Barela v. State, No. 08-02-00492-CR (TX 9/30/2004)
| Decision Date | 30 September 2004 |
| Docket Number | No. 08-02-00492-CR,08-02-00492-CR |
| Parties | JOSEPH LINO BARELA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Supreme Court of Texas |
Page 1
v.
THE STATE OF TEXAS, Appellee.
Appeal from the 384th District Court of El Paso County, Texas, (TC#20000D04679).
Before Panel No. 4, BARAJAS, C.J., LARSEN, and McCLURE, JJ.
SUSAN LARSEN, Justice.
A jury convicted Joseph Lino Barela of two counts of aggravated robbery and sentenced him to forty years in prison. Barela appeals, raising nine issues. We affirm.
On July 9, 2000, Josie Gonzalez and Sergio Espinoza parked their car off of Scenic Drive in El Paso. As they were standing next to the car, two men approached them and demanded money and the keys to the car. One of the men shot Espinoza once and Gonzalez five times. Barela was identified as the shooter and Ruben Perez was identified as his companion.
A third participant in the crime was Yvette Talamantes. During the punishment phase of trial, she testified that she drove Barela and Perez to various locations in El Paso so they could rob people. She described at least five offenses that they were involved in that night, in addition to the aggravated robbery of Espinoza and Gonzalez. The victims of the offenses testified as well. The first four offenses involved Barela pointing a gun at a victim to get money or a car. In one of these offenses, he shot a person in the stomach; in another, he shot a hole into the spoiler of a car as the occupants of the car tried to get away from him. In the final offense, he and Perez stole money and a car from a group of people just after committing the aggravated robbery of Espinoza and Gonzalez.
The State also presented evidence during the punishment phase that Barela had robbed and shot two people at a hotel in Kingman, Arizona; had pleaded guilty to attempted second-degree murder arising from that incident; and had escaped from an Arizona jail before coming to El Paso.
Finally, the jury heard evidence regarding the injuries of Espinoza and Gonzalez. Espinoza was shot in the face, causing his mandible to shatter into seven or eight large pieces and multiple small fragments. He required eight bone plates and twenty-eight screws to repair the damage. After surgery, his jaw was wired shut for four or five weeks. Gonzalez was shot in each leg, her chest, her back, and her abdomen. She suffered a collapsed lung and was left with large scars on her body.
In his first issue, Barela argues that the trial court abused its discretion by stacking his sentences in this case onto his sentence in the Arizona case. He contends that stacking was not statutorily authorized because he was not sentenced in Arizona before he was sentenced in this case.
Barela was indicted in Arizona for one count of armed robbery, two counts of aggravated assault, and two counts of attempted first-degree murder. He and his attorney signed a Stipulated Guilty Plea, in which Barela agreed that he would plead guilty to two counts of attempted second-degree murder (lesser-included offenses of the two counts of attempted first-degree murder) in exchange for the dismissal of the remaining charges. The agreement provided that Barela could receive up to thirty-one years in prison and that he would not have any right to appeal from the judgment or sentence. Barela subsequently appeared at a change-of-plea hearing. Finding that Barela's pleas were knowing and voluntary, the trial court entered a "Change of Plea" order in which it accepted the pleas and entered them of record. The court also set the matter for entry of judgment and sentencing on a later date. Barela failed to appear at the time set for judgment and sentencing, and the trial court issued a bench warrant for his arrest.
At a February 2002 motions hearing in this case, Barela's counsel announced that he was filing a motion to withdraw Barela's pleas in Arizona and that, in this case, he was filing an application for probation, in which Barela stated that he had never been convicted of a felony in any state. In March 2002, the Arizona trial court denied the motion to withdraw the pleas, subject to the motion being renewed upon Barela's return to Arizona. On September 25, 2002—two days before the commencement of voir dire in this case and well over two years after the Arizona court accepted his guilty pleas—Barela filed a notice of appeal in the Arizona case.
The State filed a motion to cumulate Barela's sentences in this case and the Arizona case so that the sentence in this case would not commence running until after Barela has completed his Arizona sentence. At the conclusion of the punishment phase, the trial court sentenced Barela to forty years in prison pursuant to the jury's verdict. In sentencing Barela, the trial court made the following comments:
Mr. Barela, had you not avoided Arizona and its laws, you wouldn't be here. Had you not [sic] faced the music in Arizona, you wouldn't be here. And you would not be in the circumstances that you have imposed upon this community, the horror of July 8th and 9th, the fear that you've instilled in people and the lives you have forever destroyed by your actions.
As much power as this Court has the authority to do so, as I do not know that I do—and I know [defense counsel] . . . will do a fine job in pursuing your appellate remedies. Your sentence here to date will run consecutive to whatever sentence is imposed upon you in Arizona.
The court later signed an Order Cumulating Judgment and Sentence with Prior Conviction. The order sets out the date and nature of the Arizona conviction, the name of the trial court, and the cause number. It further states that the sentence in the Arizona case is not less than seven years nor more than thirty-one years. Finally, the order states that "the sentence imposed herein shall begin when the judgment and sentence in the preceding Arizona conviction has ceased to operate."1
Article 42.08 of the Texas Code of Criminal Procedure authorizes a trial court to order cumulative sentences as follows:
When the same defendant has been convicted in two or more cases . . . in the discretion of the court, the judgment in the second and subsequent convictions may . . . 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 . . . .
Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2004-05). Barela argues this requires that a sentence be imposed or suspended for the first conviction before a subsequent sentence may be stacked onto it. The State, on the other hand, argues that it is the order of conviction, not the order of sentencing, that is important under the statute.
The Court of Criminal Appeals examined article 42.08(a) in Pettigrew v. State, 48 S.W.3d 769 (Tex. Crim. App. 2001). Pettigrew was convicted of aggravated sexual assault in 1995. His ten-year sentence was suspended and he was placed on community supervision. In 1997, he was convicted of murder. After sentencing him for the murder, the trial court revoked his community supervision, sentenced him to ten years in prison for the aggravated sexual assault, and stacked that sentence onto the murder sentence. Pettigrew, 48 S.W.3d at 770.
The court of appeals held that the authority to stack is determined by the order of the convictions, not the order of the sentences. It further held that article 42.08 authorizes the stacking of a sentence for a subsequent conviction onto the sentence for a previous conviction, but does not authorize the stacking of a sentence for a previous conviction onto a sentence for a subsequent conviction. Id. Therefore, the court of appeals concluded that the aggravated sexual assault sentence could not be stacked onto the murder sentence, because the aggravated sexual assault conviction occurred before the murder conviction. Id. at 771.
The Court of Criminal Appeals rejected this rigid interpretation of the statute in favor of a more flexible approach. But the court seemed to agree that the authority to stack is determined by the order of conviction. Noting that the statute had been the subject of amendments, the court stated that "the structure of the statutory language as it relates to the stacking of prison sentences—including its focus on the order of convictions—has remained essentially the same." Id. at 772 (emphasis added). The court further stated:
At first glance, some language in the statute might appear to favor the Court of Appeals's construction. The statute refers to a "sentence imposed or suspended." Given that language, one might conclude that a "conviction" occurs even when a sentence is suspended, and so the offense with the probated sentence would necessarily constitute the first "conviction." However, there is an alternative interpretation . . .: that, for the purpose of stacking, a case could be treated as a "conviction" at the time sentence is suspended or at the time sentence is imposed. In other words, when community supervision is revoked, the trial court would have the discretion to treat the case as a conviction at the time of community supervision and stack a subsequently committed offense onto the revoked offense, or the trial court could treat the case as a conviction upon revocation and stack the revocation sentence onto the sentence for the new offense, if the revocation occurred after the conviction for the new offense.
Id. at 771. The court concluded that its alternative interpretation was the correct one because the Legislature intended "to give the trial court the maximum flexibility possible in stacking sentences." Id. at 773.
Both parties argue that Pettigrew supports their position. The State emphasizes that Pettigrew did not reject the idea that it is the order of conviction, rather than the order of...
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