Middleton v. State

• Decision Date: 03 November 2021
• Docket Number: NOS. PD-1236-20,PD-1239-20,PD-1240-20,PD-1238-20,PD-1237-20,S. PD-1236-20
• Citation: 634 S.W.3d 46
• Parties: Brian Ray MIDDLETON, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

634 S.W.3d 46

Brian Ray MIDDLETON, Appellant

v.The STATE of Texas

NOS. PD-1236-20

PD-1237-20

PD-1238-20

PD-1239-20

PD-1240-20

Court of Criminal Appeals of Texas.

Delivered: November 3, 2021

Thomas Abbate Jr., for Appellant.

Emily Johnson-Liu, for State.

Keller, P.J., delivered the opinion for a unanimous Court.

When a defendant is placed on deferred adjudication, and he is later charged with a new offense, and the punishment stage for both the deferred-adjudication offense and the new offense occur in the same proceeding, have the two cases been tried in the same criminal action for the purpose of determining whether the sentences can be stacked? We answer that question "yes" and affirm the judgment of the court of appeals.

I. BACKGROUND

A. Plea and Punishment Proceedings

In 2015, Appellant pled guilty to three theft offenses pursuant to an agreement, and he was placed on deferred adjudication. He later committed two new thefts. He was charged with the two new offenses, and the State filed motions to adjudicate guilt in the three earlier cases.¹ Appellant pled guilty to the two new offenses, but the trial court did not formally accept the pleas, instead ordering a presentence investigation report. On January 9, 2020, the trial court held a hearing on all five offenses. The trial court began the hearing by calling all of the cause numbers at once: "This is CR31225, 31226, 31227, 34574, and 345 -- or excuse me -- 34752; State vs. Brian Ray Middleton." At the end of the hearing, the trial court found that Appellant violated the conditions of probation for the three deferred-adjudication offenses, found Appellant guilty of the three offenses, and found that he was guilty of the two new offenses. The trial court then sentenced Appellant to two years in state jail for each offense and stacked all five sentences.

B. Appeal

On appeal, Appellant claimed that the trial court was prohibited from cumulating the sentences pursuant to Section 3.03 of the Penal Code. In addressing this claim, the court of appeals relied on our opinion in Robbins v. State .² Robbins was charged with two offenses that arose from the same criminal episode.³ The trial court conducted two separate plea proceedings, but one consolidated punishment hearing, and then stacked the sentences.⁴ We held that the plea proceeding was not complete until punishment was assessed, and the sentences could not be stacked.⁵ Relying upon Robbins , the court of appeals held that the five theft offenses were all tried in a single criminal action because they were disposed of in a consolidated punishment proceeding.⁶ Consequently, the court of appeals modified the trial court's judgment to reflect that all sentences are concurrent.⁷

II. ANALYSIS

The State agrees that the sentences in the three adjudicated cases must run concurrently with each other and that the sentences in the two new cases must run concurrently with each other. The State contends, however, that the sentences in the new cases can be stacked on the sentences in the adjudicated cases. We disagree.

Section 3.03 of the Penal Code provides that, absent exceptions specified elsewhere, sentences shall run concurrently "[w]hen the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action."⁸ Under the statute, offenses committed during "the same criminal episode" include offenses that "are the repeated commission of the same or similar offenses."⁹ Because all of Appellant's offenses were thefts, they constituted the repeated commission of the same or similar offenses under the statute. And the statute provides no exceptions to the concurrent-sentencing rule for theft offenses.¹⁰ The first question before us, then, is whether the deferred-adjudication offenses were prosecuted in the same criminal action as the new offenses.

The phrase "a single criminal action" refers to a single trial or plea proceeding.¹¹ A plea proceeding is not complete until the punishment is assessed, so even if pleas are taken separately, a consolidated punishment hearing on two separate offenses will cause them to be prosecuted in a single criminal action.¹²

While statute requires that the State give notice when separately indicted offenses are being consolidated for trial, noncompliance with that requirement does not prevent offenses from being prosecuted in a single criminal action if that is what actually occurs.¹³ Although the State did not give notice that the offenses at issue here would be disposed of in a consolidated punishment hearing, if the offenses were in fact disposed of in a consolidated punishment hearing, then they were prosecuted in a single criminal action.

The remaining question is whether the disposition of deferred-adjudication offenses and new offenses in a single sentencing hearing constitutes the disposition of all the offenses in a consolidated punishment hearing. We hold that it does. To be placed on deferred adjudication, a defendant pleads guilty, but the trial court does not make a finding of guilt; rather the trial court finds that the "evidence ... substantiates the defendant's guilt [and] defers further proceedings without entering an adjudication of guilt."¹⁴ The wording of the statute seems to contemplate a pause, as if the case were taken under advisement. During this pause, the defendant is given the opportunity to complete a probationary period in compliance with conditions, and if he succeeds, then the charges will be dismissed.¹⁵ If he fails, and the trial judge later finds a violation of probation and decides to adjudicate guilt, the proceedings continue where they left off: "After an adjudication of guilt, all proceedings, including the assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred."¹⁶ For most purposes, a deferred adjudication does not count as a conviction.¹⁷

As we will discuss later, the State relies upon some cases involving regular probation to support its argument. Underlying these arguments is a presumption that, had Appellant been on regular probation, the two groups of sentences could be stacked. A defendant placed on regular probation is considered to have a conviction, with an assessed sentence, at the time probation is imposed,¹⁸ though for some purposes, that conviction is not final.¹⁹ The State suggests that regular probation and deferred adjudication are similar enough to be treated the same for the purpose of determining whether sentences can be stacked. It is true that a defendant whose deferred adjudication is adjudicated cannot then appeal the original plea, a fact which prompted us to remark that such a defendant "is in a situation similar in most respects to a defendant who appeals a revocation order in a regular probation case."²⁰ But in addition to the semantic difference between deferring a finding of guilt (deferred adjudication) and finding guilt and suspending the imposition of sentence (regular probation), there are other practical differences that make deferred adjudication less like a conviction than regular probation is.

For instance, unlike a defendant placed on regular probation for a felony offense, a defendant who has been placed on deferred adjudication remains eligible in a later case for regular probation because he is not considered to have a final felony conviction.²¹ Even more relevant is the fact that the deferred-adjudication defendant is exposed to the full range of punishment upon adjudication—a fact that is not true for a defendant on regular probation.²² In Cabezas , a deferred-adjudication defendant's continued exposure to the full range of punishment was part of what prompted us to reject the State's claim that for policy reasons, a judge should not be able to impose deferred adjudication when he would otherwise be prohibited from imposing regular probation.²³ Also, a defendant whose guilt is adjudicated after a deferral can file a motion for new trial as to the plea itself when such a motion would be unavailable to a defendant upon revocation of regular probation.²⁴ If a deferred-adjudication defendant's post-adjudication motion for new trial is granted, "the conviction itself would be undone."²⁵ Because of these unique characteristics of deferred-adjudication—that it is not a conviction for most purposes, lacks finality in significant respects, and retains exposure to the full range of punishment—we conclude that a deferred-adjudication plea proceeding is not complete under the concurrent-sentencing statute until sentence is imposed after adjudication.

The State asserts that the holding in Robbins that offenses were prosecuted in a single criminal action if they were disposed of in a consolidated punishment hearing is really just a reflection that a guilty plea converts a trial into a unitary proceeding, so that the trial is not over until punishment. But the Code of Criminal Procedure sets up deferred adjudication in line with the unitary nature of guilty-plea proceedings. As we explained above, at the time adjudication is deferred, the trial judge does not find guilt. Rather, he pauses the proceedings and takes the case under a sort of advisement, with the defendant having the opportunity to complete a probationary period and have the case dismissed. If the defendant fails to complete the probationary period successfully, and the judge decides not to continue the deferred adjudication, then the judge finds the defendant guilty and assesses punishment.

The State says that "it is at the very least odd that the Legislature would ever insist on concurrent sentencing when a probationer commits another offense just like the one the judge put him on probation for, just because the trial judge heard the revocation with the new offense." That might well be true in the regular probation context, but insisting on concurrent sentencing seems more understandable in...