James Robert Elliot v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JAMES ROBERT ELLIOT, §
No. 08-13-00035-CR
Appellant, §
Appeal from the
v. §
432nd District Court
THE STATE OF TEXAS, §
of Tarrant County, Texas
Appellee. §
(TC#1289808D)
§
OPINION
Appellant, James Robert Elliot, appeals his conviction of one count of theft of property of
an elderly person, having a value of more than $20,000 and less than $100,000.1 TEX. PENAL
CODE ANN. § 31.03(f) (West 2011). We affirm.
BACKGROUND
Shortly after their marriage, Appellant, his wife, and her two children began living with
his wife’s grandparents, Earl and Patsy Tow, in Saginaw, Texas. 2 While living with the Tows,
Appellant wrote approximately $60,000 worth of fraudulent checks from Patsy’s account. When
Earl confronted Appellant regarding the fraudulent checks, Appellant admitted to writing them
1
This is a companion case to cause no. 08-13-00034-CR.
2
As this case was transferred from our sister court in Fort Worth, we decide it in accordance with the precedent of
that court. TEX. R. APP. P. 41.3.
and promised to pay back the money if Earl would agree not to involve the authorities. After
Appellant and his family moved out of the Tow’s home a few weeks later, Appellant returned to
collect some belongings. Shortly after Appellant left the house, Earl’s bank called and informed
him Appellant was there attempting to cash another check on the Tow’s account. Earl told the
bank not to cash the check.
Appellant returned to the Tow’s home and denied to Earl that he had been at the bank or
had attempted to cash another check. Appellant then informed Earl that he needed $3,200 to pay
a ransom to drug dealers who had kidnapped his wife and her two children. Earl did not believe
Appellant’s story and denied his request for money. Appellant then pulled a gun and threatened
to kill Earl if he did not get down on his knees. Earl refused and Appellant fired a shot to the
right of where Earl stood. After Appellant told Earl again to get on his knees, Earl threw coffee
in Appellant’s face. Appellant fired a second shot, missing Earl again. Earl called 911, which
angered Appellant, and the two men wrestled over the gun. A third shot was fired, but missed
Earl’s leg. During the scuffle, Earl knocked the gun out of Appellant’s hand, and as the two
continued fighting, Appellant attempted to choke Earl. The police arrived, broke up the fight,
and arrested Appellant. Police recovered live .380 shells, spent .380 casings, a .380 handgun
from the scene, and ten zip ties from the inside of and lying around Appellant’s jacket.
Appellant entered open pleas of guilty to the trial court on one count of aggravated
robbery with a deadly weapon in Cause Number 1274489D, and one count of theft of property of
an elderly person in Cause Number 1289808D. TEX. PENAL CODE ANN. §§ 29.03(a)(2); 31.03(f)
(West 2011). The property stolen in Cause Number 1289808D was valued between $20,000 and
$100,000.
2
At the punishment hearing on November 19, 2012, after the State sought a sentence of
fifty years, the trial court imposed concurrent thirty-year sentences in both cases, and Appellant
filed his notices of appeal that same day.3 After reviewing its imposition of sentence, the trial
court realized that it had erroneously imposed an improper sentence in excess of the permitted
twenty-year maximum punishment for the second-degree theft conviction. TEX. PENAL CODE
ANN. § 12.33 (West 2011). On the following day, November 20, 2012, the trial court called
Cause Number 1289808D and, in the presence of Appellant, his counsel, and counsel for the
State, specifically modified Appellant’s sentence to twenty years’ confinement for the theft
offense in Cause Number 1289808D, to run concurrently with the aggravated robbery sentence
in Cause Number 1274489D.
DISCUSSION
Appellant raises two issues on appeal. Appellant filed a single brief in support of his
appeal of both Cause Numbers 1274489D and 1289808D.
In Issue One, Appellant claims the trial court’s correction of the illegal sentence in Cause
Number 1289808D was not the proper remedy because it did not return Appellant to his pre-plea
position. See Ex parte Sims, 868 S.W.2d 803, 804 (Tex.Crim.App. 1993), overruled on other
grounds by Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex.Crim.App. 1997). Appellant also
directs us to Ex parte Broadway, in which the Court of Criminal Appeals asserted that an open
plea may be considered a type of bargain when a defendant waives his rights in exchange for the
State’s consideration. Ex parte Broadway, 301 S.W.3d 694, 697 (Tex.Crim.App. 2009).
Appellant entered an open plea to the court and did not have an agreement with the State
to recommend a reduced sentence, as in a plea bargain, or any “bargain of a different sort” with
3
Appellant filed his motions for new trial on December 17, 2012.
3
the State as set out in Ex parte Broadway. See Ex parte Broadway, 301 S.W.3d at 697. Because
Appellant entered an open plea and did not enter into a plea bargain, he need not be returned to
his pre-plea position as the trial court retained jurisdiction to correct the illegal judgment. See
also Meineke v. State, 171 S.W.3d 551, 555, 558 (Tex.App. – Houston [14th Dist.] 2005, pet.
ref’d); Ware v. State, 62 S.W.3d 344, 353-54 (Tex.App. – Fort Worth 2001, pet. ref’d)(trial
courts have jurisdiction until the appellate record has been filed in the court of appeals).
Appellant additionally asserts that he should be returned to his pre-plea position in both
this case and Cause Number 1274489D because both cause numbers were part of the same
“illegal” sentencing hearing. As Appellant has failed to present argument or authority in support
of this contention, it is waived. TEX. R. APP. P. 38.1(i); see Republic Underwriters Ins. Co. v.
Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004)(when appellate issue is unsupported by
argument or lacks citation to record or legal authority, nothing is presented for review).
Appellant filed a post-brief letter of authorities citing Texas Code of Criminal Procedure
Article 42.09, section 1 and State v. Aguilera, in support of his contention that the trial court was
not authorized to modify his sentence in Cause Number 1289808D on the day after the
assessment of his initial sentence because his sentence commenced on the day it was
pronounced. TEX. CODE CRIM. PROC. ANN. art. 42.09, § 1 (West Supp. 2014); State v. Aguilera,
165 S.W.3d 695, 698 (Tex.Crim.App. 2005). We disagree with Appellant’s contention and find
Appellant’s reliance upon Aguilera to be misplaced. Aguilera involved the timely modification
of an authorized sentence imposed on the same day that the initial sentence was imposed before
the trial court adjourned for the day. See Aguilera, 165 S.W.3d at 696, 698. In Aguilera, the
Court of Criminal Appeals differentiated the Aguilera facts from those presented in Harris. v.
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State, wherein the Court determined that a trial court’s second attempt to orally sentence a
defendant violated Double Jeopardy principles. See Harris v. State, 153 S.W.3d 394, 395-96
(Tex.Crim.App. 2005). As the Court of Criminal Appeals noted, the issue in Harris was not
whether the written judgment of the trial court was false or in error. Id. at 395. Rather, in
Harris, the trial court had failed to specifically find the enhancements presented by the State to
be true when it pronounced its original sentence, resulting in the trial court’s imposition of an
authorized sentence for an un-enhanced offense. Id. at 395-96. Consequently, the Court of
Criminal Appeals determined that the trial court’s second sentencing of Harris on the day
following its original oral pronouncement of an authorized sentence violated Harris’ rights under
the Double Jeopardy Clause. Id. at 397.
In Harris, the Court of Criminal Appeals differentiated the facts there from those of
Cooper v. State, where the trial court had erroneously sentenced Cooper to four years for an
offense which carried a minimum five-year sentence. Cooper v. State, 527 S.W.2d 898, 898
(Tex.Crim.App. 1975). Three days after the initial sentence was imposed, the trial court held a
hearing and, in the presence of Cooper, his counsel, and the State, noted that it had erroneously
sentenced Cooper below the statutory minimum sentence. Id. The trial court then assessed a
valid punishment, entered judgment, and pronounced sentence. Id. Because the original
sentence was void, the Court of Criminal Appeals determined “the trial court acted properly and
within [its] authority in assessing a lawful punishment at the subsequent hearing, and in
pronouncing sentence based on such punishment.” Id. at 899.
A trial or appellate court which otherwise has jurisdiction over a criminal conviction may
always notice and correct an illegal sentence. Mizell v. State, 119 S.W.3d 804, 806
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(Tex.Crim.App. 2003)(also observing that there has never been anything in Texas law that
prevented any court with jurisdiction over a criminal case from noticing and correcting an illegal
sentence). The State notes that the proceedings in the trial court are suspended only after the
record on appeal has been filed in the appellate court, unless otherwise provided by law or the
Rules of Appellate Procedure. TEX. R. APP. P. 25.2(g). The trial court modified its
pronouncement of the illegal sentence in Cause Number 1289808D by pronouncing a legal
sentence in the presence of Appellant, his counsel, and the State on November 20, 2012, which
was one day after the initial sentence was pronounced and before the appellate record was filed.
The appellate record does not show that the trial court was otherwise without jurisdiction to act
in this manner. We conclude the trial court’s modification of Appellant’s void sentence in Cause
Number 1289808D was proper and occurred while the trial court had jurisdiction of the case.
Issue One is overruled.
In Issue Two, Appellant claims his sentence in this case constitutes cruel and unusual
punishment, violating his constitutional rights.
As a general rule, punishment is not cruel and unusual if it falls within the range of
punishment established by the Legislature. Jackson v. State, 680 S.W.2d 809, 814
(Tex.Crim.App. 1984); Harris v. State, 656 S.W.2d 481, 486 (Tex.Crim.App. 1983); Dale v.
State, 170 S.W.3d 797, 799 (Tex.App. – Fort Worth 2005, no pet.). A narrow exception to this
general rule is recognized when the sentence is grossly disproportionate to the offense. Dale,
170 S.W.3d at 799, citing Harmelin v. Michigan, 501 U.S. 957, 1004–05, 111 S. Ct. 2680, 2706–
07, 115 L. Ed. 2d 836 (1991)(Kennedy J., concurring); Solem v. Helm, 463 U.S. 277, 290–92, 103
S. Ct. 3001, 3009–11, 77 L. Ed. 2d 637 (1983); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.),
6
cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992).
Generally, sentences falling within the prescribed statutory limitations are not considered
cruel and unusual punishment within the meaning of either the United States or Texas
Constitution. Harris, 656 S.W.2d at 486; Kim v. State, 283 S.W.3d 473, 475 (Tex.App. – Fort
Worth 2009, pet. ref’d); Dale, 170 S.W.3d at 799. Only in exceedingly rare cases may a
sentence within the statutorily-prescribed range be proven to be out of proportion to the crime
and violate the Eighth Amendment. Solem, 463 U.S. at 288-90, 103 S.Ct. at 3008–09. The
objective criteria for assessing such claims include the (1) gravity of the offense and the
harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction,
and (3) the sentences imposed for commission of the same offense in other jurisdictions. Id. at
292, 103 S.Ct. at 3010–11.
After the Supreme Court’s decision in Harmelin, a question arose whether the Eighth
Amendment did or did not prohibit disproportionate sentences in non-death penalty cases. The
Fifth Circuit concluded in McGruder that proportionality analysis survived Harmelin but Solem
did not. McGruder, 954 F.2d at 316. The Fifth Circuit determined that Harmelin required a
reviewing court to initially make a threshold comparison of the gravity of the defendant’s
offenses against the severity of his sentence. Id. Only if the reviewing court finds that the
sentence is grossly disproportionate to the offense will it consider the remaining Solem factors
and compare the sentence received to (1) sentences for similar crimes in the same jurisdiction
and (2) sentences for the same crime in other jurisdictions. Id.
Theft of property of an elderly person, when the value of the property is more than
$20,000 and less than $100,000, carries a statutory punishment range of two to twenty years.
7
TEX. PENAL CODE ANN. § 12.33 (West 2011). The twenty-year sentence assessed by the trial
court in this case falls within the statutory range of punishment. Therefore it is generally not
considered to amount to cruel or unusual punishment. Harris, 656 S.W.2d at 486; Kim, 283
S.W.3d at 475.
In support of his contention that his sentence may be categorized as cruel and unusual
despite falling within the statutory guidelines, Appellant notes that he had no prior criminal
history, no one was seriously injured during his commission of the offenses, Earl had expressed a
willingness to allow him to repay the theft amount, and he suffered from post-traumatic stress
disorder at the time of the offense.
We will first consider the threshold comparison of the gravity of the offense against the
severity of the sentence. The gravity of the offense is determined by evaluating the harm caused
or threatened and the offender’s culpability. Dale, 170 S.W.3d at 800.
Appellant entered an open plea to the indicted offense of theft of an elderly person,
whereby Appellant unlawfully appropriated, by acquiring or otherwise exercising control of
more than $60,000 from Earl, his wife’s elderly grandfather. We observe that $60,000 is not an
insubstantial sum of money. Earl refrained from initially reporting the theft offense to the police
because Appellant promised to pay back the stolen money. Earl cared for his wife who suffered
from Alzheimer’s disease and had permitted Appellant to live in his home. The trial court noted
that Earl was a family member who had helped Appellant. In sentencing Appellant, the trial
court stated that it considered those factors as well as Appellant’s military record and the fact
that Appellant suffers from post-traumatic stress disorder, but noted that “overall, the
circumstances of this particular case are heinous and egregious.”
8
The twenty-year sentence assessed by the trial court is the maximum permitted
punishment for this offense. TEX. PENAL CODE ANN. § 12.33 (West 2011). However, under the
facts of this case, we are unable to conclude that the sentence is grossly disproportionate to the
severity of the offense. Consequently, it is unnecessary to consider the remaining Solem factors.
Issue Two is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
ANN CRAWFORD McCLURE, Chief Justice
September 30, 2014
Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating
(Do Not Publish)
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