Rebecca Williams v. State ( 2012 )

NUMBERS
13-11-00653-CR
13-11-00654-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
REBECCA LYNN WILLIAMS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez1
Appellant, Rebecca Lynn Williams, was convicted of theft and forgery—state jail
felonies. See TEX. PENAL CODE ANN. § 31.03 (a), (b)(1), (e)(4)(A) (West Supp. 2011), §
32.21(b), (d) (West 2011). Williams received a sentence of two years’ confinement in
1
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
the State Jail for the conviction of theft and a sentence of one year in State Jail for the
forgery conviction. The trial court ordered that the forgery sentence run consecutive to
the theft sentence. By three issues, Williams contends that the trial court improperly
cumulated her sentences. We affirm.
I. BACKGROUND
In trial court cause number 08-05321, Williams was indicted for “intentionally or
knowingly unlawfully appropriat[ing] property, by acquiring and exercising control of
corporeal personal property, namely SHINGLES, owned by [Complainant], . . . of the
value of at least Fifteen Hundred Dollars and less than Twenty Thousand Dollars, with
the intent to deprive the Complainant of the property, and without the effective consent
of the Complainant” on December 3, 2008. In trial court cause number 09-05372,
Williams was indicted for “intentionally and knowingly, with intent to defraud and harm
another, forge, by passing to Lucille Cooper, a [check] that had been made, completed,
and executed so that it purported to be the act of another who did not authorize that act,
to-wit: the act of Randall Glaze . . .” and Williams “passed said [check] with knowledge
that said writing was forged.”
Williams pleaded guilty to each offense. At the plea hearing, the trial court
deferred adjudication, and for each offense, the trial court placed Williams on
community supervision for a period of three years. Subsequently, the State filed a
motion to revoke Williams’s community supervision. After Williams pleaded true to
three violations of the terms of her community supervision, the trial court found Williams
guilty of forgery and theft, revoked her community supervision, and sentenced her to
two years’ incarceration for the theft and one year incarceration for the forgery. The trial
2
court orally pronounced that the sentences were to run consecutively. This appeal
followed.
II. VOLUNTARINESS OF PLEA
By her first issue, Williams contends that the trial court failed to admonish her
concerning the possibility that if the trial court revoked her community supervision, the
sentences could be stacked. Williams generally argues that the failure to admonish a
defendant of this possibility renders the plea involuntary.
Williams states that “[n]owhere in the Statement of Facts prepared by the Court
Reporter from the hearings held, can [Williams] discern when the Trial Court orally
admonished [her] that if there would be a revocation, that the sentence after the
revocation could be made consecutive or cumulative.” Williams does not cite any
authority, or provide any argument, establishing that the trial court’s failure to admonish
on the possibility of stacking her sentences prevented her from entering her pleas freely
and voluntarily.2 See TEX. R. APP. P. 38.1(i).
Nonetheless, we note that “a guilty plea is considered voluntary if the defendant
was made fully aware of the direct consequences. It will not be rendered involuntary by
lack of knowledge as to some collateral consequence.” State v. Jimenez, 987 S.W.2d
886, 888 (Tex. Crim. App. 1999). The court of criminal appeals has further explained
2
Williams does generally cite Copeland v. State, stating that “[i]f there had been [an
admonishment concerning the possibility of consecutive sentences upon revocation], as there was in
[Copeland], then [Williams’s] position would be more tenuous. No. 06-06-00076-CR, 2006 Tex. App.
LEXIS 8524 at *9–10 (Tex. App.—Texarkana Oct. 3, 2006, pet. ref’d) (mem. op., not designated for
publication). In Copeland, the court of appeals found that the record did not support the appellant’s
contention that the State was permitted to “change the deal” at the revocation hearing. Id. at *8. In so
finding, the court merely pointed out that the trial court had admonished the appellant of the possibility
that upon revocation, the sentences could be stacked; therefore, the appellant was aware of the
possibility that the sentences could be stacked, and his argument that the State changed the deal was not
meritorious. Id. at *9–10. The Copeland court did not state that a judgment is void or involuntary if a trial
court fails to make such an admonition. See id. Therefore, we are not persuaded by Williams’s citation to
this case.
3
that direct consequences are those that are “definite and largely or completely
automatic” and that a trial court is only required to advise a defendant of direct
consequences that are “punitive in nature or specifically enunciated in the law.”
Mitschke v. State, 129 S.W.3d 130, 135–36 (Tex. Crim. App. 2004).
In McGrew v. State, we stated, “We agree that the imposition of consecutive
sentences is not a direct consequence of a guilty plea, and a plea is not rendered
involuntary by the trial court’s failure to warn of such a possibility.” 286 S.W.3d 387,
391 (Tex. App.—Corpus Christi 2008, no pet.). Because the trial court’s cumulation of
Williams’s sentences was a collateral consequence of her guilty pleas, she has failed to
establish that her pleas were involuntary due to the trial court’s failure to warn of that
consequence.3 See id. Accordingly, we overrule Williams’s first issue.
III. CONSECUTIVE SENTENCES
By her second issue, Williams contends that the trial court improperly stacked
her jail sentences. See TEX. PENAL CODE ANN. § 3.03(a) (West Supp. 2011). Williams
argues that section 3.03 prohibited the stacking of the sentences in this case because
the cases were prosecuted in a single criminal action. See id.; Robbins v. State, 914
S.W.2d 582, 584 (Tex. Crim. App. 1996); LaPorte v. State, 840 S.W.2d 412, 415 (Tex.
Crim. App. 1992). Under section 3.03 of the Texas Penal Code, sentences generally
cannot be stacked if the crimes arise out of the same criminal episode and are
prosecuted in a single criminal action. See TEX. PENAL CODE ANN. § 3.03(a).
3
“A consequence has been defined as ‘collateral,’ rather than ‘direct,’ where ‘it lies within the
discretion of the court whether to impose it,’ or where ‘its imposition is controlled by an agency which
operates beyond the direct authority of the trial judge.’” State v. Jimenez, 987 S.W.2d 886, 889 n.5 (Tex.
Crim. App. 1999) (en banc); McGrew v. State, 286 S.W.3d 387, 391 (Tex. App.—Corpus Christi 2008, no
pet.).
4
Williams does not contend that the crimes that she was convicted of committing
arose out of the same criminal episode. Furthermore, the record does not support such
a finding. The record shows that Williams allegedly committed theft on December 3,
2008 by unlawfully appropriating shingles owned by Anthony Brown with the intent to
deprive Brown of the property without his consent. See id. § 31.03 (a), (b)(1). Williams
allegedly committed forgery on November 19, 2008 by signing Randall Glaze’s name on
a check and then passing the check to Lucille Cooper with the intent to defraud and
harm another. See id. § 32.21(b). There is no evidence in the record that Williams
committed the theft and the forgery pursuant to the same transaction or pursuant to two
or more transactions that were connected or constituted a common scheme or plan.
See id. § 3.01(1) (West 2011) (defining a “criminal episode”). Moreover, Williams does
not argue that these offenses are the same or similar. See id. § 3.01(2). Thus, we
cannot conclude that these offenses arose out of the same criminal episode. See id.
We overrule Williams’s second issue.
IV. CRUEL AND UNUSUAL PUNISHMENT
By her third issue, Williams generally contends that the sentences were
disproportionate because the trial court ordered them to run consecutively. Thus,
Williams argues the sentences constituted cruel and unusual punishment. See U.S.
CONST. amend. VIII.
The Eighth Amendment of the United States Constitution provides that
“[e]xcessive bail shall not be required, nor excessive fines, nor cruel and unusual
punishment inflicted.” Id. The Eighth Amendment applies to punishments imposed by
state courts through the Due Process Clause of the Fourteenth Amendment. Id.
5
amend. XIV. This right—like every constitutional or statutory right—can be waived by a
“failure to object.” Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Kim v.
State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d); Noland v. State,
264 S.W.3d 144, 151-52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (concluding
that by failing to object, the appellant did not preserve an argument that the sentence
was grossly disproportionate to offense); Wynn v. State, 219 S.W.3d 54, 61 (Tex.
App.—Houston [1st Dist.] 2006, no pet.); Smith v. State, 10 S.W.3d 48, 49 (Tex. App.—
Texarkana 1999, no pet.) (same); see Mercado v. State, 718 S.W.2d 291, 296 (Tex.
Crim. App. 1986) (“As a general rule, an appellant may not assert error pertaining to his
sentence or punishment where he failed to object or otherwise raise such error in the
trial court.”); see also Jones v. State, No. 09-10-00397-CR, 2011 Tex. App. LEXIS
2374, at *3–4 (Tex. App.—Beaumont March 30, 2011, no pet.) (mem. op., not
designated for publication) (determining that the appellant had waived her argument
that the sentence imposed was disproportionate and was unreasonable under the
eighth amendment by failing to object). To preserve a complaint of disproportionate
sentencing, the criminal defendant must make a timely, specific objection to the trial
court or raise the issue in a motion for new trial. Kim, 283 S.W.3d at 475; Noland, 264
S.W.3d at 151–52; Trevino v. State, 174 S.W.3d 925, 927–28 (Tex. App.—Corpus
Christi 2005, pet. ref'd); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus
Christi 1989, pet. ref’d) (holding defendant waived cruel and unusual punishment
argument by failing to object); see TEX. R. APP. P. 33.1; see also Jones, 2011 Tex. App.
LEXIS 2374, at *3–4.
6
Here, Williams did not object when the trial court pronounced that the sentences
were to run consecutively or complain of the sentence in any post-trial motion.
Therefore, Williams has failed to preserve this issue for our review. See TEX. R. APP. P.
33.1; Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151–52; Trevino, 174 S.W.3d at
927–28; Quintana, 777 S.W.2d at 479; see also Jones, 2011 Tex. App. LEXIS 2374, at
*3–4. Moreover, even had Williams preserved error, a punishment falling within the
limits prescribed by a valid statute, as in this case, is not usually excessive, cruel, or
unusual.4 See Trevino, 174 S.W.3d at 928; see also Stevens v. State, 667 S.W.2d 534,
538 (Tex. Crim. App. 1984) (providing that cumulating a sentence is not cruel and
unusual punishment) (citing Baird v. State, 455 S.W.2d 259 (Tex. Crim. App. 1970)).
We overrule Williams’s third issue.
V. CONCLUSION
We affirm the trial court’s judgments.
__________________
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
29th day of March, 2012.
4
Williams was convicted of two state jail felonies, each of which carried a punishment range of
180 days to two years of confinement and a fine of up to $10,000. See TEX. PENAL CODE ANN. § 12.35(a)
(West Supp. 2011).
7