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Date: 08-30-2020
Case Style:
Ricardo Cazarez v. The State of Texas
Case Number: 01-18-00345-CR
Judge: Richard Hightower
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: The Honorable Kim K Ogg
Daniel C. McCrory
Zachary Gibson
Defendant's Attorney:
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Description:
In March 2017, Cazarez was charged with theft from an elderly person. The
indictment in that case asserted that, pursuant to one scheme or course of conduct
occurring between October 16, 2013 and November 6, 2013, he unlawfully
3
appropriated money in an amount of more than $1,500 and less than $20,000 from a
complainant who was at least sixty-five years of age. This charge resulted in trial
court cause number 1544042, which was appealed to this Court in appellate cause
number 01-18-00344-CR.2
In August 2017, Cazarez was charged in the underlying offense for theft in
the aggregate of more than $20,000 but less $100,000. The indictment alleged:
[O]n or about September 20, 2010 Continuing Through February 13,
2017, [Cazarez] did then and there unlawfully, pursuant to one scheme
and continuing course of conduct, . . . acquire and otherwise exercise
control over property, namely, Money, which was owned by one or
more of the below listed Complainants, with the intent to deprive the
Complainants of the property, and without the effective consent of the
Complainants, by deception, by creating or confirming by words or
conduct a false impression of law or fact that affected the judgment of
another in the transaction and that [Cazarez] did not believe to be true
and or by failing to correct a false impression of law or fact that affected
the judgment of another in the transaction, that [Cazarez] previously
created or confirmed by words or conduct, and that [Cazarez] does not
now believe to be true, and or by promising performance that affected
the judgment of another in the transaction and that [Cazarez] did not
intend to perform or knew would not be performed and the aggregate
amount and value of property appropriated was more than twenty
thousand dollars and less than one hundred thousand dollars.
2 Cazarez’s originally appointed appellate counsel filed a single brief addressing both
offenses and appeals pursuant to Anders v. California, 386 U.S. 738 (1967). This
Court affirmed Cazarez’s conviction in 01-18-00344-CR, see Cazarez v. State, No.
01-18-00344-CR, 2019 WL 2528190 (Tex. App.—Houston [1st Dist.] June 20,
2019, no pet.) (mem. op., not designated for publication), but we struck the Anders
brief with respect to cause number 01-18-00345-CR because it did not address the
discrepancy regarding “the offense for which appellant was convicted.” See No. 01-
18-00345-CR, Slip Op. at 1 (June 20, 2019, order of abatement).
4
The indictment named six specific complainants, and it referred to the theft from the
elderly charge in cause number 1544042 as a “related case.” It resulted in trial court
cause number 1562149 and this appeal in appellate cause number 01-18-00345-CR.
Cazarez pleaded guilty to both offenses pursuant to a plea deal with the State.
3
Relevant to this appeal arising out of the aggregate theft charge, Cazarez signed a
“waiver of rights, agreement to stipulate, and judicial confession” tracking the
language of the indictment for aggregate theft, naming the same six complainants
identified in the complaint, and stating, “I understand the above allegations [tracking
the allegations from the indictment] and I confess that they are true and that the acts
alleged above were committed on September 10, 2010 continuing through February
13, 2017.” The documents also described his intent to plead guilty pursuant to the
agreed punishment recommendation of “5 years TDCJ probated 5 years/restitution
(within 30 days) to: [each of the six complainants, in the amounts specified].” These
documents, including his judicial confession and admonishments, identified the
offense as “Aggregate Theft - $20,000-$100,000.”
The trial court rendered the judgment of conviction on September 18, 2017,
assessing Cazarez’s punishment at five years’ confinement but suspending the
3 Two case reset forms—one in which Cazarez’s trial counsel agreed to reset the case
for plea proceedings and one in connection with revocation proceedings—appear in
the record in this case and identify both trial court cause numbers 1562149
(aggregate theft) and 1544042 (theft from the elderly) in the blank for “Cause No.”
5
sentence and placing him on community supervision for five years. The judgment of
conviction referred to the cause number and indictment for the aggregate theft
charge, but the judgment erroneously stated that the offense for which Cazarez was
convicted was “THEFT F/ELDERLY 1,500 – 20,000.” The judgment also contained
the statement, “This sentence shall run CONCURRENTLY,” but it did not identify
any other concurrent offense or sentence.
The conditions of his community supervision, incorporated into the judgment
by reference, likewise misidentified the offense as “THEFT F/ELDERLY 1,500-
20,000.” However, the conditions of community supervision referenced the correct
cause number, and it named the complainants listed in the aggregate theft indictment
and judicial confession. The trial court ordered Cazarez to pay restitution to each
complainant, listing the full amount owed to each complainant. For example, the
conditions of his community supervision required that he “Pay $12,700.00
Restitution at the rate of $12,700.00 per MONTH beginning 10/18/17 through
HCCS&CD to: Markus Osterberg.” It contained similar statements for the other five
complainants, ordering a total of $46,812 in restitution to be paid in the month
“beginning 10/18/17.” Finally, the conditions of community supervision stated,
“You will report to Court on 10/30/2017 at 09:00 AM for the purpose of the Court
reviewing Restitution payments. Please bring receipt[s] with you.”
6
Finally, the record for the underlying conviction contained a certification of
his right to appeal the conviction stating that Cazarez “has waived the right of
appeal” that was signed by the trial court, Cazarez, and his counsel.
In January 2018, the State moved to revoke Cazarez’s community
supervision, asserting that he had failed to pay the required restitution to the six
aggregate theft complainants, stating that he “has never made a payment.” The State
then amended the motion to revoke, adding the assertion that Cazarez “fail[ed] to
report to the 208th District Court for a court review on October 30, 2017,” as
required by the conditions of his community supervision.
Cazarez pleaded true to all the allegations in the State’s motion to revoke. He
signed a Stipulation of Evidence acknowledging his previous conviction for “the
felony offense of Theft – Aggregate.” He initialed statements, acknowledging that
he “understand[s] the allegations against [him] set out in the attached State’s
[Amended Motion to Revoke Community Supervision]” and that he “judicially
confess[es] that it is TRUE that [he] violated the terms and conditions of [his]
probation and that the allegations in the attached State’s Motion are TRUE.” These
documents included a statement that Cazarez did “not desire to contest this
stipulation of evidence,” that he “waive[d] any further time to prepare for trial,” and
that he was pleading true without an agreed recommendation on punishment.
7
The trial court held a hearing on the motion to revoke in which both the
underlying aggregate theft and the theft from the elderly convictions were discussed.
The trial court confirmed that Cazarez intended to enter a plea of true to all of the
State’s allegations, and pointed out to him that, “[y]ou have a right to a hearing in
each of these matters. We were set for a hearing today on both of these matters; and,
I think, the witnesses are here.” Trial counsel confirmed that witnesses were present,
but Cazarez confirmed on the record that he “want[ed] to give up [his] right to a
hearing in each of these cause numbers and enter a plea of true.” The trial court
expressly addressed both cause number 1544042 (the theft from the elderly offense)
and cause number 1562149 in which Cazarez “received five years for aggregate
theft.” Cazarez pleaded true on the record to failing to pay the required restitution to
the six complainants in the aggregate theft offense, as listed in the conditions of his
community supervision,4
and he likewise pleaded true to failing “to report for a court
review on October 30th, 2017.”
The trial court revoked his community supervision. The Judgment Revoking
Community Supervision, signed by the trial court on April 23, 2018, again
mistakenly identified his offense as “THEFT F/ELDERLY 1,500-20,000.” The
4 The record indicated that Cazarez did make some payments totaling $218.04 prior
to the hearing to three of the complainants. Cazarez also pleaded true to the
allegations that he failed to pay restitution to the complainant in the theft from the
elderly offense.
8
judgment of revocation included a finding by the trial court that Cazarez had violated
the conditions of his community supervision by failing to pay restitution. The trial
court assessed his punishment at five years’ imprisonment and ordered that it run
consecutively to his sentence in the theft from the elderly case: “The Court orders
that the sentence in this conviction shall run consecutively and shall begin only when
the judgment and sentence in the following case has ceased to operate: Cause
Number 1544042, a judgment dated 4/23/2018 ordering a sentence of 5 years TDCJ
for the offense of theft f/elderly 1,500-20,000, in the 208th Court. Tex. Code Crim.
Proc. art. 42.01 §1(19).” The trial court certified Cazarez’s right to appeal the
judgment of revocation, and this appealed followed.
Challenge to Underlying Conviction
In his first issue, Cazarez challenges the sufficiency of the evidence to support
his plea of guilty to aggregate theft. He contends that there is a material variance
between the allegations in the indictment and the judgment of conviction. The State,
however, argues that Cazarez has waived any right to complain about the evidence
supporting his underlying guilty plea. The State asserts that the record clearly
reflects that he was convicted for theft in the aggregate and that any error in the
judgment regarding the crime for which Cazarez was convicted can be corrected by
appellate reformation. We agree with the State.
9
A. Sufficiency of the Evidence
When a defendant waives his right to a jury trial and pleads guilty, the State
is required to introduce evidence showing that the defendant is guilty. TEX. CODE
CRIM. PROC. art. 1.15; see Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App.
2009). “Evidence offered in support of a guilty plea may take many forms,” and such
evidence is sufficient “to support the guilty plea so long as it embraces every
constituent element of the charged offense.” Menefee, 287 S.W.3d at 13 (stating that
written stipulation of evidence or judicial confession may be offered to support
guilty plea); see also Staggs v. State, 314 S.W.3d 155, 159 (Tex. App.—Houston
[1st Dist.] 2010, no pet.) (holding that, when defendant pleads guilty, “[t]he
State . . . is not required to prove the defendant’s guilt beyond a reasonable doubt;
the supporting evidence must simply embrace every essential element of the charged
offense” and that “[a] judicial confession alone is sufficient evidence to sustain a
conviction upon a guilty plea under article 1.15” when it addresses each essential
element of crime).
Cazarez entered a plea of guilty to the charge of theft in the aggregate, as
alleged in the indictment. He also signed a judicial confession setting out the
essential elements of that offense tracking the language from his indictment. Cazarez
asserts that this judicial confession was insufficient to support his conviction upon
his plea of guilty because of a discrepancy between these documents and the
10
judgment of conviction, which erroneously identified the offense as “THEFT
F/ELDERLY 1,500–20,000.” He asserts that this creates a material variance
between his judgment of conviction and the indictment and supporting judicial
confession. See, e.g., Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001)
(“A ‘variance’ occurs when there is a discrepancy between the allegations in the
charging instrument and the proof at trial.”); see also Ramjattansingh v. State, 548
S.W.3d 540, 547 (Tex. Crim. App. 2018) (holding that only material variance—i.e.,
one that prejudices defendant’s substantial rights—will render evidence insufficient
and that such variance occurs when indictment as written either “fails to adequately
inform the defendant of the charge against him” or “subjects the defendant to the
risk of being prosecuted later for the same crime”).
Cazarez is raising these complaints, however, in an appeal from the revocation
proceeding. He did not appeal his original conviction.
5
“The general rule is that an
attack on the original conviction in an appeal from revocation proceedings is a
collateral attack and is not allowed.” Wright v. State, 506 S.W.3d 478, 481 (Tex.
Crim. App. 2016). A criminal defendant “placed on ‘regular’ community
supervision may raise issues relating to the conviction, such as evidentiary
sufficiency, only in appeals taken when community supervision is originally
5 The certification of his right to appeal from the original conviction stated that it was
a plea bargain case and that he had waived his right to appeal.
11
imposed.” Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999). Thus,
sufficiency challenges, like Cazarez’s complaint under article 1.15, cannot be raised
on appeal from revocation. See Wright, 506 S.W.3d at 481; Manuel, 994 S.W.2d at
661-62.
The Court of Criminal Appeals has identified a “void judgment” exception to
the general prohibition against collateral attacks on an original conviction:
The “void judgment” exception requires that the claimed defect be one
that renders the original judgment of conviction void. And by void, the
exception means a “nullity” that is “accorded no respect due to a
complete lack of power to render the judgment in question.” In Nix v.
State, we listed four situations in which a judgment of conviction in a
criminal case is void and said, “[w]hile we hesitate to call this an
exclusive list, it is very nearly so.”
Wright, 506 S.W.3d at 481–82 (quoting Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim.
App. 2001)). Nix provided the following guidance regarding when a judgment of
conviction is void:
A judgment of conviction for a crime is void when (1) the document
purporting to be a charging instrument (i.e. indictment, information, or
complaint) does not satisfy the constitutional requisites of a charging
instrument, thus the trial court has no jurisdiction over the defendant,
(2) the trial court lacks subject matter jurisdiction over the offense
charged, such as when a misdemeanor involving official misconduct is
tried in a county court at law, (3) the record reflects that there is no
evidence to support the conviction, or (4) an indigent defendant is
required to face criminal trial proceedings without appointed counsel,
when such has not been waived, in violation of Gideon v. Wainwright.
65 S.W.3d at 668.
12
Cazarez does not argue that the discrepancy in the underlying judgment makes
it void, nor do we find any basis for holding that his conviction is a “nullity” that
should be “accorded no respect due to a complete lack of power to render the
judgment in question.” See Wright, 506 S.W.3d at 481. The complaint here satisfies
the constitutional requisites of a charging instrument. It invoked the trial court’s
jurisdiction over Cazarez such that the trial court’s exercise of subject-matter
jurisdiction over the charged offense was proper. See Nix, 65 S.W.3d at 668.
Furthermore, Cazarez’s argument that the evidence was “insufficient” to support his
plea of guilty does not demonstrate that “there is no evidence to support the
conviction” such that the underlying judgment is void. See id. “For the judgment to
be void, the record must show a complete lack of evidence to support the conviction,
not merely insufficient evidence.” Id. at 668 n.14 (citing Wolfe v. State, 560 S.W.2d
686, 688 (Tex. Crim. App. 1978)). “And a guilty plea constitutes some evidence for
this purpose.” Id. (citing Ex parte Williams, 703 S.W.2d 674, 682 (Tex. Crim. App.
1986)).
Because Cazarez has not established that the “void judgment” exception
applies here, we conclude that his attack on the original conviction is a collateral
attack and is not allowed on appeal from revocation. See Wright, 506 S.W.3d at 481;
Manuel, 994 S.W.2d at 662.
We overrule Cazarez’s first issue.
13
B. Correction of Judgment
We further observe that the discrepancy Cazarez has identified does not point
to a material variance between his charging instrument and the proof adduced in the
trial court. “A ‘variance’ occurs when there is a discrepancy between the allegations
in the charging instrument and the proof at trial.” Gollihar, 46 S.W.3d at 246. Here,
there is no discrepancy between the allegations in the charging instrument and the
proof supporting Cazarez’s guilty plea or the revocation of his community
supervision. The indictment, his judicial confession to the underlying offense, and
his stipulation of evidence in the revocation proceedings identify the crime with
which he was charged as aggregate theft against the same six complainants in an
amount more than $20,000 and less than $100,000.
The fact that the judgment of conviction and judgment revoking his
community supervision identify the crime of which he was convicted as “THEFT
F/ELDERLY 1,500-20,000” does not create a variance between the indictment and
the proof. There is no indication that this discrepancy prejudiced a substantial right
by failing to adequately inform Cazarez of the aggregate theft charge against him or
by subjecting him to the risk of being prosecuted later for the same crime. See
Ramjattansingh, 548 S.W.3d at 547 (describing “material” variance). Rather, as the
State argues, this is a discrepancy that can be corrected by this Court.
14
This court has the power to modify an incorrect judgment to make the record
speak the truth when we have the necessary information to do so. TEX. R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Jackson v.
State, 288 S.W.3d 60, 64 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); see also
Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012) (“[W]hen a defendant
appeals his conviction, the courts of appeals have the jurisdiction to address any
error in that case.”). This includes the authority to reform a judgment to reflect the
correct offense. See, e.g., Pfeiffer, 363 S.W.3d at 599; Jackson, 288 S.W.3d at 64
(reforming judgment to reflect that appellant was convicted of aggravated assault
and not “aggravated assault against pb servant”).
The record here is clear that Cazarez was indicted for aggregate theft in an
amount of more than $20,000 and less than $100,000. He pleaded guilty to that
offense, signed a judicial confession to that offense, was admonished regarding that
offense. On the record at the revocation hearing, Cazarez acknowledged that he
pleaded guilty and “received five years for aggregate theft.” His stipulation of
evidence supporting his plea of true to the allegations in the State’s motion to revoke
his community supervision likewise reflected that his conviction was for aggregate
theft. Accordingly, we modify the judgment revoking community supervision to
reflect that Cazarez was convicted of aggregate theft in an amount of more than
$20,000 but less than $100,000, not “THEFT F/ELDERLY 1,500-20,000.” See
15
Jackson, 288 S.W.3d at 64; Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—
Dallas 1991, pet. ref’d) (holding that appellate courts have authority and duty to
reform whatever trial court could have corrected by judgment nunc pro tunc where
evidence necessary to correct judgment appears in record); see also French v. State,
830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (adopting reasoning set forth in
Asberry, 813 S.W.2d at 529).
Challenge to Revocation
In his remaining issues, Cazarez challenges the trial court’s revocation order.
A. Standard of Review
“[D]efendants are not entitled to community supervision as a matter of right,
[but] once a defendant is assessed community supervision in lieu of other
punishment, this conditional liberty ‘should not be arbitrarily withdrawn by the
court. . . .’” Leonard v. State, 385 S.W.3d 570, 576 (Tex. Crim. App. 2012) (quoting
DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App. 1987)). “In a revocation
proceeding, the trial court has discretion to revoke community supervision when a
preponderance of the evidence supports one of the State’s allegations that the
defendant violated a condition of his community supervision.” Id.; Davis v. State,
591 S.W.3d 183, 189 (Tex. App.—Houston [1st Dist.] 2019, no pet.). This
preponderance-of-the-evidence standard is met “when the greater weight of credible
evidence before the trial court supports a reasonable belief that a condition of
16
community supervision has been violated.” Davis, 591 S.W.3d at 189 (citing Rickels
v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006)).
When reviewing an order revoking community supervision, the sole question
before this court is whether the trial court abused its discretion. Hacker v. State, 389
S.W.3d 860, 865 (Tex. Crim. App. 2013); Davis, 591 S.W.3d at 188–89. “The
central issue to be determined in reviewing a trial court’s exercise of discretion in a
[community supervision] revocation is whether the defendant was afforded due
process of law.” Davis, 591 S.W.3d at 189 (quoting DeGay, 741 S.W.2d at 450).
There are three limits to a trial court’s discretion to revoke supervision: (1) the
State must prove at least one violation of the terms and conditions of community
supervision; (2) an appellate court will review the trial court’s decision for an abuse
of discretion; and (3) federal due process requires that a trial court consider
alternatives to imprisonment before incarcerating an indigent defendant who is
unable to pay amounts due under community supervision. Davis, 591 S.W.3d at 189
(citing Lombardo v. State, 524 S.W.3d 808, 812 (Tex. App.—Houston [14th Dist.]
2017, no pet.)).
Only one sufficient ground is necessary to support a trial court’s decision to
revoke community supervision. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim.
App. 2009); Davis, 591 S.W.3d at 189; see also Garcia v. State, 387 S.W.3d 20, 26
(Tex. Crim. App. 2012) (stating proof of single violation will support revocation).
17
And a plea of true, standing alone, is generally sufficient to support revocation. See
Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979); Perry v.
State, 367 S.W.3d 690, 693 (Tex. App.—Texarkana 2012, no pet.); Duncan v. State,
321 S.W.3d 53, 58 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). The trial court
abuses its discretion by revoking community supervision if, as to every ground
alleged, the State fails to meet its burden of proof. Davis, 591 S.W.3d at 189 (citing
Cardona v. State, 665 S.W.2d 492, 493–94 (Tex. Crim. App. 1984)).
B. Sufficient Grounds to Support Revocation
In his second and third issues, Cazarez argues that the trial court erred in
revoking his community supervision for to his failure to pay restitution. He argues
that the State failed to show that he was able to pay or that his failure to pay was not
intentional or willful, stating that he “cannot be imprisoned because he was too poor
to pay.” He asserts that his due process rights under the Fourteenth Amendment were
violated because the trial court “failed to utilize and consider alternative measures
adequate to meet the State’s interests in punishment and deterrence.”
The record reflects that Cazarez entered into a plea agreement with the State
in which he agreed to plead guilty to aggregate theft in exchange for the State’s
recommending punishment of “5 years TDCJ probated 5 years/restitution (within 30
days) to: [each of the six complainants, in the amounts specified].” The trial court
accepted his guilty plea and assessed his punishment in accordance with the agreed
18
recommendation, suspending his five-year sentence and placing him on community
supervision.
As a condition of his community supervision, Cazarez was required to pay
restitution to the complainants within the next month, beginning October 18, 2017.
He was also required to appear before the trial court on October 30, 2017, for a court
review of his restitution payments. He was ordered to “[p]lease bring receipt [of
restitution payments] with you.” The State alleged in its amended motion to revoke
that Cazarez failed to make the required restitution payments and that he failed to
appear on October 30, 2017. Cazarez pleaded true to these allegations in this motion
to revoke, waived his right to a hearing, and signed a stipulation of evidence
acknowledging that he understood the allegations against him set out in the State’s
amended motion to revoke and that he “judicially confess[ed] that it is TRUE that
[he] violated the terms and conditions of [his] probation and that the allegations in
the attached State’s Motion are TRUE.” These documents included a statement that
Cazarez did “not desire to contest this stipulation of evidence” and that he “waive[d]
any further time to prepare for trial.” The record of the revocation hearing likewise
confirmed that Cazarez was admonished that he had a right to an evidentiary hearing
and that witnesses had appeared to testify at the hearing, but he nevertheless waived
his right to an evidentiary hearing. He agreed on the record that he had violated the
19
terms of his community supervision as alleged in the State’s motion to revoke,
including that he failed to appear on October 30, 2017.
Cazarez now argues that his plea of true to the State’s allegations and
stipulation to the facts is insufficient to support his revocation because nothing in
the motion to revoke or stipulation indicated that he was able to pay, that his failure
to pay was willful, or that the trial court considered alternatives to revocation. He
cites Code of Criminal Procedure article 42A.751(i) in support of his argument,
which provides,
In a revocation hearing at which it is alleged only that the defendant
violated the conditions of community supervision by failing to pay
community supervision fees or court costs or by failing to pay the costs
of legal services as described by Article 42A.301(b)(11), the state must
prove by a preponderance of the evidence that the defendant was able
to pay and did not pay as ordered by the judge.
TEX. CODE CRIM. PROC. art. 42A.751(i); see also id. art. 42.037(h) (addressing
restitution as condition of community supervision and listing factors that trial court
“shall consider” in determining whether to revoke community supervision for failure
to comply with restitution order).
We observe, however, that the State did not allege only that he failed to pay
certain fees or costs—or, in this case, restitution.
6
It also alleged that he failed to
6 The State argues that Code of Criminal Procedure article 42A.751(i) does not apply
to restitution payments, citing Gipson v. State, 428 S.W.3d 107, 108–09 (Tex. Crim.
App. 2014) (holding that predecessor to article 42A.751(i) did not apply to fines;
noting that “[i]f the legislature had wanted fines to be covered [by the statute] it
20
appear before the trial court on October 30, 2017, as required in his conditions of
community supervision. Cazarez pleaded true to this allegation, and this single
ground is sufficient to support the trial court’s revocation of his community
supervision. See Smith, 286 S.W.3d at 342 (holding that only one sufficient ground
is necessary to support trial court’s decision to revoke community supervision);
Duncan, 321 S.W.3d at 58 (holding that plea of true, standing alone, is generally
sufficient to support revocation).
Regarding his complaint that federal due process required that the trial court
inquire into the reasons for his failure to pay and consider alternatives to
imprisonment before incarcerating him, we conclude that Cazarez failed to preserve
this issue for appeal. Cazarez correctly argues that federal due process requirements
may serve as a limit on the trial court’s authority to revoke community supervision
for failure to pay restitution, citing Bearden v. Georgia, which holds that “in
revocation proceedings for failure to pay a fine or restitution, a sentencing court must
inquire into the reasons for the failure to pay.” 461 U.S. 660, 672 (1983); Davis, 591
S.W.3d at 189. These due process concerns, however, do not implicate the
could have easily included the word ‘fines’ within the text” and that “fines are
different from fees and costs because fines are imposed as punishment, like
incarceration, and are not remedial in any sense”). Because we conclude that the
trial court’s revocation order here was based on more than just Cazarez’s failure to
pay restitution, we need not determine whether article 42A.751(i) applies to the
failure to pay restitution.
21
sufficiency of the evidence, and general preservation rules apply. See Gipson v.
State, 383 S.W.3d 152, 156 (Tex. Crim. App. 2012) (holding that Bearden does not
place evidentiary burden on State but rather “sets forth a mandatory judicial directive
that requires a trial court to (1) inquire as to a defendant’s ability to pay and
(2) consider alternatives to imprisonment if it finds that a defendant is unable to
pay”).
To preserve an error for appellate review, an appellant is required to make a
timely request, objection, or motion in the trial court that stated the grounds for the
ruling sought with sufficient specificity to make the trial court aware of his
complaint. See TEX. R. APP. P. 33.1(a)(1)(A); Saldano v. State, 70 S.W.3d 873, 889
(Tex. Crim. App. 2002). This is true even if the error of which an appellant
complains concerns constitutional rights. See Saldano, 70 S.W.3d at 889.
Complaints of violations of due process can be waived by failing to object in the trial
court. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009); see also
Gipson v. State, 428 S.W.3d 107, 110 (Tex. Crim. App. 2014) (Alcala, J.,
concurring) (observing, in case considering revocation for failure to pay fines, that
“[a]lthough appellant presented no objections that he was unable to pay his fine and
fees, his sufficiency-of-the-evidence challenge under the ability-to-pay statute may
be addressed on appeal, but his complaint under the federal Constitution may not”).
22
Cazarez did not raise an objection in the trial court regarding any failure to
consider his reasons for failing to pay or alternatives to imprisonment before
incarcerating him. He thus forfeited any ability to complain on appeal on this basis.
See TEX. R. APP. P. 33.1(a)(1)(A); Anderson, 301 S.W.3d at 280; see also Gipson,
428 S.W.3d at 111 (Alcala, J., concurring) (“It would be prudent for a defendant
who is facing revocation solely for monetary allegations such as failing to pay a fine,
restitution, or other fees, to assert an objection under the federal Constitution because
the failure to do that may be outcome-determinative, as here.”). Furthermore,
Cazarez’s plea of true to the allegation that he failed to appear is also at least some
evidence indicating that the trial court did not imprison him solely because he lacked
resources to pay restitution, but because he failed to comply with a required court
appearance. See, e.g., Bearden, 461 U.S. at 664–65 (discussing cases providing that
courts cannot imprison indigent defendants solely because they are too poor pay
fines).
We overrule Cazarez’s second and third issues.
C. Cumulation of Sentences
In his fourth and final issue on appeal, Cazarez challenges the trial court’s
cumulation of his aggregate theft sentence with his sentence in the theft from the
elderly offense. He asserts that “the original judgment executed when he was placed
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on probation correctly ordered the sentences to run concurrently because the
sentence[s] are not authorized to be stacked even upon revocation of probation.”
1. Relevant facts
The trial court’s judgment of conviction in this case, cause number 1562149,
stated generally that it was “to run concurrently,” but it did not refer to the sentence
associated with the theft from the elderly in cause number 1544042 or any other
sentence or judgment. At the revocation hearing, Cazarez’s attorney argued that his
sentences were supposed to run concurrently. The attorney indicated that this was
part of the original plea deal. The trial court admitted the proof tendered by Cazarez’s
attorney—the two judgments of conviction.
The trial court then orally pronounced the revocation of community
supervision in both cases, 1544042 (theft from the elderly) and 1562149 (aggregate
theft), and it assessed Cazarez’s punishment at five years’ confinement in each case,
with the sentences to run consecutively. The judgment revoking community
supervision in the aggregate theft case provides:
The Court orders that the sentence in this conviction shall run
consecutively and shall begin only when the judgment and sentence in
the following case has ceased to operate: Cause Number 1544042, a
judgment dated 4/23/2018 ordering a sentence of 5 years TDCJ for the
offense of theft f/elderly 1,500-20,000, in the 208th Court. Tex. Code
Crim. Proc. art. 42.01 §1(19).
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2. Relevant law
“‘Normally, the trial judge has absolute discretion to cumulate sentences,’ so
long as the law authorizes the imposition of cumulative sentences.” Byrd v. State,
499 S.W.3d 443, 446 (Tex. Crim. App. 2016) (quoting Smith v. State, 575 S.W.2d
41, 41 (Tex. Crim. App. 1979)). However, “[a] trial court abuses its discretion if it
imposes consecutive sentences where the law requires concurrent sentences.” Byrd,
499 S.W.3d at 446–47. An improper cumulation order “is . . . a void sentence, and
such error cannot be waived.” LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim.
App. 1992).
Regarding whether a trial court may order cumulative or concurrent sentences,
the Code of Criminal Procedure provides:
When the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the same
manner as if there had been but one conviction. Except as provided by
Subsections (b) and (c), [which provide exceptions not applicable to
this case,] in the discretion of the court, the judgment in the second and
subsequent convictions may either be that the sentence imposed or
suspended shall begin when the judgment and the sentence imposed or
suspended in the preceding conviction has ceased to operate, or that the
sentence imposed or suspended shall run concurrently with the other
case or cases, and sentence and execution shall be accordingly;
provided, however, that the cumulative total of suspended sentences in
felony cases shall not exceed 10 years. . . .
TEX. CODE CRIM. PROC. art. 42.08(a). Penal Code section 3.03, however, provides a
limit to the trial court’s general discretion regarding whether to cumulate sentences:
25
When the accused is found guilty of more than one offense arising out
of the same criminal episode prosecuted in a single criminal action, a
sentence for each offense for which he has been found guilty shall be
pronounced. Except as provided by Subsection (b), the sentences shall
run concurrently.
TEX. PENAL CODE § 3.03(a); see id. § 3.03(b) (setting out limited exceptions not
applicable here). The Penal Code defines “criminal episode” as
the commission of two or more offenses, regardless of whether the
harm is directed toward or inflicted upon more than one person or item
of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction
or pursuant to two or more transactions that are connected or
constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or
similar offenses.
TEX. PENAL CODE § 3.01.
Thus, if the record establishes that the original offenses that led to community
supervision were part of the same criminal episode and the convictions were
obtained as part of the same criminal action, then any sentences imposed must run
concurrently. See id. § 3.03; Duran v. State, 844 S.W.2d 745, 746 (Tex. Crim. App.
1992); Medina v. State, 7 S.W.3d 876, 879 (Tex. App.—Houston [1st Dist.] 1999,
no pet.).
3. Analysis
Cazarez complains that the trial court’s cumulation of his sentences is not
authorized because “the Code of Criminal Procedure requires that multiple charges
26
arising out of the same ‘criminal episode’ that are tried together in a ‘single criminal
action’ must have concurrent sentences.” See TEX. PENAL CODE § 3.03(a).
We agree with Cazarez that the record demonstrates that his offenses arise out
of the same criminal episode as defined in Penal Code section 3.01 because they are
“the repeated commission of the same or similar offenses.” See id. § 3.01(2). The
complaints and judgments of the convictions themselves demonstrate that both
convictions were for theft of money. The offenses of theft in the aggregate and theft
from the elderly share a common gravamen and were perpetrated in a similar
fashion. See TEX. PENAL CODE § 31.03(a)–(b) (describing offense of theft as
unlawful appropriation of property with intent to deprive the owner of property).
Compare id. § 31.09 (allowing aggregation of amounts involved in theft under
chapter 31 when amounts are obtained “pursuant to one scheme or continuing course
of conduct”) with id. § 31.03(f)(3)(A) (providing that offense of theft is increased to
next higher category of offense if it is shown that property was owned by elderly
individual).
The State points to several distinctions between the two offenses, including
that they involved different complainants and occurred during different time periods.
However, section 3.01 does not require identical offenses—they must merely be
“repeated commissions of the same or similar offenses.” See TEX. PENAL CODE §
3.01(b); see also Baker v. State, 107 S.W.3d 671, 673 (Tex. App.—San Antonio
27
2003, no pet.) (holding that multiple offenses occurring on different dates, in
different places, against different complainant may nevertheless be characterized as
“a single criminal episode” if they are “the same or similar,” share “a common
scheme or plan,” or are “repeated in a similar fashion”).
The State further argues that the record does not prove that Cazarez’s offenses
were prosecuted in a single criminal action. “[A] defendant is prosecuted in ‘a single
criminal action’ whenever allegations and evidence of more than one offense arising
out of the same criminal episode, as that term is defined in Chapter 3, are presented
in a single trial or plea proceeding, whether pursuant to one charging instrument or
several. . . .” LaPorte, 840 S.W.2d at 415. In Duran v. State, the Court of Criminal
Appeals cited this language from LaPorte, but it concluded that LaPorte did not
apply because “there is no evidence in the record that a single criminal action
occurred.” 844 S.W.2d 745, 746 (Tex. Crim. App. 1992). In a concurring opinion,
Judge Baird expounded on the meaning of “criminal action,” and he concluded that
“Criminal action” includes “not only appellant’s pleas of guilty but also the hearings
on the State’s motions to revoke his probation.” Id. at 747–48 (Baird, J., concurring).
He concluded, “[T]o be entitled to concurrent sentences under §3.03 appellant must
establish that the offenses were consolidated at the time of his pleas as well as the
hearings on the motions to revoke his probation.” Id. at 748.
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The Court of Criminal Appeals later rejected the reasoning from Judge Baird’s
Duran concurrence in Robbins v. State. 914 S.W.2d 582 (Tex. Crim. App. 1996). In
Robbins, the trial court “conducted two separate plea proceedings, but one
consolidated punishment hearing.” 914 S.W.2d at 583; see also McCullar v. State,
676 S.W.2d 587, 588 (Tex. Crim. App. 1984) (noting that sentence is suspended
when probation is granted and, upon revocation, court may dispose of case as if there
had been no probation). The Robbins court reasoned that “[a] plea proceeding is not
complete until punishment has been assessed” and that the “consolidated punishment
hearing defeated the State’s and trial court’s attempts to comply with provisions of
§ 3.03.” 914 S.W.2d at 583–84. It thus determined that the cumulation order was
void. Id. at 584; see also id. (Baird, J., dissenting “for the reasons stated” in his
concurrence in Duran v. State, 844 S.W.2d 745, 746).
Although there is no consolidation order or reporter’s record of the original
plea proceedings, the record here demonstrates that the plea proceedings for both
offenses occurred together. The case reset form setting the plea hearing identified
cause numbers 1544042 (theft from the elderly) and 1562149 (aggregate theft). The
trial court rendered Cazarez’s judgments of conviction for aggregate theft and theft
from the elderly on the same day. The sentences assessed and terms of community
supervision were identical for both offenses except for the complainants identified
and the amounts of restitution involved. Furthermore, the judgment of conviction
29
and conditions of community supervision in the aggregate theft case erroneously
identified the offense as theft from the elderly.
The State filed substantively identical motions to revoke both offenses at the
same time. The case reset form again included both cause numbers in setting the
revocation hearing. And the trial court held one consolidated revocation hearing.
See, e.g., Martin v. State, 143 S.W.3d 412, 414–15 (Tex. App.—Austin 2004, no
pet.) (relying on LaPorte and Robbins in concluding that defendant has been
prosecuted in single criminal proceeding when multiple offenses arising out of same
criminal episode are tried jointly at any phase); see also Green v. State, 242 S.W.3d
215, 220 (Tex. App.—Beaumont 2007, no pet.) (holding that when plea proceedings
“are conducted in a manner that they are ‘so intertwined that we are left only to
conclude they are a single criminal action,’ a court may not order consecutive
sentences”). Thus, we conclude that, unlike Duran, on which the State relies, the
record establishes that Cazarez’s two theft offenses were prosecuted jointly. See 844
S.W.2d at 746.
Because we conclude that the record demonstrates that the original offenses
that led to community supervision were part of the same criminal episode and the
convictions were obtained as part of the same criminal action, we likewise conclude
that the sentences imposed must run concurrently. See TEX. PENAL CODE § 3.03;
Robbins, 914 S.W.2d at 583–84; Medina, 7 S.W.3d at 879. When a trial court
30
erroneously cumulates sentences, the appropriate remedy is to reform the judgment
and delete the cumulation order. Robbins, 914 S.W.2d at 584.
We sustain Cazarez’s fourth issue and modify the judgment accordingly.
Outcome: e modify the judgment of conviction and the judgment revoking community
supervision in trial court cause number 1562149 (the cause number underlying this
appeal) by deleting “THEFT F/ELDERLY 1,500-20,000” as the crime for which
Cazarez was convicted. We substitute “AGGREGATE THEFT 20,000-100,000” in
its place. We further modify the judgment revoking community supervision by
deleting the cumulation order, including any language stating that the sentence in
this cause is to run consecutive to or after completion of the sentence in cause
number 1544042. We affirm the trial court’s judgment revoking community
supervision as herein modified.
Plaintiff's Experts:
Defendant's Experts:
Comments: