Thomas Riley v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00087-CR ______________________________ THOMAS RILEY, Appellant  V.  THE STATE OF TEXAS, Appellee                                               On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 01F0294-202                                                  Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION           Thomas Riley appeals his conviction for sexual assault of a child. See Tex. Pen. Code Ann. § 22.011 (Vernon Supp. 2004). A jury found Riley guilty, and the trial court sentenced Riley to twenty years' imprisonment in accordance with the jury's sentencing recommendation. On appeal, Riley contends the trial court erred by (1) permitting the State to make an improper closing argument, and (2) cumulating his sentence in this case with his sentence for robbery in Bowie County cause number 00-F0694-202.           Riley first contends the trial court erred by overruling his objection to the State's closing argument. During the trial, Riley's identity as the person who sexually assaulted the victim was hotly contested. The following contains the relevant portion of the State's closing argument, as well as Riley's objection: [Prosecutor]: . . . . So the real issue in this case is who sexually assaulted [the victim]? Now, the defense wants you to believe that, first of all, it wasn't Mr. Riley. And there was the issue about Patrick Hollins, "Who was Patrick Hollins?" Patrick Hollins has nothing to do with this case. You have to remember [the victim] is mentally retarded. She knows -- maybe she did, maybe she named someone named Pat. And, boy, if I'm a mother and if my child could give me any information at all, I would be telling the police every Pat that I know. The police followed up on that, they found a Patrick Hollins. They sent his DNA down, it was excluded.  [Defense Counsel]:Objection, Your Honor. That states facts that aren't in evidence.  THE COURT:Approach the bench.                       (Bench conference, outside jury's hearing:)  THE COURT:I think it is, . . . .  [Defense Counsel]:Well, there was evidence -- something was said --  [Prosecutor]:It's in the report.  [Defense Counsel]:-- but it never came out that it was actually his.  [Prosecutor]:It's in the report, Patrick Hollins.  THE COURT:Well, if it's [sic] evidence, it's in evidence. Go ahead.           The State contends the trial court's statement, "Go ahead," is not a ruling on Riley's objection and, therefore, this issue has not been preserved for appellate review. "To preserve error for review a defendant must receive an adverse ruling on his objection." Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). A trial court's ruling on a defendant's objection must be "conclusory; that is, it must be clear from the record the trial judge in fact overruled the defendant's objection or otherwise error is waived." Id. In Ramirez, the Texas Court of Criminal Appeals held the trial court had implicitly overruled the defendant's objection and the error was thereby preserved for appellate review. Id. at 650. In this case, the trial court stated that it believed the disputed facts were in evidence and permitted the State to continue its argument over the defendant's objection. We believe the trial court's instruction to the State, "Go ahead," was an implicit overruling of Riley's objection. Therefore, the ruling was adverse to Riley and error was preserved. But cf. Sands v. State, 64 S.W.3d 488, 491 (Tex. App.—Texarkana 2001, no pet.) (trial court carried motion with case, did not rule, and defendant later waived objection by permitting admission of same evidence without objection).           There are four permissible areas of jury argument: (1) a summation of the evidence presented, (2) reasonable deductions from the evidence presented, (3) responses to the argument(s) of opposing counsel, and (4) pleas for law enforcement. Rocha v. State, 16 S.W.3d 1, 21 (Tex. Crim. App. 2000). In this case, the trial court admitted into evidence, without objection, the State's ninth exhibit. That exhibit is a laboratory report from the Texas Department of Public Safety concerning sexual assault evidence collected from the victim and a suspect identified as "Patrick Hollins." John Donahue, a serologist previously with the Texas Department of Public Safety, had analyzed DNA from the victim's rape kit examination and DNA from Patrick Hollins to determine whether Hollins could be excluded as a suspect in the rape. After conducting the requisite tests, Hollins prepared a laboratory report that included his findings. In relevant part, the laboratory report states, The DNA recovered from the sperm fraction of the vaginal swab indicates a mixture of DNA from two or more persons. The victim is included as a possible contributor of DNA to this mixture. Suspect Hollins is excluded as a possible contributor to this mixture.  (Emphasis added.)           Donahue had also testified that, through DNA testing, he had been able to exclude Hollins as a suspect. Therefore, there was evidence Hollins had been ruled out as the perpetrator. We hold the trial court properly overruled Riley's objection to the State's closing argument.           In his second point of error, Riley contends the trial court erred by ordering his sentence in the case now on appeal be "stacked" on to his sentence from a robbery conviction.           On December 1, 2000, the 202nd Judicial District Court found Riley guilty of a robbery committed October 10, 2000, in trial court cause number 00-F-0694-202. The trial court placed Riley on community supervision for that offense. On November 18, 2002, the trial court in that cause found Riley had violated the terms and conditions of his community supervision, revoked Riley's community supervision, and sentenced Riley to six years' imprisonment.           In this case, on February 5, 2003, a jury in the 202nd Judicial District Court, in cause number 01-F-0294-202, found Riley guilty of aggravated sexual assault, that offense having occurred July 14, 1999. The trial court ordered that Riley not begin serving the sentence in the case now on appeal until he first served his sentence for which he received six years' imprisonment. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2004).           On appeal in this case, Riley asks us to limit a trial court's discretion to cumulate sentences to situations where (1) the conviction on which the present sentence is being stacked chronologically preceded the current charge, and (2) the trial court has carefully weighed mitigating considerations, such as participation in personal counseling or the Texas Department of Criminal Justice's "SAFPF" program. When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and the sentence and execution shall be accordingly; . . . .  Tex. Code Crim. Proc. Ann. art. 42.08(a). We review a trial court's cumulation order for abuse of discretion. Pettigrew v. State, 48 S.W.3d 769, 770 (Tex. Crim. App. 2001).           The State maintains "the offense date of either of Riley's felonies is irrelevant." The State is correct. In Pettigrew, the Texas Court of Criminal Appeals emphasized that, for the purpose of cumulating sentences, the date sentence is either imposed or suspended is the key date for the trial court to consider. Id. at 770, 771 (affirming trial court's stacking of 1995 sexual assault revocation on top of 1997 murder); see Spencer v. State, 503 S.W.2d 557, 561–62 (Tex. Crim. App. 1974) (affirming trial court's stacking order that defendant's conviction for 1973 offense be served before beginning to serve sentence for 1970 offense), overruled on other grounds, Gordon v. State, 575 S.W.2d 529, 531 n.2 (Tex. Crim. App. 1978). Neither caselaw nor the statute's plain language limits a trial court's discretion to cumulate sentences to those instances where the defendant's charges are tried in chronological order according to the date of the offense.           In this case, the record reflects Riley was convicted in two separate cases. The decision whether to order the sentences be served consecutively or concurrently was entirely within the trial court's discretion. The record does not lead us to conclude the trial court abused its discretion in this case.           We affirm the trial court's judgment.                                                                            Donald R. Ross                                                                            Justice Date Submitted:      March 29, 2004 Date Decided:         March 31, 2004 Do Not Publish "Cambria Math"; panose-1:2 4 5 3 5 4 6 3 2 4; mso-font-charset:0; mso-generic-font-family:roman; mso-font-pitch:variable; mso-font-signature:-1610611985 1107304683 0 0 159 0;} @font-face {font-family:Calibri; panose-1:2 15 5 2 2 2 4 3 2 4; mso-font-charset:0; mso-generic-font-family:swiss; mso-font-pitch:variable; mso-font-signature:-1610611985 1073750139 0 0 159 0;} @font-face {font-family:Tahoma; panose-1:2 11 6 4 3 5 4 4 2 4; mso-font-charset:0; mso-generic-font-family:swiss; mso-font-pitch:variable; mso-font-signature:1627400839 -2147483648 8 0 66047 0;} /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-unhide:no; mso-style-qformat:yes; mso-style-parent:""; margin:0in; margin-bottom:.0001pt; mso-pagination:none; mso-layout-grid-align:none; text-autospace:none; font-size:12.0pt; font-family:"Times New Roman","serif"; 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(2) his plea of “guilty” for failure to register was not knowingly and voluntarily entered; and (3) the trial court violated his right to be free from double jeopardy by using the offense of failing to register as a sex offender as the basis for revoking his community supervision while also using that same conduct to find him guilty of failure to register as a sex offender.            We affirm the trial court’s judgment because:  (1) the admonishment requirements do not apply to revocation proceedings; (2) the trial court is not required to admonish Stafford regarding all of the possible collateral consequences of his plea; and (3) Stafford was not placed in double jeopardy. Admonishment Requirements Are Not Applicable to Revocation Proceedings            In its application to adjudicate on the underlying offense of indecency with a child, the State alleged that Stafford violated four conditions of his community supervision, including failing to register as a sex offender.  At the revocation hearing, Stafford pled “true” to the allegations. In his first point of error, Stafford contends that his plea of “true” was not entered knowingly and voluntarily because the trial court did not first admonish him regarding the “range of punishment for the revocation offense of Indecency with a Child.”             Stafford argues that in order for his plea of “true” to be knowing and voluntary, Article 27.13 of the Texas Code of Criminal Procedure requires that the trial court admonish him of the range of punishment attached to the offense of indecency with a child, as stated in Article 26.13(a)(1).[3] Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (Vernon Supp. 2010). Article 27.13 of the Texas Code of Criminal Procedure states as follows: A plea of “guilty” or a plea of “nolo contendere” in a felony case must be made in open court by the defendant in person; and the proceedings shall be as provided in Articles 26.13 [admonishments to be given a defendant upon a plea of guilty, including range of punishment], 26.14 [jury on guilty plea] and 27.02 [various pleas and motions a defendant may file/enter].  If the plea is before the judge alone, same may be made in the same manner as is provided for by Articles 1.13 and 1.15.  Tex. Code Crim. Proc. Ann. art. 27.13 (Vernon 2006). By its clear language, Article 27.13 applies only to pleas of guilty or nolo contendere made to a felony charge; there is no indication the statute applies to pleas made at revocation proceedings. The admonishment requirements of Article 27.13 do not apply to community supervision revocation proceedings.  Gutierrez v. State, 108 S.W.3d 304, 309–10 (Tex. Crim. App. 2003); see also Harris v. State, 505 S.W.2d 576 (Tex. Crim. App. 1974) (statute requiring certain admonishments be given prior to acceptance of guilty pleas inapplicable in community supervision revocation proceedings). Accordingly, Stafford’s first point of error is overruled. There Is No Requirement to Admonish as to Collateral Consequences            As a result of his community supervision violations, Stafford was charged with the separate crime of failing to register as a sex offender, a charge to which he entered a plea of “guilty.” In his second point of error, Stafford argues that his guilty plea was not knowing and voluntary because the trial court failed to inform him of the consequences that his plea could reap in regard to parole and future punishment enhancements.            In assessing the voluntariness of a plea, we review the record as a whole and consider the totality of the circumstances.  Morrow v. State, 139 S.W.3d 736, 744 (Tex. App.––Texarkana 2004, no pet.) (citing Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998)). Due process requires that a defendant’s guilty plea not only be voluntary, but “be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970); Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004). Texas law specifically states, “No plea of guilty . . . shall be accepted by the court unless it appears that . . . the plea is free and voluntary.”  Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 2010). This requirement assures that each defendant who pleads guilty to a criminal offense does so with a full understanding of charges and the direct consequences of his plea.  State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim. App. 1999).  On the other hand, ignorance of a collateral consequence of such a plea does not render it involuntary. Id.  A consequence is “collateral” if it is not a definite, practical consequence of a defendant’s guilty plea.  Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir. 1973).            Here, although Stafford argues that he “was not fully informed of the consequences of his plea,” he fails to identify whether he believes it would be his trial counsel or the trial court who bore the burden of informing him. Stafford fails to cite to any caselaw indicating that either the trial court or his trial counsel was required to inform him that a guilty plea could be used to enhance future punishments or affect any possibility of parole, and we are aware of none. Contrarily, courts have characterized “possible enhancement of punishment . . . as ‘collateral consequences’ of which a defendant does not have to be knowledgeable before his plea is considered knowing and voluntary.”  Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citations omitted).  Parole has been held to be too “speculative [in] nature” to have legal importance on the subject of voluntariness of a guilty plea.  Ex parte Evans, 690 S.W.2d 274, 279 (Tex. Crim. App. 1985). Therefore, we overrule Stafford’s second point of error. No Double Jeopardy Exists for Stafford Here            In his final point of error, Stafford contends that his right to be free from double jeopardy was violated because he was convicted and/or punished twice for his failure to register as a sex offender:  one time as a violation of his terms of community supervision and again as a stand-alone and separately charged offense.            Our founding fathers recognized that allowing the authorities to subject citizens to multiple trials for the same offense “would arm Government with a potent weapon of oppression.” Stephens v. State, 806 S.W.2d 812, 816 (Tex. Crim. App. 1990) (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977)). Both the Fifth Amendment to the United States Constitution and Article I, Section 14 of the Texas Constitution prohibit double jeopardy and thereby protect individuals from being tried twice for the same offense, possibly receiving double punishments for the same act. Albernaz v. United States, 450 U.S. 333, 343 (1981); Illinois v. Vitale, 447 U.S. 410, 415 (1980); Stephens, 806 S.W.2d at 814–15. A multiple punishments double jeopardy claim can arise in two contexts. Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006). The first of these is in the lesser-included offense context, where the same conduct is punished twice, “once for the basic conduct, and [another] time for that same conduct plus more.” Id. The second context occurs where a defendant is punished for the same criminal act twice under two distinct statutes when the law-making body intended the conduct to be punished only once. Id.            Stafford cites Ex parte Tarver as being the controlling authority in this case.  In Tarver, the State moved to revoke the defendant’s probation because he allegedly committed an assault, violating a condition of his probation.  Ex parte Tarver, 725 S.W.2d 195, 196 (Tex. Crim. App. 1986). Based on the same facts, the State also separately charged the defendant with assault. Id. In denying the State’s motion to revoke, the trial court found the State’s allegation to be “not true” and the evidence to be “totally incredible.”  Id. at 196, 200. When the State then attempted to continue its prosecution for the separate assault charge, the defendant filed a pretrial application for writ of habeas corpus, but the trial court denied the writ.  Id. at 196–97.            On appeal, the Texas Court of Criminal Appeals held that the factual findings made in the probation revocation proceeding collaterally estopped the State from prosecuting the defendant for assault and that further prosecution would violate his right to be free from double jeopardy.[4] Id. at 197. The court acknowledged that, strictly speaking, the Double Jeopardy Clause is not implicated when the State prosecutes a defendant for a crime after using the crime as a basis for having the defendant’s probation revoked: The double jeopardy proscription of the Fifth Amendment to the United States Constitution protects an accused against being twice placed in jeopardy of punishment for “the same offence.”  In the instant case, if the district court had revoked applicant’s probation, the punishment he received would have been for the offense of which he was originally convicted, possession of cocaine.  In the county criminal court at law, applicant faces the risk of being punished for the subsequent offense, assault.  He is not, therefore, being twice placed in jeopardy for the same offense.  Id. Nevertheless, citing Swisher v. Brady, 438 U.S. 204, 216 (1978), the court held that allowing the prosecution would implicate “one of the risks the Double Jeopardy clauses [sic] protects against”: [T]he district court found that the allegation the State sought to prove in the revocation hearing, that applicant had assaulted the complainant, is not true.  The State is now attempting to relitigate that same issue.  The doctrine of collateral estoppel bars such a relitigation.  Tarver, 725 S.W.2d at 198–99.            In Tarver, on a motion to revoke probation, the trial court had specifically found the evidence of assault to be not credible and the allegations that the defendant violated his probation to be not true. The Texas Court of Criminal Appeals emphasized that the trial court’s factual findings were the basis of its decision and that it was only in these “particular circumstances” that the findings in a revocation proceeding would bar future prosecution for the same offense.[5]  Id. at 200.  Here, the trial court made no such factual findings.  Therefore, Tarver is distinguishable; we overrule Stafford’s third point of error.             We affirm the judgment of the trial court.                                                                           Bailey C. Moseley                                                                        Justice  Date Submitted:         January 12, 2011 Date Decided:            January 27, 2011  Do Not Publish [1]Cause number 29704-A.  [2]Cause number 38872-A. [3]Even though Stafford does not contest the voluntariness of his original plea of guilty to indecency with a child, on appeal, he contends that “[t]here was no mention of the punishment range for indecency with a child.” There is no mention of the punishment range during the revocation proceeding. However, the record from April 11, 2003, shows a written admonishment that Stafford faced a “term of not more than 20 years or less than 2 years . . . and in addition, a fine not to exceed $10,000,” and during the hearing, the trial court reiterated that Stafford faced a possible sentence “up to 20 years in prison and a $10,000 fine.” Stafford acknowledged that he reviewed and understood the admonishment. Therefore, as it regards Stafford’s original plea of guilty, the trial court substantially complied with Article 27.13 and Article 26.13(a)(1). [4]The court acknowledged that the constitutional basis for applying collateral estoppel to criminal proceedings is the Double Jeopardy Clause of the Fifth Amendment.  See Tarver, 725 S.W.2d at 199. [5] The Texas Court of Criminal Appeals cautioned against the expansion of the Tarver decision:  We emphasize the narrowness of this holding. A mere overruling of a State’s motion to revoke probation is not a fact-finding that will act to bar subsequent prosecution for the same alleged offense. A trial court in a motion to revoke probation hearing has wide discretion to modify, revoke, or continue the probation.  A court may continue or modify the probation even though finding that the allegations in the motion to revoke probation are true. A trial court’s decision either to revoke or continue a probationer’s probation may involve no fact-finding.  It is only in the particular circumstances of this case, where the trial court does make a specific finding of fact that the allegation is “not true,” that a fact has been established so as to bar relitigation of that same fact. Furthermore, an acquittal of the offense will not bar a subsequent revocation of probation based on the same allegation.  Id. at 200 (citations omitted).