Tingle v. State

Full title: JOSHUA TINGLER, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Feb 8, 2006

No. 10-04-00224-CR (Tex. App. Feb. 8, 2006)

Opinion

No. 10-04-00224-CR

Opinion delivered and filed February 8, 2006. DO NOT PUBLISH.

Appeal fromthe 252nd District Court, Jefferson County, Texas, Trial Court No. 83681. Judgment of conviction affirmed Punishment reversed, cause remanded.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA, (Chief Justice GRAY dissenting).

OPINION

BILL VANCE, Justice.

Appellant Joshua Tingler pled guilty to the felony offense of aggravated robbery. He was placed on deferred adjudication community supervision for five years and was fined $1,500. The State moved to revoke; the trial court sustained the motion to revoke, adjudicated Tingler guilty, and sentenced him to thirty years in prison. In his first issue, Tingler asserts that the trial court, after finding him guilty, erred in not affording him the opportunity to present mitigating evidence on his involvement in the crime for which he was convicted. At the hearing in question, after Tingler's attorney made a preliminary statement that the trial court should continue probation (community supervision), the prosecutor commented that Tingler had pointed a gun at the robbery victim's head, then recommended revocation and a substantial prison sentence. The trial court then asked Tingler a few questions and made comments to Tingler about his conduct while on community supervision. The trial court then stated:

You're out there doing whatever you want to do. And what I can't afford to do, sir, is I can't afford to take a chance for you to go break in somebody else's house that lives here in Jefferson County and stick a gun in their face. I can't afford that.

With all that said, I find the evidence to be sufficient to find Counts 4, 5, 6, 7, 8, 9, 10 and 11 to be true. They are, therefore, true. I hereby revoke your unadjudicated probation, I now find you guilty of the offense of aggravated robbery, I assess your punishment at confinement in the Institutional Division for a period of 30 years. You will be given credit for any and all time that you may be entitled to by law. Have a good day, and good luck to you. Thereafter, Tingler filed a verified motion for new trial, asserting that the trial court's severe sentence was the result of its misperception about Tingler's involvement in the underlying offense. Tingler asserted that he was not the gunman in the underlying aggravated robbery and that he was only present in the vehicle while his co-defendant committed the offense, outside Tingler's presence. The motion requested an evidentiary hearing so that he could present this mitigating evidence. Without holding a hearing, the trial court overruled the motion for new trial. After the trial court finds the defendant guilty during a hearing on a petition to proceed to adjudication, the defendant is entitled to a punishment hearing after the adjudication of guilt, and the trial judge must allow the accused the opportunity to present punishment evidence. Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992). To preserve a complaint that the trial court erred in failing to hold a separate punishment hearing, the defendant must timely object or file a motion for new trial if not afforded the opportunity to object. Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex.Crim.App. 2001); Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Crim.App. 1999). In its brief, the State concedes that Tingler was not provided an adequate opportunity to present mitigating evidence before sentencing "on the narrow issue of his actual role in the offense for which he had been adjudicated as it bears on punishment." (State's Brief at 10-11). The State also agrees that Tingler preserved his complaint by filing a motion for new trial. Accordingly, we sustain Tingler's first issue. Because we are remanding for a punishment hearing, we need not address Tingler's second issue. But we note that he complains that the trial court erred by failing to hold an evidentiary hearing on his motion for new trial, and the State effectively concedes that the trial court abused its discretion in not holding a hearing on the motion. We affirm the judgment of conviction. We reverse that portion of the judgment assessing punishment of a thirty-year sentence and remand this cause to the trial court for a punishment hearing consistent with this opinion. TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (Vernon Supp. 2005).

DISSENTING OPINION

TOM GRAY, Chief Justice.

A majority of this Court reverses the punishment assessed in this case, not because of an independent review, but because of a concession by the State. With all due respect, the State is wrong, and we are not limited in our review to what the State argues — concession or no concession. We should do our job and review Tingler's allegations of error. We should not let the District Attorney decide for us that the trial court committed harmful error. Generally, we are obligated to conduct a review of an appellant's properly briefed issue, and can affirm the trial court's decision on any correct theory, even when that theory has not been raised by the appellee. Martinez v. State, 74 S.W.3d 19, 21 (Tex.Crim.App. 2002). I will conduct that analysis. Finding no error, I would affirm the trial court's judgment.

PUNISHMENT EVIDENCE

Tingler argues in his first issue on appeal that the trial court erred by failing to give him the opportunity to present mitigating evidence after being adjudicated guilty of aggravated robbery. The State concedes the issue was preserved by the filing of a motion for new trial, a motion that I have grave doubts was sufficient to bring the issue now complained about on appeal to the trial court's attention, and concedes the trial court committed reversible error, i.e., error and harm. The State provides no substantive analysis of whether the issue was preserved. Preservation of a complaint is a systemic requirement that must be reviewed by the courts of appeals regardless of whether the issue is raised by the parties. Haley v. State, 173 S.W.3d 510, 515 (Tex.Crim.App. 2005). No Preservation To understand why I reach the conclusion that the issue regarding the presentation of punishment evidence was not preserved, we must start at the beginning. Tingler was charged with aggravated robbery, a first degree felony. He pled guilty. He was placed on community supervision — deferred adjudication. A motion to adjudicate was filed.¹ A hearing was scheduled. Jefferson County uses a scheduling form to set hearings. There are a number of these forms in the file rescheduling the motion to adjudicate. The form identified the hearing as a "Probation Revocation hearing/plea." There is no line, as such, for a hearing on a motion to adjudicate. On March 10, 2004, the adjudication hearing was scheduled and noticed for March 19, 2004. At the hearing on March 19, 2004, Tingler pled true to counts 4 (failed to report), 5 (intoxication by drugs), 6 (failed to attend rehab), 7 (failed to perform community service), 8 (failed to pay restitution), 9 (failed to observe curfew), 10 (committed public intoxication), and 11 (failed to observe curfew). After Tingler had pled true to each of these violations, the following exchange occurred.

THE COURT: Okay, I'm going to hold your new case, I'm going to order an updated [presentence investigation] report in this case. I'm going to accept your pleas of true. We'll get you back down here on the 19th [of April]. If there's anything you think is important, get it to Mr. Smith; and he'll be happy to get that to me. Do you have any questions?

THE DEFENDANT: No, Sir.

THE COURT: Good luck to you.

The reporter's record for this hearing identifies it as "Motion to Revoke Probation." On March 19, 2004, the matter was scheduled and noticed for "Sentencing" on April 19, 2004, and Tingler, his attorney, and the prosecutor signed a document entitled "Agreed Punishment Recommendation." At the hearing on April 19, 2004, the trial court asked whether Tingler's counsel had any comments. I think his opening remarks are pretty telling about the entirety of what is going on in this proceeding. Counsel started his plea to the court as follows.

MR. SMITH: Yes, Your Honor, we're asking the Court to continue Mr. Tingler on probation. We realize that there's a new indictment against him, but it's not covered in this. I have talked briefly with the family relating to this new offense; and it appears that he has a very, very good defense to that new armed robbery, which is the one I was bringing to the Court's attention before he came out here.

After some brief discussion by the State and defense counsel, the court turned directly to Tingler whereupon the following exchange occurred.

THE COURT: That's a good question. Mr. Tingler, exactly what have you done to try to get your business in order?

THE DEFENDANT: (No response)

THE COURT: There's got to be something other than what you offered the probation department because you basically offered them nothing.

THE DEFENDANT: Sir, I was trying to get enrolled in Lamar and take a welding class before I came in here.

THE COURT: Did this just come to your attention that drinking and drugs were a problem for you?

THE DEFENDANT: No, sir, I knew it for about a year.

THE COURT: You've actually known it for almost two years and the reason is because the probation department told you back whenever you were originally placed on probation in '01 that nevertheless, if placed on probation, problems in supervision will likely, not maybe, but will likely be related to drinking. So, you've known since '01 that you needed some help; and you've done absolutely nothing about it. And here's the problem that you've got now. You went into this lady's house, you robbed her and you stuck a gun in her face; and that's about as serious of an offense as you can possibly get.

Your offenses and arrests on probation — theft by check in '02, issuance of a bad check in '02, criminal mischief in '03, possession of marijuana in '03, forgery, assault — this is all on my watch, right?

THE DEFENDANT: Yes, sir.

THE COURT: This is what you're doing to reward me for letting you be on probation. December of '03, public intoxication — I mean, it just goes on and on and on. You're out there smoking marijuana, you're out there snorting cocaine, you're out there taking benzodiazepine. You're out there doing whatever you want to do. And what I can't afford to do, sir, is I can't afford to take a chance for you to break in somebody else's house that lives here in Jefferson County and stick a gun in their face. I can't afford that.

With all that said, I find the evidence to be sufficient to find Counts 4, 5, 6, 7, 8, 9, 10 and 11 to be true. They are, therefore, true. I hereby revoke your unadjudicated probation, I now find you guilty of the offense of aggravated robbery, I assess your punishment at confinement in the Institutional Division for a period of 30 years. You will be given credit for any and all time that you may be entitled to by law. Have a good day, and good luck to you.

MR. THOMAS: State files notice of intent to destroy evidence.

The State had the opportunity to give notice of the intent to destroy evidence. Tingler, however, made no complaint about any failure to conduct a separate punishment hearing, or the lack of an opportunity to present mitigating punishment evidence. Tingler filed a "verified" motion for new trial one month later. Nowhere in the motion does he complain of a failure to conduct a separate punishment hearing or the lack of an opportunity to present mitigating punishment evidence. Rather, the entire motion for new trial addresses only one thing. The motion for new trial addresses what Tingler perceives as a misunderstanding of the trial court about the actual facts of the offense, whether Tingler was actually the one wielding the gun and sticking it in the victim's face — or was it the other guy that did that. To fully appreciate the focus was on the alleged misunderstanding and not on the nature of the prior hearing on punishment, the Motion for New Trial is set out in full.

* * * MOTION FOR NEW TRIAL

TO THE HONORABLE JUDGE OF SAID COURT: Now comes JOSHUA TINGLER, Defendant, and files this Motion for New Trial and in support thereof shows:

I.

On April 19, 2004, this Court revoked the Defendant's probation and sentenced him to Thirty (30) years. At the time of sentencing, the court made comments in open Court indicating that the severity of the sentence was based on what the Court perceived to be the Defendant's involvement in the original offense for which he was placed on probation for (sic). From the Courts (sic) comments it is obvious the Court believes the Defendant was the "gunman."

II.

The true facts of the original charge show that the Defendant was not the gunman and was only present in the vehicle while the Co-Defendant was gone and actually committed the offense outside the presence of the Defendant.

III.

The Defendant would beg the Court to allow an evidentiary hearing on this Motion for New Trial for the purposes of allowing him to present mitigating evidence that will have a direct impact on the Court's reconsideration of the severe sentence rendered on April 19, 2004.

IV.

The Defendant would urge the Court to reconsider said severe sentence, for the severity of same is inconsistent with sentences given by this Court to Defendant's (sic) in similar situation (sic) and therefore violates his State and United States Constitutional rights of equal probation (sic), fair treatment under the law, due process, and cruel and unusual punishment. WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court set aside the judgment of conviction entered in this cause and order a new trial on the merits.

* * *

Nowhere in this motion does Tingler put the trial court on notice of a complaint about not holding a separate punishment hearing or the lack of an opportunity to present mitigating punishment evidence. Rather, Tingler wants, only, to present evidence to correct a perceived misconception of his role in the crime, which misperception he believes contributed to a harsh sentence. So with a detailed understanding of the facts and procedural posture, let us now turn to Tingler's issues and the applicable law. Post-Adjudication Sentencing — Preservation Required! It is well-settled that a defendant is entitled to a punishment hearing after an adjudication of guilt, and the trial judge must allow the accused the opportunity to present evidence. Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992). In Issa, the Court of Criminal Appeals held that because the defendant did not have the opportunity to object to the imposition of sentence immediately upon the adjudication of guilt and the trial court had immediately left the bench, the defendant preserved the issue for review by a timely filed motion for new trial in which the objection was made. Id. Preservation by a motion for new trial is allowed only in rare circumstances when the defendant has no opportunity to object to the failure to have a punishment hearing and thus was sentenced with no opportunity to present punishment evidence. Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App. 1999). Tingler did not object at the hearing. And he did not put the trial court on notice of a complaint about not holding a separate punishment hearing or the lack of an opportunity to present mitigating punishment evidence in his motion for new trial. Thus, Tingler failed to preserve that issue for our review. TEX. R. APP. 33.1(a). Post-Adjudication Sentencing — Issue on the Merits But if the issue on the merits is reached, the holding in Issa, must be compared to the holding in Pearson. Pearson v. State, 994 S.W.2d 176 (Tex.Crim.App. 1999). In Pearson, the court of appeals had concluded that the appellant had not been given an opportunity to present punishment evidence after the adjudication of guilt and had also preserved the issue in a motion for new trial. The Court of Criminal Appeals reversed. The Court explained that the appellant not only had the opportunity to present mitigating evidence, he actually took the stand and testified. The Court determined that it was immaterial that the opportunity to present the evidence came before the actual words of adjudication. Id. at 179. "Appellant had the opportunity to present evidence during the proceedings. That is all that is required." Id. The situation presented in Pearson, as described above, is very close to the situation presented in this case. Tingler argues he was not afforded the opportunity to present mitigating punishment evidence. But this is not accurate. As discussed previously, Tingler had a punishment hearing. What else would have been done at this hearing? And Tingler had an unusual opportunity. He knew for a month he was going to have a punishment hearing. In many cases, the plea and sentencing in a motion to adjudicate are conducted on the same day, at the same time. Tingler also knew that if he had anything important to say, his attorney could make it known to the trial court. Of course it appears from the record Tingler had used this intervening time period for other purposes — to commit yet another crime. Tingler had every opportunity to present the mitigating evidence he now wants to present. But he did not. The Court of Criminal Appeals has said opportunity is the key. It does not matter that the opportunity came before the words of adjudication. "Appellant had the opportunity to present evidence during the proceedings. That is all that is required." Pearson, 994 S.W.2d at 179. Because Tingler had a punishment hearing and had the opportunity to present evidence during that hearing, if his first issue is reached on the merits, it should be overruled. Remedy But even if, for some reason, the separate punishment hearing was not enough opportunity, a holding with which I do not agree, and the motion for new trial was sufficient to preserve this issue for our review, a holding with which I do not agree, I question whether the majority gives the proper remedy by reversing the portion of the judgment assessing punishment. In Issa, the Court of Criminal Appeals simply remanded the case to the trial court for resentencing. It did not expressly reverse the punishment judgment. Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992). We have done the same in similar situations where the trial court should have held a hearing on a motion for new trial, particularly where ineffective assistance of counsel was alleged in the motion. See Barnett v. State, 76 S.W.3d 739, 742 (Tex.App.-Waco 2002, pet. ref'd); Mendoza v. State, 935 S.W.2d 501, 504 (Tex.App.-Waco 1996, no pet.). We should be consistent with the Court of Criminal Appeals and our own precedent and do the same in this case and simply remand this proceeding for the presentation of any additional evidence relevant to punishment that Tingler wants to present. There is no need for the State, or Tingler, to have to start from the beginning for an entirely new sentencing hearing. The trial court already has before it a wealth of evidence appropriate for sentencing consideration. All that evidence should not have to be offered again.

MOTION FOR NEW TRIAL

Because the majority reverses the punishment on the first issue, it does not address Tingler's second issue — that the trial court erred in not holding a hearing on his motion for new trial. The majority notes, however, that the State, again, concedes error. The State cannot "concede" that which is not error. Because I believe the State erroneously purports to concede error, I must address this issue to dispel any implication by the majority that the trial court erred in not setting Tingler's motion for new trial for a hearing.² It is true that when a defendant presents a motion for new trial that raises matters not determinable from the record, which could entitle him to relief, the trial court abuses its discretion in failing to hold a hearing on the motion. King v. State, 29 S.W.3d 556, 569 (Tex.Crim.App. 2000). But a hearing is not required when the matters raised in the motion for new trial are subject to being determined from the record. Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim.App. 1993). Tingler seems to be arguing in his motion that because the trial court may have believed he was the gunman, the sentence rendered constituted cruel and unusual punishment. That is all the trial court needed to know based on the motion recited in full above. The trial court was in the unique position to know whether or not he thought Tingler was the gunman in the original offense, whether that belief, if untrue, would have affected the punishment assessed, or whether the court was considering information before it in the updated PSI report regarding the new offense in which Tingler had allegedly engaged. There was no need for the trial court, on this record, to have a hearing to receive evidence about Tingler's role in the original crime. The trial court could easily have concluded that, even if Tingler sat in the car while an accomplice stuck the gun in the victim's face, he was still going to get 30 years as punishment for the crime. It is clear from the record that Tingler had pushed this trial court judge to the limits of mercy; it was time to do justice. See Micah 6:8 (King James) ("He hath shewed thee, O man, what is good; and what doth the Lord require of thee, but to do justice, and to love mercy, and to walk humbly with thy God?"). And of course, if the trial court did err in this regard, the proper remedy is a remand to hold the hearing, not a reversal of any part of the judgment. Mendoza v. State, 935 S.W.2d 501, 504 (Tex.App.-Waco 1996, no pet.). See also Barnett v. State, 76 S.W.3d 739, 742 (Tex.App.-Waco 2002, pet. ref'd).

CONCLUSION

Finding no error in this trial court's judgment, I cannot vote to reverse it. Because the majority reverses the trial court, I dissent.