Sandra Kay West A/K/A Sandra Kay Commander v. State ( 2002 )

Sandra Kay West v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-02-188-CR

No. 10-02-189-CR

     SANDRA KAY WEST,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 252nd District Court

Jefferson County, Texas

Trial Court Nos. 85617 and 85484

MEMORANDUM OPINION

      Sandra Kay West pleaded guilty to unauthorized use of a motor vehicle in trial court cause number 85617 (appellate cause number 10-02-188-CR) without the benefit of a plea bargain. The court sentenced her to two years’ confinement in a state jail.

      West pleaded guilty to debit card abuse in trial court cause number 85484 (appellate cause number 10-02-189-CR) without the benefit of a plea bargain. The court sentenced her to two years’ confinement in a state jail for this offense as well.

      West and her trial counsel signed a waiver of appeal as a part of the plea proceedings in each case. Because West waived her right to appeal, we dismiss her appeals. See Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000); Clayburn v. State, 985 S.W.2d 624, 625 (Tex. App.—Waco 1999, no pet.) (per curiam).

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeals dismissed

Opinion delivered and filed October 30, 2002

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            •    January 8, 1993: During a brief hearing, the judge rejected the plea bargain agreement and excused the parties.

            •    January 26, 1993: A written plea agreement, signed by Kocman and the State, was approved by the judge and filed; it recommended ten years in prison, probated. A sentencing hearing was held during which the judge again received Kocman’s plea of guilty and administered the required admonishments, including the fact that Kocman could withdraw his plea if the judge did not follow the plea bargain. The judge again referred to the “Plea of Guilty, Waiver, Stipulation and Judicial Confession” previously signed by Kocman. The judge struck through the date “November 11, 1992" beside the judge’s signature and wrote in “January 26, 1993.” The judge said: “[T]he Court having heard your testimony and the evidence finds that you are guilty of the offense of delivery of a controlled substance, marijuana as charged . . . . Accordingly, I’m going to assess your punishment at ten years confinement . . . . However, I will suspend that penitentiary time, and you will be placed on probation for a period of ten years.”

            •    July 26, 2001: The State filed a Motion to Revoke Community Supervision.

            •    January 7, 2002: Kocman filed a Motion to Quash State’s Motion to Revoke Probation claiming, inter alia, a violation of his right against double jeopardy. He asserted that when the judge found him guilty at the November 11, 1992, hearing, jeopardy attached, making the adjudication at the January 26, 1993, hearing a violation of double jeopardy.

            •    February 28, 2002: At a hearing, the judge heard arguments about the motion to quash, after which he denied the motion. The judge then heard evidence about the grounds for revocation, after which he orally revoked Kocman’s community supervision.

            •    March 14, 2002: The judge signed both an order and a judgment revoking Kocman’s community supervision and sentencing him to eight years in prison.

Double Jeopardy

      Kocman’s argument is that the order and judgment revoking his probation are void, because the proceedings on January 26, 1993, violated the proscription against double jeopardy. He says jeopardy attached on November 11, 1992, when the trial court first accepted his guilty plea and found him guilty. U.S. Const. amend. V; Tex. Const. art. I, § 14. The State argues, however, that the rule in Ortiz v. State applies, i.e., that in a negotiated-plea case, jeopardy attaches only when the trial court accepts the plea-bargain agreement. Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996). The State also says Kocman did not make this or any other complaint in 1993, and a complaint of double jeopardy is ordinarily forfeited if not timely raised. Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000); Tex. R. App. P. 33.1.

      We will not decide when jeopardy attached or whether Kocman waived his double jeopardy complaint. Rather, we will assume without deciding that jeopardy attached at the November hearing and that the complaint was properly preserved and raised. Kocman’s complaint fails for another reason.

      There must be a jeopardy-terminating event after jeopardy attaches. Ex parte Queen, 877 S.W.2d 752, 754 (Tex. Crim. App. 1994); Ramirez v. State, 36 S.W.3d 660, 666 (Tex. App.—Waco 2001, pet. ref’d). “Absent a final judgment, [a criminal defendant] remains under the initial jeopardy.” Ex parte McAfee, 761 S.W.2d 771, 773 (Tex. Crim. App. 1988); see also Ramirez, 36 S.W.3d at 666. If jeopardy attached at the November hearing, it did not terminate until the judgment after the January hearing. Therefore, Kocman was not subjected to double jeopardy.

      We overrule this complaint.

Cruel and Unusual Punishment

      When Kocman was convicted in 1993, delivery of marihuana in the amount of four ounces or less but more than one-fourth ounce was a third-degree felony. Tex. Health & Safety Code Ann. § 481.120(b)(3) (Vernon 1989). By 2002, when he was sentenced to eight years in prison, the statute had been amended to make delivery of five pounds or less of marihuana but more than one-fourth ounce a state jail felony. Id. (Vernon Supp. 2002). Kocman argues that sentencing him to more than two years—the state-jail-felony maximum punishment—is cruel and unusual punishment. U.S. Const. amend. VIII; Tex. Const. art. I, § 13.

      We addressed this issue in Ali v. State, 26 S.W.3d 82 (Tex. App.—Waco 2000, no pet.). Ali was convicted of possession of a forged driver’s license, a felony. Id. at 89. Subsequently, the Legislature amended the statute and made the offense a Class C misdemeanor. Id. Ali argued that he should be sentenced according to the misdemeanor. Id. We overruled his complaint because “he was tried and sentenced in the same manner as all criminal defendants who committed similar offenses prior to . . . the effective date of the revised statute.” Id. For the same reason we overrule Kocman’s complaint.

Conclusion

      Having overruled Kocman’s complaints, we affirm the judgment.

                                                                   BILL VANCE

                                                                   Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Chief Justice Gray concurring)

Affirmed

Opinion delivered and filed March 17, 2004

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