Horace Earl Jones v. State

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In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-05-00177-CR

______________________________



HORACE EARL JONES, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee


                                              


On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 32319-B


                                                 




Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss



MEMORANDUM OPINION


            Without the benefit of any plea agreement, Horace Earl Jones threw himself on the mercy of the trial court and pled guilty to two charges of delivery of a controlled substance, dihydrocodeinone, which offenses occurred on two dates separated by almost a month. After administering the necessary admonishments, the trial court accepted Jones' pleas and found him guilty in both cases. The trial court sentenced Jones to eight years' confinement on the first case and ten years' confinement on the second. The trial court then ordered Jones' sentences to run consecutively.

            Jones asserts the trial court erred in cumulating, or "stacking," his two sentences, even though he had not been given notice that the State would ask for sentence stacking. Jones concedes the decision to cumulate or run sentences concurrently is within the trial court's discretion. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2005); Smith v. State, 575 S.W.2d 41 (Tex. Crim. App. [Panel Op.] 1979), overruled in part on other grounds, LaPorte v. State, 840 S.W.2d 412 (Tex. Crim. App. 1992). But he complains the State failed to provide him with notice that it would ask the trial court to stack the sentences for the two charges.

            At Jones' plea hearing, along with other basic admonishments, the trial court advised Jones it could stack the sentences it imposed. "And I've been known to do it," continued the trial court, making sure there was no doubt in Jones' mind about the sentencing possibilities. The trial court made clear, by questioning the State, as well as Jones and his attorney, that this was "truly [an] open plea" before the trial court, and no plea agreement had been reached by the parties.

            Jones does not provide this Court with any authority for his claim he was entitled to notice the State would ask the trial court to stack his sentences. He claims that the failure of the State to so notify him deprived him of his due process rights. There is no due process deprivation in a trial court's exercise of its discretion in cumulating sentences under Article 42.08 of the Texas Code of Criminal Procedure. Johnson v. State, 492 S.W.2d 505, 506 (Tex. Crim. App. 1973); Hammond v. State, 465 S.W.2d 748, 752 (Tex. Crim. App. 1971).

            We find there is no requirement of prior notice before a trial court exercises its discretionary power to cumulate sentences. See Tyson v. State, Nos. 2-03-375-CR, 2-03-376-CR, 2005 Tex. App. LEXIS 6424, at *6–7 (Tex. App.—Fort Worth Aug. 11, 2005, no pet. h.); Millslagle v. State, 150 S.W.3d 781, 784–85 (Tex. App.—Austin 2004, pet. dism'd). Jones has directed us to no authority to support his contention he was entitled to notice that the State would ask the trial court to cumulate, or stack, the sentences. Nor have we found any such authority. Accordingly, we overrule Jones' point of error and affirm the trial court's judgment.


 

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice


Date Submitted:          November 8, 2005

Date Decided:             November 10, 2005


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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-11-00157-CR

                                                ______________________________

 

 

                                 RAYMOND KEITH WALLS, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                  

 

 

                                      On Appeal from the 102nd Judicial District Court

                                                          Red River County, Texas

                                                          Trial Court No. CR01624

 

                                                                                                   

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                      MEMORANDUM OPINION

 

            Raymond Keith Walls appeals from his conviction for assault.  See Tex. Penal Code Ann. § 22.01(a), (b)(2)(B) (West 2011).  Walls’ attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail, providing possible issues, but explaining why they cannot succeed.  Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.  This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

            Counsel mailed a copy of the brief and a letter to Walls on November 16, 2011, informing Walls of his right to file a pro se response and his right to review the record of the trial proceedings in doing so.  Walls’ brief was due to be filed in this Court on December 16, 2011.  As of this date, no brief has been filed and no request for extension has been made.  Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal.

            We have determined that this appeal is wholly frivolous.  We have independently reviewed the clerk’s record and the reporter’s record, and find no genuinely arguable issue.  See Halbert v. Michigan, 545 U.S. 605, 623 (2005).  We, therefore, agree with counsel’s assessment that no arguable issues support an appeal.  See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

            We take note, though, of an inaccuracy in the trial court’s judgment.   The judgment states Walls pled “true” to the two enhancement paragraphs, where in fact he pled “not true.”  We amend the judgment to reflect Walls’ pleas.[1]

            As amended, we affirm the trial court’s judgment.[2]                                                             

 

 

                                                                                    Jack Carter

                                                                                    Justice

 

Date Submitted:          January 30, 2012

Date Decided:             January 31, 2012

 

Do Not Publish          

 

 

 

 

 


[1]Appellate courts have the authority to reform the judgment to make the record speak the truth when the matter has been called to its attention by any source.  French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992).  In Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref'd), the court noted that the authority of the appellate court to reform incorrect judgments is not dependent on request of any party and that the appellate court may act sua sponte.  The Texas Rules of Appellate Procedure provide direct authority for this Court to modify the judgment of the trial court.  Tex. R. App. P. 43.2(b).

 

[2]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of appellant in this case.  No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or for en banc reconsideration was overruled by this Court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See Tex. R. App. P. 68.3 (amended by the Texas Court of Criminal Appeals Misc. Docket No. 11-104, effective Sept. 1, 2011). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4.