Opinion
No. 05-10-01207-CR No. 05-10-01208-CR No. 05-10-01209-CR No. 05-10-01210-CR No. 05-10-01211-CR No. 05-10-01212-CR No. 05-11-00087-CR
03-21-2012
JOHN MICHAEL WILSON, Appellant v. THE STATE OF TEXAS, Appellee
VACATE in part, AFFIRM in part and Opinion Filed March 21, 2012
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F06-00965-W, F09-25345-W, F09-25444-W,
F10-24073-W, F10-40893-W, F10-41366-W, & F10-41410-W
MEMORANDUM OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Fillmore
John Michael Wilson was charged with driving while intoxicated, third offense; burglary of a habitation with the intent to commit assault; deadly conduct; evading arrest in a motor vehicle; two offenses of burglary of a habitation with intent to injure an elderly person (F10-40893-W and F10- 41366-W); and theft over $100,000. Wilson entered an open plea of guilty in each case. The trial court found Wilson guilty of all charges and assessed punishment of ten years' imprisonment on the driving while intoxicated offense, twenty years' imprisonment on the burglary of a habitation with intent to commit assault offense, ten years' imprisonment on the deadly conduct offense, two years in a state jail facility on the evading arrest in a motor vehicle offense, forty years' imprisonment on each of the burglary of a habitation with intent to injure an elderly person offenses, and twenty years' imprisonment on the theft over $100,000 offense.
On appeal, Wilson argues the two convictions for burglary of a habitation with intent to injure an elderly person violate double jeopardy principles, the trial court erred by making an affirmative finding of family violence in the deadly conduct case and in one of the burglary of a habitation cases, and the punishment assessed in each case violates the rehabilitative objectives of the penal code. The background of these cases and the evidence adduced at the plea hearing are well known to the parties, and therefore we limit recitation of the facts to those necessary to address Wilson's complaints on appeal. We issue this memorandum opinion because the law to be applied in this case is well settled. See Tex. R. App. P. 47.1, 47.4. We vacate the trial court's judgment in cause number F10-41366-W. We affirm the trial court's judgments in the remaining six cases. Double Jeopardy
In his first point of error, Wilson complains the two convictions for burglary of a habitation with intent to injure an elderly person violate double jeopardy principles. The prohibition of double jeopardy is intended, in part, to prevent the State from punishing a defendant multiple times for the same offense. U.S. Const. amend. V; Villanueva v. State, 227 S.W.3d 744, 747 (Tex. Crim. App. 2007). For double jeopardy purposes, the "same offense" means the identical criminal act. Luna v. State, 493 S.W.2d 854, 855 (Tex. Crim. App. 1973). If the State's pleadings are not conclusive as to whether the offenses prosecuted are the same, we may look to the proof offered at trial. Id.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution applies to the states through the Fourteenth Amendment. State v. Blackshere, 344 S.W.3d 400, 405 n.8 (Tex. Crim. App. 2011) (citing Benton v. Maryland, 395 U.S. 784, 794 (1969)). Moreover, the Texas Constitution contains similar protections. Tex. Const. art. 1, § 14. The court of criminal appeals has determined the state and federal double jeopardy provisions are substantially identical. Blackshere, 344 S.W.3d at 405 n.8.
Wilson asserts there was only one entry of a habitation and, therefore, his convictions for burglary in cause numbers F10-40893-W and F10-41366-W punish him twice for the same offense. The State responds that Wilson waived his double jeopardy complaint in the trial court and may not raise it for the first time appeal. The State concedes that, if Wilson's double jeopardy complaint is subject to appellate review, the two convictions constitute a double jeopardy violation. Applicable Facts
In cause number F10-40893-W, the indictment alleged that, on or about February 28, 2010, Wilson:
unlawfully, intentionally and knowingly enter[ed] a habitation without the effective consent of JEAN BLACK, the owner thereof, and did then and there commit a felony other than theft, namely, INJURY TO AN ELDERLY PERSON.
In cause number F10-41366-W, the indictment alleged that, on or about February 28, 2010, Wilson:
unlawfully, intentionally and knowingly enter[ed] a habitation without the effective consent of TWANYA [sic] MICHELLE WILSON, the owner thereof, and did then and there commit a felony other than theft, namely, INJURY TO AN ELDERLY PERSON.
Wilson pleaded guilty to both charges, signed judicial confessions admitting he committed both offenses exactly as alleged in the indictments, and waived in the plea agreement in each case "any and all defects, error, or irregularities, whether of form or substance, in the charging instrument."
Both Jean Black, Wilson's mother, and Tawnya Wilson (Tawnya), Wilson's sister, testified at the plea hearing that, on February 28, 2010, Wilson broke into Black's house. Tawnya was visiting Black at the time, and Wilson physically attacked both Black and Tawnya. Analysis
We first consider the State's argument that Wilson waived his double jeopardy complaint in the trial court. The State specifically contends that double jeopardy is a bar to prosecution, article 27.08 of the code of criminal procedure provides that "a legal defense or a bar to the prosecution" is a substance exception to an indictment, and Wilson agreed in the plea documents to waive all substance defects in the indictments.
Article 27.08(3) provides that an exception to the substance of an indictment is that "it contains matter which is a legal defense or bar to the prosecution." Tex. Code Crim. Proc. Ann. art. 27.08(3) (West 2006)
A defect of substance normally involves the failure of an indictment to allege an offense. Flores v. State, 102 S.W.3d 328, 331 (Tex. App.-El Paso 2003, pet. ref'd). The general rule is that an indictment must provide adequate notice of the charges the accused must prepare to meet and enable him to plead acquittal or conviction in bar to future prosecution for the same offense. Tex. Code Crim. Proc. Ann. art. 21.11 (West 2009); Sanchez v. State, 928 S.W.2d 255, 259 (Tex. App.-Houston [14th Dist.] 1996, no pet.); see also Kirkpatrick v. State, 279 S.W.3d 324, 328 (Tex. Crim. App. 2009) (The test for constitutional sufficiency of an indictment is, "[C]an the district court and the defendant determine, from the face of the indictment, that the indictment intends to charge a felony or other offense for which a district court has jurisdiction?" (quoting Teal v. State, 230 S.W.3d 172, 180 (Tex. Crim. App. 2007)). In this case, each relevant indictment clearly charged Wilson with burglary of a habitation with the intent to injure an elderly person. Each indictment, standing alone, does not contain "matter which is a legal defense or bar to the prosecution." Wilson's double jeopardy complaint does not relate to a substance defect in either indictment; rather, he claims the State may not prosecute Wilson twice for the same conduct. See Ieppert v. State, 908 S.W.2d 217, 219 (Tex. Crim. App. 1995) (complaint that defendant was convicted under ex post facto law did not present question about form or substance of indictment, but presented complaint that law did not permit prosecution of defendant). Accordingly, the waivers in the plea agreements do not bar Wilson's double jeopardy complaint on appeal.
Wilson did not raise his double jeopardy complaint in the trial court, and the State next asserts that he cannot do so for the first time on appeal. The court of criminal appeals has determined:
Whether entered with or without an agreed recommendation of punishment by the State, a valid plea of guilty or nolo contendere "waives" or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error.
Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000); see also Monreal v. State, 99 S.W.3d 615, 620 (Tex. Crim. App. 2003) (non-bargaining defendant pleading guilty may be able to appeal an error not raised on a written pre-trial motion, if it is "otherwise preserved and survives Young"). In this case, "the judgment of conviction was not rendered independent of the double jeopardy violation as 'the claim is that the State may not convict petitioner no matter how validly his factual guilt is established.'" Reyes v. State, 139 S.W.3d 448, 449 (Tex. App.-Austin 2004, no pet.)(quoting Menna v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam)). Therefore, Wilson did not forfeit his right to raise a double jeopardy complaint by pleading guilty.
Because of the fundamental nature of double jeopardy protections, a double jeopardy complaint may be raised for the first time on appeal "when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of the usual rules of procedural default serves no legitimate state interests." Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000); see also Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008). Here, the indictments allege the entry of two different habitations, one owned by Black and one owned by Tawnya. However, it is undisputed the two burglary convictions are based on the same conduct, Wilson's entry of Black's residence with the intent to injure an elderly person. The gravamen of a burglary is the entry without the effective consent of the owner and with the requisite mental state. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). The harm from a burglary results from the entry itself. Id. "The offense is complete once the unlawful entry is made, without regard to whether the intended theft or felony is also completed." Id. Two convictions based on a single unlawful entry violate double jeopardy. Id.
Because both of the complained-of convictions were based on the same unlawful entry by Wilson, a double jeopardy violation is apparent on the face of the record. Further, because both convictions arise out of the same plea proceedings, enforcement of the usual rules of procedural default would serve no legitimate state interest. Shaffer v. State, 477 S.W.2d 873, 876 (Tex. Crim. App. 1971) (enforcement of rules of procedural default serve no state interest when "the two convictions were in the same court, on the same day, before the same judge, and were based on the same evidence"); Johnson v. State, 208 S.W.3d 478, 510 (Tex. App.-Austin 2006, pet. ref'd); Honeycutt v. State, 82 S.W.3d 545, 547 (Tex. App.-San Antonio 2002, pet. ref'd). Accordingly, even though Wilson failed to raise his double jeopardy complaint in the trial court, we may review the issue on appeal.
The State concedes that, if Wilson's complaint is subject to appellate review, a double jeopardy violation occurred. When a defendant is subjected to multiple punishments for the same offense, the remedy is to affirm the conviction for the most serious offense and vacate the other conviction. Bigon, 252 S.W.3d at 372. The "most serious offense" is defined as the offense for which the greatest sentence was assessed. Id. at 373; Cavazos, 203 S.W.3d at 338.
Wilson was sentenced to forty years' imprisonment on each of the relevant burglary of a habitation convictions. When the two sentences are the same, other factors, such as restitution or a deadly weapon finding, can be considered in determining which offense is the most serious offense. Villanueva, 227 S.W.3d at 749; Cavazos, 203 S.W.3d at 338-39. Here, the trial court made a finding of family violence in cause number F10-40893-W, but did not make such a finding in cause number F10-41366-W. A finding of family violence has potential consequences for Wilson. See 18 U.S.C.A. § 922(g)(9) (2000) (unlawful for any person convicted of misdemeanor crime of domestic violence to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition); Tex. Penal Code Ann. § 22.01(b)(2)(A) (West 2011) (any subsequent offense involving family violence will be enhanced to third degree felony); Tex. Fam. Code Ann. §§ 8.051 (West Supp. 2011), 153.004(c) (West 2008) (trial court required to consider family violence finding in proceeding regarding parent-child relationship or spousal maintenance). Accordingly, we conclude cause number F10-40893-W is the "most serious offense." See Villanueva, 227 S.W.3d at 749.
We resolve Wilson's first point of error in his favor. We affirm the trial court's judgment in cause number F10-40893-W and vacate the trial court's judgment in cause number F10-41366-W.
Finding of Family Violence
In his second point of error, Wilson asserts the trial court erred by entering an affirmative finding of family violence in the deadly conduct case and in one of the burglary of a habitation cases (F10-40893-W) because the State did not provide Wilson notice that it intended to seek the finding. In his third point of error, Wilson argues a finding of family violence in the burglary of habitation case is not authorized by article 42.013 of the code of criminal procedure because burglary is an offense under Title 7, rather than Title 5, of the penal code.
Article 42.013 of the code of criminal procedure provides:
In the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence, as defined by Section 71.004, Family Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case.
Generally, to preserve a complaint for appellate review, a party must make a timely, specific request, objection, or motion in the trial court and obtain an adverse ruling from the trial court. Tex. R. App. P. 33.1(a). Wilson did not object in the trial court to a lack of notice of the State's intent to seek an affirmative finding of family violence or to the trial court's finding of family violence in the burglary of a habitation case. Accordingly, these complaints are not preserved for appellate review. See Tex. R. App. P. 33.1(a). We resolve Wilson's second and third points of error against him.
See also Givens v. State, No. 05-06-01582-CR, 2008 WL 2104843, at *4 (Tex. App.-Dallas May 20, 2008, pet. dism'd) (mem. op., not designated for publication) (appellant failed to demonstrate his complaint about lack of notice of State's intent to seek family violence finding was an exception to error-preservation requirements under rule 33.1); Villarreal v. State, No. 01-01-00053-CR, 2002 WL 501605, at *2 (Tex. App.-Houston [1st Dist.] Apr. 4, 2002, no pet.) (not designated for publication) (appellant waived claim he was denied due process by trial court's affirmative finding of family violence by not raising it in trial court).
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Punishment
In his fourth through tenth points of error, Wilson contends the trial court abused its discretion by sentencing Wilson to incarceration in each case because the punishment violates the objectives of the penal code. Wilson specifically complains the trial court erred by not providing him an opportunity for rehabilitation by placing him on community supervision with treatment for his mental health and drug abuse issues. Wilson did not complain about the sentences either at the time they were imposed or in his motions for new trial. See Tex. R. App. P. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.) (for error to be preserved for appeal, the record must show appellant made a timely request, objection, or motion). Thus, Wilson has not preserved his complaints for our review. Even if Wilson had preserved error, however, his argument still fails. As a general rule, punishment that is assessed within the statutory range for an offense is not excessive or unconstitutionally cruel or unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). Wilson concedes the sentence assessed in each case was within the statutory range for the offense. Therefore, the trial court did not abuse its discretion by assessing the sentences in these cases. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal). We resolve Wilson's fourth through tenth points of error against him.
We vacate the trial court's judgment in cause number F10-41366-W. We affirm the trial court's judgments in all other cases.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101207F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOHN MICHAEL WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01207-CR
Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F06- 00965-W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 21, 2012.
ROBERT M. FILLMORE
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOHN MICHAEL WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01208-CR
Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 25345-W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 21, 2012.
ROBERT M. FILLMORE
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOHN MICHAEL WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01209-CR
Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 25444-W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 21, 2012.
ROBERT M. FILLMORE
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOHN MICHAEL WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01210-CR
Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 24073-W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 21, 2012.
ROBERT M. FILLMORE
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOHN MICHAEL WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01211-CR
Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 40893-W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 21, 2012.
ROBERT M. FILLMORE
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOHN MICHAEL WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01212-CR
Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 41366W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is VACATED.
Judgment entered March 21, 2012.
ROBERT M. FILLMORE
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOHN MICHAEL WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00087-CR
Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 41410-W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 21, 2012.
ROBERT M. FILLMORE
JUSTICE
Tex. Code Crim. Proc. Ann. art. 42.013 (West 2006).