Jeremy Wayne Collins v. The State of Texas--Appeal from 128th District Court of Orange County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-05-333 CR
NO. 09-05-334 CR
NO. 09-05-335 CR
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JEREMY WAYNE COLLINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 128th District Court
Orange County, Texas
Trial Cause Nos. A-040691-R, A-040694-R and A-040697-R
MEMORANDUM OPINION

Jeremy Wayne Collins appeals three convictions. (1) Raising one appellate issue, Collins contends the trial court erred in ordering his sentences to run consecutively. We affirm.

Background

Collins pled guilty to three charges - two for forgery (trial cause nos. A-040691-R and A-040694-R) and one for burglary (trial cause no. A-040697-R). The two forgery charges involved checks dated in September 2004 and made payable to Collins. For each check, the State brought a separate charge alleging that Collins forged the signatory's name. Both checks were on printed, numbered check forms that identified the First Baptist Church of Mauriceville as account owner and provided the Church's address and account number. The September 5 check was for $630. The September 2 check was for $690. In the third charge, Collins pled guilty to burglary. The burglary indictment alleged the crime occurred "on or about September 2, 2004" when Collins entered "a building without the effective consent of Sue Turner, the owner, and therein attempted to commit and committed theft. . . ."

Pursuant to agreements with the State, Collins pled guilty to all three charges at one hearing on May 24, 2005. Collins agreed the trial court could handle all three pleas "at the same time." In return for Collins's guilty pleas, the State recommended that state-jail punishment be assessed at fourteen months in each case.

After Collins entered his pleas, the trial court stated:

Mr. Collins, your attorney came to me . . . [a]nd said that if he brought you into court and you entered your pleas, would I consider letting you out of jail for a period of time, since your wife is pregnant. . . . And he actually asked if you could stay in the Orange County Jail until the birth of the baby. And so, then I asked him when that was going to be, and he said that would be in August. And I said no, but I said that since you do have a child on the way, that I would allow you some time to try to get some affairs in line for the wife and the child that is on the way. . . . And I don't normally do that. . . . But because a child is involved and because a pregnant lady is involved, I said that I would go along with it.

 

The court then reset Collins's cases for May 27 at 9:00 a.m. and informed him that if he failed to appear, the court would "stack" the sentences.

On May 27, 2005, Collins did not appear at the sentencing hearing. The trial court found Collins guilty of all three charges and assessed his punishment in each case at two years' confinement in the state jail. The trial court also fined Collins $10,000 in each case.

On June 24, 2005, Collins appeared for his sentencing hearing. The trial court separately pronounced the punishments previously assessed in each case and ordered that the sentences run consecutively. After pronouncing sentence in the first case, the court said to Collins: "You will note, before I proceed, that you had plea bargained for 14 months in each of your cases; but that day that you were in court you made an agreement with me . . . that if you weren't back [on May 27] that the Court could give you whatever I wanted in your cases, right?" Collins agreed with the court. The court further stated: "So, I am not going to allow any withdrawing of any pleas. . . ."

On appeal, Collins complains that the trial court erred in deciding to "make the three different cases run consecutively." Collins argues that Texas Penal Code section 3.03 applies. With certain exceptions not applicable here, (2)

section 3.03 mandates that sentences shall run concurrently when a defendant is found guilty of more than one offense arising out of the same criminal episode that is prosecuted in a single criminal action. Tex. Pen. Code Ann. 3.03(a) (Vernon Supp. 2005).

For purposes of our analysis, we assume, but do not decide, that the requirements for mandatory concurrent sentences set forth in section 3.03 apply in this case. However, even if 3.03 governs this case, we still must decide whether Collins waived his rights under section 3.03.

At the May 24 hearing during which Collins entered his guilty pleas and the trial court agreed to reset Collins's sentencing date, the trial court informed Collins as follows:

Court: Now, I'm going to tell you right now, here's what happens if you don't come back on May the 27th at 9:00 o'clock: I can go ahead and assess punishment in your case. I know you have a plea bargain, but I'm telling you right now, if you don't come back, in all likelihood, I will assess punishment at the maximum punishment possible in each case, and then I will also consider what the law gives me the right to do, and that is to stack these punishments. . . .

Collins: Yes, sir.

Court: If you want to face the possibility of doing day to day for six years, then don't come back on the 27th. Because I'm telling you, I will consider that. In all likelihood, I will probably give it.

 

Collins: Yes, sir.

 

Court: Two years, two years, two years, stacked. . . .

 

Collins: I understand, sir.

 

Court: All right. Now, I'm telling you right now, that's what's going to happen in your case, max, with the possibility of stacking. That's different than your plea bargain once I tell you that.

 

Collins: Yes, sir.

 

Court: So, in effect, I've changed your plea bargain. Do you want to go along with my plea bargain?

 

Collins: Yes, sir.

 

Court: All right. So, that way, I can do as I just said. Because I've changed the plea bargain, I'll give you the opportunity right now to back out of all of this and go back over to the jail. Do you want to back out of it or go forward?

 

Collins: Go forward, sir.

 

Court: All right. You're reset for the 27th at 9:00 a.m.

 

By accepting the trial court's conditions for resetting his sentencing date, Collins waived his right to complain of the stacked sentences. See Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997). In McJunkins, the Court of Criminal Appeals found that the defendant waived his right to appeal the validity of the trial court's cumulation order by accepting a plea bargain agreement that imposed consecutive sentences in a single criminal action. Id. The Court held that because the defendant affirmatively accepted, as part of his plea bargain, the relinquishment of a statutory provision or right, he had waived his right to appeal its application. Id. The Court noted the absence of any allegation that the defendant's "decision was not counseled, intelligent, and voluntary." Id.

Here, Collins affirmatively relinquished his statutory right, if any, to concurrent sentences. Collins's counsel asked the trial court to let Collins out of jail to attend to family matters and to allow Collins to remain in the county jail until the birth of his child. Counsel was present in the courtroom when the trial court explained the consequences of Collins's accepting the revised plea bargain terms. While the trial court did not agree to allow Collins to remain in the county jail, the court did reset the sentencing hearing so that Collins could make arrangements for his family. Next, the record shows that the trial court told Collins he would likely face consecutive sentences if he failed to appear at his reset sentencing hearing. Collins told the trial court that he understood these consequences. Finally, the trial court informed Collins that he could either "back out" of the new conditions the trial court was imposing or he could "go forward." Collins understood he did not have to accept the trial court's terms but chose to do so. Under these conditions, Collins waived any statutory right to concurrent sentences. We overrule Collins's issue and arguments.

Accordingly, the trial court's judgment is affirmed.

AFFIRMED.

 

____________________________

HOLLIS HORTON

Justice

 

Submitted on July 27, 2006

Opinion Delivered August 23, 2006

Do Not Publish

 

Before Gaultney, Kreger, and Horton, JJ.

1. The three appellate cases are: No. 09-05-333 CR; No. 09-05-334 CR; and No. 09-05-335 CR. We review all three cases in this consolidated opinion.

2. The offenses that are exceptions to the concurrent sentence requirement are intoxication assault, intoxication manslaughter, and certain sex offenses enumerated in section 3.03(b). Tex. Pen. Code Ann. 3.03(b) (Vernon Supp. 2005); see Tex. Pen. Code Ann. 49.07, 49.08 (Vernon 2003); Tex. Pen. Code Ann. 21.11 (Vernon 2003); Tex. Pen. Code Ann. 21.15, 22.011, 22.021, 25.02, 43.25 (Vernon Supp. 2006); Tex. Pen. Code Ann. 43.26 (Vernon 2003).