Moore v. State

• Decision Date: 20 June 2012
• Docket Number: No. PD–0965–11.,PD–0965–11.
• Citation: 371 S.W.3d 221
• Parties: Jammie Lee MOORE, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

371 S.W.3d 221

Jammie Lee MOORE, Appellant,

v.The STATE of Texas.

No. PD–0965–11.

Court of Criminal Appeals of Texas.

June 20, 2012.

John Bennett, Amarillo, for Appellant.

John L. Owen, Asst. D.A., Amarillo, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

ALCALA, J., delivered the opinion of the Court in which MEYERS, PRICE, JOHNSON, and COCHRAN, JJ., joined.

Appellant, Jammie Lee Moore, challenges the court of appeals's decision to affirm the trial court's judgment that included an order cumulating his sentence in this case for possession of methamphetamine with an earlier sentence he had received for possession of a controlled substance in a drug-free zone. Moore v. State, 339 S.W.3d 365 (Tex.App.-Amarillo 2011). The trial court and court of appeals determined that cumulation of the sentences was mandatory under Texas Health and Safety Code section 481.134(h), which states, “Punishment that is increased for a conviction for an offense listed under this section may not run concurrently with punishment for a conviction under any other criminal statute.” Tex. Health & Safety Code § 481.134(h). Because the record does not support mandatory cumulation under that provision and because the record reveals that the trial court did not otherwise intend to cumulate the sentences, we modify the judgment of the court of appeals to delete the cumulation order and affirm the judgment as modified.

I. Background

A. The Trial Court

In this case, appellant was charged with possession of methamphetamine in an amount of four grams or more but less than 200 grams. See id.§ 481.115(d). The State filed a pretrial motion to cumulate the sentence in this case with appellant's prior sentence for possession of a controlled substance in a statutorily designated drug-free zone in cause number 55,555–E, for which he had been sentenced to 30 years' confinement.¹ The State's pretrial motion asserted that cumulation was mandatory under Texas Health and Safety Code section 481.134(h). See id. § 481.134(h).

After receiving all of the evidence, the jury found appellant guilty. In the punishment phase of trial, appellant pleaded “true” to two felony-enhancement allegations.² Appellant requested that the trial court instruct the jury that any sentence the jury assessed would be cumulated with the sentence appellant was serving for possession of a controlled substance in a drug-free zone. The trial court denied the request. The jury assessed his punishment at 50 years' confinement, and the trial court orally pronounced his sentence. As the trial court concluded the proceedings, the prosecutor reminded the trial court of the State's motion to cumulate the sentences. The trial court granted the motion and ordered that appellant's sentence not begin until he had completed the sentence for his prior drug-free-zone conviction. Appellant did not object, and the proceedings ended.

B. The Appellate Proceedings

Appellant's direct appeal challenged the sufficiency of the evidence to support the cumulation order. The State responded that appellant waived his challenge because he failed to lodge an objection at the time the trial court ordered the sentences cumulated. The court of appeals agreed with the State. The court acknowledged appellant's contention that general sufficiency-of-the-evidence complaints need not be preserved at trial, but interpreted his issue as challenging “a jury finding from a previous trial on a sufficiency basis.” Moore, 339 S.W.3d at 368. It determined that appellant had cited no authority permitting him to collaterally attack the drug-free zone finding that had been made in the previous trial. Id. The court held that appellant's failure to object to the cumulation order resulted in “a complete procedural default on any issue related to the trial court's cumulative sentence order.” Id.

Although it determined that appellant had not preserved his issue, the court of appeals analyzed the merits of part of appellant's issue. Id. Appellant contended that his present conviction was not “a conviction under any other criminal statute,” which he claimed meant that his present sentence could not be cumulated with the previous sentence. SeeTex. Health & Safety Code § 481.134(h). The court of appeals interpreted the language of the mandatory-cumulation provision, which states, “Punishment that is increased for a conviction for an offense listed under this section may not run concurrently with punishment for a conviction under any other criminal statute,” and determined that “this section” refers to “drug-free zones.” Moore, 339 S.W.3d at 368 (citing Tex. Health & Safety Code § 481.134(h)). It concluded that appellant's present conviction for possession of methamphetamine under section 481.115(d) was not a conviction for a drug-free-zone offense under section 481.134(c) and, therefore, constituted a “conviction under any other criminal statute.” Id.; SeeTex. Health & Safety Code §§ 481.115(d), 481.134(c). The court held that the trial court properly cumulated the sentence in cause number 55,555–E with the sentence in this case because the former sentence was for a conviction under the drug-free-zone statute and the present sentence is for a conviction under a different criminal statute. Moore, 339 S.W.3d at 368–69.

This Court granted review of the four issues appellant raised in his petition for discretionary review. Appellant's second issue pertains to the court of appeals's holding that he procedurally defaulted his challenge to the cumulation order. We begin with that issue because an appellate issue that is not preserved at trial is ordinarily forfeited.³ Appellant asks, “Is insufficient evidence of an increased punishment—which would bar concurrent sentencing under § 481.134(h)—cognizable on direct appeal?” SeeTex. Health & Safety Code § 481.134(h). He argues that he may challenge the sufficiency of the evidence supporting the cumulation of his sentences without having preserved the issue at trial. The State responds that preservation is required and that appellant's failure to object to the cumulation order at the time the trial court issued it precludes appellate review of his issue.

We then address appellant's fourth issue, which asks, “Is a conviction for an offense listed in Tex. Health & Safety Code § 481.134—but not alleged to have been committed in a drug-free zone—a ‘conviction under any other criminal statute’ ”? See id. § 481.134. We examine the court of appeals's statutory analysis of whether the present conviction was under a different statute than the drug-free-zone statute.

Appellant's two remaining issues ask,

1. May a court of appeals interpret a statute, as a matter of first impression statewide, with an opinion that omits any consideration of the issue raised?

2. Does the statutory phrase “ punishment that is increased ...” require only that the punishment range have been increased?

These issues challenge the court of appeals's failure to address appellant's argument concerning whether his prior sentence was increased because it occurred in a drug-free zone. We do not address these two issues because the other two issues are dispositive of this appeal.

II. Preservation of Claim that Evidence Insufficient to Support Cumulation Order

The court of appeals held that “there has been a complete procedural default on any issue related to the trial court's cumulative sentence order,” citing Texas Rule of Appellate Procedure 33.1, which sets forth requirements for preserving a complaint for appellate review. Moore, 339 S.W.3d at 368 (citing Tex.R.App.P. 33.1).⁴ Under that rule, the record must show that the complaining party made a specific and timely complaint to the trial judge and that the trial judge ruled on the complaint. Tex.R.App. P. 33.1(a)(1)(A). Generally, error that is not preserved may not be raised for the first time on appeal. See id.;Mendez v. State, 138 S.W.3d 334, 338 (Tex.Crim.App.2004). However, this Court has held that “a claim regarding sufficiency of the evidence need not be preserved for appellate review at the trial level, and it is not forfeited by the failure to do so.” Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim.App.2004); Rankin v. State, 46 S.W.3d 899, 901 (Tex.Crim.App.2001). Therefore, “an appellate court must always address challenges to the sufficiency of the evidence.” McFarland v. State, 930 S.W.2d 99, 100 (Tex.Crim.App.1996).

In contrast to evidence-sufficiency challenges, for which no preservation of error is required, challenges to the propriety of trial-court rulings must be preserved for appeal. See Idowu v. State, 73 S.W.3d 918, 921 (Tex.Crim.App.2002). In other words, while complaints as to the “factual basis” of a trial court's order may be raised for the first time on appeal, complaints as to the “appropriateness” of that order must be preserved in the trial court. See id. In Mayer v. State, the appellant, who had failed to object to the trial court's restitution order at trial, challenged the “factual basis” of that order for the first time on appeal. 309 S.W.3d 552, 554 (Tex.Crim.App.2010). We observed that the appellant did “not challenge the propriety of assessing attorney's fees, but argue[d] ... that a challenge to the factual basis of a restitution order ... is a challenge to the sufficiency of the evidence regarding that order.” Id. We held, “While this claim of evidentiary insufficiency differs somewhat from a claim of insufficient evidence of guilt,” it is a “well-settled principle” that “no trial objection is required to preserve an appellate claim of insufficient evidence.” Id. at 554, 556.⁵ Although this Court has never expressly held that sufficiency challenges to a cumulation order need not be preserved for appeal, we have implicitly applied that standard by reviewing the merits of those complaints even when they were not preserved at trial. See Mungaray v. State, 188 S.W.3d 178, 183–84 (Tex.Crim.App.2006) (deciding merits of appellant's...