ACCEPTED
04-14-00050-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/22/2015 6:08:26 PM
KEITH HOTTLE
CLERK
CAUSE NO. 04-14-00050-CR
FILED IN
IN THE FOURTH COURT OF APPEALS 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
SAN ANTONIO, TEXAS
6/22/2015 6:08:26 PM
KEITH E. HOTTLE
Clerk
TAYLOR RAE ROSENBUSCH,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 226th District Court of Bexar County, Texas
Trial Court Cause Numbers 2011-CR-11074 & 2011-CR-11075
APPELLANT’S REPLY BRIEF
John F. Carroll
Attorney at Law
111 West Olmos Drive
San Antonio, Texas 78212
Telephone: (210) 829-7183
Facsimile: (210) 829-0734
SBN: 03888100
jcarrollsatx@gmail.com
Attorney for Appellant
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................. ii
TABLE OF AUTHORITIES ........................................................................................... iii
CASES .............................................................................................................................. iii
STATUTES AND RULES.................................................................................................... iii
REPLY TO AUTHORITIES CITED BY STATE IN RESPONSE TO ISSUES FOR
REVIEW ONE-THREE: FAILURE TO ADMONISH ON CUMULATION OF
SENTENCES ..................................................................................................................... 1
CONCLUSION .................................................................................................................. 3
CERTIFICATE OF SERVICE. ....................................................................................... 4
CERTIFICATE OF COMPLIANCE .............................................................................. 4
ii
TABLE OF AUTHORITIES
CASES
Garza v. State, 788 S.W.2d 651, 657 (Tex. App.-Corpus Christi 1990)………………..3
McGrew v. State, 286 S.W.3d 387 (Tex. App.-Corpus Christi, 2008, no pet.) ………..1
Millslagle v. State, 150 S.W.3d 781, 784-785 (Tex. App. – Austin 2004)...……………3
Simmons v. State, 457 S.W.2d 281 (Tex. Crim. App. 1970)..………..………..………..2
Tyson v. State, 172 S.W.3d 172, 176(Tex. App.-Fort Worth 2005)..…………………..3
STATUTES AND RULES
Code of Criminal Procedure 26.13.………………….………………….……………....2
Texas Rules of Appellate Procedure 38………………….………….…….……………1
iii
TO THE HONORABLE FOURTH COURT OF APPEALS:
Now Comes Taylor Rae Rosenbusch, Appellant, and files this Appellant’s Reply
Brief as follows:
REPLY TO AUTHORITIES CITED BY STATE IN RESPONSE TO ISSUES FOR
REVIEW ONE-THREE: FAILURE TO ADMONISH ON CUMULATION OF
SENTENCES
In her first three issues for review, Appellant has complained of the trial court’s
failure to admonish her prior to accepting her guilty pleas as to the court’s power to
cumulate her sentences as to the two indictments in issue. Specifically, Appellant
complains that the trial court’s failure to so admonish resulted in a violation of due
process and due course of law and rendered her guilty pleas involuntary.
In response, the State cites McGrew v. State, 286 S.W.3d 387 (Tex. App.-Corpus
Christi, 2008, no pet.) for the proposition that a failure to admonish as to the possibility
of consecutive sentencing does not result in an involuntary guilty plea. However, that
ruling is actually dicta. In McGrew, the Court of Appeals found, and held, that the issue
had been waived under Tex. R. App. P. 38 due to the failure to brief. That was the
holding of the Court of Appeals. The Court did go on to state, in dicta, that the point on
appeal was without merit because there was no obligation of the trial court to admonish
as to the possibility of a consecutive sentence. The Court of Appeals recognized that the
issue had not yet been addressed by the Court of Criminal Appeals. In addition to the fact
that the ruling was dicta, the McGrew case presented a different set of circumstances as it
involved a single charge and a single conviction and a single sentence (as opposed to the
two indictments for two deaths arising from a single act and the simultaneous prosecution
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of the two cases). The cumulation order related to an already existing conviction for
which the defendant had previously been sentenced and was actually serving the
sentence-he was on parole and was facing revocation of that parole as a result of the new
offense conduct. In the instant case there was no prior conviction and no prior or existing
imposition of sentence. The trial court admonished Appellant once as to the range of
punishment:
THE COURT: Okay. Step up a little bit closer. I just need to
hear you. So my understanding is that to both of these counts you have pled
guilty. Is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Before I accept that plea, I need to make
sure that you understand the consequences and that your plea is free and
voluntary. The range of punishment for what you just pled to is a felony of
the second degree. A person convicted of that level of offense, and these are
same levels, is by confinement of no less than two years nor more than 20
years and up to a $10,000 fine, possible fine. Do you understand that?
THE DEFENDANT: Yes, sir.
(RR Vol. IV, page 4, lines 11-23).
The State also cited Simmons v. State, 457 S.W.2d 281 (Tex. Crim. App. 1970).
That case involved pleas of guilty to multiple charges. The trial court imposed concurrent
sentences-not cumulative. The defendant asserted on appeal that article 26.13, Code of
Criminal Procedure, required that the trial court admonish a defendant of the possibility
of cumulative sentences. The Court held that Article 26.13 did not require such an
admonishment. The defendant did not raise the issue of whether his plea was rendered
involuntary as a result of the failure to so admonish or whether such admonishments were
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required as a matter of due process and due course of law. There was no cumulation order
under review in that case.
Finally, the State cited three cases as authority for the proposition that a defendant
is not entitled to notice of the trial court’s authority to cumulate sentences. Each of the
cited cases involved pleas of not guilty and trials on guilt innocence to a jury. The
voluntariness of guilty pleas was not in issue: Tyson v. State, 172 S.W.3d 172, 176 (Tex.
App. – Fort Worth 2005, pet. ref’d)(guilt innocence tried on charges of aggravated sexual
assault and sexual assault of a child); Millslagle v. State, 150 S.W.3d 781, 784-785 (Tex.
App. – Austin 2004, pet ref’d, untimely filed)(cumulation of sentences imposed after a
trial on guilt innocence for indecency with a child and aggravated sexual assault-Court of
Appeals relied on several factors including that total sentence did not exceed the statutory
maximum for any one offense of conviction-in the instant case the twenty four year
cumulative sentence exceeds the statutory maximum for a second degree felony); Garza
v. State, 788 S.W.2d 651, 657 (Tex. App. – Corpus Christi 1990, no pet.)(guilt innocence
trial on three charges-sentences cumulated with previously imposed sentence that was
based on a guilty plea).
CONCLUSION
WHEREFORE, for the reasons stated herein and in her principal Brief, Appellant
Taylor Rosenbusch respectfully requests that the Court reverse the judgment and
sentence imposed and remand this case to the trial court for a new trial, or set aside the
punishment verdict and remand the case to the trial court for a new trial on the issue of
punishment, or set aside the trial court’s order cumulating sentences.
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Respectfully submitted,
John F. Carroll
Attorney At Law
111 West Olmos Drive
San Antonio, Texas 78212
210/829-7183 - Telephone
210/829-0734 - Facsimile
jcarrollsatx@gmail.com
ATTORNEY FOR APPELLANT,
TAYLOR RAE ROSENBUSCH
By: /s/ John F. Carroll
John F. Carroll
State Bar No. 03888100
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above has been delivered to
the Bexar County District Attorney=s Office, Paul Elizondo Tower, 101 W. Nueva, 4th
Floor, San Antonio, Texas 78205 on the 22nd day of June, 2015.
/s/ John F. Carroll
John F. Carroll
CERTIFICATE OF COMPLIANCE
I certify under Texas Rule of Appellate Procedure 9.4(i)(3) that this Brief was
prepare using Microsoft Word and that the word count shows that the total number of
words in this brief is 1203 on the 22nd day of June, 2015.
/s/ John F. Carroll
John F. Carroll
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