Devin Dasean Simmons v. State ( 2015 )

ACCEPTED
03-14-00707-CR
5683130
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/15/2015 4:18:27 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00707-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
TEXAS AT AUSTIN, TEXAS 6/15/2015 4:18:27 PM
JEFFREY D. KYLE
******** Clerk
DEVIN DESEAN SIMMONS
VS.
THE STATE OF TEXAS
********
ON APPEAL FROM THE 264th DISTRICT COURT
OF BELL COUNTY, TEXAS
Cause No. 71988
******
STATE'S BRIEF
******
HENRY GARZA
DISTRICT ATTORNEY
BOBD.ODOM
ASSISTANT DISTRICT ATTORNEY
P.O. Box 540
Belton, Tx 7 6513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
Oral Argument Not Requested
1
TABLE OF CONTENTS
ITEM PAGE
Index of Authorities ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... 4
Statement Regarding Oral Argument .. .. .. .. .. .. .. .... .. .. .. .. .. .. .. .. .. ...... ...... 7
Statement of the Case ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... 7
Statement of Facts ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 8
Summary of State's Argument .... .. .. .. .. .. .... .. .. .. .. .. .. .. .. .. .. .. .. ...... .. .. .. .. ... 13
Argument and Authorities ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ..... 14
First Issue ... .. . .. . .. .... .. .... ... .. .... .. . .. . .. . .. ... . .. .... ... .. .... .. ... . .. .... ... .. . .. . 14
PLEAS TO ENHANCEMENTS INVOLUNTARY
AS NOT KNOWINGLY ENTERED?
Facts ............................................................................... 15
Analysis and Application .............................................. 16
Harm.............................................................................. 17
Second Issue ... .. . .. .... .. . .. . .. . .. . .. ... . .. . .. . .. .... ... .. . .. . .. . .. .... .. . .. ... . .. ... . 19
EVIDENCE SUFFICIENT TO PROVE PRIOR
CONVICTIONS FINAL?
Facts .............................................................................. 20
Analysis and Application ...... ...... ...... ...... ...... ...... ...... ... 21
Third Issue ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 24
PUNISHMENT CRUEL AND UNUSUAL AS
DISPROPORTIONATE TO THE CRIME?
2
Preservation of Error .. .. .. .. .. .. .. .... ... .. .... .. ....... ... ... .. .. .. .. ... 25
Analysis and Application ............................................... 25
Fourth Issue .............................................................................. 28
TRIAL COURT ERR IN ALLOWING CO-
DEFENDANT TO ASSERT PRIVILEGE
AGAINST SELF-INCRIMINATION?
Facts ................................................................................ 29
Preservation of Error ...... ...... ...... ...... ...... ...... ...... ...... .... 31
Analysis and Application .. .. .. .. .. .. .. .. .. .... .. .. .. .. .... .. .. .. .. .. .. 33
Prayer................................................................................................. 39
Certificate of Compliance with Rule 9 ............................................. 39
Certificate of Service .. ... ... ... ... ... ... ... ... .... .. ... ... .... .. .... ... .. .... .. ... ... ... ..... 40
3
INDEX OF AUTHORITIES
CASES PAGE
Burnett v. State, 88 S.W.3d 633 ........................................................... 19
(Tx. Cr. App. 2002)
Castaneda v. State, 135 S.W.3d 719 ................................................... 25
(Tx. App. Dallas 5th Dist. 2003, no pet.)
Chennaultv. State, 667 S.W.2d 229 ................................................... 31,34
(Tx. App. Dallas 5th Dist. 1984, rev. ref.)
Davis v. State, 501 S.W.2d 629 ........................................................... 34
(Tx. Cr. App. 1973)
Davison v. State, 405 S.W.3d 682 ....................................................... 18-19
(Tx. Cr. App. 2013)
Ellis v. State, 683 S.W.2d 379 .............................................................. 32
(Tx. Cr. App. 1984)
German v. State, No. 03-03-00180-CR, 2003 Tex .............................. 33-34
App. LEXIS 7908 (Tx. App. Austin 3rct Dist. 2003 no
pet.), not designated for publication
Gilmore v. State, No. 03-10-00740-CR, 2011 Tex............................. 25
App. LEXIS 6518 (Tx. App. Austin 3rct Dist. 2011 no
pet.), not designated for publication
Grayson v. State, 684 S.W.2d 691 .................................................. 33, 35-36
(Tx. Cr. App. 1984)
Harmelin v. Michigan, 501 U.S. 957 (1991) ....................................... 25
Harveyv. State, 611 S.W.2d 108 ......................................................... 17, 21
(Tx. Cr. App. 1981)
4
Holland v. State, 802 S.W.2d 696 ......................................................... 32
(Tx. Cr. App. 1991)
Howard v. State, 429 S.W.2d 155 ........................................................ 23-24
(Tx. Cr. App. 1968)
Lopez v. State, No. 03-06-00086-CR, 2008 Tex. ................................ 25
App. LEXIS 9700 (Tx. App. Austin 3rct Dist. 2008
rev. ref.), not designated for publication
Malloy v. Hogan, 378 U.S. 1 (1964) ..................................................... 36
Mitchell v. State, 238 S.W.3d 405 ........................................................ 32
(Tx. App. Houston 1st Dist. 2006 rev. ref.)
Moore v. State, 54 S.W.3d 529 ............................................................ 26
(Tx. App. Ft. Worth znct Dist. 2001 rev. ref)
Nabors v. State, No. 12-00-00371-CR, 2002 Tex. .............................. 23
App. LEXIS 4506 (Tx. App. Tyler 12th Dist. 2002, rev.
ref.), not designated for publication
Ex Parte Rich, 194 S.W.3d 508 ......... ...... ... ... ..................... ............ ...... 21
(Tx. Cr. App. 2006)
Samuel v. State, 477 S.W.2d 611 ........................................................ 25
(Tx. Cr. App. 1972)
Taylor v. State, No. 03-14-00300-CR ................................................. 34
(Tx. App 3rct Dist), pending
OTHER
United States Constitution
Fifth Amendment..................................................................... 28-38
5
Texas Penal Code
Section 12.32 ........................................................................... 26
Section 12.35(a) ...................................................................... 21
Section 12.42(d) .................................................................. 7, 21, 26
Section 29.03 ........................................................................... 26
Texas Code of Criminal Procedure
Article 1.15 .............................................................................. 24
Article 26.13(a)(1) .................................................................. 16
Texas Rules of Evidence
Rule 801(d) .............................................................................. 37
Rule 802 .................................................................................... 37
Texas Rules ofAppellate Procedure
Rule 33.1 ................................................................................... 31
Rule 44.2(b) .............................................................................. 18
6
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
The Appellant, Devin Desean Simmons, was charged by
indictment with the offense of Aggravated Robbery, individually and as
a party with Gini Lee Taylor. The indictment alleged that, while in the
course of committing theft of property, and with intent to maintain
control of that property, he intentionally, knowingly, or recklessly
caused bodily injury to Robert Patrick by shooting him with a firearm, a
deadly weapon. (CR-5).
The indictment also contained two additional paragraphs alleging
that the Appellant had been twice before finally convicted of felony
offenses for the purposes of enhancement of sentence as provided in
Section 12.42(d) of the Texas Penal Code.
The Appellant was tried before a jury in the 264th District Court of
Bell County, Texas, Judge Martha J. Trudo presiding, upon his plea of not
guilty (RR4-6). He was found guilty by the jury. (CR-99; RRS-94).
Upon the Appellant's election (CR-86) the trial court, without a
jury, considered the issue of punishment. The Appellant entered pleas
7
of true to the second and third paragraphs of the indictment alleging the
prior felony convictions. (RRS-96, 97; RR6-6). At the conclusion of the
evidence on sentencing the trial court found the enhancement
allegations in the indictment to be true and assessed punishment at 45
years in the Texas Department of Criminal Justice Institutional Division.
(RR6-46).
The Appellant gave timely notice of appeal (CR-113, 122) and the
trial court certified his right to do so. (CR-115).
STATEMENT OF FACTS
Retired Army CW02 Robert Patrick went to a strip club where he
met one of the dancers, Gini Lee Taylor, who introduced herself to him
by her professional name of "Candy". (RR4-15, 16, 19, 20). Candy asked
him if he was ready to spend some money and danced for him and
received a tip. (RR4-20). She struck up a conversation with Patrick and
told him that she was not making any money that night and mentioned
her children. (RR4-21).
Patrick left, but returned to the club parking lot at closing time
hoping to take another dancer to breakfast. Instead he again met Candy,
who asked for a ride home. (RR4-21, 22). She went back inside and
8
Patrick noticed a white or gray Chrysler sitting in the parking lot with
its motor running. When Candy came back out she stopped by the
Chrysler and then ran to his car and got in. (RR4-22, 23).
As they drove, Candy started talking about needing to make some
money and said that she needed $200.00. He told her that he had no
money. (RR4-23). Candy then asked him if he had a weapon in the car,
and, when he asked why she needed to know that, she claimed she had a
felony and would be in trouble if they got stopped. (RR4-23, 24).
She also asked him to stop at a convenience store for cigarettes.
He left her in the car with his cell phone because she said she needed to
call and make sure she could get into her apartment. He went inside
and got the cigarettes and an additional $100.00. (RR4-24).
When they arrived at her apartment, Patrick noticed that her front
door was ajar. He also noticed that a car was sitting in the parking lot
that looked just like the one at the club. (RR4-24, 25).
Candy went inside and Patrick was just ready to pull out of the
parking lot when he realized she still had his cell phone. He left his
money in his car (RR4-52) and went inside. She told him his phone was
on the couch as she walked out of his sight toward the back of the
residence. (RR4-26, 27).
9
Candy came back and said "come on, let's go" but he repeated that
he had no money. She asked him to come with her because she had
something to show him. (RR4-27).
As Mr. Patrick approached the threshold of the bedroom the
Appellant came out with a pistol in his hand and told him that he might
be going to die. The Appellant then hit Patrick in the head with the
pistol, stunning him and drawing blood. (RR4-28). The Appellant said
"you thought you were going to fuck tonight, but you are going to die".
(RR4-29).
The Appellant demanded that Patrick take everything out of his
pockets and he did so. He had $68.00 on his person. They had him
throw his wallet, keys, cell phone and money on the floor and asked him
where the rest of it was. He said that he had no more, but the Appellant
accused him of having it in his car and said they were going to get it.
(RR4-30).
As Mr. Patrick stepped from the room, the Appellant fired a shot
with the weapon and Patrick grabbed his hand and they began to
struggle for the weapon. (RR4-31). During the struggle, the Appellant
screamed at Candy to "hit the fucker". (RR4-31). She hit him with
something and dazed him, but he did not let go of the Appellant's arm.
10
Candy then took the gun from the Appellant's hand. (RR4-31).
The Appellant repeatedly yelled to her to put the gun to Patrick's head
so that she would not miss (RR4-32). Patrick stopped the struggle and
raised his hands. They had him sit on the couch. (RR4-32).
The Appellant said that they were going to be done now and that
he was going outside to get the "chopper", which Patrick took to be
another weapon of some kind. The Appellant told Candy to keep the
gun close to Patrick's head. (RR4-32).
Realizing it was his last chance, when the Appellant went outside
Mr. Patrick ran toward the bed room. Candy shot him; however, he
made it into the room and locked the door. (RR4-32, 52). He went to the
window but was unable to open it so he broke it and managed to crawl
out, cutting himself on the glass. (RR4-32). He crawled into some
shrubbery to hide and later managed to crawl to a nearby residence for
help. (RR4-33, 34).
Robert Patrick was taken to the hospital where he was found to
have a shattered hip bone from the gunshot that required repeated
reconstructive surgeries as well as a deep wound to his right arm from
the glass. He also had to have staples to close the head wound suffered
from the first blow. (RR4-34).
11
When the Harker Heights Police first went to the scene, believing
it to be a domestic disturbance, they saw Gini Lee "Candy" Taylor
parking the automobile belonging to Robert Patrick. Candy and the
Appellant then got into the Chrysler and left. (RR4-60, 61, 62, 64).
Officers subsequently served a search warrant on the apartment
and found a spent shell casing, a bullet hole in the wall of the back
bedroom, a bullet in the bathroom where it had gone through the wall,
and blood on the kitchen counter, bedroom door and wall, on the
venetian blinds, and noticed a broken window in the bedroom. They
also found a quantity of ammunition of the same caliber as the spent
shell. (RRS-9, 10). The bullet that struck Patrick was lodged in his body.
(RRS-16).
At trial the Appellant testified and claimed that he had returned
home to find Patrick in a compromising positon with his wife, Ginni Lee
Taylor, and they had fought. He said that Patrick had pulled the gun and
it went off during the fight (RRS-39, 40, 41). He denied pistol whipping
or hitting Patrick and said that when Candy picked up the gun he told
her not to shoot him but she did when he took off. (RRS-43, 44). He said
the live ammunition of the same caliber as that used to shoot the victim
that was found in the house belonged to his wife. (RRS-62).
12
SUMMARY OF STATE'S ARGUMENT
The trial court was not required to admonish the Appellant prior
to accepting his pleas of true to the enhancement allegations in the
indictment, however, the court did so twice and the Appellant assured
the court that his pleas were freely and voluntarily entered and that he
was pleading true because that which was alleged in the indictment was
true. The record clearly shows that the Appellant was fully aware of the
effect of the enhancements on the range of punishment in that the trial
court so advised him. He failed to object or raise the issue before the
court.
The Appellant's pleas of true relieve the State of its burden to
prove that the prior convictions alleged were final convictions. The
indictment so alleged and the Appellant admitted the truth of those
allegations. The Appellant testified that the prior convictions occurred
in the sequence alleged in the indictment.
The punishment assessed was well within the statutory range as
enhanced. The Appellant did not object or question the sentence when
it was assessed and nothing is presented for review. The sentence, in
the middle of the statutory range, was not disproportionate to the very
13
violent and premeditated crime and in light of the fact that this was the
Appellant's third felony conviction.
The Appellant called the co-defendant outside the presence of the
jury fully aware that she would assert her privilege against self-
incrimination. She consistently invoked the privilege. The Appellant
did not object nor request that the trial court compel her to testify nor
did he contest her right to do so. Her case was pending appeal and, thus,
not final and she still was entitled to the privilege. Nothing is presented
for review. Her single answer of "yes" when asked if she had sent letters
to the Appellant did not implicate her in the offense and could not have
had any confusing effect upon the jury as fact finder because the jury
never heard it. Nothing in the record remotely indicates that she should
have known she was waiving her rights by simply admitting the sending
of letters.
ARGUMENT AND AUTHORITIES
First Issue on Appeal
Were the Appellant's pleas of "true" to the enhancement
allegations of the indictment involuntary because they were not
knowingly and intelligently entered?
14
Facts
Based upon the Appellant's election to have his punishment
assessed by the trial court (CR-86), after the jury had returned its
verdict of guilty the trial court received his pleas to the allegations in the
second and third paragraphs of the indictment alleging two prior final
felony convictions in proper sequence for enhancement of the sentence
to 25 years to life.
After the prosecutor read each of those two paragraphs the
Appellant pled true to those allegations. (RRS-96, 97). Upon those pleas
the following occurred:
"THE COURT: Are you pleading true to each of these
paragraphs freely and voluntarily?
THE DEFENDANT: Yes.
THE COURT: Has anybody made any promises to you,
forced you, threatened you, or intimidated you in any way
to get you to plead true?
THE DEFENDANT: No.
THE COURT: You are pleading true, Mr. Simmons, because
you were previously convicted as alleged and for no other
reason; is that correct?
THE DEFENDANT: Yes.
THE COURT: And are you of sound mind and mentally
competent to make such a plea today?
15
THE DEFENDANT: Yes.
THE COURT: And do you agree with his plea of true and
that he is mentally competent Mr. White?
MR. WHITE (Appellant's trial counsel): I do, Your Honor.
THE COURT: I'll accept the defendant's pleas of true to
paragraph 2 and 3." (RRS-97, 98)
The court then ordered a presentence report and recessed the hearing.
(RRS-98).
When the sentencing hearing reconvened more than two months
later the trial court noted that it could not remember if it had taken the
Appellant's pleas to the enhancement paragraphs and, once again, the
Appellant entered pleas of true to each of the paragraphs and affirmed
that he was doing so freely and voluntarily and that those pleas were
not the result of force, threats, or intimidation. (RR6-6).
Analysis and Application
The Appellant's complaint boils down to his contention that the
trial court did not admonish him at the time of his pleas to the
enhancement paragraphs as to the range of punishment and he cites
Article 26.13(a)(l) of the Texas Code of Criminal Procedure as his
authority.
16
That article sets out a number of admonishments required of the
trial court before accepting a plea of guilty or nolo contendere. The
article, however, is not applicable to pleas of "guilty" or "true" to
enhancement allegations in an indictment. Harvey v. State, 611 S.W.2d
108,112 (Tx. Cr. App. 1981). 1
The Appellant twice assured the trial court that he was pleading
"true" to the enhancement allegations in the indictment uninfluenced by
any pressure of any kind to do so. He also stated that he was entering
those pleas because he had been convicted as alleged. Apparently the
court was not obligated to, but is to be commended for, the efforts it
made to assure the voluntariness of the pleas. It certainly did not err in
accepting the pleas.
Harm
Even had the trial court erred in failing to admonish the Appellant
of the effect of the enhancement paragraphs upon the range of
punishment when it accepted the pleas of guilty, the Appellant has failed
to show that he was harmed.
1
"Of course, admonishing an accused who pleads "true" to the consequences thereof is to
be commended but the Legislature has not seen fit to require a trial court to admonish an
accused who enters a plea of "guilty" or "true" to an alleged prior conviction or
convictions and we find no requirement in law demanding this occur". Harvey at 112.
17
Rule 44.2(b), Texas Rules of Appellate Procedure, requires that any
non-constitutional error that does not affect substantial rights be
disregarded. In assaying harm under that rule from a failure to
admonish the reviewing court must look to the record as a whole, to
determine whether the defendant was aware of the particular
information upon which he should have been admonished. Only a
completely silent record supports an inference that the defendant was
unaware. Davison v. State, 405 S.W.3d 682, 687-88 (Tx. Cr. App. 2013).
In this case, the record as a whole clearly establishes that the
Appellant was fully aware of the effect of the enhancement allegations
upon the range of punishment. At a pretrial proceeding four days prior
to the commencement of trial, the court told the Appellant:
"Now, you have a second and third paragraph which
allege prior convictions in 2009 and 2011. If you're found
guilty of the offense as a party with the aggravated robbery
and those two paragraphs are true, that enhances your
punishment range from a minimum of 25 years up to life
in the penitentiary with a fine of up to $10,000.00, court
costs, and any restitution, jointly and severally, with the
other co-defendant. So you understand the punishment
range for this offense?"
The Appellant replied "Yes, ma'am." (RR2-5).
Another factor the reviewing court may consider is the complete
failure of the Appellant to complain or raise an issue as to the range of
18
punishment at any time, including when his sentence was assessed. It
would have been reasonable to expect him to express some surprise or
to protest his punishment had he been unaware of the range applicable
due to the enhancements. His nonchalance is a factor that infers his
awareness of the range of punishment. Davison at 688-89. See also
Burnett v. State, 88 S.W.3d 633, 64042 (Tx. Cr. App. 2002).
The indictment contained two paragraphs alleging prior
convictions and placing the Appellant on notice that the State intended
to use them to enhance the range of punishment. The trial court
expressly told the Appellant that, if they were found to be true, the
range of punishment for his offense would rise to 25 years to life in
prison. The Appellant never protested nor claimed that he did not
understand what the court had clearly told him was the effect of the
enhancements. Even if the trial court had been required to so admonish
him; the record as a whole shows that he was aware of those
consequences and of the enhanced range of punishment. There were no
substantial right affected and the error was harmless.
Second Issue on Appeal
Was the evidence insufficient to prove that the previous
convictions alleged in the indictment were final convictions?
19
Facts
Paragraphs II and III of the indictment read as follows:
II.
And it is further presented in and to said court that
prior to the commission of the offense alleged in paragraph
I on the 12th day of December, A.D. 2009 in Cause Number
62,334 in the 27th District Court of Bell County, Texas the
Defendant was convicted of the felony offense of Burglary of
a Habitation.
III.
And it is further presented in and to said court that prior to
the commission of the offense alleged in Paragraph II and
after the conviction in Cause Number 62,334 was final, the
defendant committed the felony offense of Possession of a
Firearm by a Felon and was convicted on the 29th day of
November A.D., 2011 in Cause Number 68,529 in the 426th
District Court of Bell County, Texas.
(CR-5)
After the verdict of guilty, these paragraphs were read to the
Appellant by counsel for the State at the behest of the trial court. The
Appellant then responded as to each paragraph that it was true. (RR5-
96, 97). He reiterated that plea at his sentencing hearing. (RR6-6).
During the Appellant's testimony at the guilt or innocence phase
of the trial his counsel asked him if he had been in trouble before and
the Appellant stated that he had been to prison twice; once for burglary
of a habitation and once for possession of a firearm. (RR5-3 7). In
20
response, on cross examination, the State asked the Appellant when he
got out of prison for his first conviction and he replied in 2010. (RR5-
48). The Appellant also stated that after he had finished serving his
sentence for the burglary of a habitation and was released he was
convicted and received a two year sentence for felon in possession of a
firearm. (RR5-48, 49).
Analysis and Application
When the accused enters pleas of "true" to enhancement
allegations in the indictment he removes the burden from the State to
prove that the alleged prior convictions were final. He cannot enter a
plea of true and then be heard to complain that the evidence is
insufficient to support that plea. Harvey at 111. The only exception to
that general rule is where the enhancement allegations themselves are
improper. Ex Parte Rich, 194 S.W.3d 508, 513 (Tx. Cr. App. 2006).
In this case the Appellant entered pleas of true to the allegations
to the two enhancement paragraphs. Section 12.42(d) of the Penal Code
provides that if it is shown on the trial of any felony offense other than a
State Jail Felony punishable under Section 12.35(a), that the defendant
has been previously finally convicted of two felony offenses, and that
the second previous felony conviction was for an offense that occurred
21
subsequent to the first previous felony offense having become final,
then the range of punishment is 25 years to life in prison. The
indictment in this case precisely pled that the Appellant had been so
previously convicted and was proper under the State in order to invoke
its provisions.
The Appellant pled "true" to each of the allegations in the
enhancement paragraphs after those paragraphs had been read to him.
The enhancements were not improper and his pleas alleviated the
State's burden to prove that he was finally convicted as alleged. Having
admitted the truth of those paragraphs he cannot now turn and
challenge the evidence to fulfill a burden that he waived.
Furthermore, it must be remembered that in his testimony and
initially under questioning by his own counsel, he admitted the alleged
prior convictions and then, on cross examination, acknowledged that he
committed and was convicted of the felony offense alleged in paragraph
II and served his time and then, after his release, he committed the
offense giving rise to the second prior felony offense contained in
paragraph III. Not only did he admit the truth of the allegations by his
pleas, he also did so in his testimony.
22
The Appellant attempts to distinguish his plea from those cases
holding that a plea alone is sufficient by noting that in Nabors v. State,
No. 12-00-00371-CR, 2002 Tex. App. LEXIS 4506 (Tx. App. Tyler 12th
Dist. 2002 rev. ref.), not designated for publication, the defendant stated
that he was pleading guilty because he was guilty and for no other
reason, whereas in this case the Appellant confirmed that he was
pleading true because he was " ... previously convicted as alleged and for
no other reason." (RR5-97).
This is a distinction without a difference. The Appellant does not
offer an explanation as to how pleading true because it is true differs in
pleading true because what was alleged was correct is different. While
the trial court and the Appellant did not use the words "is true" they
nonetheless established that he was pleading true because everything
alleged happened just as it was pled.
The Appellant's reliance upon Howard v. State, 429 S.W.2d 155
(Tx. Cr. App. 1968) is also misplaced. In Howard the defendant was
convicted by a jury and the trial court assessed punishment. In the
court's judgment the enhancement allegations were found to be true,
however, the only thing in the record to support that finding was a
notation on the docket sheet that the defendant had stipulated that he
23
was the same person convicted as alleged. There was no stipulation
contained in the record. There is no mention of a plea to the
enhancements in the case. Article 1.15 of the Code of Criminal
Procedure requires an agreement to stipulate be in writing and
approved by the trial court. Because there was nothing in the record to
support the finding of true the judgment was reformed to delete
references to the enhancement. Howard has no application to this case
where the Appellant entered pleas of true to the enhancement
allegations on the record and testified as to the matters contained in the
indictment.
The Appellant having entered pleas of true to the proper
allegations of previous convictions contained in the indictment, he had
relieved the State of its burden to prove those allegations and cannot
now complain that it has not done so.
Third Issue on Appeal
Did the sentence of 45 years in the penitentiary constitute cruel
and unusual punishment because it was disproportionate to the offense
committed?
24
Preservation of Error
The Appellant did not object to the sentence at the time it was
assessed nor did he raise the issue by a post-conviction motion. In
order to preserve alleged error based upon excessive or
disproportionate punishment, the defendant must have made a timely
request, motion or objection in the trial court. When he fails to do so
nothing is presented for review. Lopez v. State, No. 03-06-00086-CR,
2008 Tex. App. LEXIS 9700 (Tx. App. Austin 3rd Dist. 2008 rev. ref.), not
designated for publication, citing Castaneda v. State, 135 S.W.3d 719,
723 (Tx. App. Dallas 5th Dist. 2003 no pet.). See also Gilmore v. State, No.
03-10-00740-CR, 2011 Tex. App. LEXIS 6518 (Tx. App. Austin 3rd Dist.
2011 no pet.), not designated for publication. The Appellant has failed
to preserve this issue for review.
Analysis and Application
The length of a sentence in a criminal case is purely a legislative
prerogative. Harmelin v. Michigan, 501 U.S. 957, 962 (1991). Where the
punishment falls within the limits prescribed by a valid statute it is not
per se excessive, cruel, or unusual within the constitutional prohibition.
Samuel v. State, 477 S.W.2d 611, 614 (Tx. Cr. App. 1972).
25
Where the Appellant contends that his sentence is cruel and
unusual punishment because it is disproportionate to the crime
committed, the reviewing court must compare the gravity of the offense
against the harshness of the sentence in order to determine whether or
not the sentence is grossly disproportionate to the offense. Moore v.
State, 54. S.W. 3d 529, 542 (Tx. App. Ft. Worth 2nct Dist. 2001, rev. ref.).
Section 29.03 of the Texas Penal Code provides that aggravated
robbery as charged against the Appellant is a first degree felony. A first
degree felony is ordinarily punished by life or a term of years not more
than 99 and not less than 5. Section 12.32, Texas Penal Code. Where,
however, the defendant has been previously convicted of two felony
offense and the second prior conviction was for an offense committed
after the first prior conviction was final, the range of punishment is life
or a term of not more than 99 years or less than 25 years. Section
12.42(d) ofthe Penal Code.
Therefore, the Appellant's 45 year sentence is within the range of
punishment prescribed by the Legislature for both the primary offense
itself and as enhanced by his prior convictions. It is not, therefore, cruel,
unusual, or excessive per se.
26
Nor is it grossly disproportionate to the gravity of the offense.
There was evidence from which the jury could have reasonably found
that the aggravated robbery was premeditated and carefully planned.
That evidence includes the co-defendant's conversation with the victim
about needing money; the fact that she spoke to someone in a car
waiting in the parking lot before going with the victim and what was
apparently the same car waiting at her apartment; her inquires of the
victim intending to determine if he was armed; her request to stop at
the convenience store so that she could be left with the phone; and her
insistence that the victim come into the apartment and the bedroom
where the Appellant was waiting with his firearm.
The offense was one of great violence that resulted in very serious
and long lasting injuries from the gun shot and blows to the head
suffered by Mr. Patrick. The Appellant now attempts to place all of the
blame for that violence on his wife, Gini Lee Taylor, but conveniently
forgets the evidence showing that he fired the first shot when Patrick
moved to leave the room and then he struck Patrick on the head with
the weapon, telling him that he might be going to die. He also ignores
the fact that he called to his wife to hit Patrick as they struggled for the
gun and she did so. He also told her to get the pistol and after she did to
27
put it close to the victim's head so that she could not miss. Then, when
he went to get the "chopper" to be done with it, Patrick ran and Taylor
shot him in the hip. His allegation that "his co-conspirator acted
willingly and independently and was the sole cause of the most serious
injuries .... " (Appellant's Brief at 19) requires that all of the evidence be
ignored but his own self-serving testimony. Clearly the jury and the
trial court chose not to do so.
The gravity of this offense was great. The evidence supports a
conclusion that it was a premeditated offense that lead to great violence
inflicted upon Robert Patrick by both co-defendants in the course of
robbing him. Mr. Patrick was severely injured. Because of the
Appellant's record of two successive felony convictions, this case
became his third felony conviction. The range of punishment was thus
25 years to 99 years or life. The sentence of 45 years, therefore, is
actually in the middle of the statutory range provided by the legislature.
It is not disproportionate to the crime and it is not cruel and unusual
punishment.
Fourth Issue on Appeal
Did the trial court err in allowing the co-defendant to invoke her
Fifth Amendment right against self-incrimination?
28
Facts
During the guilt/innocence phase of the trial and after the State
had rested, the Appellant called his co-defendant, Gini Lee Taylor, as a
witness. This occurred entirely outside the presence of the jury.
Taylor's counsel was present to advise her. (RRS-29-31). The following
occurred:
"BY MR. WHITE (counsel for Appellant)
Q. Ma'am, what is your name?
A. Gini Taylor.
Q. And Ms. Taylor, are you currently in the Bell County
jail?
A. Yes, sir.
Q. And how long have you been at the Bell County jail?
A. Eight months.
Q. And it's my understanding that you were involved in an
aggravated robbery charge?
A. No. I choose to use my Fifth Amendment and not testify.
Q. And so the answer is not, no, you weren't involved, but,
no, you're invoking your right to your Fifth Amendment?
A. Yes, sir.
29
Q. You're choosing to remain silent?
A. Yes, sir.
Q. So if I ask you any questions in regards to the offense or
any facts, circumstances surrounding the offense, it is
your intention to invoke your Fifth Amendment, right?
A. Yes, sir.
Q. Would it be futile on my part and a waste of time if I ask
you any question, would you just insist on invoking
Fifth Amendment, right?
A. Yes, sir.
Q. So if I ask you, in fact, who shot Robert Patrick, what
would your answer be?
A. I don't have an answer for that.
Q. And that would be because why?
A. Because I chose not to testify." (RRS-29, 30).
The State had no questions of the witness, however, the court asked the
Appellant if he had anything else to ask:
Q. (By Mr. White): Ms. Taylor, have you written letters to
my client since?
A. Yes, sir.
Q. And in those letters, did you discuss certain things
with him in regards to what your testimony would be?
A. I choose not to talk about any of that, sir.
30
Q. And so you haven't included any letters, in fact, that
you acted on your own and that it was not any
direction or command or anything by my client, by
Devin"
A. I choose not to speak on that.
MR. WHITE: That's all I have, Your Honor." (RRS-31).
Later, during the Appellant's own testimony, he attempted to
relate to the jury what his wife had said about disposing of the gun in
one of her letters and the trial court sustained the State's objection on
the grounds of hearsay. (RRS-45).
Preservation of Error
In order to preserve error a party must make a timely objection
on specific grounds and obtain a ruling from the trial court. Rule 33.1,
Texas Rules ofAppellate Procedure. Absent such an objection the error is
waived. Where there was no objection as to the propriety of the
invocation of a witness' privilege against self-incrimination under the
Fifth Amendment, nor a demand that she testify, that issue was waived
and could not be argued on appeal. Chennault v. State, 667 S.W.2d 229,
302 (Tx. App. Dallas 5th Dist. 1984 rev. ref.).
In this case the Appellant called his co-defendant, who invoked
her Fifth Amendment privilege. He did not contest her right to do so
31
and did not request a ruling from the trial court concerning her
invocation of that right. In fact he acknowledged her intention and right
to invoke the privilege from the outset. At the close of the hearing his
only request was to call her in front of the jury to have her invoke her
privilege. The trial court denied that request. 2 (RRS-29-32).
Having failed to make a specific and timely objection to the
witness's invocation of the Fifth Amendment privilege or even calling
for a ruling upon it validity by the trial court, nothing is presented for
review.
It also must be noted that in his brief the Appellant attempts to
blend an alleged violation of his Sixth Amendment right to confront the
witnesses against him into this ground of error. There was no objection
voiced to the trial court on any such violation. A defendant waives his
right to confront witnesses if he does not object at trial. Mitchell v. State,
238 S.W.3d 405, 408 (Tx. App. Houston 1st Dist. 2006 rev. ref.), citing
Holland v. State, 802 S.W.2d 696, 700 (Tx. Cr. App. 1991).
2
The assertion of the privilege cannot be the source of any inference by the jury either
favorable or unfavorable to the prosecution or the accused and it is not error for the trial
court to refuse a motion to require a witness to invoke the privilege before the jury. Ellis
v. State, 683 S.W.2d 379, 382-83 (Tx.Cr.App. 1984).
32
Analysis and Application
The Fifth Amendment to the United States Constitution provides
that a person may not be compelled to give testimony that tends to
incriminate them. A witness cannot be compelled to answer unless it is
perfectly clear from a careful consideration of the circumstances that
the witness is mistaken in asserting the privilege and that the answer
cannot possibly tend to incriminate the witness. Grayson v. State, 684
S.W.2d 691, 696 (Tx. Cr. App. 1984); German v. State, No. 03-03-00108-
CR, 2003 Tex. App. LEXIS 7908 (Tx. App. Austin 3rct Dist. 2003 no pet.),
not designated for publication.
In this case Gini Lee Taylor was not called by the State, but by the
Appellant outside the presence of the jury. As soon as counsel for the
Appellant inquired about her involvement in the offense Ms. Taylor
immediately invoked her Fifth Amendment privilege against self-
incrimination and she continued to do so in response to every question
involving the offense. (RRS-29-32). The Appellant asked a number of
questions clearly establishing that she would continue to invoke that
privilege and that he was aware that she would do so from the outset.
Ms. Taylor confirmed that her case was on appeal and that her
attorney was present in court, that she had consulted him, and was
33
following his advice. When a witness invokes the Fifth Amendment
privilege on the advice of counsel no further inquiry by the trial court in
allowing that invocation is required. Chennault at 302; German, supra.
There was no question, however, that the witness' belief that
answering the Appellant's questions about whether she was involved in
the robbery; shot the victim; and did so without his participation would
tend to incriminate her was well founded. The protection against
compelled self-incrimination is not lost until the proceedings against the
witness have been finally terminated. Where the case against the
witness is on appeal that case has not been prosecuted to a final
conclusion and the witness may continue to assert the privilege. Davis v.
State, 501 S.W.2d 629, 630-31 (Tx. Cr. App. 1973). Gini Lee Taylor's
conviction as a party to the offense on trial was then on appeaP and she
had every right to assert the Fifth Amendment privilege not to
incriminate herself.
The Appellant claims, however, that Ms. Taylor waived her
privilege by answering a single question. He claims that her answer was
materially incriminating and, therefore, she can no longer decline to
answer other questions, but must make full disclosure on the subject.
3
See Gini Lee Taylor v. State, Cause No. 03-14-00300-CR in this court.
34
The question propounded to her was "Ms. Taylor, have you written
letters to my client since?" and her answer was "yes". (RR5-31). Then
when he followed up by asking her about the contents of those letters
she again asserted the privilege.
In the first place, it is extremely difficult to see how the question
as to whether she had written letters to the Appellant and her answer of
"yes" was materially incriminating to her. In the second, a waiver of the
privilege should be inferred from a witness' prior statements only if:
(1) the answer to the prior question has created a significant likelihood
that the fact finder will be left with, and prone to rely upon, a distorted
view of the truth; and (2) the witness had reason to know her answer
would be interpreted as a waiver of the Fifth Amendment privilege.
Grayson at 695.
Just as in Grayson, in this case the answer given by the witness
was outside the presence of the jury and, therefore, there was no chance
whatsoever that it would create a significant likelihood that the jury, the
fact finder, would be left with a distorted view of the truth. Grayson at
695.
Moreover, the record does not support any conclusion that Ms.
Taylor had reason to know that her bare admission that she had sent
35
the Appellant letters would be interpreted as a waiver of her privilege.
She invoked the Fifth Amendment privilege both before, and
immediately after the answer when the question turned to the offense
of which she had been convicted and concerning which an appeal was
then pending. In determining whether the witness really apprehends
the danger in answering a question, the court cannot be skeptical and
must remain acutely aware that incrimination in criminal case may be
achieved in obscure and unlikely inquiries. Grayson at 696, citing Malloy
v. Hogan, 378 U.S. 1, 13 (1964).
It also must be noted that the whole theory of waiver of the
privilege by answering the question confirming that she had sent letters
has been raised for the first time on appeal and was not argued to the
trial court.
The Appellant called Ms. Taylor outside the presence of the jury
and firmly and repeatedly established that she was asserting her Fifth
Amendment privilege against self-incrimination concerning the offense
on trial. He never requested that the trial court rule that she had
improperly asserted the privilege or to instruct her to testify and there
was no ruling by the court on that question. The only thing the
Appellant requested of the trial court was that he be allowed to call her
36
in front of the jury and have her assert the privilege in its presence.
That request was properly denied.
The Appellant has failed to preserve the issue and nothing is
presented for review. If, however, the Appellant has moved the court to
deny her the privilege and had the court refused it would not have
erred.
Attempting to show harm by the failure of the court to compel
Taylor's testimony on its own motion, the Appellant somehow ties this
to his attempt to testify that he did not know what happened to the gun
but that Ms. Taylor told him in a letter that she took it. The State
objected to the testimony as hearsay and the trial court sustained the
objection. (RRS-45). Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. Rule 801(d), Texas Rules of
Evidence. Rule 802 provides that hearsay is not admissible. The
Appellant offers no explanation as to why his testimony as to what Gini
Taylor said in a letter would not be inadmissible hearsay. Neither does
he contend that his attempt to tell the jury that Taylor said she got the
gun was for anything other than the truth of the matter asserted. He
does not cite any authority as to how Ms. Taylor's assertion of her Fifth
37
Amendment privilege concerning her letters would allow him to testify
to what she had said in them over a hearsay objection.
Finally, he also states that it is likely that he would have been
acquitted had the trial court, without a request that it do so, had denied
Gini Lee Taylor her Fifth Amendment rights and compelled her
testimony. This is purest speculation. He did not proffer the letters in
question for the record, assuming that he actually had them. Nothing in
the record indicates what those letters would have contained or what
Ms. Taylor may have said in them. His questions may imply that she
took responsibility for the crime, but that again is speculation. In any
event, the Appellant's testimony concerning the offense consisted
entirely of his assertion that his wife planned and executed the offense
all on her own without his participation. The jury clearly rejected that
and it is not unlikely that had Ms. Taylor attempted to "take the rap" the
jury would still have rendered the same verdict based upon Robert
Patrick's testimony clearly establishing active involvement by both co-
defendants.
38
PRAYER
The State of Texas respectfully prays that the judgment of
conviction herein be, in all things, be affirmed.
Respectfully Submitted,
HENRY GARZA
District Attorney
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BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State's Brief is in compliance with Rule 9
of the Texas Rules ofAppellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 6, 504 words.
jsj $a6 2). flrfmn
BOB D. ODOM
Assistant District Attorney
39
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, Robert L. Sirianni, Jr., Counsel for Appellant, by electronic
transfer via Email, addressed to him at Robert@brownstonelaw.com on
this 15th day of June, 2015.
jsj $a6 ~. 9rfmn
BOB D. ODOM
Assistant District Attorney
40