Opinion
No. 05-04-00282-CR
Opinion issued November 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court 2, Dallas County, Texas, Trial Court Cause No. F-0400096-KI. Affirmed.
Before Justices WRIGHT, RICHTER, and MAZZANT.
MEMORANDUM OPINION
James Lee Turner appeals his conviction for aggravated robbery. A jury found him guilty, and the court entered a deadly weapon finding. After appellant pleaded true to an enhancement paragraph, the jury assessed punishment at sixty years' confinement and a $10,000 fine. The court ordered that appellant's sentence was to be served consecutive to a prior sentence, commencing after the prior sentence expired. Appellant brings four issues on appeal. He first contends the court erred in cumulating his sentences from the present case and case F02-57208 because (1) the "stacking" order violated the Sixth Amendment to the Constitution and (2) the two cases involved the same criminal episode. Appellant next argues that double jeopardy had attached when the facts of the instant case had been used in the punishment phase of another case and there was charge error in not striking an application paragraph. We affirm the trial court's judgment.
Factual Background
The complainant went to Jerry's Supermarket early on October 2, 2002 to cash his paycheck. When he finished, he left the store and began to leave in his truck. Two girls approached him and asked for a ride. He agreed, and they began to drive toward a bus or train station. One of the women, Erika Borjas, asked him to pull over. The complainant said he began to feel that "something was wrong." Borjas had been riding with appellant earlier in the day. She was thirsty, so they stopped at Jerry's Supermarket. After she bought something to drink, she came out and asked the complainant for a ride home. She saw appellant in a car behind them, "waving [them] down," and she asked the complainant to pull over. The complainant pulled his truck over in an empty parking lot. The girls got out, and the complainant saw a man, identified by Borjas as appellant, standing at his passenger-side door. Appellant shot the complainant in his side. The complainant tried to drive away, but appellant opened the driver-side door and shot the complainant in the hip. Appellant aimed the gun again, and the complainant grabbed it. The gun fired, and the bullet hit the truck. The complainant tried to drive away again, but he ran into another truck. Appellant aimed the gun at the complainant's head and asked for his money. The complainant took the money from his wallet, and appellant grabbed it from his hand. The complainant closed his eyes, heard someone yelling "let's go," and when he opened his eyes, everyone was gone.The Cumulation Order
In his first issue, appellant complains the court erred in cumulating-in "stacking"-his sentence because the order violates the Sixth Amendment under Blakely v. Washington, 124 S. Ct. 2531 (2004). He argues § 3.03 of the penal code and article 42.08 of the code of criminal procedure are unconstitutional as applied in this situation where the judge was allowed to cumulate sentences without the issue going to the jury or without the defendant's specific consent. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2004-05); Tex. Pen. Code Ann. § 3.03 (Vernon 2003). Appellant, however, did not preserve this complaint for our review. To preserve error for appellate review, a party must make a timely specific objection and obtain an adverse ruling from the trial court. See Tex.R.App.P. 33.1(a)(2); Stevens v. State, 667 S.W.2d 534, 538 (Tex.Crim.App. 1984). Appellant argues he was unable to assert this objection because Blakely was not issued until after his trial. However, the rule in Blakely on which appellant relies was stated previously in Apprendi v. New Jersey: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 466, 490 (2000) (quoted by Blakely, 124 S. Ct. at 2536). Accordingly, appellant could have relied on Apprendi in making his objection. Having made no objection, his complaint that the statutes as applied in his case-allowing the court to cumulate his sentences without a decision by the jury-is not preserved for our review. We resolve appellant's first issue against him. In his second issue, appellant complains the court erred in cumulating his sentence because the two cases involved the same criminal episode; he argues he should have been able to have the cases tried together. The court of criminal appeals has interpreted the language under penal code § 3.02(a) allowing a defendant to be "prosecuted in a single criminal action for all offenses arising out of the same criminal episode" to be permissive. See Nelson v. State, 864 S.W.2d 496, 498 (Tex.Crim.App. 1993). As such, a defendant "does not have a right to consolidate offenses committed in the same criminal episode." Id. Appellant argues this Court should overrule cases holding appellant has no right to demand a consolidation of his two cases. However, as an intermediate appellate court, we are bound by the law declared by higher courts. See Sherman v. State, 12 S.W.3d 489, 494 (Tex.App.-Dallas 1999, no pet.). We resolve appellant's second issue against him.Double Jeopardy
In his third issue, appellant argues that double jeopardy had attached when the facts of the instant case had been used in the punishment phase of another case. The court of criminal appeals has held that jeopardy does not attach when a then-unadjudicated offense is used as evidence in a punishment hearing for another offense. See Ex. Parte Broxton, 888 S.W.2d 23, 28 (Tex.Crim.App. 1994). Again, as an intermediate appellate court, we are bound by the law declared by higher courts. See Sherman, 12 S.W.3d at 494. We resolve appellant's third issue against him.Jury Charge
In his fourth issue, appellant argues the court erred in overruling his motion to strike an application paragraph from the charge. Appellant contends the offense was completed after the first time appellant shot the complainant. He argues the charge allowed the jury to find him guilty of "a second type of aggravated robbery." Appellant's argument has no merit. The charge allowed the jury to find appellant guilty of aggravated robbery if he (1) in the course of committing a theft, intentionally or knowingly caused bodily harm by shooting complainant with a firearm or (2) in the course of committing a theft, intentionally or knowingly threatened or placed the complainant in fear of imminent bodily injury or death. Appellant contends that once he shot the complainant the first time, "the offense of aggravated robbery was completed." He argues that any subsequent fear or threats no longer constituted an aggravated robbery. Appellant states the following in his argument:It will no doubt be maintained that there was sufficient evidence as to threats and the placing of the victim in fear of imminent bodily injury or death, but we may legitimately inquire whether this constitutes a second aggravated robbery prohibited by law, and thus not to be considered by the Court in assessing whether the evidence supports the jury charge as complained of by Appellant's defense attorney.Initially, appellant seems to acknowledge the rule that a trial court may submit a disjunctive jury charge and obtain a general verdict where the alternate theories involve the commission of the "same offense." See Francis v. State, 36 S.W.3d 121, 124 (Tex.Crim.App. 2000); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). However, he then states the alternative theory should not be considered as it was a "second aggravated robbery." Appellant provides no authority to support this particular argument. Instead, he again asserts that this Court should overrule "this line of cases." As an intermediate appellate court, we are bound by the law declared by higher courts, and that law allows for the charge to be given in the disjunctive. See Sherman, 12 S.W.3d at 494. We resolve appellant's fourth issue against him. We affirm the trial court's judgment.