No. 12-07-00048-CR
Opinion delivered November 30, 2007. DO NOT PUBLISH.
Appeal from the 124th Judicial District Court of Gregg County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
JAMES T. WORTHEN, Chief Justice.
Shondreta R. Thomas appeals her conviction for injury to a child. On appeal, Appellant argues that the trial court erred in ordering her sentence to be served consecutively to her sentence for a previous murder conviction. We affirm.
BACKGROUND
Appellant was charged by indictment for one count of murder and one count of injury to a child. According to Appellant and the State, the injury to a child charge was severed from the murder charge, although no signed order of severance appears in the record. A jury found Appellant guilty of murder and assessed her punishment at five years of imprisonment. Three days later, on January 22, 2007, Appellant entered an open plea of guilty to injury to a child, or more specifically, to intentionally or knowingly, by omission, causing bodily injury to a child fourteen years of age or younger, by failing to obtain medical treatment, a third degree felony. On the same date, Appellant and her counsel signed a waiver of jury trial and consent to stipulation of testimony, a waiver of presentence report, and a written stipulation of evidence in which Appellant swore that all allegations pleaded in the indictment were true and correct and constituted the evidence in the case. The trial judge and the attorney for the State signed and approved Appellant's waiver of jury trial and consent to stipulation of testimony, and the written stipulation of evidence. The trial court accepted Appellant's plea, adjudged her guilty of the charged offense, and, after a sentencing hearing, assessed her punishment at ten years of imprisonment. Further, the trial court ordered that her sentences be served consecutively. This appeal followed. CONSECUTIVE SENTENCING
In her sole issue, Appellant argues that the trial court erred in ordering that the ten year sentence for injury to a child be served consecutively to her five year sentence for murder. More specifically, she contends that the trial court's order violated due process because it was vindictive and resulted from a perception that the jury's sentence for the murder charge was lenient. The State disagrees, arguing that Appellant failed to preserve error on the trial court's order that the sentences be served consecutively. Further, the State contends that the trial court did not abuse its discretion by ordering consecutive sentences and that its order was not the result of judicial misconduct. Applicable Law
If two or more offenses have been severed, the court in its discretion may order the sentences to run either concurrently or consecutively. TEX. PENAL CODE ANN. § 3.04 (Vernon Supp. 2007). Article 42.08(a) of the Texas Code of Criminal Procedure gives the trial court the discretion to cumulate sentences. TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (Vernon 2006); Macri v. State , 12 S.W.3d 505, 511 (Tex.App.-San Antonio 1999, pet. ref'd). Thus, a complaint regarding consecutive sentences is reviewed under an abuse of discretion standard. TEX. CODE CRIM. PROC. ANN. art. 42.08(a); Macri , 12 S.W.3d at 511. However, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. TEX. R. APP. P. 33.1(a)(1)(A). Analysis
At the sentencing hearing, the trial court found Appellant guilty and, in determining her punishment, stated that it would never "criticize a jury for its verdict" even though it did not always agree. The trial court stated that five years was not "enough" in this case and assessed Appellant's punishment at ten years of imprisonment. Then, the trial court asked whether the sentences should be served concurrently or consecutively. The State indicated that the decision was within the trial court's discretion. Appellant's counsel requested that the sentences be served concurrently, stating that Appellant was not going forward with a trial on the injury to a child charge. The trial court stated, "I can't," and Appellant's counsel replied that he understood. Further, the trial court stated, "I can't do that and live with myself. I am still envisioning a dead baby." Thereafter, the trial court ordered that Appellant's sentences be served consecutively and asked if there was "any reason in law that sentence should not be formally pronounced." Counsel for Appellant said "no." At that time, the trial court formally sentenced Appellant. This case is analogous to Neal v. State , 150 S.W.3d 169 (Tex.Crim.App. 2004). In Neal , the court of criminal appeals determined that the defendant forfeited his prosecutorial vindictiveness claim because he failed to comply with Texas Rule of Appellate Procedure 33.1(a). Id. at 175; see also Rosborough v. State , No. 06-06-00237-CR, 2007 WL 2033762, at *1 (Tex.App.-Texarkana July 17, 2007, no pet.) (mem. op., not designated for publication) (applying Neal to allegations of judicial vindictiveness). At the punishment hearing, the defendant took the position that any sentence over two years would be unfair, but never "uttered the words `prosecutorial vindictiveness' at trial," made a vindictiveness due process claim at trial, or requested the same relief at trial as on appeal. Neal , 150 S.W.3d at 177-78. Thus, the court determined that the defendant's position at the punishment hearing was not sufficient to put the trial court on notice of a due process claim. Id. at 178. The court concluded that the vindictiveness claim was not timely presented, was not specific, and was not ruled on by the trial court. Id. at 175-79. In this case, Appellant did not raise the issue of the trial court's vindictiveness at the sentencing hearing, object to the trial court's order that the sentences be served consecutively, or suggest that there was any due process violation on the part of the trial court. See TEX. R. CIV. P. 33.1(a)(1)(A); Rosborough , 2007 WL 2033762, at *2. Although Appellant's complaint is of vindictiveness by the trial court rather than the prosecutor, we see no reason why Rule 33.1(a) would not apply. See Rosborough , 2007 WL 2033762, at *2. Because Appellant failed to complain about the trial court's alleged vindictiveness or violation of her due process rights by a timely request, objection, or motion with sufficient specificity, she has waived this issue. See TEX. R. APP. P. 33.1(a)(1)(A). Even if Appellant had not waived this issue, the result would not change because judicial vindictiveness does not apply to the facts of this case. See Rosborough , 2007 WL 2033762, at *2. Judicial vindictiveness applies only "[when] a judge imposes a more severe sentence upon a defendant after a new trial." See North Carolina v. Pearce , 395 U.S. 711, 726, 89 S. Ct. 2072, 2081, 23 L. Ed. 2d 656 (1969); Rosborough , 2007 WL 2033762, at *2. Here, there is no "new trial" and, therefore, Appellant cannot show that the trial court was vindictive when it ordered that her sentences be served consecutively. We overrule Appellant's sole issue. DISPOSITION
The judgment of the trial court is affirmed .