Case Information

*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 6/22/2015 6:08:26 PM KEITH E. HOTTLE Clerk *1 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 IN THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS

TAYLOR RAE ROSENBUSCH, Appellant

V.

THE STATE OF TEXAS,

Appellee Appeal from the 226 th 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 *2 TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................................. ii

TABLE OF AUTHORITIES ........................................................................................... iii

C ASES .............................................................................................................................. iii S TATUTES AND R ULES .................................................................................................... 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

C ASES

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

S TATUTES AND R ULES

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

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

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.

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, 4 th

Floor, San Antonio, Texas 78205 on the 22 nd 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 22 nd day of June, 2015.

/s/ John F. Carroll John F. Carroll