Gabriel Thomas Ramirez v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-98-349-CR

GABRIEL THOMAS RAMIREZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 92-681-C

MEMORANDUM OPINION

Gabriel Thomas Ramirez shot three people. One died. He was tried for murder. While the jury was engaged in extended deliberations, he decided to make a deal with the State. In return for a guilty plea, he received deferred adjudication and was placed on ten years of community supervision.

The State brought a motion to revoke his community supervision for driving while intoxicated, consumption of alcohol, violation of curfew and the failure to pay certain fees and costs. He pled true to having consumed alcohol and untrue to the other grounds. The trial court found he had violated all the grounds other than driving while intoxicated. The trial court then found Ramirez guilty of murder and sentenced him to 20 years in prison. By nine issues Ramirez appeals his conviction and sentence.

In issues one and two he complains that the conviction and sentence are void because they are in violation of the prohibition against the double jeopardy clause of the Texas and United States Constitutions. Ramirez contends that because jeopardy had attached in the original trial and the jury was engaged in deliberations the proceeding could not then shift to a plea bargain and deferred adjudication without a mistrial request. He contends the plea bargain was, therefore, void. The State contends we cannot consider any error alleged to have occurred at the time of the initial plea agreement in 1993.

Ramirez relies on David to support the contention that he can present an issue that occurred at the time of the plea bargain and deferral of adjudication in connection with an appeal of a revocation proceeding. David v. State, 704 S.W.2d 766 (Tex. Crim. App. 1985). This reliance is misplaced. In 1987, the Legislature enacted Article 44.01(j) of the Code of Criminal Procedure which made it necessary to appeal complaints about the proceeding which resulted in a deferral of adjudication in the same manner as if guilt had been determined. Tex. Code Crim. Proc. Ann. art. 44.01(j) (Vernon Pamp. 2000). The Court of Criminal Appeals has specifically held that . . . a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed. Manuel v. State, 994 S.W.2d 658, 661-662 (Tex. Crim. App. 1999).

Ramirez cannot now complain on appeal about events that happened at the time he was initially placed on deferred adjudication. His first two issues are overruled.

In issues three through seven, Ramirez complains that to impose 20 years imprisonment for drinking an alcoholic beverage in his home and then leaving his home after his 10:00 o clock p.m. curfew is an abuse of discretion. He bases this argument on the fact that his period of deferred adjudication was only 10 years (issue three), 20 years is excessive (issue four), the sentence violates fundamental fairness and due process as guaranteed by the United States and Texas Constitutions (issue five), and the sentence violates the prohibition against cruel and unusual punishment of the United States and Texas Constitutions (issues six and seven respectively). His complaints have no merit. Ramirez is not being sentenced to 20 years in prison for drinking an alcoholic beverage and violating curfew. He is being punished for murder to which he pled guilty.

The Legislature has set the acceptable range of punishment for murder at 5 to 99 years or life. Tex. Pen. Code Ann. 19.02, 12.32 (Vernon 1994). The trial court assessed the punishment towards the low end of the range of punishment set by the Legislature. This was well within the trial court s discretion. The trial court did not err in sentencing Ramirez to a prison term within the relevant statutory limits but longer than his probationary period. Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999); Walker v. State, 557 S.W.2d 785, 786 (Tex. Crim. App. 1977). Issue three is overruled.

Likewise, a prison term of 20 years for murder, being within the range set by the legislature is not excessive, nor cruel and unusual punishment. Samuel v. State, 477 S.W.2d 611, 614-615 (Tex. Crim. App. 1972). Issues four, six and seven are overruled.

Punishment was assessed only at the time Ramirez was adjudicated guilty of murder. Thus, the period of time for which he was placed on deferred adjudication cannot be compared to the length of sentence. No sentence had previously been imposed, thus the trial court could not have been acting vindictively in assessing 20 years in prison. Walker v. State, 557 S.W.2d 785, 786 (Tex. Crim. App. 1977). Issue five is overruled.

The first ground in the motion for revocation was that Ramirez had violated the terms of his community supervision order by driving while intoxicated. In his eighth and ninth issues he complains that the only evidence that he was driving while intoxicated was obtained as a result of an illegal stop in violation of the United States and Texas Constitutions. He complains that it was improper to use this illegally obtained evidence in determining his punishment.

The State had sought revocation on six different grounds. Ramirez plead true to one of the grounds and the trial court found that he had violated four of the other grounds as alleged. The only ground of revocation which the trial court did not find as a basis for revocation of probation was the allegation of driving while intoxicated. Because the trial court failed to find driving-while-intoxicated as a ground for revocation, the issue of the admission of the evidence thereof is moot.

Ramirez contends that the evidence must have been used to enhance his punishment. However, there is simply nothing in the record to support the contention that having failed to find that he was driving while intoxicated, the trial court nevertheless used the testimony offered to support that violation to enhance the sentence. The sentence of 20 years in prison, was not for driving while intoxicated; rather, it was for murder. Issues eight and nine are overruled.

Having overruled all of the issues on appeal, the trial court s judgment revoking his deferred adjudication probation and sentencing Ramirez to 20 years in prison is affirmed.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed July 5, 2000

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