Opinion issued November 18, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00311-CR
TIMOTHY EDWARD ROBERTS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 673980
MEMORANDUM OPINION
The trial court assessed appellant Timothy Edward Roberts ten years’ deferred adjudication for attempted murder. After the State moved to adjudicate guilt, the trial court found Roberts guilty and sentenced him to twenty years’ confinement. We affirm.
Background
On September 6, 1993, Roberts’s wife, Sandi Roberts, served Roberts with divorce papers at a Burger King restaurant. Roberts left the restaurant and later returned with a pistol. When he returned, he saw Sandi sitting in a car with her friend, Frank Kellogg. Roberts shot Sandi four times in the head and once in the shoulder. As a result, Sandi suffers from slurred speech, partial hearing loss, and partial paralysis of her left hand.
The State charged Roberts with the attempted murder of Sandi. The State added an aggravated assault charge, but later abandoned it, leaving only the attempted murder charge. Roberts pleaded no contest without an agreed recommendation, and the trial court assessed ten years’ deferred adjudication for attempted murder. In December 1999, the State moved to adjudicate guilt. In March 2000, the trial court found Roberts guilty of aggravated assault and sentenced him to ten years’ confinement.
In January 2002, the Fourteenth Court of Appeals reversed the conviction, holding that the trial court improperly had adjudicated appellant for aggravated assault—an offense different from the attempted murder charge in the original plea. Roberts v. State, Nos. 14-00-00514-CR, 14-00-00515-CR, 2002 WL 122502, at *3 (Tex. App.—Houston [14th Dist.] Jan. 31, 2002, pet. ref’d) (not designated for publication). The court restored Roberts to the same position he had been in when the trial court originally sentenced him to ten years’ deferred adjudication. Id.
In December 2002, the State again moved to adjudicate guilt, and Roberts pleaded not true to each allegation. In February 2003, after a hearing, the trial court found Roberts guilty of attempted murder and sentenced him to twenty years’ confinement, to run consecutive to his conviction in cause number 673979 (the aggravated assault of Frank Kellogg). In six issues, Roberts contends that the trial court erred in (1) adjudicating guilt in violation of the prior holding in the first appeal; (2) violating his due process rights in assessing a vindictive sentence; (3) considering three federal offenses, for which Roberts had been acquitted, during the punishment phase of the adjudication hearing; (4) cumulating the sentence in this cause with the sentence in cause number 673979, because the underlying offenses occurred during the same transaction; (5) violating the federal constitutional right against cruel and unusual punishment; and (6) violating the state constitutional right against cruel and unusual punishment.
Adjudication of Guilt
Roberts contends that the trial court violated the terms of the Fourteenth Court of Appeals’ earlier holding in allowing the State to proceed on grounds for revocation that are identical to the grounds used in the first adjudication proceeding. See Roberts, 2002 WL 122502, *3. This contention lacks merit, because the Fourteenth Court of Appeals held that the trial court erred in adjudicating Roberts for aggravated assault, an offense different from the attempted murder charge in the original plea. See id. In its holding, the court of appeals restored Roberts to the position he was in when the trial court originally sentenced him to ten years’ deferred adjudication for attempted murder:
In cause number 673980, to restore appellant to the position he occupied when he received deferred adjudication probation for the offense of attempted murder (1) we vacate the trial court's March 15, 2000 nunc pro tunc order, which changed the offense for which appellant pled no contest from attempted murder to aggravated assault; (2) we vacate the March 9, 2000 judgment adjudicating appellant’s guilt, and sentencing him to ten years’ confinement, for aggravated assault; (3) we vacate the March 9, 2000 order cumulating appellant’s sentence in cause number 673980 with the sentence assessed in cause number 673979; (4) we vacate the May 5, 1994 order deferring adjudication of guilt for aggravated assault; (5) we order the trial court to reinstate its May 5, 1994 order deferring adjudication of guilt for attempted murder; and (6) we remand this cause to the trial court for further proceedings consistent with this opinion.
Id. The court did not review or address the allegations recited in the State’s motion to adjudicate. Id. Nothing in the court’s opinion holds or even implies that the State could not proceed with a motion to adjudicate on the same grounds. See id. We thus hold that the trial court did not err in adjudicating guilt based on the State’s 2002 motion to adjudicate.
Vindictiveness of Sentence
Roberts contends that the trial court violated his due process rights in assessing a vindictive sentence. The trial court originally sentenced Roberts to ten years’ deferred adjudication. During the first revocation proceeding, the trial court found Roberts guilty and sentenced him to ten years’ confinement. After the Fourteenth Court of Appeals reversed the trial court’s adjudication of guilt, the State moved to adjudicate guilt. The trial court again found Roberts guilty and this time sentenced him to twenty years’ confinement.
In North Carolina v. Pearce, the United States Supreme Court held that “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” 395 U.S. 711, 725, 89 S. Ct. 2072, 2079 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201 (1989). Initially, we observe that Roberts failed to preserve this complaint for review. To preserve error for appeal, a complaining party must object and obtain an adverse ruling on the record, unless the trial court refuses to rule on the objection and the complaining party objects to the refusal. See Tex. R. App. P. 33.1. During the adjudication of guilt hearing, Roberts’s defense attorney stated, “[B]efore I make any announcement, I need to dictate some things into the record.” He then stated his complaint about prosecutorial vindictiveness, as follows:
[W]hat really disturbs me about the procedural history of this case, it is -- it really smacks of prosecutorial vindictiveness because now what the State is attempting to do, I gather, by quote/unquote proceeding to another adjudication is to suggest to the Court a basis for exceeding its ten year sentence that it gave in the first proceeding and that is to essentially punish Mr. Roberts for exercising his appellate right. . . . So, my announcement is contingent first upon that being resolved.
Defense counsel merely “dictated some things into the record.” The trial court responded, “Thank you.” The trial court’s response does not constitute an adverse ruling, as required by Rule 33.1. See Tex. R. App. P. 33.1; Cienfuegos v. State, 113 S.W.3d 481, 488-89 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding that trial court’s ambiguous response of “I understand,” did not constitute an adverse ruling). Moreover, counsel did not object based on vindictiveness at the time the trial court imposed the sentence. Roberts therefore failed to preserve error. See United States v. Vontsteen, 950 F.2d 1086, 1089-90 (5th Cir. 1992) (requiring defendant to make contemporaneous objection that sentence on remand was vindictive under constitutional due process).
Even if Roberts had preserved this issue, his contention fails. A trial court’s reasons for imposing a harsher sentence after a new trial must appear affirmatively in the record. Alabama v. Smith, 490 U.S. 794, 798, 109 S. Ct. 2201, 2204 (1989). Otherwise, a presumption arises that the trial court imposed a greater sentence for a vindictive purpose. Id. at 798-99, 109 S. Ct. at 2204. The State may rebut this presumption with objective information justifying the increased sentence. Id. at 799, 109 S. Ct. at 2204. The defendant has the burden to prove actual vindictiveness if no “reasonable likelihood” exists that the increase is the product of actual vindictiveness. Id. at 799, 109 S. Ct. at 2205. The trial court may consider any information that reasonably bears on the defendant’s proper sentence. Wasman v. United States, 468 U.S. 559, 563, 104 S. Ct. 3217, 3220 (1984).
The State contends that the trial court intended to sentence Roberts to the maximum amount of time at the original sentencing and on remand. In 1993, the maximum sentence for aggravated assault was ten years, and the maximum sentence for attempted murder was twenty years, as it remains today. Thus, the trial court had a broader range of sentences for the attempted murder offense at the second adjudication of guilt hearing. Such a change in circumstances rebuts a presumption of vindictiveness.
Moreover, Sandi Roberts did not testify at the original adjudication proceedings in March 2000; however, she did testify at the second punishment proceedings in February 2003. Sandi testified that, in April 2000, one month after the first adjudication hearing, Roberts mailed an empty envelope, marked with his return jail address, to Sandi in Knoxville, Tennessee. After receiving the envelope, Sandi was terrified that Roberts would try to kill her and “finish what he started.” She was concerned for her personal safety and for her children and other family members. Sandi never gave Roberts her Tennessee address; however, the trial court took judicial notice of the fact that Roberts had access to that address through a subpoena that the district attorney’s office issued in 2000. Sandi also offered additional evidence regarding her condition, which was not before the trial court at the first adjudication hearing. Sandi testified that an unremovable bullet is still lodged between her spine and heart. The bullet presses on her nerves, affecting her left shoulder. She also has problems with her speech due to Roberts shooting her in the head. This additional evidence serves as a proper basis for Roberts’s harsher punishment. We hold that the trial court did not err in imposing an increased sentence.
Alleged Federal Offenses
Roberts complains that, during the punishment phase of the adjudication hearing, the trial court improperly considered three federal weapons offenses in Galveston, for which he had been acquitted. The three federal offenses alleged that Roberts (1) had possessed a .22 caliber rifle in his home, (2) had receipts from a prior possession of a .357 caliber revolver, and (3) had lied on an ATF form by stating that he was not under indictment.
We hold that Roberts did not preserve this complaint for review. To preserve error for appeal, a complaining party must not only object, but must also obtain an adverse ruling on the record, unless the trial court refuses to rule on the objection and the complaining party objects to the refusal. See Tex. R. App. P. 33.1. During the adjudication hearing, again defense counsel merely “dictated some things into the record”:
[T]here are three allegations basically alleging firearm violations in Federal court. Those allegations weren’t abandoned by the State in the prior hearings. And that again smacks of prosecutorial vindictiveness to now try to reurge those at this late date. My client was found not guilty in Federal court of those offenses, and now [the State], well aware of that situation, well aware of the evidence that he had then, now is seeking to resurrect those offenses. And once again, even though my sinuses are infected, I know the smell of prosecutorial vindictiveness when I smell it and that just reaps of prosecutorial vindictiveness. I suggest to the Court that is just totally improper.
Judge, I understand that there is a lot of ambivalence out there with respect to what constitutes double jeopardy, but we would also contend that he is collaterally estopped since the Federal jury acquitted Mr. Roberts of those charges in Federal court that he should be procedurally barred from pursuing on those also.
Here again, the trial court’s response of “Thank you” does not constitute an adverse ruling. See Tex. R. App. P. 33.1; Cienfuegos, 113 S.W.3d at 488-89. Without an adverse ruling, Roberts failed to preserve error. Roberts also waived error because his collateral estoppel objection during the adjudication portion of the hearing does not comport with his complaint on appeal. See Massey v. State, 933 S.W.2d 141, 157 (Tex. Crim. App. 1996) (holding that trial objection regarding expert testimony did not comport with issue on appeal).
Cumulation of Sentences
Roberts contends that the trial court improperly stacked the sentence in this cause with the sentence in cause number 673979 (the aggravated assault of Frank Kellogg), because the underlying offenses occurred during the same transaction. Section 3.03 of the Texas Penal Code provides that a sentence “shall run concurrently”:
When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced.
Tex. Pen. Code Ann. § 3.03 (Vernon 2003). Accordingly, a trial court improperly stacks sentences when the offenses arise out of the “same criminal episode” and the proceeding is a “single criminal action.” Id.; Duran v. State, 844 S.W.2d 745, 746 (Tex. Crim. App. 1992). In Duran, the record did not show that the proceedings occurred in a single criminal action; thus, the Court of Criminal Appeals held that the trial court properly stacked the sentences. Id.
On appeal, Roberts mentions only the “same criminal episode” requirement; however, he offers no evidence to support the “single criminal action” requirement. As this court explained in Medina v. State,
[T]he term “criminal action” includes not only appellant’s pleas of guilty but also the hearings on the State’s motions to revoke his probation. Therefore, to be entitled to concurrent sentences under section 3.03, appellant must establish that the offenses were consolidated at the time of his pleas as well as the hearings on the motions to revoke his probations.
7 S.W.3d 876, 879 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (holding that trial court properly stacked sentences when two offenses were charged more than ten months apart and not consolidated at original guilty pleas).
Roberts waived his right to a court reporter at the initial plea proceeding. The record does not contain a motion to consolidate, and we find no evidence in the record to show that the trial court consolidated the two causes at the time of the original pleas. The record contains two separate indictments and two separate reporter’s records of the adjudication hearings. When the State moved to cumulate the sentences, the prosecutor explained, “We had a separate hearing on 673979, which was followed immediately by another separate hearing on 673980. We’ve now had a retrial of that separate hearing on 673980.” Roberts failed to show that the offenses were “prosecuted in a single criminal action,” as required by Penal Code section 3.03. See Tex. Pen. Code Ann. § 3.03; Duran, 844 S.W.2d at 746; Medina, 7 S.W.3d at 879. We therefore hold that the trial court did not err in stacking the sentences.
Cruel and Unusual Punishment
Roberts contends that his twenty-year sentence violates his rights against cruel and unusual punishment under the United States and Texas Constitutions. See U.S. Const. amend. VIII, XIV; Tex. Const. art. I., § 13. We hold that Roberts did not preserve this complaint for review. To preserve error on appeal, a defendant must make a timely request, objection, or motion. See Tex. R. App. P. 33.1. Otherwise, a defendant may waive the right to be free from cruel and unusual punishment. See, e.g., Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding that failure to object in trial court waived complaint about death sentence violating prohibition against cruel and unusual punishment); Yatalese v. State, 991 S.W.2d 509, 511 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (holding that failure to object in trial court waived complaint against cruel and unusual punishment).
Roberts did not object to his sentence as a violation of his right against a cruel and unusual punishment. When the trial court announced the sentence, Roberts stated, “I want to appeal this. This is not justice.” Roberts’s statement is not an objection, and even if we construe it to be an objection, it does not comport with his issue on appeal. See Tex. R. App. P. 33.1(a). Without a proper trial objection, Roberts waived this complaint. See id.; see also Curry, 910 S.W.2d at 497.
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Taft, Jennings, and Bland.
Do not publish. Tex. R. App. P. 47.2(b).