Overstreet, Robert Eugene v. State ( 2006 )

Affirmed and Memorandum Opinion filed March 23, 2006

Affirmed and Memorandum Opinion filed March 23, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00875-CR

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ROBERT EUGENE OVERSTREET, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 971866

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M E M O R A N D U M   O P I N I O N

Appellant, Robert Eugene Overstreet, was charged with criminally negligent homicide, enhanced to a third degree felony upon a deadly weapon finding. Appellant pled guilty without an agreed recommendation by the State.  The trial court sentenced appellant to five years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In seven points of error, appellant complains (1) his guilty plea is invalid because he did not understand the nature of the cause and accusation against him, (2) the trial court erred in failing to sua sponte withdraw his guilty plea, (3) his conviction is void because the trial court reviewed the presentence investigation report prior to a finding of guilt, (4) the trial court erred in assessing punishment as a third degree felony, and (5) his five-year sentence is cruel and unusual because it is disproportionate to the offense for which he was convicted.  We affirm. 

Background

According to the presentence investigation (APSI@) report, at 5:30 p.m., on August 28, 2003, the complainant, Clifton Floyd Rhodes, Jr., was driving a black Mitsubishi pickup truck southbound on the East Sam Houston Parkway access road, approaching the intersection with Garrett Street at 50 to 55 miles per hour. Appellant, who was driving a white Ford van, approached the intersection, traveling westbound on Garrett Street.  The traffic signal was green to southbound traffic on the East Sam Houston Parkway access road.  Rhodes=s pickup truck entered the intersection where it struck appellant=s van.  A witness, Clarence Wiles, checked Rhodes for a pulse, but he felt only a flutter, and then he saw a young child, Clifton Keyon Rhodes, in a child seat in the truck.

Deputy Brian Wilbanks reconstructed the accident and determined appellant was traveling at 44 miles per hour, while Rhodes was traveling at 55 miles per hour.  Urinalysis tests indicated the presence of cocaine and marijuana, but no alcohol, in appellant=s system.  However, the investigation could not quantify the amount of cocaine or marijuana in appellant=s system, and it could not determine if the presence of those drugs adversely affected him when the collision occurred. 

In an interview, appellant stated he had been diagnosed with diabetes and was on a variety of medications for his diabetes and a number of other conditions. Appellant made another statement explaining that he was at home at 1:00 p.m., when he began to feel sick. Because he is a type two insulin-dependent diabetic, he check his blood sugar and found that it was 60, when 100 to 150 is normal.  He drank eight ounces of orange juice to raise his blood sugar level. 

At 5:00 p.m., appellant decided to go to the V.A. Hospital.  Appellant, who was on Garrett Road, stated that he had stopped at the red light of the southbound lanes of the Beltway in the left turn lane.  Appellant=s stomach cramped and he knew he was going to be sick. Appellant unhooked his seatbelt and opened the door.  Appellant stated that he started to vomit as he opened the door, and he thinks his foot slipped off the break and onto the gas pedal.  AI don=t know if I moved forward or what happened, the next thing I knew is I felt the impact and I was thrown around in the van.@ 

Rhodes died as a result of blunt force injuries when his vehicle collided with the vehicle driven by appellant.  Appellant was charged with criminally negligence homicide by failing to keep a proper look out, disregarding a traffic control device, and causing his vehicle to collide with the vehicle driven by Rhodes.  Appellant was also charged with using a deadly weapon, i.e., the vehicle he was driving.

Voluntary and Knowing Plea

In his first point of error, appellant complains his guilty plea is constitutionally invalid because the record shows he did not understand the nature of the cause and accusation against him in violation of his federal constitutional right to due process.  The indictment alleged he had failed to keep a proper lookout and had disregarded a traffic control device; appellant signed a stipulation of evidence to that effect.  However, Appellant asserts that if his vehicle, which he claims was stopped at a traffic light, entered the intersection because his foot slipped off the break when he was sick, he would not be guilty of criminally negligent homicide as alleged by the State. 

A defendant, who pleads guilty after having been properly admonished of his constitutional rights, has knowingly and voluntarily waived those rights, and has been admonished pursuant to our federal and state constitutions and Article 26.13 of the Texas Code of Criminal Procedure,^[1] is presumed to have entered a voluntary and knowing plea.  Mitschke v. State, 129 S.W.3d 130, 136 (Tex. Crim. App. 2004).  When the defendant attests at his original hearing to the voluntary nature of his plea, he carries a heavy burden at a subsequent hearing to show a lack of voluntariness.  Cantu v. State, 988 S.W.2d 481, 484 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d). 

Appellant entered a waiver of constitutional rights, agreement to stipulate, and judicial confession in which he stated that he was waiving the right to a jury trial, the appearance, confrontation, and cross-examination of witnesses, and his right against self-incrimination.  Appellant=s trial attorney signed the plea documents, stating he believed appellant had executed the plea documents knowingly and voluntarily. The trial court also signed the plea documents, stating, in relevant part:

After I admonished the defendant of the consequences of his plea, I ascertained that he entered it knowingly and voluntarily after discussing the case with his attorney.  It appears that the defendant is mentally competent and the plea is free and voluntary. . . .

The trial court also gave appellant written admonishments pursuant to article 26.13(d).  Moreover, in his statements and waivers, appellant initialed, among other things, that he (1) understood the nature of the charges against him, (2) understood the admonishments of the trial court, (3) waived the right to have the trial court orally admonish him, (4) waived the right to have a court reporter record his plea, (5) understood the consequences of his plea, and (6) freely, knowingly, and voluntarily executed the statement in open court.

There is a presumption of regularity of the judgment and the proceedings, and the burden is on the defendant to overcome that presumption.  Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986).  Appellant waived having a court reporter at his original hearing.  In the absence of an affirmative showing to the contrary, the foregoing recitation in the judgment is entitled to a presumption of regularity.  Downs v. State, 137 S.W.2d 837, 840 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d) (op. on reh=g).  Appellant has failed to rebut the presumption that he understood the charges against him or that his plea was voluntary.  Appellant=s first issue is overruled. 

Withdrawal of Guilty Plea

In his second point of error, appellant asserts the trial court erred in failing to sua sponte withdraw his guilty plea because the record raised an issue as to the voluntariness of his guilty plea.  When the defendant waives his right to a jury trial and enters a guilty plea before the court, the court is not required to withdraw the plea sua sponte, even if the evidence fairly raises an issue as to the innocence of the defendant.  Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978) (op. on reh=g).  It is within the trial court=s discretion to order the withdrawal of the plea. Id.  AIt is the duty of the trial court to consider the evidence submitted and as the trier of the facts the court may find appellant guilty of a lesser offense and assess the appropriate punishment or it may find the defendant not guilty.@ Id. 

Relying on Payne v. State, appellant asserts the trial court erred in not permitting him to withdraw his plea.  790 S.W.2d 649 (Tex. Crim. App. 1990).  In Payne, the defendant presented evidence during sentencing, after he had entered a guilty plea, indicating that he was guilty of a lesser-included offense.  Id. at 650B51.  Appellant argues that he raised the issue of voluntariness of his guilty plea through his statements in the PSI report.  Unlike this case, however, Payne involved a timely motion by the defendant to withdraw the guilty plea and, therefore, does not support appellant=s position.  Id. at 651B52.  We conclude the trial court did not err in failing to withdraw sua sponte appellant=s guilty plea.  Appellant=s second point of error is overruled. 

Review of PSI Report

In his third and fourth points of error, appellant claims his conviction is void because the trial court reviewed the PSI report prior to a finding of guilt in violation of his federal constitutional right to due process of law and his Texas constitutional right to due course of law.  U.S. Const. amends. V & XIV; Tex. Const. art. I, ' 19.  The trial court=s review of a PSI report prior to a determination of guilt violates the United States and Texas Constitutions.  State ex rel. Turner v. McDonald, 676 S.W.2d 375, 379 (Tex. Crim. App. 1984); State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 7 (Tex. Crim. App. 1983).  The PSI reports in the McDonald cases were considered by the trial court Aas a matter of course before a plea [was] even entered.@  Bryan, 662 S.W.2d at 7. 

Appellant entered his plea of guilty on June 29, 2004.  The trial court did not make an express finding of guilt at that time and ordered that a PSI report be prepared.  A PSI report was filed with the trial court, and on August 20, 2004, a second hearing was held, at the end of which the trial court entered a formal finding of guilt and assessed punishment against appellant. 

Appellant asserts the remarks made by the trial judge reveal that he had read the PSI report prior to the second hearing.  However, a defendant=s constitutional rights are not violated where there is no evidence the trial court considered the PSI report until the defendant had pleaded guilty, signed a judicial confession, and stipulated to the evidence of guilt.  Baldridge v. State, 77 S.W.3d 890, 892 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d); Blalock v. State, 728 S.W.2d 135, 138 (Tex. App.CHouston [14th Dist.] 1987, pet. ref=d); Wissinger v. State, 702 S.W.2d 261, 263 (Tex. App.CHouston [1st Dist.] 1985, no pet.).  Here, there is no evidence that the trial court considered the PSI report until after appellant had pleaded guilty, signed a judicial confession, and stipulated to evidence of his guilt. AIndeed, that would have been impossible because the trial court did not order the presentence report until appellant had pleaded guilty.@  Baldridge, 77 S.W.3d at 892.  Appellant=s third and fourth points of error are overruled.

Enhancement on Finding of Deadly Weapon

In his fifth point of error, appellant contends the trial court erred in assessing punishment as a third degree felony because the provision of the Texas Penal Code authorizing the enhancement of a state jail felony to a third degree felony if a deadly weapon was used or exhibited is inapplicable to the alleged offense of criminally negligent homicide.

Criminally negligent homicide is a state jail felony.  Tex. Pen. Code Ann. ' 19.05(b) (Vernon 2003).  The punishment for a state jail felony is confinement in a state jail for not less than 180 days and not more than two years, and a fine not to exceed $10,000.  Id. ' 12.35(a) (Vernon 2003).  A state jail felony is punishable as a third degree felony when it is shown that a deadly weapon was used or exhibited during the commission of, or during immediate flight following the commission of, the offense. Id. ' 12.35(c)(1).  The punishment for a third degree felony is imprisonment for not less than two years and not more than ten years, and a fine not to exceed $10,000. Id. ' 12.34 (Vernon 2003).  Because the trial court found appellant had used or exhibited a deadly weapon, his conviction for criminally negligent homicide was punishable as a third degree felony. 

Appellant argues that inherent in any homicide offense is the element that a deadly weapon was used or exhibited.  Therefore, according to appellant, section 19.05(a) includes by implication the element that a deadly weapon was used or exhibited during the commission of the offense. Appellant reasons that if section 12.35(c)(1) were applicable to criminally negligent homicide, it would be applicable in every criminally negligent homicide case, rendering the punishment scheme under section 19.05(b), i.e., that it is a state jail felony, inapplicable every time. 

Appellant=s contention is both rational and cogent. However, the Legislature has defined a Adeadly weapon@ as including Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@  Tex. Pen. Code Ann. ' 1.07(a)(17) (Vernon 2003).  Thus, the Texas Court of Criminal Appeals was compelled by logic to hold that Aany allegation which avers a death was caused by a named weapon or instrument necessarily includes an allegation that the named weapon or instrument was, >in the manner of its use . . . capable of causing= (since it did cause) death.@  Ex parte Beck, 769 S.W.2d 525, 526 (Tex. Crim. App. 1989). Yet, by definition, every criminally negligent homicide Acauses the death of an individual.@  Tex. Pen. Code Ann. ' 19.05.  Thus, as the Fort Worth Court of Appeals has observed, it Ais difficult to understand how one could commit a homicide without using an instrument capable of causing death or serious bodily injury.  Consequently, one wonders how criminally negligent homicide could ever be punished as a state jail felony.@  Dunn v. State, 176 S.W.3d 880, 884 (Tex. App.CFort Worth 2005, no pet.).

Notwithstanding the fact that Section 12.35(c)(1) of the Penal Code seems to render Section 19.05(b) of that same code nugatory, we are obliged to enforce all constitutional legislative enactments and conform our opinions to those of the Texas Court of Criminal Appeals.  In this regard, the Court of Criminal Appeals has held that the operation of an automobile may constitute the use of a deadly weapon.  Walker v. State, 897 S.W.2d 812, 814 (Tex. Crim. App. 1995); Tyra v. State, 897 S.W.2d 796, 799 (Tex. Crim. App. 1995). The trial court cannot punish criminally negligent homicide as a state jail felony when there is an affirmative deadly weapon finding.  Banks v. State, 29 S.W.3d 642, 645 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Appellant=s fifth point of error is overruled.

Disproportionate Sentence

In his sixth and seventh points of error, appellant asserts the trial court erred in assessing his punishment at five years= confinement in violation of his federal and state constitutional rights against cruel and unusual punishment because it is disproportionate to the offense for which he was convicted.  U.S. Const. amends.  VIII & XIV; Tex. Const. art. I, ' 13; Tex. Code Crim. Proc. Ann. art. 1.09 (Vernon 2005). 

Appellant failed to preserve error by failing to object in the trial court that his punishment was cruel and unusual.  Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).  However, even if he had preserved error for appeal, we do not find appellant=s sentence to be cruel and unusual in violation of either the United States Constitution or the Texas Constitution. 

Under Texas law, where the punishment assessed by the judge or jury is within the statutory range, it is not cruel and unusual within the constitutional prohibition.  Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972).  Criminally negligent homicide is a state jail felony. Tex. Pen. Code Ann. ' 19.05(b).  In this case, there was a finding of a deadly weapon, elevating the offense to a third degree felony.  Id. ' 12.25(c)(1).  The statutory range for third degree felony is imprisonment for a term of not less than two years and not more than ten years, and a fine not to exceed $10,000.  Id. ' 12.34.  Appellant was sentenced to five years= confinement, which was at the lower end of the statutory range, and was not assessed a fine.  Appellant=s sentence is not disproportionate to the offense under Texas law.

            Under the federal constitution, punishment will be grossly disproportionate only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme.  Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., plurality op.). Again, comparing the gravity of the offense to the severity of the sentence, we do not find the five-year sentence for the offense of criminally negligent homicide to be extreme. Appellant=s sixth and seventh issues are overruled.

Accordingly, the judgment of the trial court is affirmed. 

/s/        J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed March 23, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2005).