Russell v. State
| Decision Date | 22 May 1986 |
| Docket Number | C14-85-736-CR,Nos. C14-85-735-C,s. C14-85-735-C |
| Parties | Marjorie Lorraine RUSSELL, Appellant, v. The STATE of Texas, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Kristine C. Woldy, Houston, for appellant.
John B. Holmes, Jr., Kathlyn Giannaula, Joan Campbell, Doug Durham, Houston, for appellee.
Before JUNELL, MURPHY and ELLIS, JJ.
Appellant, Marjorie Lorraine Russell, appeals from two judgments of conviction for the offenses of involuntary manslaughter. Appellant entered a plea of nolo contendere to each indictment. The Court found appellant guilty in both cases and assessed punishment at confinement in the Texas Department of Corrections for seven (7) years and a five hundred ($500.00) dollar fine in each case. The Court ordered that the sentences run consecutively. We affirm.
Appellant, in three grounds of error, alleges that: (1) her plea of guilty was effectively involuntary because of her misunderstanding of the plea bargaining agreement; (2) the State failed to live up to the plea agreement because it failed to tell the Court that the sentences were to run concurrently; and (3) the trial court erred in failing to carry out the plea bargaining agreement by ordering the sentences in the two causes to run consecutively rather than concurrently.
The appellant was charged in two cases with involuntary manslaughter. In Cause No. 424,525 she was charged by indictment with causing the death of Rhonda Doucet Walkup on or about May 5, 1985. In Cause No. 424,526 she was charged by indictment with causing the death of Joshua Walkup on or about the same date. Appellant entered a plea of nolo contendere to each indictment. In both cases, appellant judicially confessed to the allegations in the first paragraph of the indictment charging her with operating a motor vehicle while intoxicated and thereby causing a collision which resulted in the deaths of Rhonda and Joshua Walkup.
The court questioned appellant about her plea and as a result found that her plea was freely and voluntarily given and accepted her plea. The Court also agreed to follow the State's recommendation in each case. The State's recommendation was seven years in the Texas Department of Corrections and a five hundred ($500) dollar fine in each case.
The judge then found the appellant guilty of involuntary manslaughter in both cases, and assessed her punishment at seven years confinement in the Texas Department of Corrections and a fine of five hundred dollars in each case. The judge then ordered that the sentences run consecutively, that is, that the sentence in Cause No. 424,526 commence after the sentence in Cause No. 424,525 was served.
Appellant timely filed a motion for new trial in each case, alleging that she had entered into a plea bargain agreement with the State in both causes, and that the State had agreed to recommend that the seven year sentences run concurrently. After a hearing, the trial court denied the motion for new trial, and permitted the appellant to appeal the judgment and sentences in both causes.
Due to the similarity between grounds of error two and three we will respond to them simultaneously. Appellant in grounds of error two and three alleges that the State failed to live up to its plea bargain because it failed to tell the court that the sentences were to run concurrently and that the trial court, in turn, erred in failing to carry out the plea bargain agreement by ordering the sentences to run consecutively.
During the sentencing phase of the trial the following dialogue took place between the Court and the appellant:
The judge informed appellant that it was within his discretion to decide whether to make the sentences run concurrently or consecutively. Being fully aware of the judge's position, appellant voluntarily declined any further questions. Neither appellant nor her attorney gave any indication at that time that she was relying on a plea bargain agreement stipulating that the sentences were to run concurrently.
The record reflects that at the hearing on the Motion for New Trial conflicting evidence was presented on the issue of whether the State and the appellant's counsel entered into a plea agreement which included in its terms a recommendation that the sentences in Cause No. 424,525 and 424,526 would run concurrently. The two State's attorneys testified that they did not agree to recommend to the Court that the two sentences would run concurrently. The appellant's attorney testified that one of the State's attorneys had indicated to him at a prior court setting that the sentences in both cases would run concurrently. The Court denied the Motion for New Trial and stated on the record that he had followed the recommendation of the State. It must be presumed that the Court found, as a matter of fact, that no plea bargain existed as to whether the two sentences would run concurrently or consecutively.
The trial judge, as the trier of facts, is free to believe one person's testimony over another. Moreno v. State, 587 S.W.2d 405 (Tex.Crim.App.1979).
It is well established that issues of fact raised at a hearing on motion for new trial are for the determination of the trial judge; and where there is conflicting evidence, there is no abuse of discretion where the motion for new trial is overruled. Thomas v. State, 699 S.W.2d 845 (Tex.Crim.App.1985).
In our case there was conflicting evidence presented on the issue of whether the plea bargain included an agreement that the sentences in both cases would run concurrently. The trial court did not abuse its discretion in finding that no plea bargain existed that the two sentences would run concurrently. Appellant's second and third grounds of error are overruled.
Appellant, in her first ground of error, claims that her plea of guilty was involuntary because she misunderstood the plea bargain agreement. Specifically appellant is claiming that she understood that her two sentences would run concurrently as opposed to consecutively.
The law is clear in this area. There is no "right" to a concurrent sentence. Whether sentences will run concurrently or consecutively is within the discretion of the trial judge. Vernon's Ann. C.C.P. art. 42.08; Carney v. State, 573 S.W.2d 24 (Tex.Crim.App.1978...
To continue reading
Request your trial
-
Gutierrez v. State
...the expectation was raised by his attorney. West v. State, 702 S.W.2d 629, 633 (Tex.Crim.App.1986); Russell v. State, 711 S.W.2d 114, 116 (Tex.App.-Houston [14th Dist.] 1986, pet. ref'd). See Gomez v. State, 921 S.W.2d 329, 332 (Tex.App.-Corpus Christi 1996, no pet.) (plea not involuntary s......
-
Rouse v. State, No. 03-07-00214-CR (Tex. App. 6/27/2008)
...the contention that the defendant's guilty plea was in fact induced by significant misinformation. Russell v. State, 711 S.W.2d 114, 116 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd). In the instant case, after sentencing, appellant's counsel filed a "motion for appeal" as earlier descri......
-
Cardenas v. State
...the contention that the appellant's plea was, in fact, induced by significant misinformation. See Russell v. State, 711 S.W.2d 114, 116 (Tex.App.--Houston [14th Dist.] 1986, pet. ref'd). In the present case, Cardenas personally and expressly waived in writing the making of a record of the p......
-
Soliz v. State
... ... In considering a claim that ... defense counsel's erroneous advice rendered the ... defendant's plea involuntary, we determine whether the ... record supports the defendant's contention that his ... guilty plea was induced by significant misinformation ... Russell v. State , 711 S.W.2d 114, 116 (Tex ... App.-Houston [1st Dist.] 1986, pet. ref'd); see Brown ... v. State , 943 S.W.2d 35, 42 (Tex. Crim. App. 1997). A ... defendant's uncorroborated testimony that he was ... misinformed by his trial counsel does not meet his burden to ... ...