Ponce v. State

• Decision Date: 30 August 2002
• Docket Number: No. 13-01-264-CR.,13-01-264-CR.
• Citation: 89 S.W.3d 110
• Parties: Roman PONCE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

89 S.W.3d 110

Roman PONCE, Appellant, v. The STATE of Texas, Appellee.

No. 13-01-264-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

August 30, 2002.

Rehearing Overruled October 3, 2002.

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Thomas F. Greenwell, Corpus Christi, for appellant.

Carlos Valdez, Nueces County District Attorney, Douglas K. Norman, Corpus Christi, for state.

Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.

OPINION

Opinion by Justice RODRIGUEZ.

Appellant, Roman Ponce, brings this appeal following his conviction for sexual assault of a child, aggravated sexual assault of a child, and indecency with a child. We modify the trial court's judgment and affirm it as modified.

I. BACKGROUND

The victim, a fourteen year old girl, began going to Ponce's house when she was six years old. She often went there with her sister to watch television or play video games. With these visits, Ponce began a pattern of sexual abuse including touching and masturbation, sexual intercourse, and on at least two separate occasions, anal intercourse. Ponce continued to engage in sexual intercourse with the victim until she reached the age of fourteen.

Ponce was indicted on thirteen counts of sexual assault, aggravated assault, and indecency with a child. Following a trial to the jury, Ponce was found guilty on nine counts.¹ The jury then found that Ponce had been previously convicted of two offenses of indecency with a child.² The trial court assessed punishment for the offenses in counts two, three, seven, and eight at life imprisonment, to run consecutively. For counts nine through thirteen, the jury assessed punishment for each offense at twenty years imprisonment, to be served consecutively, and a fine of $10,000. This appeal ensued.

II. PRESERVATION OF ERROR

By his second, seventh, and eighth points of error, Ponce contends the trial court erred by: (1) assessing illegal sentences for counts two, three, seven, and eight; (2) ordering the sentence assessed for count eight to run consecutively with counts two, three, and seven; and (3) ordering the sentences assessed for counts ten, eleven, twelve, and thirteen to run consecutively with each other and with the sentences assessed for counts two, three, seven, eight, and nine.

However, these points of error were not preserved for our review. See TEX.R.APP. P. 33.1; see also Saldano v. State, 70 S.W.3d 873, 886 (Tex.Crim.App. 2002). Generally, an appellant may not complain of an error pertaining to his sentence or punishment if he has failed to object or otherwise raise error in the trial court. Mercado v. State, 718 S.W.2d 291, 296 (Tex.Crim.App.1986); Quintana v. State, 777 S.W.2d 474, 479 (Tex.App.-Corpus Christi 1989, pet. ref'd). Thus, because Ponce failed to object to the trial court's punishment and sentence on the grounds alleged by these points of error Ponce's second, seventh, and eighth points of error are waived. See Jeffley v. State, 38 S.W.3d 847, 861 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd).

III. TEN-DAY TRIAL PREPARATION PERIOD

By his first point of error, Ponce contends the trial court erred by proceeding to trial less than ten days after the indictment was returned.

The code of criminal procedure provides, "an appointed counsel is entitled to 10 days to prepare for a proceeding...." TEX.CODE CRIM. PROC. ANN. art. 1.051(e) (Vernon Supp.2002). The ten-day preparation time is a mandatory provision that may be waived only with written consent or on the record in open court. Id. Because Ponce did not waive his right to the ten-day period, he may raise the failure to comply with section 1.051(e) for the first time on appeal. See Saldano, 70 S.W.3d at 888; Marin v. State, 851 S.W.2d 275, 280 (Tex.Crim.App.1993).

The purpose of article 1.051(e) is to provide appointed counsel a reasonable amount of time to prepare a defense for trial. Asheraft v. State, 900 S.W.2d 817, 829 (Tex.App.-Corpus Christi 1995, pet. ref'd). Thus, there is no error in re-indicting a defendant less than ten days before trial so long as counsel is appointed on the original indictment in excess of ten days, and any difference between the indictments is negligible and in no way affects the defendant's ability to prepare for trial. See Marin v. State, 891 S.W.2d 267, 271 (Tex.Crim.App.1994); Guzman v. State, 521 S.W.2d 267, 270 (Tex.Crim.App.1975); Holleman v. State, 945 S.W.2d 232, 234 (Tex.App.-Amarillo 1997, pet. ref'd).

In this instance, the original indictment was filed on March 1, 2001, alleging three counts. A re-indictment was filed on March 8, 2001, also alleging three counts. On April 6, 2001, another indictment was filed alleging thirteen counts. The case was called for trial on April 10, 2001. Although the record does not provide the date Ponce's counsel was appointed, Ponce's first motion was filed on March 5, 2001. Thus, we can assume Ponce's attorney had been appointed, at the very latest, on the date his first motion was filed.

Looking at all three indictments, we find the re-indictment filed on April 6, 2002, although containing ten additional counts, merely expanded the number and methods of sexual assault and indecency against the same victim during the same general time range. Nothing suggests that the expanded number of counts in the re-indictment affected Ponce's overall strategy garnered from the previous indictments in any way, or gave rise to a need for additional time to prepare. Because Ponce's counsel was appointed in excess of ten days from the date the trial started, and the difference between the first two indictments and the re-indictment filed on April 6, 2002, is negligible and in no way affected Ponce's ability to prepare for trial, there is no error. See Marin, 891 S.W.2d at 271; Guzman, 521 S.W.2d at 270; Holleman, 945 S.W.2d at 234. Ponce's appointed counsel had a reasonable amount of time to prepare a defense for trial. See Asheraft, 900 S.W.2d at 829. Ponce's first point of error is overruled.

IV. DEFERRED ADJUDICATIONS

By his third and fourth points of error, Ponce contends the trial court erred by: (1) instructing the jury that a deferred adjudication was a conviction; and (2) such an instruction violated the ex post facto provisions of the federal and state constitutions.³

Section 12.42(c)(2) of the Texas Penal Code provides for enhanced penalties for repeat and habitual felony offenders. See TEX. PEN.CODE ANN. § 12.42(c)(2) (Vernon Supp.2002). This section further provides that a defendant shall be punished by imprisonment for life if the defendant is convicted of aggravated sexual assault⁴ or sexual assault,⁵ among others, and if the defendant has been previously convicted of certain offenses, including indecency with a child.⁶ See id. § 12.42(c)(2)(A) & (B) (Vernon Supp.2002). Section 12.42(g) then provides that for purposes of subsection (c)(2), a defendant has been previously convicted of offenses listed under subsection (c)(2)(B), one of which is indecency with a child, "if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence ... was ever imposed or ... probated and the defendant was subsequently discharged from community supervision." Id. § 12.42(g)(1) (Vernon Supp.2002) (emphasis added).

Ponce argues that the current penal code would permit the use of his prior deferred adjudication probations as previous convictions if he was placed on deferred adjudication following the enactment of section 12.42(g) on September 1, 1997. However, he argues that because he was placed on deferred adjudication on April 21, 1993, the deferred adjudication probations cannot be considered final convictions. At the time, article 42.12, section 5(c) of the code of criminal procedure provided that a dismissal and discharge from deferred adjudication could not be deemed a conviction for the purposes of disqualifications or disabilities imposed for conviction of an offense. See Act of May 29, 1995, 74th Leg., R.S., Ch. 256, § 2, 1995 Tex. Gen. Laws 2190, 2191, amended by Act of June 13, 1997, 75th Leg., R.S., Ch. 667, §§ 1, 7, 1997 Tex. Gen. Laws 2250, 2250, 2252. Thus, prior to September 1, 1997, a defendant's prior successful dismissal or discharge of deferred adjudication could not be used to enhance his punishment under section 12.42 of the penal code. See id.; Scott v. State, 55 S.W.3d 593, 596-97 (Tex.Crim.App.2001).

In this case, however, Ponce did not successfully complete his deferred adjudication probations. There is therefore no explicit limitation on the collateral consequences of Ponce's prior deferred adjudications. See Scott, 55 S.W.3d at 597. "The resolution of criminal charges will always carry the possibility of collateral consequences, and as long as those consequences are not statutorily restricted, disabilities and disqualifications which the defendant might not have anticipated may proceed from the prior cause." Id. Furthermore, because the enhancement statute penalizes the new criminal offense by enhancing it, rather than enhancing the prior offense, it cannot be said that an ex post facto violation occurred in this instance. See id. at 596. Accordingly, we find the trial court did not err in holding Ponce's deferred adjudication probations as convictions. Ponce's third and fourth points of error are overruled.

IV. ENHANCEMENT PROVISIONS TO COUNT EIGHT

By his fifth and sixth points of error, Ponce contends the trial court erred in its instructions to the jury concerning the range of punishment for count eight, the aggravated assault that occurred prior to June 1, 1997. Specifically, Ponce argues the trial court erred by: (1) instructing the jury, with regard to count eight, that a deferred adjudication was a conviction; and (2) failing to instruct the jury that the range of punishment to be assessed for count eight depended upon the date of the commission...