly

or explicitly. TEX. R. APP. P. 33.1(a); see Gonzalez v. State, 616 S.W.3d 585, 591 (Tex.

Crim. App. 2020). The record does not show any such complaint. By failing to object to

consolidation at trial, appellant waived his right to notice and consented to consolidation.

See Milligan v. State, 764 S.W.2d 802, 803 (Tex. Crim. App. 1989) (multiple pending

3 Further references to provisions of the Health & Safety Code will be by reference to “section __” or “§ __.”

3 indictments may be consolidated into a single proceeding with the express or implied

consent of defendant); Walker v. State, No. 02-20-00045-CR, 2021 Tex. App. LEXIS

3762, at *3 (Tex. App.—Fort Worth May 13, 2021, no pet.) (mem. op.).

Moreover, the record reflects that appellant affirmatively requested the non-jury

setting in the status report he signed in May of 2019, more than thirty days before the trial

in January of 2020. Accordingly, we conclude appellant consented to the consolidation

of his offenses into a single action and overrule appellant’s issue.

Conclusion

Having overruled appellant’s sole issue, we affirm the judgment of the trial court.

Judy C. Parker Justice

Do not publish.