Connie Boerne Williams v. State

NUMBER 13-98-538-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ CONNIE BOERN WILLIAMS , Appellant, v. THE STATE OF TEXAS , Appellee. ___________________________________________________________________ On appeal from the 24th District Court of Goliad County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Dorsey, Chavez, and Rodriguez Opinion by Justice Rodriguez This is an appeal from a revocation of probation. By a single issue, appellant contends the trial court improperly imposed consecutive sentences in violation of section 3.03 of the Texas Penal Code. See Tex. Pen. Code Ann. § 3.03(a) (Vernon Supp. 2000). We affirm. A grand jury returned four indictments against Connie Boern Williams, appellant, for forgeries occurring between November 18 and November 23 of 1994. Appellant pleaded guilty in all four cases pursuant to a plea bargain agreement. In each case, the trial court sentenced appellant to two years confinement, but suspended the sentences and placed appellant on five years community supervision. On January 30, 1997, in cause number 95-2-3546, one of the four forgery convictions, a trial court revoked probation and sentenced appellant to one year confinement. On September 24, 1998, in cause number 95-2-3547, the cause number from which this appeal is taken, a trial court revoked probation and sentenced appellant to confinement for two years after finding appellant violated the conditions of her probation. Appellant contends the trial court improperly sentenced her to serve two consecutive sentences because the offenses of which she was convicted arose out of the same criminal episode and were prosecuted in the same criminal action. Because the offenses involved the same criminal episode, and, according to appellant, were prosecuted in a single criminal action, she contends the court could only impose concurrent sentences. We review an order revoking probation for an abuse of discretion. See Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). Section 3.03 generally prohibits a trial court from imposing sentences that run consecutively for offenses that arise out of the same criminal episode and which are prosecuted in a single criminal action. See Tex. Pen. Code Ann. § 3.03(a) (Vernon Supp. 2000). Offenses arise from the same criminal episode if they involve "the repeated commission of the same or similar offenses." Tex. Pen Code Ann. § 3.01(2) (Vernon 1994). In this case, appellant committed four forgeries using the same bank account during the span of approximately one week. Thus, the offenses involved the repeated commission of the same or similar offenses; the offenses arose from the same criminal episode. A "single criminal action" refers to a single trial or plea proceeding. See Ex Parte Pharr, 897 S.W.2d 795, 795 (Tex. Crim. App. 1995) (citing Laporte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992)). Thus, "[a] defendant is prosecuted in a 'single criminal action' when allegations and evidence of more than one offense arising out of the same criminal episode are presented in a single trial or plea proceedings." Id. The court of criminal appeals has held that there was not a single criminal action when a defendant pleaded guilty, was admonished, found guilty and sentenced in one cause number, and immediately thereafter pleaded guilty, was admonished, found guilty, and sentenced in another cause number. See Pharr, 897 S.W.2d at 795. In addition, the court has upheld a trial court's imposition of consecutive sentences when there is no evidence in the record that a single criminal action occurred. See Duran v. State, 844 S.W.2d 745, 747 (Tex. Crim. App. 1992). Appellant contends she entered four guilty pleas and the trial court pronounced punishment as to all four pleas in a single criminal action. However, appellant has not provided this Court with a reporter's record from the guilty pleas. The docket sheet in each of the four forgery cases reflects that on May 15, 1995, appellant pleaded guilty, the court found her guilty, sentenced her to two years confinement, and placed her on five years community supervision. We are unable to infer, however, that because appellant pleaded guilty and the trial court pronounced punishment on the same date in all four cases, there was a single guilty plea proceeding. In fact, the record suggests that each guilty plea was entered separately, as the docket sheet indicates that each hearing for each cause number was recorded on a different page in the court's book of minutes. Appellant points to the plea bargain memorandum filed in each cause, which lists all four cause numbers at the top of the page, as evidence that the guilty pleas were heard in a single criminal action. The memorandum tends to show that the plea bargain agreement was contemplated to involve all four offenses, but does not indicate whether the pleas were heard in one proceeding. From the record before us, we are unable to discern whether appellant entered the four guilty pleas in a single proceeding or four separate proceedings. When an appeal is taken without a reporter's record, all presumptions of regularity are in favor of the judgment. Cox v. State, 843 S.W.2d 698, 703 (Tex. App.--Corpus Christi 1992, pet. ref'd);(1) Flores v. Arrieta, 790 S.W.2d 75, 76 (Tex. App.--San Antonio 1990, pet denied) (citing Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79, 82 (1955)). As appellant has failed to provide a reporter's record of the entry of her guilty pleas, she has failed to overcome the presumption of regularity in the judgment. Because appellant has failed to demonstrate that her guilty pleas were taken in a single criminal action, we cannot say the trial court abused its discretion in revoking appellant's probation and sentencing her to two years confinement. Appellant's sole issue is overruled. The judgment of the trial court is AFFIRMED. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 20th day of July, 2000. 1. Cox is based, at least in part, on former rule 50(d) of the Texas Rules of Appellate Procedure. Although this rule has been repealed, we note that an appellant must still secure a record on appeal that demonstrates error. See Tex. R. App. P. 34.6(b)(1) (appellant must request reporter's record and designate portions of proceedings to be included); Birdwell v. State, 996 S.W.2d 381, 383 (Tex. App.­Houston [14th Dist.] 1999, pet. ref'd).