James Heath Kirkland v. The State of Texas--Appeal from 8th District Court of Hopkins County

NO. 12-03-00302-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JAMES HEATH KIRKLAND, APPEAL FROM THE EIGHTH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HOPKINS COUNTY, TEXAS

MEMORANDUM OPINION

James Heath Kirkland was convicted of theft and was sentenced to two years of imprisonment to run consecutively with a previous ten-year sentence for burglary of a habitation. Appellant raises one issue on appeal. We affirm.

Background

On June 2, 2003, Appellant was indicted for theft of property with a value of $1,500.00 or more but less than $20,000.00. See Tex. Pen. Code Ann. 31.03(e)(4) (Vernon Supp. 2004-2005). This offense was alleged to have been committed on March 1, 2002. On March 6, 2002, Appellant committed the offense of burglary of a habitation, an offense for which he was eventually tried and convicted and was sentenced to ten years of imprisonment. //

As part of a plea bargain before Appellant s trial on the burglary of a habitation charge, the State offered to allow Appellant s sentences for the burglary of a habitation and theft charges to run concurrently. The State informed Appellant that if he rejected this offer, it would ask the trial court to order his sentences for both offenses to run consecutively. Appellant rejected this offer.

On February 11, 2003, Appellant was found guilty and was sentenced to ten years of imprisonment on the burglary of a habitation charge. On June 30, he pleaded guilty to the theft charge and chose to have the court assess his punishment. On August 7, the State filed a Motion to Cumulate Sentences, asking the trial court to order Appellant s sentences for burglary of a habitation and theft to run consecutively. That same day, after hearing evidence from Appellant and the State, the trial court sentenced Appellant to two years of imprisonment and ordered that the sentence be served after his ten-year sentence for burglary of a habitation. Appellant now appeals the trial court s cumulation of sentences order.

Analysis

In his sole issue, Appellant contends that the State s motion seeking consecutive sentences was filed as a result of prosecutorial vindictiveness; therefore, the trial court s cumulation of sentences order must be declared void. The State argues that the record is devoid of any prosecutorial vindictiveness and that it was well within its legal right to seek maximum penalties.

We first note that Appellant did not object to the severity of his sentence at the punishment hearing, nor did he raise this issue in his motion for new trial. On November 17, 2004, the court of criminal appeals issued its opinion in Neal v. State, a case in which the appellant s claim of prosecutorial vindictiveness was raised for the first time in the court of appeals. Neal v. State, No. PD-1559-03, 2004 WL 2601067, at *1 (Tex. Crim. App. Nov. 17, 2004). In Neal, the claim of prosecutorial vindictiveness was 1) not timely raised in the trial court, 2) not specific, and 3) not ruled on by the trial court. Id. at *8. Therefore, the court held that the appellant failed to preserve the issue for appellate review. Id. at *9.

In the instant case, Appellant never 1) raised his claim in the trial court or 2) made a specific objection to the cumulation of sentences order. Appellant has therefore waived any claim of prosecutorial vindictiveness. Appellant s sole issue is overruled.

Disposition

The judgment of the trial court is affirmed.

SAM GRIFFITH

Justice

Opinion delivered November 30, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)