Opinion
NUMBER 13-14-00719-CR
03-02-2016
THE STATE OF TEXAS, Appellant, v. GEORGE HOSEY, Appellee.
On appeal from the 24th District Court of De Witt County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
This is a State's appeal from the trial court's order terminating and dismissing appellee George Hosey's deferred adjudication for aggravated robbery in trial cause number 86-10-7557. By one issue, the State contends that the trial court lacked legal authority to terminate and dismiss Hosey's deferred adjudication. We affirm.
I. BACKGROUND
In 1986, Hosey was charged with aggravated robbery in cause number 86-10-7557 (Robbery) and burglary of a vehicle in cause number 86-10-7558 (Burglary). Both charges arose out of the same criminal episode, which occurred in September 1985, when Hosey was a minor.
After being certified to stand trial as an adult in 1986, Hosey pleaded guilty to the Burglary, and the trial court placed him on probation for ten years. The Robbery charge was not adjudicated at that time. In 1992, Hosey absconded while on probation for the Burglary and was not found until 2004.
In 2004, the State moved to revoke Hosey's probation for the Burglary, and it also sought to prosecute him on the outstanding Robbery charge. Pursuant to a plea bargain agreement between Hosey and the State, the trial court sentenced Hosey to (1) ten years in prison for the Burglary, and (2) ten years of deferred adjudication for the Robbery. Hosey agreed to serve his deferred adjudication for the Robbery immediately upon his release from prison for the Burglary. In other words, the trial court stacked Hosey's ten-year deferred adjudication period for the Robbery on top of his ten-year prison sentence for the Burglary (hereinafter "the cumulation order").
Hosey served his time in prison for the Burglary and, upon his release from prison in 2008, began serving his ten-year deferred adjudication period for the Robbery in accordance with the cumulation order. However, in 2014, the State moved to adjudicate Hosey for the Robbery, alleging that he violated certain conditions of his deferred adjudication after his release from prison. In response to the State's motion to adjudicate, Hosey filed a competing motion to terminate his deferred adjudication and to dismiss the Robbery charge, in support of which he alleged that: (1) the trial court lacked jurisdiction to adjudicate the Robbery charge because Hosey was never properly certified to stand trial as an adult; (2) a prosecution for the Robbery was barred by the applicable statute of limitations, thus precluding an adjudication of guilt on a time-barred charge; and (3) the cumulation order was void because it illegally stacked his deferred adjudication for the Robbery on top of his prison sentence for the Burglary.
The trial court heard evidence and argument on the State's and Hosey's competing motions. During the hearing, Hosey urged all three grounds listed in his motion, plus an additional ground—that an adjudication of guilt for the Robbery would place him in double jeopardy. In response to Hosey's motion, the State presented evidence and argument at the hearing challenging each ground urged by Hosey, including the double jeopardy claim.
After the hearing, the trial court granted Hosey's motion, voided the cumulation order, and terminated and dismissed Hosey's deferred adjudication for the Robbery. The trial court's written order did not specifically state the basis for granting Hosey's motion. This State's appeal followed.
II. DISCUSSION
By its sole issue, the State contends that the trial court erred in terminating and dismissing Hosey's deferred adjudication for the Robbery. Specifically, the State argues that the trial court erred in voiding the cumulation order, which stacked his deferred adjudication for the Robbery on top of his prison sentence for the Burglary, because the order was entered pursuant to a negotiated plea agreement and therefore should have been enforced. However, in order to preserve its right to appellate review of this issue, the State was required to challenge each one of Hosey's legal grounds for relief, because any of those grounds may have been basis for trial court's ruling. See State v. White, 306 S.W.3d 753, 758 (Tex. Crim. App. 2010); State v. Sandoval, 842 S.W.2d 782, 785 (Tex. App.—Corpus Christi 1992, pet. ref'd); G. Dix & R. Dawson, TEXAS PRACTICE SERIES: CRIMINAL PRACTICE AND PROCEDURE § 43.416 (2nd ed. 2001). Here, the trial court entered a general order terminating and dismissing Hosey's deferred adjudication for the Robbery. Although the trial court's order also voided the prior cumulation order, there is no indication that the cumulation order had anything to do with the trial court's decision to grant Hosey's motion. Thus, it is just as likely that the trial court granted Hosey's motion based on one of the other three grounds that he presented, including: (1) that he was not properly certified as an adult to stand trial for the Robbery; (2) that a prosecution for the Robbery was barred by the applicable statute of limitations; and (3) that an adjudication of guilt for the Robbery would place him in double jeopardy. By failing to challenge each ground that could have supported the trial court's decision, the State has forfeited its right to appellate review of this issue. See Sandoval, 842 S.W.2d at 785.
Furthermore, the State's issue is without merit even if we were to find that it was preserved for our review. As previously mentioned, the State argues that trial court erred in voiding the cumulation order because it was entered pursuant to a negotiated plea agreement. To support this argument, the State primarily relies on the case of Ex parte McJunkins, 954 S.W.2d 39 (Tex. Crim. App. 1997).
In Ex parte McJunkins, the trial court entered a cumulation order providing that the defendant serve two consecutive life sentences for murder and aggravated robbery. Id. at 39. The cumulation order was entered pursuant to a plea bargain agreement. Id. However, the cumulation order was technically invalid under section 3.03(a) of the Texas Penal Code because the State prosecuted the murder and aggravated robbery in a single criminal action and the two offenses arose out of the same criminal episode. Id.; see TEX. PENAL CODE ANN. § 3.03(a) (West, Westlaw through 2015 R.S.) (providing that the trial court shall not enter a cumulation order when the State prosecutes the defendant in a single criminal action for two offenses that arise out of the same criminal episode). The court of criminal appeals held that although the cumulation order was technically invalid under section 3.03(a), it was not void because the defendant bargained for it as part of his plea deal with the State and therefore waived his statutory right to serve his life sentences concurrently. Ex parte McJunkins, 954 S.W.2d at 41.
Although this case involves a plea bargain agreement, it is distinguishable from Ex parte McJunkins. The cumulation order in this case stacked deferred adjudication on top of a prison sentence, whereas the cumulation order in Ex parte McJunkins stacked one prison sentence on top of another. This distinction is important because, unlike the defendant in Ex parte McJunkins, Hosey's release from prison triggered the trial court's discretionary power to oversee his deferred adjudication for the Robbery pursuant to article 42.12 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.12 (West, Westlaw through 2015 R.S.). Article 42.12 places "the governance of the [community supervision] system within the discretion of the judges of the criminal courts." State v. Cuellar, 815 S.W.2d 295, 298 (Tex. App.—Austin 1991, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 42.12). Specifically, under article 42.12 section 5(c), a trial court may discharge a defendant placed on deferred adjudication community supervision and dismiss the case at any time prior to the expiration of the community supervision period if the best interest of society and the defendant will be served. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(c); see also State v. Juvrud, 187 S.W.3d 492 (Tex. Crim. App. 2006). As a reviewing court, we must uphold the trial court's decision to terminate and dismiss Hosey's deferred adjudication for the Robbery if it is correct under any theory of law applicable to the case. See Callaway v. State, 743 S.W.2d 645, 651-52 (Tex. Crim. App. 1988). Although the State takes issue with the trial court's decision to void the cumulation order in light of Ex parte McJunkins, it does not address the trial court's authority to terminate and dismiss Hosey's deferred adjudication pursuant to article 42.12 section 5(c) after he was released from prison. Additionally, the State points to no evidence indicating that the terms of Hosey's plea bargain specifically required the trial court to suspend its discretionary power to terminate and dismiss Hosey's deferred adjudication early pursuant to article 42.12 section 5(c). Thus, regardless of whether Hosey's plea bargain agreement with the State validated the cumulation order, it did not deprive the trial court of discretionary power to oversee his deferred adjudication pursuant to article 42.12 section 5(c). See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(c); see also Cuellar, 815 S.W.2d at 298 (relying on article 42.12's early-termination provision to affirm the trial court's decision to terminate the defendant's probation early). We therefore will not disturb the trial court's decision on appeal because there was an adequate legal basis for it, which the State does not address or challenge. See Callaway, 743 S.W.2d at 651-52; Cuellar, 815 S.W.2d at 298.
The State also directs our attention to Beedy, a non-plea bargain case, wherein a cumulation order was held to be void because it stacked deferred adjudication on top of a prison sentence. Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008). The court in Beedy reasoned that deferred adjudication cannot be subject to a cumulation order because it is, by definition, not a "conviction" for purposes of section 3.03. Beedy v. State, 602 (Tex. App.—Houston [1st Dist.] 2006), aff'd, 250 S.W.3d 107 (Tex. Crim. App. 2008). Distinguishing Beedy, however, the State argues that because this case involves a plea bargain agreement, the cumulation order is valid even though it stacked deferred adjudication on top of a prison sentence. We appreciate the State's distinction, especially because the Beedy court in dicta observed that illegal cumulation orders should be voided unless entered pursuant to a plea bargain agreement. Beedy, 250 S.W.3d at 110. Although we appreciate the distinction, the State misses the point; Beedy—and Ex parte McJunkins for that matter—did not address the trial court's discretionary authority to oversee and terminate deferred adjudication pursuant to article 42.12 section 5(c). See TEX. CODE CRIM. PROC. ANN. art. 42.12 (West, Westlaw through 2015 R.S.); see also State v. Cuellar, 815 S.W.2d 295, 298 (Tex. App.—Austin 1991, no pet.). --------
Finally, the State argues that the doctrine of equitable estoppel should have applied to prevent Hosey from seeking to invalidate the cumulation order. The State reasons that because Hosey agreed to the cumulation order as part of a plea bargain with the State, he was estopped from later seeking to invalidate it when the State filed its motion to adjudicate. However, again, the State points to no evidence indicating that Hosey's plea bargain required him to waive his right to early termination of deferred adjudication; nor does the State explain how estoppel could have applied to deprive the trial court of its discretionary power to oversee and terminate Hosey's deferred adjudication pursuant to article 42.12 section 5(c). See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(c); see also Cuellar, 815 S.W.2d at 298. We overrule the State's sole issue.
III. Conclusion
We affirm the trial court's order.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 2nd day of March, 2016.