Opinion
No. 06-06-00076-CR
Submitted: September 15, 2006.
Decided: October 3, 2006. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 28,779-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Jace Alan Copeland pled guilty, in April 2004, to two counts of intoxication manslaughter. His punishment was assessed, in keeping with a plea agreement, at ten years' imprisonment, with imposition of sentence suspended and Copeland placed on community supervision for a period of ten years. In September 2005, the trial court held a hearing on the State's motion to revoke Copeland's community supervision, where Copeland, without a plea agreement, pled true to the State's allegations. At the end of the hearing, the State recommended the trial court revoke Copeland's community supervision, impose a ten-year sentence on each count, and order the sentences to run consecutively. The trial court followed the State's recommendation and sentenced Copeland accordingly. Copeland appeals, contending that the trial court's cumulation order was in violation of the original plea agreement and that it denied Copeland due process of law. We overrule these contentions and affirm the judgment. Article 42.08(a) of the Texas Code of Criminal Procedure gives a trial court discretion to cumulate sentences:
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. . . . 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 sentence and execution shall be accordingly. . . .Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2006). A complaint about consecutive sentences is therefore reviewed under an abuse of discretion standard. Macri v. State, 12 S.W.3d 505, 511 (Tex.App.-San Antonio 1999, pet. ref'd). In determining whether the trial court abused its discretion, the appellate court must uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App. 2005). An appellate court must review the trial court's ruling in light of what was before the trial court at the time the ruling was made. Id.; Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). The trial court will not be overturned as long as its ruling is within the zone of reasonable disagreement. Id. However, an improper cumulation order is, in essence, a void sentence, and such error cannot be waived. A defect which renders a sentence void may be raised at any time. LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App. 1992). Copeland first alleges the State should be held to the original plea agreement presented when Copeland pled guilty and was placed on community supervision. He complains the State should not be able to "change the deal" at the hearing to revoke community supervision where the State recommended Copeland's sentences be cumulated. At the hearing in September 2005 on the State's motion to revoke Copeland's community supervision, there was no plea agreement in place. This fact was made explicit by the trial court, and Copeland clearly understood he was entering an "open plea." Essentially, Copeland relies on the line of caselaw requiring adherence to a plea agreement where the agreement is accepted by the trial court. However, once the trial court accepted the State's recommendation at Copeland's initial plea in April 2004, that plea agreement was satisfied. See Ditto v. State, 988 S.W.2d 236, 238 (Tex.Crim.App. 1999). In Ditto, the plea agreement was that the State would recommend a sentence of at most ten years and would not voice an opinion or recommendation on Ditto's application for community supervision. When the State later moved to have Ditto adjudicated and sentenced, the trial court sentenced him to twenty years. Ditto, 988 S.W.2d at 237. The Texas Court of Criminal Appeals found no error, because once Ditto was sentenced within the terms of the plea agreement, the bargain was a " completed transaction." Id. at 238. The court held that:
a plea agreement in which the State makes no recommendation on probation or does not address it at all, but sets a cap on punishment, is satisfied when the trial court assesses as punishment deferred adjudication probation within the terms of the cap. Imposition of a higher sentence is not precluded upon proceeding to adjudication due to a violation of the terms of deferred adjudication probation since the bargain was satisfied and completed by previous assessment of the deferred adjudication probation.Id. at 239-40; see also Von Schounmacher v. State, 5 S.W.3d 221, 222-23 (Tex.Crim.App. 1999). It was likewise a completed transaction in the instant case when, in April 2004, the trial court followed the plea agreement and assessed Copeland's punishment at ten years' imprisonment and placed him on community supervision for ten years. The only differences between Ditto and the instant case are that 1) Copeland was adjudicated on his plea and placed on regular community supervision, as opposed to deferred adjudication supervision assessed in Ditto; and 2) unlike Ditto, Copeland was not sentenced to more time than agreed in the plea agreement; rather, Copeland's sentences for two counts were cumulated. These differences, however, do not make the holding of Ditto inapplicable. When the trial court followed the plea agreement at Copeland's initial trial in April 2004, that was, as in Ditto, a completed transaction, and the trial court was not thereby precluded from cumulating the two sentences at the revocation hearing in September 2005. See also Jones v. State, No. 2-04-313-CR, 2005 Tex. App. LEXIS 6991 (Tex.App.-Fort Worth Aug. 25, 2005, pet. ref'd) (mem. op.) (not designated for publication) (on revocation of community supervision for two counts of aggravated sexual assault of a child, trial court could impose sentences consecutively, rather than concurrently). Further, the record does not support Copeland's contention the State was permitted to "change the deal" at the revocation hearing. While the form plea agreement Copeland signed at the time of his initial plea in April 2004 made no reference to multiple counts, that form had a space to be completed if the State was abandoning any allegations in the indictment, and that space was left blank. During that proceeding, there were several references that Copeland was pleading guilty to and being convicted of two counts, and he was specifically admonished by the trial court that any term of confinement he received "could be stacked, that is, run consecutively." Finally, and most significantly, Copeland's own trial attorney counseled him at that hearing, in no uncertain terms, concerning the likelihood of his sentences being cumulated in the event he violated his community supervision:
Q. [Defense counsel] You understand that — that the most important, I guess, requirement [of the terms of community supervision] as it affects you, is that you can never, under any circumstances, use alcohol or any other intoxicant or any other controlled substance or dangerous drug. Do you understand that?
A. [Copeland] Yes, sir.
. . . .
Q. [Defense counsel] And you understand that if you did, and that was proved to the Court, the chances of you going to the penitentiary for ten years [times] two, making it 20, is almost a dead certainty. Do you understand that?
Q. [Copeland] Yes, sir.Further, in September 2005, before accepting Copeland's plea of true to the State's alleged violations of community supervision, the trial court admonished him as follows:
Under the law, if I revoke your probation, I may stack each sentence, one on top of the other. In other words, revoke on Count I and give you a certain amount of time and revoke on Count II and give you a certain amount of time, and order that the second sentence, the one on the second count not to begin until the first one's been satisfied.The trial court asked Copeland if he understood, and he responded, "Yes, sir." The court then continued its colloquy with Copeland:
THE COURT: Now, understanding that procedure, do you still want to continue this plea?
A. [Copeland] Yes, sir.
THE COURT: You sure?
A. [Copeland] Yes, sir.Copeland cannot now be heard to say the State was allowed to "change the deal" at his revocation hearing. The record shows he was fully aware of the "almost . . . dead certainty" of what would happen if he violated the terms and conditions of his community supervision. His first point of error is overruled. Copeland's second point of error complains that the trial court abused its discretion in cumulating the sentences "without prior notice to the Defendant from the State of its intent to seek cumulated sentences upon revocation." Copeland contends he had a right to notice of the State's intent to seek cumulation, and, citing Marin v. State, argues this is a right which "must be implemented by the system unless expressly waived." Marin, 851 S.W.2d at 279. As noted above, the trial court has complete discretion regarding cumulation. Copeland offers no authority, and we find none, for his argument that the State should have notified him of its intent to seek cumulation of sentences. We overrule his second point of error. Having found the trial court's cumulation order did not violate the original plea agreement and that it did not deny Copeland due process of law, we affirm the judgment.
The judgment finding Copeland guilty and placing him on community supervision makes no direct reference to two counts, but recites that he was adjudged guilty of "intoxication manslaughter; (Criminal Episode)." The Texas Penal Code defines criminal episode as "the commission of two or more offenses." Tex. Pen. Code Ann. § 3.01 (Vernon 2003).
The trial court's discretion under this article is limited by Section 3.03(a) of the Texas Penal Code when multiple offenses arising out of the same criminal episode are tried in a single criminal action, in which case, the sentences must run concurrently. However, there are exceptions to this limitation imposed by Section 3.03(b), and if one of these exceptions applies, the court may impose sentences to run concurrently or consecutively. Sentences for multiple convictions of intoxication manslaughter fall under these exceptions. Tex. Pen. Code Ann. § 3.03(b) (Vernon Supp. 2006).
See generally Santobello v. New York, 404 U.S. 257, 260-62 (1971).
851 S.W.2d 275 (Tex.Crim.App. 1993).