Sherry Garrett v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-02-00136-CR ______________________________ SHERRY VERONICA GARRETT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 29435-B Before Morriss, C.J., Grant and Ross, JJ. Opinion by Chief Justice Morriss O P I N I O N Sherry Veronica Garrett appeals from her conviction on her plea of guilty for theft over $1,500.00 but less than $20,000.00 by a public servant. The trial court sentenced her to ten years' imprisonment and later directed that the ten-year sentence run consecutively with a ten-year sentence she was simultaneously assessed in a separate case charging tampering with a governmental record. The tampering offense occurred at a time different from the theft offense. In the tampering case, Garrett had previously been placed on deferred adjudication for ten years. In this single proceeding, the trial court accepted Garrett's plea of guilty for the theft offense and also adjudicated her guilty of the tampering charge. Notwithstanding the request of the prosecutor in this case for concurrent sentencing, the trial court sentenced her to two ten-year terms, one for theft and the other for tampering, then later ordered they would run consecutively. There appears to be no plea agreement in this case. Garrett has filed appeals from both cases. In this appeal, she contends the trial court's decision to stack her sentences, rather than permitting them to run concurrently, constitutes disproportionate punishment for the offenses. Jurisdiction of Appeal The first question is whether we may consider this appeal. The State points out Garrett signed a document waiving her right to appeal and argues we should therefore hold Garrett to her agreement. On the day of the initial sentencing, Garrett signed a document entitled "Waiver of Motion for New Trial and Right of Appeal." In that document, Garrett states that she understands she has the right to appeal, that she has consulted with her attorney, and that she waives her right to appeal. The State argues that, because the record and judgment do not affirmatively show the trial court gave permission for Garrett to appeal, we should enforce Garrett's waiver of the right to appeal. A defendant in a noncapital case may waive any right secured him by law. Blanco v. State, 18 S.W.3d 218, 219 (Tex. Crim. App. 2000) (citing Tex. Code Crim. Proc. Ann. art. 1.14(a) (Vernon Supp. 2003)). In the absence of a plea agreement, however, a presentencing waiver of the right to appeal is unenforceable. Ex parte Thomas, 545 S.W.2d 469 (Tex. Crim. App. 1977). In this case, no plea agreement existed. Garrett signed the waiver of her right to appeal on May 16, 2002. Though the trial court sentenced Garrett to ten years for each of the two charges on May 16, 2002, the sentencing hearing was recessed until June 3, 2002, so the court could then determine whether the sentences would be stacked or set to run concurrently. As a result, sentencing was not completed until June 3, 2002, well after Garrett signed the waiver. This record does not show the waiver was taken in a fashion that justifies enforcement under either the cases addressing post-sentencing waiver or the cases addressing waiver pursuant to a plea agreement. Neither appears in this case. In the absence of a plea agreement and of anything in the record showing the waiver was signed after sentencing, the waiver is unenforceable. Thomas, 545 S.W.2d 469. It also appears from the record that the trial court either consented to Garrett's appeal or demonstrated knowledge the waiver of the right to appeal was unenforceable when, after announcing the stacking of the sentences, the court advised Garrett's attorney that Garrett could be instructed regarding her right to appeal. For each of the above reasons, we determine we have jurisdiction to consider this appeal on the merits. Disproportionality Garrett contends the stacking of sentences caused her punishment to be disproportionate for the offenses for which she was convicted. That contention was not brought to the attention of the trial court. A defendant must, at the time the allegedly disproportionate sentence is imposed, object in the trial court or lose the right to raise the objection on appeal. Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.-Texarkana 2002, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.-Texarkana 1999, no pet.). We must conclude Garrett's contention was not preserved for review. Tex. R. App. P. 33.1. Even if it had been properly preserved, Garrett's point is not valid. As a general rule, as long as the punishment imposed by the trial court is within the limits prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. McNew v. State, 608 S.W.2d 166, 174 (Tex. Crim. App. 1978); Jackson v. State, 69 S.W.3d 657, 659 (Tex. App.-Texarkana 2002, no pet.). Further, the act of cumulating or stacking sentences so they run consecutively has been held not to constitute cruel and unusual punishment. Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984); Baird v. State, 455 S.W.2d 259 (Tex. Crim. App. 1970); Quintana v. State, 777 S.W.2d 474 (Tex. App.-Corpus Christi 1989, pet. ref'd). The offense of theft between $1,500.00 and $20,000.00 is a state jail felony, but when a public servant is the actor, the offense is increased to the next higher category. It is therefore treated as a third-degree felony. Tex. Pen. Code Ann. § 31.03(f) (Vernon Supp. 2003). Third-degree felonies are punishable by a term of imprisonment between two and ten years, and a fine not to exceed $10,000.00. Tex. Pen. Code Ann. § 12.34 (Vernon 1994). As Garrett's sentence of ten years' imprisonment falls within this range as set by the Legislature, her sentence does not constitute excessive, cruel, or unusual punishment. Further, the decision of whether to impose concurrent rather than consecutive sentences is a matter within the discretion of the trial court. Tex. Code Crim. Proc. Ann. art. 42.08(b) (Vernon Supp. 2003 ). Under Article 42.08, the trial court has the discretion to cumulate the sentences for two or more convictions. Smith v. State, 575 S.W.2d 41 (Tex. Crim. App. 1979); Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles of law, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990); see Allen v. State, 951 S.W.2d 925, 927 (Tex. App.-San Antonio 1997, pet. ref'd). We have recognized that a separate prohibition against disproportionate punishment is recognized under the Eighth Amendment to the United States Constitution apart from whether the punishment falls within the limits imposed by the Legislature. U.S. Const. amend. VIII; Jackson, 69 S.W.3d at 659; Latham v. State, 20 S.W.3d 63, 68-69 (Tex. App.-Texarkana 2000, pet. ref'd). As we stated in Latham, We initially make a threshold comparison of the gravity of the offense against the severity of the sentence, and then ask whether the sentence is grossly disproportionate to the offense. Only if we find such gross disproportionality do we then compare this sentence to the sentences imposed for similar crimes in this and other jurisdictions. 20 S.W.3d at 69; see Solem v. Helm, 463 U.S. 277 (1983); Jackson, 989 S.W.2d at 845. We note that, for each of Garrett's crimes, the maximum sentence authorized by the Legislature was imposed. Garrett does not contend the sentences are of themselves excessive, but instead that, when stacked, they become disproportionate to her crimes. The Legislature has not required the trial court to assess concurrent sentences for two separate offenses of this type, and Garrett directs this Court to no authority requiring that result. Stacking otherwise valid and proportionate sentences for separate crimes does not make them disproportionate. Stevens, 667 S.W.2d at 538; Baird, 455 S.W.2d 259; Quintana, 777 S.W.2d 474. We affirm the judgment. Josh R. Morriss, III Chief Justice Date Submitted: November 27, 2002 Date Decided: January 8, 2003 Do Not Publish