Jason Ray Tubbs v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-05-315 CR ____________________

JASON RAY TUBBS, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B050218-R

---

MEMORANDUM OPINION

Jason Ray Tubbs appeals his conviction and raises two issues on appeal. Tubbs contends that the evidence was insufficient to support the court's finding of true to the enhancement paragraphs of his indictment. Tubbs also contends that the trial court abused its discretion when it ordered him to serve his sentences consecutively. Because we agree that the trial court improperly cumulated the sentence, we modify the judgment to provide for a concurrent sentence and, as modified, affirm. See Hernandez v. State, 748 S.W.2d 324, 325 (Tex. App.-Dallas 1988, pet. ref'd).

Background

On May 4, 2005, Tubbs pled guilty to two felony offenses of evading arrest or detention and elected to have the court assess punishment. The two offenses were charged under separate indictments. The first offense occurred on November 9, 2004 (Trial Cause No. B-050107-R) and the second offense occurred on February 17, 2005 (Trial Cause No. B-050218-R). ⁽¹⁾ With the exception of the enhancement paragraphs included in the indictment applicable to this appeal, the dates of the offenses, and the peace officers involved in each of the pursuits, the indictments are identical. The enhancement paragraphs in the indictment applicable to this appeal reference two prior convictions of state jail felonies for Felony Theft.

The court conducted a punishment hearing on Tubbs's open pleas of guilty to each case. After the presentation of evidence, testimony, and argument, the trial court sentenced Tubbs to two years confinement in a state jail facility in Trial Cause No. B-050107-R. Having found the enhancement paragraphs true, the trial court then sentenced Tubbs to ten years confinement in the Texas Department of Criminal Justice Institutional Division in Trial Cause No. B-050218-R and ordered that the ten-year sentence run consecutive to the two-year sentence. The enhancement paragraphs were not read at the sentencing hearing and the record is silent regarding Tubbs's plea on the enhancement allegations.

Tubbs complains of two issues on appeal. Tubbs contends that the evidence is insufficient to support the trial court's finding of true to the enhancement paragraphs. Tubbs also asserts that the trial court erred in ordering the sentences served consecutively.

Sufficiency of Evidence in Finding Enhancement Paragraphs True

Tubbs argues that the evidence is insufficient for the trial court to have found the enhancement paragraphs true because they were never read. Tubbs concludes that the issue of enhancement was not properly before the trial court.

In cases where the trial court assesses punishment, there is neither a requirement that the court read the enhancement paragraphs nor does the appellant have to plead to them. Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973); see also Garner v. State, 858 S.W.2d 656, 660 (Tex. App.-Fort Worth 1993, pet. ref'd); Simms v. State, 848 S.W.2d 754, 755 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd). Therefore, reading the enhancement paragraphs was not required.

In a legal sufficiency review, we view all the evidence in the light most favorable to the judgment to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004). In a factual sufficiency review, we view the evidence in a neutral light and reverse only if we conclude, from some objective basis in the record, that the great weight and preponderance of evidence contradicts the fact finder's determination. Watson v. State, 204 S.W.3d 404, 414, 417 (Tex. Crim. App. 2006). We cannot determine that a finding is "clearly wrong" or "manifestly unjust" simply because we would have found otherwise. Id. at 417. In examining a factual sufficiency challenge, we defer to the fact finder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).

After review of the record, we find the evidence both legally and factually sufficient to support the trial court's finding on the enhancement paragraphs. The Pre/Postsentence Investigation Report includes the same two state jail felony theft convictions specified in the indictment's enhancement paragraphs. The Texas Code of Criminal Procedure authorizes the court to order and consider a presentence report when the trial court assesses punishment. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(d) (Vernon 2006). A judge may take judicial notice of its own file and thus, unobjected-to facts contained within a presentence report can be judicially noticed and considered evidentiary when assessing punishment. See Montgomery v. State, 876 S.W.2d 414, 416 (Tex. App.-Austin 1994, pet. ref'd) (unobjected contents of presentence report constitute "record evidence" and therefore, were sufficient to establish defendant's prior convictions for enhancement purposes); Mayfield v. State, 757 S.W.2d 871, 875 (Tex. App.-Houston [1st Dist.] 1988, pet. ref'd) (presentence report is part of court file of which judge may always take judicial note and need not be formally offered into evidence for proper consideration); see also Cardenas v. State, 960 S.W.2d 941, 947 n. 5 (Tex. App.-Texarkana 1998, pet. ref'd) ("Although presentence reports are not usually offered formally into evidence, there is authority indicating that since they are presented for the consideration of the trial judge in sentencing, they are treated as evidentiary in nature."). The trial court ordered the preparation of a presentence report prior to Tubbs's sentencing hearing. At the punishment hearing, the court provided both parties the opportunity to object to the factual accuracy of the report's contents and to correct any mistakes or misstatements. Tubbs neither objected to the criminal history section of the report nor sought to correct any information contained within the section. ⁽²⁾ Moreover, Tubbs testified at the hearing that he had been convicted at least seven times for theft and sentenced to state jail on more than one occasion.

Viewing the record in the light most favorable to the finding, a rational fact finder could conclude beyond a reasonable doubt that the enhancement paragraphs were true. The evidence is legally sufficient to support the trial court's finding. Furthermore, a neutral review of the record does not demonstrate that the proof of the finding is clearly wrong or manifestly unjust or that it is against the great weight and preponderance of the evidence. The evidence is factually sufficient to support the finding. Therefore, we overrule Tubbs's first issue.

Ordering Sentences to be Served Consecutively

In his second issue on appeal, Tubbs asserts that the trial court abused its discretion when it ordered his sentences to be served consecutively. While the trial court generally has discretion in ordering sentences to run consecutively or concurrently, section 3.03 of the Texas Penal Code limits this discretion. See Tex. Pen. Code. Ann. § 3.03(a) (Vernon Supp. 2006); see generally Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2006). Absent certain exceptions not applicable here, section 3.03 mandates that sentences run concurrently when an accused is found guilty of more than one offense arising out of the same criminal episode that are prosecuted as a single criminal action. Tex. Pen. Code. Ann. § 3.03(a).

The Penal Code defines "criminal episode" as the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:

(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

(2) the offenses are the repeated commission of the same or similar offenses.

Tex. Pen. Code. Ann. § 3.01 (Vernon 2003).

The State concedes that the two cases were prosecuted in a single criminal action because Tubbs pled guilty to the two indictments during the same proceeding and punishment for each case was assessed in a single punishment hearing. Therefore, we must determine whether the two evading arrest or detention offenses arise from the same criminal episode as defined by the Penal Code.

Tubbs was indicted on two separate charges for the same exact offense, evading arrest or detention. As the State acknowledges, only the dates of occurrence and the identity of the officers who pursued Tubbs differ in the indictments. Thus, evading arrest and detention on two occasions, although at a different time and involving different officers, are repeated commissions of the same or a similar offense. We conclude that the two offenses arise from the same criminal episode. Id.; see also Baker v. State, 107 S.W.3d 671, 673 (Tex. App.- San Antonio 2003, no pet.) (finding three sexual assault or attempted sexual assault offenses occurring on different dates and involving different victims to be similar offenses); Hernandez v. State, 938 S.W.2d 503, 508-09 (Tex. App.-Waco 1997, pet. ref'd) (finding April 16 cocaine sale and September 22 marijuana sale merely repetitious commissions of same offense); Guidry v. State, 909 S.W.2d 584, 585 (Tex. App.-Corpus Christi 1995, pet. ref'd) (finding section 3.01 does not impose a time differential between the commission of same or similar offenses).

We conclude that the trial court erred when it ordered Tubbs's sentences to run consecutively. See Tex. Pen. Code. Ann. § 3.03. Thus, we sustain Tubbs's second issue. The cumulation order entered in Cause No. B-050218-R, attempting to cumulate the sentence with Cause No. B-050107-R, is hereby set aside. See Turner v. State, 733 S.W.2d 218 (Tex. Crim. App. 1987). We order that Tubbs's sentence in Cause No. B-050218-R began to run on May 27, 2005. As reformed, the judgment of the trial court is affirmed.

AFFIRMED AS MODIFIED.

____________________________

HOLLIS HORTON

Justice

Submitted on September 21, 2006

Opinion Delivered December 27, 2006

Do Not Publish

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

1. Trial Cause No. B-050107-R was separately appealed to this court under case number 09-05-356-CR. This court may take judicial notice of its own records, and we do take notice of the record of Tubbs's other appeal. See Moore v. Zeller, 153 S.W.3d 262, 264 (Tex. App.-Beaumont 2004, pet. denied).

2. Tubbs did object to the report's discussion of the Substance Abuse Questionnaire (SAQ) and the trial court agreed to disregard the SAQ. The State corrected the date Tubbs's probation was revoked with respect to Cause B020390. The SAQ and the State's correction, however, are irrelevant herein.