PATRICK KNESEK v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

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NUMBER 13-08-00724-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG PATRICK KNESEK, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 117th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion by Justice Rodriguez Appellant Patrick Knesek challenges his conviction, pursuant to a guilty plea, for engaging in organized criminal activity. See TEX . PENAL CODE ANN . § 71.02(a)(8) (Vernon Supp. 2009). By one issue, which we reorganize and renumber as two, see TEX . R. APP. P. 47.1, Knesek argues that: (1) his guilty plea was involuntary; and (2) the punishment imposed by the trial court was illegal. We affirm. I. BACKGROUND 1 Knesek was indicted four separate times for organized criminal activity in connection with his involvement in an identity theft ring. The first three indictments filed on May 15, 2008, June 12, 2008, and October 23, 2008 stated that "on or about December 5, 2007," Knesek "did then and there, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, . . . conspire to commit the offense of Fraudulent Use of Identifying information . . . ."2 See TEX . PENAL CODE ANN . § 32.51(b)-(c) (Vernon Supp. 2009).3 The final indictment, filed on November 13, 2008, included two counts of engaging in organized criminal activity: count one alleged that Knesek conspired to commit identity theft "on or about September 1, 2007 to December 5, 2007," see id.; count two alleged that Knesek so conspired "on or about April 1, 2007 to August 31, 2007."4 1 Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See T EX . R. A PP . P. 47.4. Moreover, the State filed no appellee's brief to assist us in the resolution of this case. Accordingly, we decide this appeal based on the brief filed by Knesek and the record before us. 2 The October 23, 2008 re-indictm ent added the phrase "com m it" in addition to "conspire to com m it." 3 This version of section 32.51 of the penal code reflects am endm ents that becam e effective Septem ber 1, 2007, and applies to any offense in which all elem ents of the crim e occurred after the effective date. See T EX . P EN AL C OD E A N N . § 32.51 (Vernon Supp. 2009). The degrees of offense, and attendant punishm ent levels, available under the am ended statute range from state jail felony to first degree felony. See id. § 32.51(c). 4 An earlier version of section 32.51 applied to count two of the Novem ber 13, 2008 indictm ent because the elem ents of that offense occurred prior to the effective date of the version am ended in 2007. See Act of May 22, 2007, 80th Leg., R.S., ch. 631, § 1-3, sec. 32.51, 2007 T EX . G EN . L AW S 1204. Under the earlier version, the only degree of offense was a state jail felony. See id. 2 On November 21, 2008, Knesek was arraigned on the November 13 two-count indictment. On December 3, 2008, Knesek pleaded guilty to both counts pursuant to a plea agreement with the State, in which the State agreed to recommend punishment between five and ten years' imprisonment for each count; Knesek agreed to the punishment recommendation. The trial court accepted the punishment range recommended by the State, sentenced Knesek to ten years' confinement for each count, and ordered the sentences to run concurrently. The trial court also certified Knesek's limited right to appeal, allowing an appeal only of matters "raised by written motion filed and ruled on before trial."5 See TEX . R. APP. P. 25.2(a)(2)(A); TEX . CODE CRIM . PROC . ANN . art 44.02 (Vernon 2006). This appeal followed. II. INVOLUNTARY PLEA By one issue, Knesek argues that his guilty plea was involuntary. However, "we have no power to review an appeal by a criminal defendant of issues associated with the voluntariness of a felony plea entered pursuant to an agreed punishment recommendation that the trial court followed." Escochea v. State, 139 S.W.3d 67, 75 (Tex. App. Corpus Christi 2004, no pet.) (citing Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 2001) (en banc)). We are therefore without authority to review Knesek's voluntariness issue, and this issue is overruled. 5 Prior to the final indictm ent, Knesek sought to enforce an alleged agreem ent between him and the State by filing a m otion entitled Proposed Stipulation of Offenses and Punishm ent with the trial court on October 23, 2008. In that m otion, Knesek urged that the State had agreed to recom m end lim iting the degree of offense and punishm ent range in the case to a state jail felony because som e elem ents of the crim e allegedly occurred prior to Septem ber 1, 2007, the effective date of certain am endm ents to the identity theft statute that stiffened punishm ent for the crim e. However, at the tim e of Knesek's m otion, the indictm ent reflected a date of offense of Decem ber 5, 2007, which triggered the am ended version of section 32.51. See T EX . P EN AL C OD E A N N . § 32.51 (Vernon Supp. 2009). The trial court denied the m otion on Novem ber 12, 2008. 3 III. ILLEGAL SENTENCE By a second issue, although he never clearly explains it as such, Knesek appears to contend that the ten-year sentence imposed by the trial court for count two was illegal.6 However, Knesek cites no authority supporting this argument and provides us with no "clear and concise" argument for this apparent contention. See TEX . R. APP. P. 38.1(i). Knesek has therefore waived this issue on appeal. See Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (en banc) (concluding that an appellant waived consideration of an issue on appeal by failing to include authority or argument). His second issued is overruled. IV. CONCLUSION The judgment of conviction is affirmed.7 NELDA V. RODRIGUEZ Justice Do not publish. TEX . R. APP. P. 47.2(b). Delivered and filed the 11th day of March, 2010. 6 Knesek appears to be attem pting to bring this appeal from his pre-trial m otion that was denied by the trial court. See T EX . R. A PP . P. 25.2(a)(2)(A); T EX . C OD E C RIM . P R O C . A N N . art 44.02 (Vernon 2006). However, we need not address Knesek's argum ent in that context because an illegal sentence can be challenged at any tim e. See Ex parte Rich, 194 S.W .3d 508, 513 (Tex. Crim . App. 2006) (holding that a defect that renders a sentence void m ay be raised at any tim e); see also T EX . R. A PP . P. 47.1. 7 W e note that Knesek's avenues for relief are not com pletely foreclosed by our decision; m eritorious claim s of involuntary pleas and illegal sentences m ay be raised by other procedures such as m otions for habeas corpus. See Ex parte Rich, 194 S.W .3d at 511; Cooper v. State, 45 S.W .3d 77, 82 (Tex. Crim . App. 2001) (en banc). "These procedures are not only adequate to resolve [such] claim s . . . but they are superior to appeal in that the claim m ay be supported by inform ation from sources broader than the appellate record." Cooper, 45 S.W .3d at 82. 4

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