QUINTON DEON FRIPP v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

QUINTON DEON FRIPP, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–11–00591–CR

-- May 01, 2012

Before Chief Justice Wright and Justices Fillmore and Maloney 1

OPINION

Opinion By Justice Maloney

The trial court found Quinton Deon Fripp violated the terms of his deferred community service, adjudicated him guilty of burglary of a habitation, and assessed a ten-year sentence in the Institutional Division of the Texas Department of Criminal Justice (TDCJ).  In addition, the trial court granted the State's request that the sentence run consecutive to appellant's jury-imposed ten-year sentence for aggravated robbery.   In a single issue, appellant complains the trial court erred in cumulating the sentence in this case with the sentence for an aggravated robbery.   We affirm the trial court's judgment.

Background

On December 11, 2009, appellant waived a jury and pleaded guilty to burglary of a habitation.   See Tex. Penal Code Ann. § 30.02(a)(1) (West 2011).   Pursuant to a plea bargain agreement, the trial court deferred finding appellant guilty, placed him on four years' community supervision, and assessed a $1000 fine.   On July 28, 2010, the State moved to adjudicate guilt, alleging appellant violated the terms of his community supervision.   On March 1, 2011, a jury found appellant guilty of aggravated robbery and assessed a ten-year sentence in TDCJ. On that same date, the State amended its motion to adjudicate to include the aggravated robbery conviction as a violation of appellant's community supervision.   Then on March 9, 2011, the State moved to cumulate the sentence in the aggravated robbery case to any sentence assessed in the burglary case.   On April 8, 2011, the trial court held a hearing on the State's amended motion to adjudicate appellant.   Appellant entered his plea of true to those allegations.   The trial court found appellant guilty of burglary of a habitation and assessed punishment at ten years' imprisonment.   The trial court granted the State's motion to cumulate and ordered the ten-year sentence in the burglary case to run consecutive to the ten-year sentence in the aggravated robbery case.

Trial Court Error

In his sole issue on appeal, appellant contends the trial court erred in cumulating the sentence assessed in the burglary case with the sentence assessed in a separate conviction for aggravated robbery.   Appellant argues that because the State sought a twenty-year sentence in the aggravated robbery case, and the jury assessed only a ten-year sentence after hearing evidence about both the aggravated robbery and the earlier burglary, it would be “malicious” to assist the State by cumulating the two sentences.   Appellant also maintains the trial court's granting the State's cumulative order was “arbitrary and capricious” because no evidence was presented to support the trial court's decision to cumulate the sentences.

The State responds the record contains evidence that supports the trial court's decision.   The State argues the trial judge in the burglary case is the same judge who presided over the jury trial in the aggravated robbery case, and when the State summarized the testimony from the aggravated robbery case during the hearing on its motion to adjudicate, the trial judge indicated he remembered the evidence.

Applicable Law

When a defendant is convicted in two or more cases, the trial court has discretion to determine whether the judgment and sentence imposed in the second conviction begins to run when the judgment and sentence imposed in the preceding conviction has ceased to operate or runs concurrently with the judgment and sentence imposed in the preceding conviction.  Tex.Code Crim. Proc. Ann. art. 42.08(a) (West 2006).   When the trial court revokes community supervision and imposes a sentence after the defendant's conviction and sentencing for a new offense, then the court has the discretion to treat the revocation as a subsequent conviction for the purpose of stacking sentences.   Edwards v. State, 106 S.W.3d 833, 845 (Tex.App.—Dallas 2003, pet. ref'd) (citing Pettigrew v. State, 48 S.W.3d 769, 771 (Tex.Crim.App.2001)).

We review whether a trial court abused its discretion in the light most favorable to its legal conclusion to determine if, under the correct law and facts, it applied an erroneous legal standard or no reasonable view of the record supports the trial court's conclusion.  Revels v. State, 334 S.W.3d 46, 53 (Tex.App.—Dallas 2008, no pet.).   A trial court's statutory authority to cumulate sentences is wholly discretionary and “not based on discrete fact-finding.”  Barrows v. State, 207 S.W.3d 377, 379 (Tex.Crim.App.2006);  see also Revels, 334 S.W.3d at 55.

Application of Law to Facts

We recognize the maximum sentence for burglary of a habitation, a second-degree felony offense, is twenty years' imprisonment, and the maximum for aggravated robbery, a first-degree felony offense, is ninety-nine years or life imprisonment.  Tex. Penal Code Ann. §§ 12.32(a), 12.33(a), 29.03(b), 3.02(c)(2).   Neither the sentence imposed for the burglary conviction nor the cumulative sentences for both the burglary and aggravated robbery convictions exceed the statutory maximum sentence for the burglary conviction.

Appellant relies on the trial court's statement that it did not “ remember all this” to support the argument that the trial court's cumulating the sentences shows the trial court was “malicious, arbitrary, and capricious.”   The record shows the trial court made its statement and requested argument.   The State then summarized appellant's testimony in the aggravated robbery case and the facts in the burglary case, after which the trial court stated it remembered the evidence.

On this record, we cannot conclude the trial court abused its discretion in ordering appellant's sentence in this case to run consecutively to the sentence imposed in the aggravated robbery case.   See Edwards, 106 S.W.3d at 845.   We overrule appellant's sole issue.

We affirm the trial court's judgment.

Tex.R.App. P. 47S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

QUINTON DEON FRIPP, Appellant

No. 05–11–00591–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the Criminal District Court No. 7 of Dallas County, Texas.  (Tr.Ct.No.F09–00896–Y).

Opinion delivered by Justice Maloney, Chief Justices Wright and Justice Fillmore participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered May 1, 2012.

/Frances Maloney/

FRANCES MALONEY

JUSTICE, ASSIGNED

FRANCES MALONEY JUSTICE, ASSIGNED

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