Wilson, John Michael v. The State of Texas

 
VACATE in part, AFFIRM in part and Opinion Filed March 21, 2012
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-01207-CR
No. 05-10-01208-CR
No. 05-10-01209-CR
No. 05-10-01210-CR
No. 05-10-01211-CR
No. 05-10-01212-CR
No. 05-11-00087-CR
............................
 
JOHN MICHAEL WILSON, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F06-00965-W, F09-25345-W, F09-25444-W,
F10-24073-W, F10-40893-W, F10-41366-W, & F10-41410-W
.............................................................
 
MEMORANDUM OPINION
 
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Fillmore
 
John Michael Wilson was charged with driving while intoxicated,
third offense; burglary of a habitation with the intent to commit
assault; deadly conduct; evading arrest in a motor vehicle; two offenses
of burglary of a habitation with intent to injure an elderly person
(F10-40893-W and F10- 41366-W); and theft over $100,000. Wilson entered
an open plea of guilty in each case. The trial court found Wilson guilty
of all charges and assessed punishment of ten years' imprisonment on the
driving while intoxicated offense, twenty years' imprisonment on the
burglary of a habitation with intent to commit assault offense, ten
years' imprisonment on the deadly conduct offense, two years in a state
 
jail facility on the evading arrest in a motor vehicle offense, forty
years' imprisonment on each of the burglary of a habitation with intent
to injure an elderly person offenses, and twenty years' imprisonment on
the theft over $100,000 offense.
On appeal, Wilson argues the two convictions for burglary of a
habitation with intent to injure an elderly person violate double
jeopardy principles, the trial court erred by making an affirmative
finding of family violence in the deadly conduct case and in one of the
burglary of a habitation cases, and the punishment assessed in each case
violates the rehabilitative objectives of the penal code. The background
of these cases and the evidence adduced at the plea hearing are well
known to the parties, and therefore we limit recitation of the facts to
those necessary to address Wilson's complaints on appeal. We issue this
memorandum opinion because the law to be applied in this case is well
settled. See Tex. R. App. P. 47.1, 47.4. We vacate the trial court's
judgment in cause number F10-41366-W. We affirm the trial court's
judgments in the remaining six cases.
Double Jeopardy
 
In his first point of error, Wilson complains the two
convictions for burglary of a habitation with intent to injure an
elderly person violate double jeopardy principles. The prohibition of
double jeopardy is intended, in part, to prevent the State from
punishing a defendant multiple times for the same offense. U.S. Const.
amend. V; See Footnote 1 Villanueva v. State, 227 S.W.3d 744, 747
 
(Tex. Crim. App. 2007). For double jeopardy purposes, the “same offense”
means the identical criminal act. Luna v. State, 493 S.W.2d 854, 855
(Tex. Crim. App. 1973). If the State's pleadings are not conclusive as
to whether the offenses prosecuted are the same, we may look to the
proof offered at trial. Id.
Wilson asserts there was only one entry of a habitation and,
therefore, his convictions for burglary in cause numbers F10-40893-W and
F10-41366-W punish him twice for the same offense. The State responds
that Wilson waived his double jeopardy complaint in the trial court and
may not raise it for the first time appeal. The State concedes that, if
Wilson's double jeopardy complaint is subject to appellate review, the
two convictions constitute a double jeopardy violation.
Applicable Facts
 
In cause number F10-40893-W, the indictment alleged that, on or
about February 28, 2010, Wilson:
unlawfully, intentionally and knowingly enter[ed] a habitation without
the effective consent of JEAN BLACK, the owner thereof, and did then and
there commit a felony other than theft, namely, INJURY TO AN ELDERLY
PERSON.
In cause number F10-41366-W, the indictment alleged that, on or about
February 28, 2010, Wilson:
unlawfully, intentionally and knowingly enter[ed] a habitation without
the effective consent of TWANYA [sic] MICHELLE WILSON, the owner
thereof, and did then and there commit a felony other than theft,
namely, INJURY TO AN ELDERLY PERSON.
Wilson pleaded guilty to both charges, signed judicial confessions
admitting he committed both offenses exactly as alleged in the
 
indictments, and waived in the plea agreement in each case “any and all
defects, error, or irregularities, whether of form or substance, in the
charging instrument.”
Both Jean Black, Wilson's mother, and Tawnya Wilson (Tawnya),
Wilson's sister, testified at the plea hearing that, on February 28,
2010, Wilson broke into Black's house. Tawnya was visiting Black at the
time, and Wilson physically attacked both Black and Tawnya.
Analysis
 
We first consider the State's argument that Wilson waived his
double jeopardy complaint in the trial court. The State specifically
contends that double jeopardy is a bar to prosecution, article 27.08 of
the code of criminal procedure provides that “a legal defense or a bar
to the prosecution” is a substance exception to an indictment, and
Wilson agreed in the plea documents to waive all substance defects in
the indictments. See Footnote 2
A defect of substance normally involves the failure of an
indictment to allege an offense. Flores v. State, 102 S.W.3d 328, 331
(Tex. App.-El Paso 2003, pet. ref'd). The general rule is that an
indictment must provide adequate notice of the charges the accused must
prepare to meet and enable him to plead acquittal or conviction in bar
to future prosecution for the same offense. Tex. Code Crim. Proc. Ann.
art. 21.11 (West 2009); Sanchez v. State, 928 S.W.2d 255, 259 (Tex.
App.-Houston [14th Dist.] 1996, no pet.); see also Kirkpatrick v. State,
279 S.W.3d 324, 328 (Tex. Crim. App. 2009) (The test for constitutional
sufficiency of an indictment is, “[C]an the district court and the
 
defendant determine, from the face of the indictment, that the
indictment intends to charge a felony or other offense for which a
district court has jurisdiction?” (quoting Teal v. State, 230 S.W.3d
172, 180 (Tex. Crim. App. 2007)). In this case, each relevant indictment
clearly charged Wilson with burglary of a habitation with the intent to
injure an elderly person. Each indictment, standing alone, does not
contain “matter which is a legal defense or bar to the prosecution.”
Wilson's double jeopardy complaint does not relate to a substance defect
in either indictment; rather, he claims the State may not prosecute
Wilson twice for the same conduct. See Ieppert v. State, 908 S.W.2d 217,
219 (Tex. Crim. App. 1995) (complaint that defendant was convicted under
ex post facto law did not present question about form or substance of
indictment, but presented complaint that law did not permit prosecution
of defendant). Accordingly, the waivers in the plea agreements do not
bar Wilson's double jeopardy complaint on appeal.
Wilson did not raise his double jeopardy complaint in the trial
court, and the State next asserts that he cannot do so for the first
time on appeal. The court of criminal appeals has determined:
Whether entered with or without an agreed recommendation of punishment
by the State, a valid plea of guilty or nolo contendere “waives” or
forfeits the right to appeal a claim of error only when the judgment of
guilt was rendered independent of, and is not supported by, the error.
Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000); see also
 
Monreal v. State, 99 S.W.3d 615, 620 (Tex. Crim. App. 2003)
(non-bargaining defendant pleading guilty may be able to appeal an error
not raised on a written pre-trial motion, if it is “otherwise preserved
and survives Young”). In this case, “the judgment of conviction was not
rendered independent of the double jeopardy violation as 'the claim is
that the State may not convict petitioner no matter how validly his
factual guilt is established.'” Reyes v. State, 139 S.W.3d 448, 449
(Tex. App.-Austin 2004, no pet.) (quoting Menna v. New York, 423 U.S.
61, 62 n.2 (1975) (per curiam)). Therefore, Wilson did not forfeit his
right to raise a double jeopardy complaint by pleading guilty.
Because of the fundamental nature of double jeopardy
protections, a double jeopardy complaint may be raised for the first
time on appeal “when the undisputed facts show the double jeopardy
violation is clearly apparent on the face of the record and when
enforcement of the usual rules of procedural default serves no
legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.
Crim. App. 2000); see also Bigon v. State, 252 S.W.3d 360, 369 (Tex.
Crim. App. 2008). Here, the indictments allege the entry of two
different habitations, one owned by Black and one owned by Tawnya.
However, it is undisputed the two burglary convictions are based on the
same conduct, Wilson's entry of Black's residence with the intent to
injure an elderly person. The gravamen of a burglary is the entry
without the effective consent of the owner and with the requisite mental
 
state. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). The
harm from a burglary results from the entry itself. Id. “The offense is
complete once the unlawful entry is made, without regard to whether the
intended theft or felony is also completed.” Id. Two convictions based
on a single unlawful entry violate double jeopardy. Id.
Because both of the complained-of convictions were based on the
same unlawful entry by Wilson, a double jeopardy violation is apparent
on the face of the record. Further, because both convictions arise out
of the same plea proceedings, enforcement of the usual rules of
procedural default would serve no legitimate state interest. Shaffer v.
State, 477 S.W.2d 873, 876 (Tex. Crim. App. 1971) (enforcement of rules
of procedural default serve no state interest when “the two convictions
were in the same court, on the same day, before the same judge, and were
based on the same evidence”); Johnson v. State, 208 S.W.3d 478, 510
(Tex. App.-Austin 2006, pet. ref'd); Honeycutt v. State, 82 S.W.3d 545,
547 (Tex. App.-San Antonio 2002, pet. ref'd). Accordingly, even though
Wilson failed to raise his double jeopardy complaint in the trial court,
we may review the issue on appeal.
The State concedes that, if Wilson's complaint is subject to
appellate review, a double jeopardy violation occurred. When a defendant
is subjected to multiple punishments for the same offense, the remedy is
to affirm the conviction for the most serious offense and vacate the
other conviction. Bigon, 252 S.W.3d at 372. The “most serious offense”
 
is defined as the offense for which the greatest sentence was assessed.
Id. at 373; Cavazos, 203 S.W.3d at 338.
Wilson was sentenced to forty years' imprisonment on each of the
relevant burglary of a habitation convictions. When the two sentences
are the same, other factors, such as restitution or a deadly weapon
finding, can be considered in determining which offense is the most
serious offense. Villanueva, 227 S.W.3d at 749; Cavazos, 203 S.W.3d at
338-39. Here, the trial court made a finding of family violence in cause
number F10-40893-W, but did not make such a finding in cause number
F10-41366-W. A finding of family violence has potential consequences for
Wilson. See 18 U.S.C.A. § 922(g)(9) (2000) (unlawful for any person
convicted of misdemeanor crime of domestic violence to ship or transport
in interstate or foreign commerce, or possess in or affecting commerce,
any firearm or ammunition); Tex. Penal Code Ann. § 22.01(b)(2)(A) (West
2011) (any subsequent offense involving family violence will be enhanced
to third degree felony); Tex. Fam. Code Ann. §§ 8.051 (West Supp. 2011),
153.004(c) (West 2008) (trial court required to consider family violence
finding in proceeding regarding parent-child relationship or spousal
maintenance). Accordingly, we conclude cause number F10-40893-W is the
“most serious offense.” See Villanueva, 227 S.W.3d at 749.
We resolve Wilson's first point of error in his favor. We affirm
the trial court's judgment in cause number F10-40893-W and vacate the
trial court's judgment in cause number F10-41366-W.
Finding of Family Violence
 
 
In his second point of error, Wilson asserts the trial court
erred by entering an affirmative finding of family violence in the
deadly conduct case and in one of the burglary of a habitation cases
(F10-40893-W) because the State did not provide Wilson notice that it
intended to seek the finding. In his third point of error, Wilson argues
a finding of family violence in the burglary of habitation case is not
authorized by article 42.013 of the code of criminal procedure because
burglary is an offense under Title 7, rather than Title 5, of the penal
code. See Footnote 3
Generally, to preserve a complaint for appellate review, a party
must make a timely, specific request, objection, or motion in the trial
court and obtain an adverse ruling from the trial court. Tex. R. App. P.
33.1(a). Wilson did not object in the trial court to a lack of notice of
the State's intent to seek an affirmative finding of family violence or
to the trial court's finding of family violence in the burglary of a
habitation case. Accordingly, these complaints are not preserved for
appellate review. See Tex. R. App. P. 33.1(a). See Footnote 4 We
resolve Wilson's second and third points of error against him.
Punishment
 
In his fourth through tenth points of error, Wilson contends the
trial court abused its discretion by sentencing Wilson to incarceration
in each case because the punishment violates the objectives of the penal
code. Wilson specifically complains the trial court erred by not
providing him an opportunity for rehabilitation by placing him on
 
community supervision with treatment for his mental health and drug
abuse issues. Wilson did not complain about the sentences either at the
time they were imposed or in his motions for new trial. See Tex. R. App.
P. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.
App.-Dallas 2003, no pet.) (for error to be preserved for appeal, the
record must show appellant made a timely request, objection, or motion).
Thus, Wilson has not preserved his complaints for our review.
Even if Wilson had preserved error, however, his argument still fails.
As a general rule, punishment that is assessed within the statutory
range for an offense is not excessive or unconstitutionally cruel or
unusual. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet.
ref'd). Wilson concedes the sentence assessed in each case was within
the statutory range for the offense. Therefore, the trial court did not
abuse its discretion by assessing the sentences in these cases. See
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (as long as
a sentence is within the proper range of punishment, it will not be
disturbed on appeal). We resolve Wilson's fourth through tenth points of
error against him.
We vacate the trial court's judgment in cause number
F10-41366-W. We affirm the trial court's judgments in all other cases.
 
ROBERT M.
FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101207F.U05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN MICHAEL WILSON, Appellant
No. 05-10-01207-CRV.
THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District
 
Court of Dallas County, Texas. (Tr.Ct.No. F06- 00965-W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers
participating.
Based on the Court's opinion of this date, the judgment of the
trial court is AFFIRMED.
Judgment entered March 21, 2012.
/Robert M.
Fillmore/
ROBERT M.
FILLMORE
JUSTICE
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN MICHAEL WILSON, Appellant
No. 05-10-01208-CRV.
THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District
Court of Dallas County, Texas. (Tr.Ct.No. F09- 25345-W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers
participating.
Based on the Court's opinion of this date, the judgment of the
trial court is AFFIRMED.
Judgment entered March 21, 2012.
/Robert M.
Fillmore/
ROBERT M.
FILLMORE
JUSTICE
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN MICHAEL WILSON, Appellant
No. 05-10-01209-CRV.
THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District
Court of Dallas County, Texas. (Tr.Ct.No. F09- 25444-W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers
participating.
Based on the Court's opinion of this date, the judgment of the
trial court is AFFIRMED.
Judgment entered March 21, 2012.
/Robert M.
Fillmore/
ROBERT M.
FILLMORE
JUSTICE
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN MICHAEL WILSON, Appellant
No. 05-10-01210-CRV.
THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District
Court of Dallas County, Texas. (Tr.Ct.No. F10- 24073-W).
 
Opinion delivered by Justice Fillmore, Justices Morris and Myers
participating.
Based on the Court's opinion of this date, the judgment of the
trial court is AFFIRMED.
Judgment entered March 21, 2012.
/Robert M.
Fillmore/
ROBERT M.
FILLMORE
JUSTICE
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN MICHAEL WILSON, Appellant
No. 05-10-01211-CRV.
THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District
Court of Dallas County, Texas. (Tr.Ct.No. F10- 40893-W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers
participating.
Based on the Court's opinion of this date, the judgment of the
trial court is AFFIRMED.
Judgment entered March 21, 2012.
/Robert M.
Fillmore/
ROBERT M.
FILLMORE
JUSTICE
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN MICHAEL WILSON, Appellant
No. 05-10-01212-CRV.
THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District
Court of Dallas County, Texas. (Tr.Ct.No. F10- 41366W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers
participating.
Based on the Court's opinion of this date, the judgment of the
trial court is VACATED.
Judgment entered March 21, 2012.
/Robert M.
Fillmore/
ROBERT M.
FILLMORE
JUSTICE
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN MICHAEL WILSON, Appellant
No. 05-11-00087-CRV.
THE STATE OF TEXAS, AppelleeAppeal from the 363rd Judicial District
Court of Dallas County, Texas. (Tr.Ct.No. F10- 41410-W).
Opinion delivered by Justice Fillmore, Justices Morris and Myers
participating.
 
Based on the Court's opinion of this date, the judgment of the
trial court is AFFIRMED.
Judgment entered March 21, 2012.
/Robert M.
Fillmore/
ROBERT M.
FILLMORE
JUSTICE
 
 
-------------------
Footnote 1
The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution applies to the states through the Fourteenth Amendment.
State v. Blackshere, 344 S.W.3d 400, 405 n.8 (Tex. Crim. App. 2011)
(citing Benton v. Maryland, 395 U.S. 784, 794 (1969)). Moreover, the
Texas Constitution contains similar protections. Tex. Const. art. 1, §
14. The court of criminal appeals has determined the state and federal
double jeopardy provisions are substantially identical. Blackshere, 344
S.W.3d at 405 n.8.
-------------------
Footnote 2
Article 27.08(3) provides that an exception to the substance of an
indictment is that “it contains matter which is a legal defense or bar
to the prosecution.” Tex. Code Crim. Proc. Ann. art. 27.08(3) (West
2006)
-------------------
Footnote 3
Article 42.013 of the code of criminal procedure provides:
In the trial of an offense under Title 5, Penal Code, if the court
determines that the offense involved family violence, as defined by
Section 71.004, Family Code, the court shall make an affirmative finding
of that fact and enter the affirmative finding in the judgment of the
case.
Tex. Code Crim. Proc. Ann. art. 42.013 (West 2006).
-------------------
Footnote 4
See also Givens v. State, No. 05-06-01582-CR, 2008 WL 2104843, at *4
(Tex. App.-Dallas May 20, 2008, pet. dism'd) (mem. op., not designated
 
for publication) (appellant failed to demonstrate his complaint about
lack of notice of State's intent to seek family violence finding was an
exception to error-preservation requirements under rule 33.1);
Villarreal v. State, No. 01-01-00053-CR, 2002 WL 501605, at *2 (Tex.
App.-Houston [1st Dist.] Apr. 4, 2002, no pet.) (not designated for
publication) (appellant waived claim he was denied due process by trial
court's affirmative finding of family violence by not raising it in
trial court).
-------------------