In The
Court of Appeals
Ninth District of Texas at Beaumont
______________________
NO. 09-07-555 CR
NO. 09-07-556 CR
______________________
RYAN ALAN ROCCAFORTE, Appellant
V.
THE STATE OF TEXAS, Appellee
Jefferson County, Texas
Trial Court Nos. 89834 & 07-00726
Ryan Alan Roccaforte appeals from two convictions -- aggravated assault on a public servant and burglary of a habitation. Pursuant to a plea bargain, Roccaforte pled guilty to the offense of aggravated assault on a public servant. The trial court deferred a finding of guilt and placed Roccaforte on deferred adjudication community supervision for ten years and assessed a fine of $1,500. The State filed a motion to adjudicate guilt. The motion alleged three violations of Roccaforte's community supervision order. One of the violations allegedly committed by Roccaforte was burglary of a habitation.
At a hearing, Roccaforte pled guilty, without benefit of a plea bargain, to burglary of habitation. After receiving Roccaforte's guilty plea in that offense, the trial court then heard the motion to adjudicate guilt in the aggravated-assault-of-a-public-servant offense and accepted Roccaforte's pleas of true to the violations of the community supervision order. Following a recess in which the trial judge considered written mitigation materials provided by the defendant, the trial court heard arguments by the prosecutor and Roccaforte on sentencing. In the aggravated-assault-on-a-public-servant case, the trial judge revoked Roccaforte's community supervision, adjudicated him guilty of that offense, and sentenced him to twenty-five years in prison. The trial court then found Roccaforte guilty of the burglary-of-a-habitation offense and sentenced him to twenty years in prison. After giving Roccaforte an opportunity to explain why the sentences in the two cases should not be stacked, the trial court ordered the sentence in trial cause number 07-00726 (burglary of a habitation) to run consecutively to the sentence in cause number 89834 (aggravated assault on a public servant).
In issues one and two, Roccaforte asserts the trial court erred in failing to admonish him about the possibility of sentence stacking and argues that the omission "goes to the voluntariness of the pleas."
Subject to exceptions not applicable here, article 42.08 of the Code of Criminal Procedure gives the trial judge discretion to stack or cumulate sentences. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon 2006); Pettigrew v. State, 48 S.W.3d 769, 770 (Tex. Crim. App. 2001); see also Barrow v. State, 207 S.W.3d 377, 380-81 (Tex. Crim. App. 2006). An exception to the trial court's discretion is found in section 3.03 of the Texas Penal Code, which provides that sentences must run concurrently if they are tried in a single criminal action and arise out of the same criminal episode. Tex. Pen. Code Ann. 3.03 (Vernon Supp. 2008). Roccaforte does not argue section 3.03 applies, and the record does not support its application here. Neither article 42.08 nor section 3.03 contains a requirement that the trial court admonish the defendant about the possibility of stacking sentences. See Tex. Code Crim. Proc. Ann. art. 42.08; Tex. Pen. Code Ann. § 3.03. Article 26.13 of the Code of Criminal Procedure does not contain such a requirement. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2008); Simmons v. State, 457 S.W.2d 281, 283 (Tex. Crim. App. 1970); Tyson v. State, 172 S.W.3d 172, 176-77 (Tex. App.- Fort Worth 2005, pet. ref'd).
The trial judge explained at the July 13, 2007, hearing that he had the authority to stack the sentences to forty-five years and asked Roccaforte why the sentences should not be stacked. Roccaforte answered that "[t]he sooner I get out, the less damaged I'll be by the system." Apparently, the trial court did not find Roccaforte's answer persuasive. The trial judge, in his discretion, cumulated the sentences. We overrule issues one and two.
In issues three and four, Roccaforte argues the State failed to abide by a plea agreement to run the sentences concurrently in trial cause numbers 89834 and 07-00726. The record does not show a plea agreement to run the sentences concurrently. Roccaforte references the prosecutor's remarks at the hearing where the prosecutor recommended that the sentence in the burglary-of-a-habitation offense run concurrently with the sentence in the aggravated-assault-on-a-public-servant offense. The statement was a recommendation, not a plea agreement. Immediately after the prosecutor's remark, the trial judge informed Roccaforte as follows:
(The Court): Sir, you have absolutely no plea bargain agreement whatsoever. Okay? And what that means is that you're entering into your plea of guilt to this case . . . You're entering into your plea of guilt to this burglary of a habitation. The range of punishment is from 2 years to 20 years' confinement in the Institutional Division and up to a 10,000 dollar fine. Do you understand that?
(Defendant): Yes, sir.
The judgment of conviction in trial cause number 89834 (aggravated assault on a public servant) states that the "sentence shall run concurrently unless otherwise specified." The judgment in trial cause number 07-00726 (burglary of a habitation) states the exception: "The court orders that the sentence in this conviction [burglary of a habitation] shall run consecutively and shall begin only when the judgment and sentence in this cause #89834 . . . aggravated assault public servant has ceased to operate." There was no plea agreement that the sentences in trial cause numbers 07-00726 and 89834 would run concurrently. (1) The State did not violate any plea agreement. We overrule issues three and four.
In issues five and six, Roccaforte complains of the lack of specificity required for a valid cumulation order. Texas courts have held that a valid, enforceable cumulation order must be sufficiently specific and should contain (1) the cause number of the prior conviction, (2) the correct name of the court in which the prior conviction occurred, (3) the date of the prior conviction, (4) the term of years assessed in the prior case, the nature of the prior conviction. See Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim. App. 1986); see also Gaston v. State, 63 S.W.3d 893, 889-900 (Tex. App.--Dallas 2001, no pet.). The Court of Criminal Appeals has upheld a cumulation order that recited the cause numbers of the prior convictions, the terms of years, and the county of the prior sentences. See Williams v. State, 675 S.W.2d 754, 764 (Tex. Crim. App. 1984) (op. on rehearing). A cumulation order that refers to the previous conviction's cause number is sufficient if the trial court entering the order is the same court that convicted the defendant in the prior case. See Hamm v. State, 513 S.W.2d 85, 86-87 (Tex. Crim. App. 1974) (citing Ex parte March, 423 S.W.2d 916, 919 (Tex. Crim. App. 1968)).
The cumulation order contained in the judgment of conviction for burglary of a habitation in trial cause number cause 07-00726 is as follows:
Cumulation order (Art. 42.01, sec. 1(19) CCP): The Court orders that the sentence in this conviction shall run consecutively and shall begin only when the judgment and sentence in this cause #89834 in the 252nd district court of Jefferson county for the charge of aggravated assault public servant has ceased to operate.
The cumulation order here identifies the prior conviction cause number 89834, the nature of the offense, and the court out of which it arose, and specifies that the burglary of a habitation sentence will begin only after the sentence in trial cause number 89834 has ceased to operate.
A cumulation order, to be valid, should be sufficiently specific to allow the Texas Department of Criminal Justice, Institutional Division, to identify the prior conviction with which the newer conviction is cumulated. See Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998) (citing Ward v. State, 523 S.W.2d 681 (Tex. Crim. App. 1975)). Here, the language in the judgment constitutes a valid cumulation order. The sentences in the two causes were assessed in the same district court, on the same day. Issues five and six are overruled.
In issues seven and eight, Roccaforte argues that the cumulation order, providing that the burglary-of-a-habitation sentence is to run consecutively to the aggravated-assault-of-a-public-servant sentence, is erroneous because at the time the judgment was entered in the burglary-of-a-habitation case, the other judgment had not been entered. Roccaforte is incorrect. The trial judge pronounced judgment in the aggravated-assault-of-a-public-servant case before he pronounced judgment in the burglary-of-a-habitation case. The latter contains the cumulation order. We overrule issues seven and eight.
In issue nine, Roccaforte contends his plea was involuntary. We understand his claim of involuntariness to apply to the guilty plea in the burglary-of-a-habitation case and the plea of true in the revocation case. (2) Essentially, Roccaforte maintains that he would not have pled guilty to burglary of a habitation or "true" to the violation of his community supervision order had he not been misled by his father.
In the aggravated assault case, Roccaforte pled true to a violation of his community supervision order and indicated to the trial court that he did so of his own free will. A plea of true, standing alone, supports revocation of community supervision. Jones v. State, 112 S.W.3d 266, 268 (Tex. App.--Corpus Christi 2003, no pet.). In the burglary-of-a-habitation offense, the record reveals the trial court admonished Roccaforte in substantial compliance with article 26.13. See Tex. Code Crim. Proc. Ann. Art. 26.13 (Vernon Supp. 2008). Roccaforte signed the plea papers containing those admonishments along with a judicial admission stating he understood the trial court's admonishments and was aware of the consequences of his plea. If the trial court properly admonishes the defendant before a guilty plea is entered, there is a prima facie showing that the plea was both knowing and voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). The burden then shifts to the defendant to show he did not fully understand the consequences of his plea such that he suffered harm. Id. In the burglary-of-a-habitation offense, the record shows the trial court properly admonished appellant in writing. See Tex. Crim. Proc. Ann. art. 26.13 (a), (c) (Vernon Supp 2008).
In his motion for new trial, Roccaforte references the involvement of his father in advising him and the father's "intercession" with the State concerning both offenses. Attached to the motion is the affidavit of Roccaforte's father. The father explained that he may have influenced his son by inconsistent advice, and that the father's comments to the prosecutor may have tipped the scale towards incarceration. Roccaforte's father's affidavit, if considered by the trial court, does not establish Roccaforte was unaware of the consequences of his plea of true to the alleged violation of the community supervision order in the aggravated assault case; and the affidavit does not establish Roccaforte's guilty plea to the burglary charge was involuntary. His father's affidavit sets out what the father thought and what the father did. It does not establish what Roccaforte did or thought, or explain how he was misled or harmed by his father's actions or advice. Roccaforte has not demonstrated that he was harmed or misled by the trial court's admonishments, or that he was unaware of the consequences of his plea of guilty and plea of true. We overrule issue nine.
The judgments of conviction in cause numbers 89834 and 07-00726 are affirmed.
AFFIRMED.
_________________________________
DAVID GAULTNEY
Justice
Submitted on August 13, 2008
Opinion Delivered September 10, 2008
Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, JJ.
1. The plea agreement in trial cause number 89834 provided that the sentence in that
cause would run concurrently with trial cause number 89935, a case not at issue in this
appeal.
2.