Richard Allen Nichols v. State ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-06-261 CR NO. 09-06-262 CR NO. 09-06-263 CR NO. 09-06-264 CR ______________________ RICHARD ALLEN NICHOLS, Appellant

V.

STATE OF TEXAS, Appellee

---

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause Nos. 87676, 87677, 89944, 90152

---

  MEMORANDUM OPINION

   Pursuant to plea bargains, Richard Allen Nichols pled "no contest" to four offenses: two felony thefts and two forgeries. In each case, the trial court deferred adjudication and placed him on community supervision. When the State filed motions to revoke unadjudicated probation, Nichols pled true to community supervision violations. In each case, the trial court adjudicated his guilt and sentenced him to two years in a state jail facility. The trial judge ordered the sentences in trial cause numbers 87676, 87677, and 89944 to run consecutively, and the sentence in number 90152 to run concurrently with that in cause number 89944. Nichols appeals.

Nichols argues the cumulation orders render the sentences void, and the sentences must run concurrently. The trial court has discretion to order sentences to run consecutively or concurrently. Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon 2006). Section 3.03 of the Penal Code limits the trial court's discretion: "When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b) [not applicable here], the sentences shall run concurrently." Tex. Pen. Code Ann. § 3.03 (Vernon Supp. 2006).

The phrase "prosecuted in a single criminal action" is not defined in the Penal Code. In LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992), the Court of Criminal Appeals held that "a defendant is prosecuted in a 'single criminal action' whenever allegations and evidence of more than one offense arising out of the same criminal episode . . . are presented in a single trial or plea proceeding, whether pursuant to one charging instrument or several, and the provisions of Section 3.03 then apply." Here, the offenses were not prosecuted in a single criminal action and section 3.03 does not apply. At the guilty plea hearing, the hearing deferring adjudication of guilt, the revocation hearing, ⁽¹⁾ and the sentencing hearing following adjudication of guilt, the trial court called each case separately and dealt with each one individually prior to calling the next case. The cases were not consolidated, and the proceedings cannot be characterized as being "prosecuted in a single criminal action" under section 3.03. See Ex parte Pharr, 897 S.W.2d 795, 796 (Tex. Crim. App. 1995); see also Robbins v. State, 914 S.W.2d 582, 583-84 (Tex. Crim. App. 1996). Under article 42.08, the trial court had discretion to order concurrent or consecutive sentences. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon 2006). The trial court did not err in ordering the sentences to run consecutively. We overrule issue one.

Nichols contends his no contest pleas were involuntary because the trial court breached the plea bargains. He argues he is entitled to withdrawal of his no contest plea. The written plea bargain providing for deferred adjudication and community supervision was silent regarding the issue of concurrent or consecutive sentences. At the conclusion of the plea hearing, the following exchange occurred between trial counsel and the trial judge:

[Trial Counsel]: Judge, it's my understanding, before we leave this, that these four cases will run concurrent?

[Trial Judge]: Yes, sir. Have a good day.

Nichols argues there is a contradiction between the trial judge's statement at the conclusion of the plea hearing and his pronouncement of sentences following the adjudication of guilt: in the former he indicated "concurrent" and in the latter "consecutive." Nichols relies on Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), which states as follows: "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." A defendant has a right to have the State honor a plea bargain after the judge has accepted the plea bargain in open court. Bitterman v. State, 180 S.W.3d 139, 141 (Tex. Crim. App. 2005).

The trial judge's statement is not a "promise" to sentence appellant concurrently upon revocation as a part of a plea bargain or otherwise. Nothing in the record indicates that Nichols pled no contest under a false premise, that the State did not live up to its part of the plea bargain, that the plea bargains for deferred adjudication in the four cases were not followed, or that the deferred adjudication community supervision orders did not run concurrently.

After Nichols violated his community supervision order, the trial court had no further duty to comply with the original plea bargain, since the agreement was satisfied by the trial judge's deferring adjudication and placing Nichols on community supervision. See Ex parte Huskins, 176 S.W.3d 818, 819 (Tex. Crim. App. 2005). Once the trial court proceeds to adjudication, the trial judge is restricted in the sentence he imposes only by the relevant statutory limits. Id. (citing Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999)). Issues two and three are overruled.

In a supplemental brief, Nichols asserts the cumulation order is void, because a cumulation order may not be entered once the defendant has begun to serve his sentence. He appears to argue that the sentence in each cause number began when, at the hearing deferring the adjudication of guilt, the trial court in cause number 87676 ordered him to spend 180 days in the state jail. ⁽²⁾ Article 42.12, section 15(d) permits a trial judge to require as a condition of community supervision that the defendant submit to a period of confinement, not to exceed 180 days, in a state jail felony facility at the beginning of the community supervision period. See Tex. Code Crim. Proc. Ann. art. 42.12, § 15(d) (Vernon 2006). Sections 5(a) and 15(d) of the Code of Criminal Procedure authorize such "upfront time." See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 5(a), 15(d) (Vernon 2006). The 180-day order in cause number 87676 occurred prior to adjudication of guilt; it was part of deferred adjudication community supervision and not part of the sentence. See Donovan v. State, 68 S.W.3d 633, 636 (Tex. Crim. App. 2002) (Order deferring adjudication is not a conviction or a sentence.). Nichols' sentence did not begin when the trial court ordered the 180-day upfront time in cause number 87676.

Nichols also argues he should be given credit on his sentence for the 180-day "upfront" period. He relies on section 15(h)(3) of article 42.12, which provides that a judge "shall credit against any time a defendant is subsequently required to serve in a state jail felony facility after revocation of community supervision any time served by the defendant in a state jail felony facility after sentencing." Tex. Code Crim. Proc. Ann. Art. 42.12, § 15(h)(3) (Vernon 2006). The 180-day order in cause number 87676 occurred prior to sentencing, and the time was not part of Nichols' sentence. There is no merit to Nichols' complaints in his supplemental brief.

The judgments in trial cause numbers 87676, 87677, 89944, 90152 are affirmed.

AFFIRMED.

____________________________

DAVID GAULTNEY

Justice

Submitted on February 15, 2007

Opinion Delivered April 18, 2007

Do Not Publish

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

1. At the motion-to-adjudicate-guilt hearing, the trial judge first called trial cause number 87676 and asked if defendant waived the formal reading. Nichols waived it. The court then described what had occurred in that cause number at two earlier hearings: previously, the court had found the evidence sufficient to find Nichols guilty, deferred adjudication of guilt, and placed him on community supervision for two years. Following that recitation, the trial judge then stated the community supervision violation alleged to have been violated by Nichols and asked Nichols if the allegation was true or not true. Nichols responded "true." The trial judge then called the other three cases one-by-one and went through the same procedure with each one: the trial judge stated the alleged violation, the defendant pled "true," and the court then moved on to the next case. At the conclusion of the adjudication hearing, the trial judge stated, "I'll accept your pleas of true in all four cases, reset you for sentencing on June 12th. I'm going to get an updated report. Anything you want me to know good about you, make sure you get that to [your attorney.]. Have a good day." The trial court did not "accept" the pleas of true individually and separately. However, the record reveals that in all other respects, at this hearing and at the other three hearings, the trial court called each case individually and treated each case separately. This is not the intertwining treatment of cases described by this Court in Polanco v. State, 914 S.W.2d 269, 271-72 (Tex. App.--Beaumont 1996, pet. ref'd). We do not find this one variation at the conclusion of the hearing on the motion to revoke sufficient to conclude defendant was tried in a single criminal action.

2. Apparently, Nichols was also ordered, as a result of an administrative proceeding, to serve 180 days "upfront" time in cause number 87677. The record indicates he was given credit for this time.