Franklin, Juan Romelle v. State ( 2002 )

In The

Court of Appeals

For The

First District of Texas

_______________

NO. 01-01-00270-CR

NO. 01-01-00271-CR

_______________

JUAN ROMELLE FRANKLIN, Appellant  

V.

THE STATE OF TEXAS, Appellee  

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause Nos. 770082, 768668

O P I N I O N

Appellant challenges the orders revoking community supervision in case numbers 768668 and 77082. We affirm.

In case number 768668, on November 17, 1997, the State charged that on April 29, 1996, appellant stole an automobile valued at more than $20,000 and less than $100,000. In case number 770082, on December 5, 1997, the State charged that, on June 20, 1997, appellant stole a drum machine valued at more than $1,500 and less than $20,000. In case number 768668, on December 1, 1997, pursuant to a plea agreement, the court assessed appellant's punishment at 10 years community supervision, including various terms and conditions. In case number 770082, on December 8, 1997, pursuant to a plea agreement, the court assessed appellant's punishment at confinement in a state jail for two years, probated for five years, and subject to other terms and conditions.

On January 26, 2001, the State filed its second amended motions to revoke community supervision in both cases. In both cases, the motions to revoke, among other things, alleged appellant violated the first condition of his community supervision--not to violate state law-- by (1) forging a $400 check on June 18, 1999, in Montgomery County, (2) causing bodily injury to a police officer on June 14, 2000, in Harris County, (3) fleeing from a police officer on June 14, 2000, in Harris County, (4) stealing a computer valued between $1,500 and $20,000, on June 14, 2000, (5) giving a fictitious name to a police officer on June 14, 2000 in Harris County, (6) obstructing a police officer from arresting him on June 14, 2000, and (7) carrying a handgun on June 14, 2000 in Harris County. The motions also alleged appellant technically violated conditions of his community supervision by not paying restitution as ordered and not paying the victim's compensation fund as ordered. In both cases, on February 8, 2001, appellant entered into stipulations of evidence in which he stated: "it is true that I violated the terms and conditions of probation stated in the attached State's Motion."   

The day appellant made the stipulations, the trial court held a sentencing hearing, and had the following exchange with appellant:

Court: Sir, are the allegations in the motion to revoke true or not true, sir?

Appellant: Some of them are true ma'am.

Court: Which of those allegations are true?

Appellant: Well, the evading arrest is true. And carrying a gun. And not paying my fine.

Court: Are you pleading true to those allegations, sir, because the allegations are true and for no other reason?

Appellant: Yes ma'am.

Later, the court informed appellant that the State was about to introduce State's Exhibit 1(appellant's stipulations) and asked him if he realized it says that he admits he violated his probation, to which he responded, "Yes, ma'am." The court admitted the stipulations.

Later, when the court asked if there was any other evidence, appellant's counsel responded that appellant wanted to make a statement to the court concerning reinstatement of his community supervision. Appellant explained to the court that the reason he stopped reporting to his probation officer was that he had a motor cycle accident; that at the time of the accident, his wallet was stolen. After he had recovered from the accident and his motorcycle had been repaired, he was stopped in Harris County on a traffic violation, at which time he was jailed on a warrant for a theft in Montgomery County. After the Montgomery County authorities transferred appellant to a Montgomery County jail, and he informed the Montgomery County magistrate of the theft of his wallet containing his identification, the magistrate released him on a personal recognizance bond. At his next appearance before the Montgomery County court, three people who had stolen his wallet and used his identification were in custody. The Montgomery County court dismissed the case against him. However, meanwhile, the Montgomery County incident had caused Harris County authorities to issue a warrant for appellant's arrest for violation of the conditions of his community supervision. So when he was again stopped by a Houston police officer, he drove away because he had already been in jail once in Montgomery County for the unfounded charge. The allegations of aggravated assault on a Houston peace officer were false. He left the stop scene without hurting the peace officer.

The State adduced no evidence to contradict appellant's testimony. However, on cross-examination, the prosecutor got appellant to acknowledge that, at the very least, appellant had given a peace officer a false name, he had possessed a gun, and he had run from a peace officer, three law violations of his community supervision. In closing argument, appellant's counsel indicated that a jury had convicted appellant of evading arrest for which the court had sentenced him, but that appellant had not been found guilty of the charge of aggravated assault of a peace officer.

At the conclusion of the hearing, the court stated: "on your pleas of true and after hearing the evidence I will find the allegations in the State's motion to revoke probation to be true." The trial court did not specify which allegations in the State's motion to revoke community supervision it found true. It revoked appellant's community supervision in each case. In case number 770082, it assessed appellant's punishment at two years confinement in the state jail and a $10,000 fine. In case number 768668, it assessed appellant's punishment at 10 years confinement in the penitentiary and a $10,000 fine. The court cumulated the sentences, announcing that appellant would serve his time in state jail first and then in the penitentiary.

In each case, the court entered an order on February 8, 2001, revoking appellant's community supervision. To each revocation order the court attached an addendum, stating that on February 8, 2001, the court sentenced appellant in cause numbers 768668, 770082, and 865187 ⁽¹⁾ (for evading arrest for one year of confinement in the Harris County jail). The orders specify that appellant is to begin serving the sentence in cause number 770082 when the sentence in cause number 865187 ceases to operate, and serving the sentence in cause number 768668 when the sentence in cause number 770082 ceases to operate.

On February 14, 2001, the court signed a second addendum to the judgment that changed the sequence in which the sentences were to be served so that appellant is to begin serving the sentence in cause number 768668 (10 years confinement in the penitentiary) after serving the sentence in cause number 865187 (one year in Harris County jail), and serving the sentence in cause number 770082 (two years in the state jail) after serving the sentence in cause number 768668.

The order in case number 768668 also stated the court's finding that appellant violated the conditions of his community supervision in that:

He committed the offense of forgery June 18, 1999 in Montgomery County Tx. aggravated assault on a peace officer on June 14, 2000 Harris County, Tx. Evaded arrest, theft, gave false information to a peace officer. failed to report, failed to perform community service hours, failed to pay [supervisory?] [sic]] fees, court cost, attorney fees, restitution, and victim compensation fund.

In case number 770082, the order stated the court's finding that appellant violated the conditions of his community supervision in that:

He committed the offense of aggravated assault of peace officer on 6-14-2000, in Harris County, Tx., evaded arrest on 6-14-00, committed the offense of theft 6-14-00, gave false information to a peace officer. Carry a handgun on 6-14-00, failed to report to his probation officer, failed to perform community service hours, failed to pay attorney fees, restitution, victim compensation fund.

Counsel has filed briefs stating her opinion that the appeals are frivolous. Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant has filed a pro se response to the Anders brief.

Propriety of Revocation Findings

Despite having characterized appellant's appeals as frivolous, in her briefs, appellant's counsel notes:

From uncontradicted statements at the hearing, it appears that Appellant had been acquitted in a jury trial of the offense of aggravated assault on a peace officer, being convicted only of evading arrest in that trial (the allegation to which he pleaded true) and that a different person had stolen his wallet and committed the forgery offense in Montgomery County. There was no evidence to support a finding that he had committed theft of a computer on June 14, 2000, and there was no discussion of any alleged theft on that date.

Counsel then requests this Court, under the authority of Texas Rules of Appellate Procedure 43.2(b) and Smith v. State, 790 S.W.2d 366 (Tex. App.--Houston [1st Dist.] 1990, pet ref'd), to correct the order revoking community supervision to delete the references to the 6/14/00 theft offense and offense of aggravated assault on a peace officer in case number 770082, and to delete the Montgomery County forgery offense and Harris County offense of aggravated assault on a peace officer findings in case number 768668.

We decline this invitation to reform the judgment. Appellant conceded that the allegations that appellant carried a handgun and obstructed a police officer from arresting him were true. The trial court having found these allegations to be true, it is not necessary to address appellant's contentions that other findings are erroneous. See Moore v. State, 11 S.W.3d 495, 501 (Tex. App.--Houston [14th Dist.] 2000, no pet.).

Propriety of Sentence Cumulation Orders

In the Anders brief, appellant's counsel initially suggests that by changing the order in which the sentences are to be served, the trial court may have improperly increased the probability that appellant will be incarcerated for a longer period of time by virtue of the way the Texas Board of Pardons and Paroles administers its parole policy regarding cumulated sentences. In his pro se response, appellant asserts that the trial court unlawfully changed the order in which the sentences are to be served to increase the time he would serve in case number 768668.

Although he does not explicitly say so, appellant's contention that his sentences were unlawfully cumulated undoubtedly is based on article 42.08 of the Texas Code of Criminal Procedure, which provides that when a defendant has been convicted in two or more cases, at the discretion of the trial court, "the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases . . . ." Tex. Code Crim. P. Ann. art. 42.08 (Vernon Supp. 2002) (emphasis added). Here, by implication appellant is asserting that the court is violating art. 42.08 by stacking a subsequent conviction (of theft, on December 8, 1997 in case number 770082, two years confinement) on a preceding conviction (of theft on December 1, 1997, in case number 768668, 10 years confinement).

Appellant's counsel asserts that because appellant will have the two-year sentence to serve after the 10-year sentence, under the way the Texas Board of Pardons and Paroles administers its parole policy, it will make appellant serve more of the 10-year sentence before giving appellant parole than it would if appellant would be going to the penitentiary without a two-year sentence to serve afterward.

However, as appellant's counsel acknowledges, the Court of Criminal Appeals has held such a cumulation order does not violate article 42.08. See Pettigrew v. State, 48 S.W.3d 769, 773 (Tex. Crim. App. 2001), and there is nothing in the records of these cases about the parole board's policy for granting parole in cases in which the sentences have been cumulated.

Accordingly, we agree with appellant's counsel's ultimate conclusion on this matter that an assertion that the trial court erred in the way it cumulated appellant's sentences would be frivolous.

Effectiveness of Appellate Assistance of Counsel

In his pro se response, appellant complains that his court-appointed appellate counsel only had a very short verbal contact with him, without getting any information from him to help his case. Appellant also complains that appellate counsel withdrew from his appeals without informing him that she was doing so.

Appellant does not affirmatively demonstrate that his appellate counsel's representation is deficient or prejudicial. See Williams v. State, 946 S.W.2d 886, 904 (Tex. App.--Waco 1997, no pet.) (citing McFarlane v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). On the contrary, we are impressed with the thoroughness of appellant's counsel's briefs and examination of the records. Regarding appellate counsel's motions to withdraw from appellant's appeals, appellate counsel has followed the procedure prescribed in Anders for withdrawal from appeals in which appellate counsel, after a thorough examination of the case, has concluded the appeal would be wholly frivolous. See Anders, 87 S. Ct. at 1400. Additionally, we note that although appellant's counsel has moved this Court for withdrawal from appellant's appeal, that motion has not been granted until the issuance of this opinion. Appellant's complaints regarding the effectiveness of assistance of his appellate counsel are without merit.

Double Jeopardy

In his pro se response, appellant also cites to us cases dealing with the issue of whether the double jeopardy bar applies to the proof of enhancement paragraphs. ⁽²⁾ Because none of appellant's cases involved enhancement paragraphs, these cases are inapplicable.

Necessity of Motion to Cumulate Sentences

Appellant complains that the trial court cumulated appellant's sentences without a State's written motion to cumulate sentences being on file. The legislature has given trial judges the discretion to cumulate the sentences for two or more convictions with or without a motion from the State. Medina v. State, 7 S.W.3d 876, 880 (Tex. App.--Houston [1st Dist.] 1999, no pet.). Accordingly, this complaint is without merit.

Admonishments

Without asserting how it affects the presumed regularity of the trial court's orders revoking his community supervision, appellant cites to us portions of article 26.13 of the Texas Code of Criminal Procedure, dealing with the admonishments that the trial court is required to give a defendant before he or she pleads guilty. We decline to speculate in what way this is germane to appellant's appeals.

Peace Officer Testimony and Plea Agreement

Appellant complains that a peace officer was permitted to testify at his sentencing hearing despite the fact that the charge against him for aggravated assault of a peace officer was dismissed. Appellant also complains that at his sentencing hearing, there was mention of his attempting to make a plea bargain in the case against him for aggravated assault of a peace officer. We have examined the three volumes of reporter's records filed with these appeals, and could find no testimony given by a peace officer or mention of a plea agreement. These complaints are without merit.

Independent Record Review

We have independently reviewed the record and find no arguable grounds for appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

Conclusion

We affirm the judgment.

We grant appellant's motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.--Houston [1st Dist.] 2000, no pet.). Counsel still has a duty to inform appellant of the result of this appeal and also to inform appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).  

Adele Hedges

Justice

Panel consists of Justices Mirabal, Hedges, and Jennings.

Do not publish. Tex. R. App. P. 47.

1. A third case in which appellant has been convicted, but which is not part of these appeals.

2.

Monge v. California, 118 S. Ct. 2246 (1998); Ex parte Stuart, 653 S.W.2d 13 (Tex. Crim. App. 1983); Cooper v. State, 631 S.W.2d 508 ( Tex. Crim. App. 1982).