Taylor Rae Rosenbusch v. State ( 2015 )

ACCEPTED
04-14-00050-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/22/2015 3:01:20 PM
KEITH HOTTLE
CLERK
FILED IN
Nicholas “Nico” LaHood 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
Criminal District Attorney 09/22/15 3:01:20 PM
Bexar County, Texas KEITH E. HOTTLE
Clerk
September 22, 2015
Mr. Keith E. Hottle
Clerk, Court of Appeals
Fourth Court of Appeals
Cadena-Reeves Justice Center
San Antonio, Texas 78205-3037
RE: Taylor Rae Rosenbusch v. The State of Texas
Appellate No. 04-14-00050-CR
Trial Court No. 2011-CR-11075
Additional Citations
Dear Mr. Hottle:
Pursuant to Local Rule 8.3,1 the State submits the following additional citations for the
Court’s consideration.
As to Appellant’s claim on involuntary plea, issues 1-3:
A. Admonishing on range of punishment
a. In Sifuentes v. State, this Court found appellant’s plea voluntary even
though the trial court misstated the punishment range, stating, ―[o]ne
of the statutorily required admonitions is the range of punishment . . .
however, it is not constitutionally required.‖ (citations omitted) See
Sifuentes v. State, No. 04-08-00327; 00328; 00329-CR, August 2009,
no pet (unpublished).
b. In Oseguera-Garcia v. State, this Court found appellant failed to meet
his burden that his plea was involuntary. Even though appellant
asserted he did not understand English well and thought he was
pleading not guilty, the record did not support his assertion. See
Oseguera-Garcia v. State, No. 04-11-00896-CR, May 2013, pet.
1 Local Rule 8.3 provides the following: A party may file a letter containing additional citations with succinct
comment, at any time without leave of court.
Paul Elizondo Tower – 101 W. Nueva St., Fourth Floor - San Antonio, Texas 78205
(210) 335-2311
For Victim Assistance call (210) 335-2105
dismd and pet. ref’d (unpublished).
As to Appellant’s claim that Article 42.08 is unconstitutional, issue 4:
A. Preservation
a. Curry v. State, 9710 S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995).
In this case, the Texas Court of Criminal Appeals noted there are
constitutional errors that may be waived by failure to object at trial.
B. Constitutionality of Texas Code of Criminal Procedure art. 42.08
a. In Jaramillo v. State, this Court found article 42.08(a) constitutional,
in part, because there is no right under the Constitution to a concurrent
sentence. See Jaramillo v. State, No. 04-01-00846-CR, San Antonio,
June 2003, no pet (unpublished).
b. Baylor v. State, 194 S.W.3d 157, 159 (Tex. App.—San Antonio,
2006). In Baylor, this Court noted that the Court of Criminal Appeals
has repeatedly upheld the constitutionality of article 42.08.
c. Hammond v. State, 465 S.W.2d 748, 752 (Tex. Crim. App. 1971) –
holding Article 42.08 constitutional.
d. Johnson v. State, 492 S.W.2d 505, 506 (Tex. Crim. App. 1973) -
holding Article 42.08 constitutional.
The State requests that the panel assigned to this case consider the above described
authorities in its resolution of Appellant points of error number appeal.
Respectfully,
/s/ Lauren A. Scott
___________________________
Lauren A. Scott
Assistant District Attorney
Bexar County, Texas
Paul Elizondo Tower
101 W. Nueva, 7th Floor
San Antonio, Texas 78205
(210) 335-2885
Email: lscott@bexar.org
State Bar No. 24066843
cc: John F. Carroll
111 West Olmos Drive
San Antonio, Texas 78212
Email:jcarrollsatx@gmail.com