Nos. 01-08-00705-CR, 01-08-00706-CR
Opinion issued April 2, 2009. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
On Appeal from the 183rd District Court Harris County, Texas, Trial Court Cause Nos. 1145771 1145772.
Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
LAURA CARTER HIGLEY, Justice.
Following a joint trial on two indictments, the jury found appellant, Christopher James Holmes, guilty of aggravated robbery and aggravated assault of a public servant. Appellant pled true to two enhancement allegations contained in each indictment. The jury assessed punishment at 99 years in prison for the aggravated robbery offense and life in prison for the aggravated assault offense. In his sole issue, appellant complains that the State did not give the required notice that the two indictments would be tried in one proceeding. We affirm.
Tex. Penal Code Ann. § 22.02(a)(2), (b)(2)(B) (Vernon Supp. 2008) (aggravatedassault); Tex. Penal Code Ann. § 29.03 (Vernon 2003) (aggravated robbery).
Background
Luis Cruz owns a shop that sells tires and rims. Appellant came into the shop and requested new rims and tires for his car. Cruz put the new rims and tires on appellant's car. Appellant led Cruz to believe that he would pay for the rims and tires, but instead appellant brandished a handgun. Appellant fired one shot into the floor of Cruz's shop. Appellant left Cruz's shop without paying for the new rims and tires. Appellant also took $800 in cash and a cell phone belonging to Cruz. Cruz's nephew contacted the police. The police responded immediately and spotted appellant's car. After the police initiated a stop, appellant fled with the police in pursuit. During the chase, appellant fired a number of shots at the police. Houston police officer E. Williams attempted to set up a road block to stop appellant. As appellant drove by Officer Williams, appellant pointed his handgun at Officer Williams and fired the weapon. The shot did not hit Officer Williams. In two separate indictments, appellant was charged with the offenses of aggravated robbery and aggravated assault of a public servant. Although the State did not file notice that it would consolidate the prosecution of the two separately charged offenses for trial purposes, both offenses were tried to a jury in a single trial. Appellant made no objection to the joinder of the offenses for trial purposes or to the lack of notice by the State of the joinder. Immediately before voir dire, on August 12, 2008, defense counsel raised an issue with the trial court regarding appellant's competence to stand trial. Defense counsel informed the trial court that he had been appointed to represent appellant approximately nine months earlier. He told the court that he had visited appellant in jail on five separate occasions. Defense counsel then stated, The last [visit] was August the 8th. First time he told me he was mentally incompetent and he didn't want to go to trial. Again this morning I went to see him with the elections of punishment. I explained to him that he needs to choose who he wants to assess punishment, the Court or the jury.
Defense counsel then informed the trial court that appellant had again told him that "I don't want to go to trial. I'm not making that choice." The trial court then asked defense counsel a number of questions pertinent to appellant's competence. The trial court ultimately asked whether defense counsel thought appellant was not competent. Appellant's counsel, an experienced defense attorney of 33 years, responded that, in his opinion, appellant was competent to stand trial. The trial court concluded by saying, "It sounds like based on what [the] Court's hearing is that [appellant] just doesn't want to go through with the trial." Defense counsel agreed. A discussion was then held regarding the terms of the State's plea offer, which appellant rejected. Trial proceeded, resulting in appellant's conviction. Appellant did not file a motion for new trial, and these appeals followed. Analysis
In his sole issue, appellant contends, "The cases were improperly joined because the State did not provide written notice of its intent to do so thirty days before trial as required by section 3.02 of the Texas Penal Code." Penal Code subsection 3.02(a) provides that a defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. Tex. Penal Code Ann. § 3.02(a) (Vernon 2003). Penal Code subsection 3.02(b) provides that when a single criminal action is based on more than one charging instrument, the State must file written notice of the action not less than thirty days before trial. Id. § 3.02(b). When the State elects to consolidate prosecution of multiple offenses, "the defendant shall have a right to a severance of the offenses." Tex. Penal Code Ann. § 3.04 (Vernon Supp. 2008). The notice provision of section 3.02(b) provides a defendant time to decide whether he wants separate trials. LaPorte v. State, 840 S.W.2d 412, 414 (Tex.Crim.App. 1992). The Court of Criminal Appeals has recognized that a defendant gives his implied consent to the consolidation of multiple indictments into one proceeding when he does not object. LaPorte v. State, 840 S.W.2d 412, 414 (Tex.Crim.App. 1992); Milligan v. State, 764 S.W.2d 802, 803 (Tex.Crim.App. 1989). Appellant acknowledges that he did not object to the lack of section 3.01(b) notice by the State. Instead, appellant directs us to the discussion between defense counsel and the trial court in which counsel informed the court that appellant had claimed to be "mentally incompetent" and had told his counsel that he did not want to go to trial or make a decision regarding who would determine punishment. Appellant asserts in his brief, "Whatever the merits of Appellant's competency claim, it is apparent that he was not cooperating in the trial. Therefore, it cannot be said he waived the joinder issue because he acquiesced on nothing." Appellant's reasoning is without support. The Court of Criminal Appeals has explained that a defendant waives his objection to the lack of a 3.02(b) notice by making no objection. See LaPorte, 840 S.W.2d at 415. In other words, waiver occurs by a defendant's inaction. No requirement exists that a defendant must in some manner "acquiesce" or affirmatively agree to the waiver of notice or to the consolidated prosecution of multiple offenses in one trial. See id.; Milligan, 764 S.W.2d at 803. Appellant has waived any complaint regarding lack of notice by failing to object before trial. See York v. State, 848 S.W.2d 341, 343 (Tex.App.-Texarkana 1993, pet. ref'd) (holding that appellant waived error by failing to object to State's failure to give proper notice of consolidation of two indictments into single trial). Moreover, appellant's contention that he "was not cooperating in the trial" has no support in the record beyond the statement by defense counsel that appellant had told him that he did not want to go to trial or to make an election regarding whether the jury would assess punishment. Even those statements do not necessarily indicate that he was not cooperating. Rather, as stated by the trial court, they seem to indicate nothing more than a desire by appellant not to go to trial. In addition, the record indicates appellant appeared at trial with his counsel, pleaded not guilty following the State's arraignment, and ultimately elected to have the jury assess punishment. Such conduct suggests that appellant was cooperating at trial and participating in his defense. Lastly, appellant complains of the State's failure to give written notice of joinder. Appellant does not contend that the trial court erred in this case. See Faulkner v. State, 940 S.W.2d 308, 314-15 (Tex.App.-Fort Worth 1997, pet. ref'd) (explaining that trial court commits error, not the State). Here, because no objection was made to the lack of 3.02(b) notice, the trial court never had an opportunity to address appellant's complaint. See Tex. R. App. P. 33.1. We overrule appellant's sole issue. Conclusion
We affirm the judgments of the trial court.