Cazarez v. State

• Decision Date: 23 July 2020
• Docket Number: NO. 01-18-00345-CR,01-18-00345-CR
• Citation: 606 S.W.3d 549
• Parties: Ricardo CAZAREZ, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

606 S.W.3d 549

Ricardo CAZAREZ, Appellant

v.The STATE of Texas, Appellee

NO. 01-18-00345-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued July 23, 2020

Alexander Bunin, Chief Public Defender, Harris County, Texas, Daucie Schindler, 1201 Franklin, 13^th Floor, Houston, Texas 77002, for Appellant.

Kim Ogg, District Attorney, Harris County, Texas, Zachary Gibson, 500 Jefferson St., Ste. 600, Houston, Texas 77002, for Appellee.

Panel consists of Justices Keyes, Lloyd, and Hightower.

Richard Hightower, Justice

Appellant Ricardo Cazarez appeals the trial court's revocation of his community supervision in connection with his conviction for aggregate theft.¹ Cazarez argues that (1) the evidence was insufficient to support his guilty plea in the underlying conviction due to "a material variance between the evidence the trial court accepted as the basis for the judgment and the judgment of conviction"; (2) the trial court abused its discretion in revoking his community supervision on the basis of his failure to pay restitution because the State failed to prove that he had the ability to pay the fees; (3) the trial court's order incarcerating him for failure to pay supervision fees and restitution violated the Fourteenth Amendment "when it failed to consider alternatives to imprisonment as the evidence demonstrated that despite [his] best efforts, [Cazarez] was unable to pay his restitution in full"; and (4) the cumulation of his five-year sentence on his aggregate theft charge with a five-year sentence assessed in connection with another conviction for theft from the elderly was improper and renders the judgment void. The State argues that none of these grounds is meritorious, but it notes that the judgment of conviction should be reformed to identify the crime for which he was convicted as theft in the aggregate.

We modify the judgment to reflect Cazarez's conviction for the offense of aggregate theft and to delete the cumulation order, and we affirm as modified.

Background

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 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.

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 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."

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.

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 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...