Jared Tyrell STINECIPHER, Appellant v. The STATE of Texas, Appellee
Nos. 12-12-00428-CR, 12-12-00429-CR
Court of Appeals of Texas, Tyler
July 23, 2014
Michael J. West, Brenham, for Appellee.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
OPINION
SAM GRIFFITH, Justice.
Jared Stinecipher appeals his convictions for accident involving personal injury or death (cause number 12-12-00428-CR) and criminally negligent homicide (12-12-00429-CR). We modify the judgment and affirm as modified in cause number 12-12-00428-CR. We affirm in cause number 12-12-00429-CR.
BACKGROUND
A Smith County grand jury returned two indictments against Appellant for the offenses of accident involving personal injury or death and criminally negligent homicide. Both indictments alleged the use of a deadly weapon, namely, a motor vehicle. Appellant pleaded “guilty” to both offenses and “true” to the deadly weapon allegations without an agreement on punishment. A presentence investigation report was prepared and a sentencing hearing was held. The trial court found Appellant guilty of both offenses, found the deadly weapon allegations true, and assessed punishment for each case at imprisonment for ten years and no fine. The sentences were ordered to run concurrently. This appeal followed.
DOUBLE JEOPARDY
In his first issue, Appellant contends that his prosecution under both indictments resulted in multiple punishments for the same offense under a double jeopardy analysis. The State contends that Appellant failed to preserve this issue at the trial court level.
Preservation of Error
Failure to present a timely and specific objection, request, or motion to the trial court for a ruling results in waiver or forfeiture of the right to present the claim on appeal. See
A defendant has the burden to “preserve, in some fashion” a double jeopardy objection at the trial court level. See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim.App.2000) (en banc). But a double jeopardy claim may be raised for the first time on appeal when (1) the double jeopardy violation is clearly apparent on the face of the record, and (2) when enforcement of the usual rules of procedural default serves no legitimate state interests. Garfias v. State, 424 S.W.3d 54, 58 (Tex.Crim. App.2014) (citing Gonzalez, 8 S.W.3d at 643).
Applicable Law
The Fifth Amendment‘s Double Jeopardy Clause protects an accused
There are three steps to an “elements” analysis in determining legislative intent in the multiple punishments context. Id. at 58-60. First, the reviewing court must apply the Blockburger test to determine whether each of the offenses requires proof of an element that the other does not.1 Id. at 58. Second, the court must consider a list of factors set forth by the court of criminal appeals in Ervin v. State, 991 S.W.2d 804, 814 (Tex.Crim.App.1999), to determine whether two offenses are the same in the context of multiple punishments, i.e., whether the legislature intended two punishments for the same conduct. See id. at 59; Bigon v. State, 252 S.W.3d 360, 371 (Tex.Crim.App.2008). And third, the court should determine the “allowable unit” of prosecution for the offenses in question. Garfias, 424 S.W.3d at 59. If, after conducting an analysis of each of these factors, it appears that the legislature did not intend multiple punishments, the reviewing court will consider whether enforcement of the usual rules of procedural default serves any legitimate state interest. See Gonzalez, 8 S.W.3d at 643.
Discussion
Appellant did not make a double jeopardy objection in the trial court. Therefore, we must determine whether a double jeopardy violation is apparent on the face of the record. The State contends that Appellant was convicted of two different offenses requiring different elements of proof, and as a result, a double jeopardy violation is not clearly apparent on the face of this record. We apply the Garfias elements analysis to determine whether the State is correct.
The Blockburger Test
The Blockburger test is used to determine whether each of the offenses with which the accused is charged requires proof of an element that the other does not. Garfias, 424 S.W.3d at 58. Our focus is on the elements alleged in the indictments, and double jeopardy challenges may be made “even against offenses that have different statutory elements, if the same facts required to convict are alleged in the indictment[s].” Id. at 58-59.
Here, the indictment in cause number 12-12-00428-CR (accident involving personal injury or death) alleged that Appellant did then and there
intentionally or knowingly drive a vehicle that became involved in an accident resulting in death to Arthur Dewayne Murphy, and the said defendant did thereafter, knowing said accident had occurred, intentionally or knowingly fail to render to Arthur Dewayne Murphy reasonable assistance when it was then
apparent that Arthur Dewayne Murphy was in need of medical treatment [and] did then and there intentionally or knowingly drive a vehicle that became involved in an accident resulting in death to Arthur Dewayne Murphy, and the said defendant did thereafter, knowing said accident had occurred, intentionally or knowingly leave the scene of said accident, without giving his name, address, registration number of the vehicle the defendant was driving, or the name of the defendant‘s motor vehicle liability insurer to any person, and without rendering reasonable assistance to Arthur Dewayne Murphy when it was then apparent that Arthur Dewayne Murphy was in need of medical treatment....
The indictment in cause number 12-12-00429-CR (criminally negligent homicide) alleged that Appellant did then and there
by criminal negligence, cause the death of an individual, Arthur Dewayne Murphy, by operating a motor vehicle while disregarding a stop sign and failing to obey an official traffic control device....
Both indictments alleged that Appellant used a motor vehicle as a deadly weapon during the commission of or immediate flight from the offense.
In cause number 12-12-00429-CR, the State was required to prove that Appellant “operat[ed] a motor vehicle while disregarding a stop sign and failing to obey an official traffic control device.” The State was not required to prove this element in cause number 12-12-00428-CR. Instead, the State was required to prove that after knowing an accident had occurred, Appellant “intentionally or knowingly fail[ed] to render ... reasonable assistance [and left] the scene of [the] accident, without giving his name, address, registration number of [his vehicle], or the name of [his] insurer....” The indictment in each cause number required proof of an element that the other did not. See, e.g., Ex parte Pritzkau, 391 S.W.3d 185, 190 (Tex.App.-Beaumont 2013, pet. ref‘d) (prosecution for criminally negligent homicide not barred by double jeopardy when defendant is convicted of underlying traffic offense). The offenses in the two indictments are not the same under a strict application of the Blockburger test, which is one indicator that the legislature intended to allow multiple punishments for accident involving personal injury or death and criminally negligent homicide. See Bigon, 252 S.W.3d at 370.
The Ervin Factors
We now consider the Ervin factors, which include
whether offenses are in the same statutory section; whether the offenses are phrased in the alternative; whether the offenses are named similarly; whether the offenses have common punishment ranges; whether the offenses have a common focus; whether the common focus tends to indicate a single instance of conduct; whether the elements that differ between the two offenses can be considered the same under an imputed theory of liability that would result in the offenses being considered the same under Blockburger; and whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double[] jeopardy purposes.
See Garfias, 424 S.W.3d at 59 (citing Bigon, 252 S.W.3d at 371; Ervin, 991 S.W.2d at 814). The most significant factor in determining legislative intent is the focus or “gravamen” of the offense. See Garfias, 424 S.W.3d at 61.
Criminally negligent homicide is a result-oriented offense, with the gravamen of
The indictments in this case illustrate the distinction between the two gravamina. Appellant‘s criminally negligent homicide indictment focused on Murphy‘s death, while the accident involving personal injury or death indictment focused on Appellant‘s leaving the scene of the accident. This factor indicates that the legislature intended to allow multiple punishments for the two offenses. See Garfias, 424 S.W.3d at 60-61.
Other Ervin factors support the same conclusion. First, criminally negligent homicide and accident involving personal injury or death are not included in the same statutory section or even the same statutory code. Second, the offenses are not named similarly. And third, the offenses have different punishment ranges. Compare
Allowable Unit of Prosecution
The last factor we consider in our analysis is the “allowable unit of prosecution” for the offenses, which determines if one course of conduct results in more than one offense. See id. The allowable unit of prosecution for criminally negligent homicide is one offense per victim. See Ex parte Amador, 326 S.W.3d 202, 220 (Tex. Crim.App.2010) (citations omitted). The allowable unit of prosecution for accident involving personal injury or death is “each victim, each accident.” Huffman, 267 S.W.3d at 908.
Conclusion
The Blockburger test, the Ervin factors, and the allowable unit of prosecution for accident involving personal injury or death and criminally negligent homicide indicate that the legislature intended to allow multiple punishments. As a result, a double jeopardy violation is not clearly apparent from the face of this record. See Garfias, 424 S.W.3d at 58; Gonzalez, 8 S.W.3d at 643. Appellant has not sustained his burden of presenting a record showing on its face a multiple punishments violation. Id. at 642, 645. Accordingly, we overrule Appellant‘s first issue.
TRIAL COURT ADMONISHMENTS
In his second and third issues, Appellant contends that his guilty plea to the offense
Standard of Review and Applicable Law
When the voluntariness of a guilty plea is challenged on appeal, the reviewing court should examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998) (citations omitted). A guilty plea is voluntary if the plea is the expression of the defendant‘s own free will, not induced by threats, misrepresentations, or improper promises. State v. Guerrero, 400 S.W.3d 576, 587 (Tex.Crim.App.2013).
Before accepting a plea of guilty, the trial court must admonish the defendant of the proper range of punishment associated with the offense to which he entered his plea.
When the record shows an incorrect admonishment regarding an offense‘s range of punishment, the courts may nevertheless find the guilty plea valid. See id. (“[W]hen the record shows that the trial court gave an admonishment that was incomplete or incorrect, there is a prima facie showing of a knowing and voluntary plea of guilty.“); Grays v. State, 888 S.W.2d 876, 878 (Tex.App.Dallas 1994, no pet.) (defendant‘s being incorrectly admonished about the range of punishment “does not necessarily lead to the conclusion that the defendant was misled or harmed [because the] defendant‘s decision to plead guilty may not have been adversely affected at all by the incorrect admonishment“). This is because a trial court‘s “substantial compliance” with Article 26.13 is sufficient unless the defendant was not aware of the consequences of his plea and was misled or harmed by the trial court‘s admonishment.
If a trial court has substantially complied with the requirements of Article 26.13, the defendant must show that, despite the trial court‘s substantial compliance, “he entered the plea without understanding the consequences of his action and thus was harmed.” Gibauitch, 688 S.W.2d at 871.
Discussion
On October 29, 2012, Appellant pleaded guilty to accident involving personal injury or death (cause number 12-12-00428-CR) and criminally negligent homicide (cause number 12-12-00429-CR). The trial court stated that the range of punishment for criminally negligent homicide was “a state jail felony, which means the range of punishment is six months to two years in the state jail and up to a $10,000 fine.” The indictments in each case alleged the use of a deadly weapon to which Appellant pleaded true. The trial court found Appellant guilty and the deadly weapon allegation true in both cases.
The trial court conducted a sentencing hearing on December 18, 2012. After the State‘s second witness testified, the prosecutor informed the trial court that he “just realized” the punishment range for criminally negligent homicide would be treated
Appellant had already signed a document that stated the range of punishment was a fine not to exceed $10,000 and confinement for not more than two years or less than 180 days. The prosecutor corrected this document to show that the range of punishment for the offense was a “state jail felony with a deadly weapon—no less than 2 years and no more than 10 years with a fine not to exceed $10,000.” The trial court then explained to Appellant that the previous admonishment was incorrect and that the correct punishment range for criminally negligent homicide would be that of a third degree felony due to the deadly weapon finding. Thus, the trial court explained that the punishment would be “similar to your other case, which is the two years to ten years in the penitentiary and a fine of up to $10,000.” Appellant confirmed that he understood the punishment range and initialed the changes made to the State‘s “Acknowledgment of Admonishments.” The trial court and Appellant then engaged in the following discourse:
Court: And the State has offered [the Acknowledgement of Admonishments]. Your lawyer indicated that he has no objections to it under these circumstances, which, the Court will admit it. However, I always try to go back, whenever there‘s been some type of punishment enhancement that maybe we didn‘t discuss at the time you entered your plea, to make sure that is what you wanted to do now that there‘s been a change. You‘ve entered a plea of guilty and a plea of true in this case. Do you still wish to stand on that plea of guilty and plea of true that you made back in October?
Appellant: Yes, sir.
Court: All right. Because I‘ll be happy, under these changes, since you didn‘t know about it back when you were doing it, then I will let you withdraw your plea of guilty, proceed to trial on this charge, see what a jury would do, if that‘s what you want to do in this case.
Appellant: No, sir.
Court: You want to go forward as we‘re doing today?
Appellant: Yes, sir. I‘m just ready to get it done with.
Court: And you had a little bit of time to talk to Mr. Jarvis about that. Need any more time to visit with him on that issue before we move forward?
Appellant: No, sir.
Court: You‘re sure this is what you wish to do?
Appellant: Yes, sir.
Court: All right. State‘s 1 is admitted with these changes. And the record will reflect that we‘ve now corrected the punishment range, not the offense. Offense doesn‘t change, but the punishment range will be the same in both cases, that being a third[] degree felony level.
Based upon our review of the record, we hold that the trial court‘s improper admonishments regarding the range of punish- ment
ATTORNEY‘S FEES
In his fourth and fifth issues, Appellant contends that it was error for the trial court to impose court costs not supported by legally sufficient evidence and by ordering that funds be withdrawn from his inmate trust account. Appellant‘s specific challenge relates to the assessment of attorney‘s fees in cause number 12-12-00428-CR. Appellant contends that the attorney‘s fees should be deleted because he is indigent. The State agrees.
Standard of Review and Applicable Law
The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case.” Johnson v. State, 423 S.W.3d 385, 390 (Tex.Crim.App.2014) (citations omitted). When the imposition of court costs is challenged on appeal, we review the assessment of costs to determine if there is a basis for the cost, not to determine if there is sufficient evidence offered at trial to prove each cost. Id.
A trial court has the authority to assess attorney‘s fees against a criminal defendant who received court-appointed counsel. See
Discussion
The judgment of conviction in cause number 12-12-00428-CR assesses $602.00 as court costs and contains a withdrawal order reflecting the same amount. The bill of costs includes the assessment of attorney‘s fees in the amount of $300.00.
DISPOSITION
Having sustained Appellant‘s fourth and fifth issues, we modify the trial court‘s judgment in cause number 12-12-00428-CR to reflect that the amount of court costs is $302.00. See
SAM GRIFFITH
JUSTICE