                         PD-0603-15

                          CAUSE NO. PD-06030-15

                            IN THE
           TEXAS COURT OF CRIMINAL APPEALS FOR THE
                        AUSTIN, TEXAS

                            ___________________

                              NO. 11-13-00380-CR
                         In the Court of Appeals for the
                           Eleventh District of Texas
                                 Eastland, Texas

                           _____________________

CHRISTOPHER LYNN VUICICH,

     APPELLANT,

V.

STATE OF TEXAS,

     APPELLEE,

            ********************************************
               PETITION FOR DISCRETIONARY REVIEW
            OF APPELLANT CHRISTOPHER LYNN VUICICH
            ********************************************

Russell W. King
State Bar No. 11463400
19211 S. U.S. HWY. 377
Dublin, Texas 76446
254-968-8777                                               June 25, 2015
254-445-2751 Fax

ATTORNEY FOR APPELLANT

Oral Argument Not Requested
                        Table of Contents


                                               Page


IDENTITY OF PARTIES……………………………………………….ii


TABLE OF CONTENTS………………………………………………...iii


TABLE OF AUTHORITIES…………………………………………..…iv


STATEMENT OF THE CASE
AND PROCEDURAL HISTORY…………………………………………1


GROUNDS FOR REVIEW…………………………………….……….…2
ARGUMENT………………………………………………………….…....3


PRAYER…………………………………………………………………...5


CERTIFICATE OF SERVICE…………………………..……….…………6
CERTIFICATE OF WORD COUNT………………………………………6


                        Index of Authorities


Cases

                                                |Page   ii
Boykin v. Alabama, 395 U.S. 238, 242-243 (1969)…………………4

Brady v. U.S., 397 U.S. 742, 748 (1970)…………………………….4

Mitschke v. State, 129 S.W.3d 130 (2004)…………………………..4, 5



Constitution and Statutes

U.S. Const. Amend. V……………………………………………………….4,5

U.S. Const. Amend. XIV, § 1………………………………………………..4,5




                                                           | P a g e iii
       STATEMENT OF THE CASE AND PROCEDURAL HISTORY

      This is a case involving a criminal prosecution for Assault Family Violence

with a prior conviction. Appellant was charged by indictment. On September

26th, 2013, Appellant and the State came to agreement on a Plea Bargain

Agreement under the terms of which Appellant agreed to Plea Guilty in exchange

for a recommendation of deferred adjudication probation. On December 13th,

2013, the State filed it Amended Motion to Proceed to Adjudication. On

December 19th, 2013, the Trial Court conducted an evidentiary hearing on the

State’s Amended Motion to Proceed to Adjudication. At the conclusion of that

hearing, the Trial Court found that Appellant had violated the terms and conditions

of his probation, adjudicated Appellant Guilty and sentenced him to confinement

in the Institutional Division of the Texas Department of Criminal Justice. The

Trial Court further ordered that Appellant’s sentence was to run consecutively with

his prior conviction in Cause No. 04-20282 out of the 91st Judicial District,

Eastland County, Texas, a case in which he was currently on parole. Appellant,

thereafter, timely filed his notice of appeal. On April 23rd, 2015, the Court of

Appeals for the Eleventh District issued it Memorandum Opinion and Judgment

affirming the judgment of the Trial Court. No motion for rehearing was filed.




                                                                           |Page    1
                          GROUNDS FOR REVIEW




      The Court of Appeals erred in finding that Appellant’s guilty plea was

knowingly and voluntarily made, and his right to due process was not violated

when Appellant was not advised that his sentence could be cumulated in the event

that his community supervision was revoked and he was adjudicated.




                                                                        |Page      2
                                    ARGUMENT

      On September 26th, 2013, Appellant entered into a plea agreement wherein

he agreed to plead guilty in exchange for a recommended punishment of 8 years

deferred adjudication probation and the payment of a $2,000.00 fine. (Clerk’s

Record, Vol. 1, pp. 25-32). At the time that he entered into the plea agreement

and plead guilty to the charged offense, Appellant was on parole for a conviction in

a case out of the 91st Judicial District Court, Eastland County, Texas. At no time

prior to his entry of a guilty plea, was it ever disclosed to Appellant by the State or

by the Trial Court that he could be sentenced to a term of imprisonment that would

run consecutive to the prison sentence for which he was currently on parole. The

possibility of cumulative sentencing was not disclosed in the plea papers, nor was

it disclosed in the oral admonishments given by the court during the plea colloquy.

(Clerk’s Record, Vol. 1, pp. 25-32). (Reporter’s Record, Vol. 3, pp. 4-13). In

fact, in the plea colloquy, the Trial Court admonished the Appellant that the range

of punishment was not less than two year nor more than ten years and a fine not to

exceed $10,000.00. (Reporter’s Record, Vol. 3, p. 8). Additionally, the Trial Court

specifically told the Appellant, “You understand that even though you’re only on

eight years probation that, if you violate a term [of probation], you could get ten

years in prison? You understand that?” (Reporter’s Record, Vol. 3, p. 11).




                                                                             |Page    3
      The 14th Amendment to the United States Constitution, guarantees that no

person shall be deprived of life, liberty, or property, without due process of law.

U.S. Const. Amend. XIV, § 1. Likewise, the 5th Amendment to the United States

Constitution provides that no person shall be compelled to be a witness against

himself. U.S. Const. Amend. V. The United States Supreme Court has established

that the 5th and 14th Amendments apply to guilty pleas and the record must

affirmatively demonstrate that a defendant’s guilty plea is made voluntarily and

knowingly. Boykin v. Alabama, 395 U.S. 238, 242-243 (1969). Brady v. U.S., 397

U.S. 742, 748 (1970). It is well-established law in Texas, that consistent with

constitutional due process; a guilty plea must be made with a clear understanding

of direct consequences of the plea. Mitschke v. State, 129 S.W.3d 130, (2004),

citing, Brady v. United States, 397 U.S. 742, 748, 755, (1970). In the instant case

one of the direct consequences of Appellant’s guilty plea is that he could be

sentenced to ten years confinement in prison and that he would not begin receiving

credit on that sentence until the sentence from his prior conviction had ceased to

operate. Contrary to the Trial Court’s specific admonishment that he might receive

ten year if he violated a term or condition of his probation, the reality was that he

might serve much more that the ten year sentence as a result of the provision

making his sentence cumulative. The direct consequence of Appellant’s guilty

plea was that Appellant is subject to serving a sentence of more than ten years


                                                                            |Page       4
because of the cumulation provision contained in the judgment. In Mitschke v.

State, 129 S.W.3d 130 (2004), the Court of Criminal Appeals held that if the

consequence is definite and largely or completely automatic, then it is a direct

consequence. Id. at 135. In this case the consequence is definite (Appellant will

not be eligible for parole until he is paroled for his prior conviction), and it is

largely or completely automatic. Once the Trial Court includes the cumulation

provision in the judgment nothing else is necessary the results of that inclusion on

Appellant are automatic. There is no party or agency that has discretion to ignore it

or condition imposition of it. Because the result of the inclusion of cumulation

provision has a direct consequence on Appellant sentence the Trial Court was

constitutionally required to disclose it to Appellant and the failure of the Trial

Court to do so rendered Appellant guilty plea involuntary and violated the 5th and

14th Amendments to the U.S. Constitution. In affirming the judgment of the trial

court the Court of Appeals affirmed the trial court’s violation of Appellant’s rights

under the 5th and 14th Amendments to the U.S. Constitution.

                                            Prayer

      Because Appellant’s plea was involuntary, Appellant prays that this Court

reverse the judgment of the Court of Appeals in this case.




                                                                              |Page    5
                                      Respectfully submitted,


                                      /s/ Russell W. King
                                      Russell W. King
                                      State Bar No. 11463400
                                      King Law Offices, P.C.
                                      P.O. Box 772
                                      Stephenville, Texas 76401
                                      817-357-4039
                                      254-445-2751 Facsimile


                              Certificate of Service



       The undersigned does hereby certify that a true and correct copy of the
foregoing pleading was served on the State’s Attorney via Facsimile transfer on the
25th day of June 2015.



                                            /s/ Russell W. King
                                            Russell W. King



                           Certification of Word Count

Appellant’s brief contains 1249 words.

                                            /s/ Russell W. King
                                            Russell W. King




                                                                        |Page     6
Opinion filed April 23, 2015




                                               In The


               Eleventh Court of Appeals
                                             __________

                                     No. 11-13-00380-CR
                                             __________

                   CHRISTOPHER LYNN VUICICH, Appellant
                                                  V.
                           THE STATE OF TEXAS, Appellee


                           On Appeal from the 90th District Court
                                  Stephens County, Texas
                               Trial Court Cause No. F34011


                           MEMORANDUM OPINION
           Christopher Lynn Vuicich, Appellant, as part of a plea bargain, pleaded
guilty to assault causing bodily injury to a family member.1 In accordance with the
plea agreement, the trial court placed Appellant on deferred adjudication for eight
years and imposed a $2,000 fine. Later, after the State moved to adjudicate
Appellant’s guilt, the trial court held an evidentiary hearing, found that Appellant

           1
            The State had alleged three enhancement paragraphs but abandoned them as part of the plea
bargain.
had violated four conditions of his community supervision,2 adjudicated his guilt,
assessed punishment at confinement for ten years, and ordered Appellant to pay
any remaining portion of the $2,000 fine. The trial court then sentenced Appellant
and ordered his sentence to run consecutively to a prior conviction.3 Appellant
argues, in his sole issue, that the trial court erred when it failed to warn him that
one consequence of his guilty plea was that the trial court could “stack” or
cumulate his sentence. We affirm.
                 I. Charged Offense and Evidence at Revocation Hearing
        Because Appellant does not advance a sufficiency challenge, we recite only
the facts necessary to review his appeal. The grand jury indicted Appellant for
intentionally or knowingly causing bodily injury to K.M., a person with whom
Appellant had or had had a dating relationship, by striking her. Shortly after
Appellant was placed on deferred adjudication, the State moved to adjudicate
because Appellant had violated his community supervision; the State also filed a
notice of intent to cumulate.
                                             II. Analysis
        A trial court has the discretion to order that a sentence run consecutively to a
sentence imposed in a prior conviction. TEX. CODE CRIM. PROC. ANN. art. 42.08(a)
(West Supp. 2014); Branson v. State, 525 S.W.2d 187, 189 (Tex. Crim. App.
1975). Article 26.13 of the Texas Code of Criminal Procedure provides that the
trial court, prior to accepting a guilty plea, must admonish the defendant on the


        Appellant pleaded “true” to an allegation that he had violated curfew by staying in a
        2

Breckenridge hotel without first getting approval from his probation officer.
        3
         Appellant was convicted of unlawful possession of a firearm in Cause No. 04-20282 in the 91st
District Court in Eastland County, Texas, on March 21, 2005. He was sentenced in 2005 to confinement
for twenty-five years, but he was released on parole in 2012. His parole for this conviction would not be
completed until 2029. At the time of the hearing in the present case, a blue warrant had been issued for a
parole violation in the Eastland County case, and a revocation hearing was pending.


                                                    2
range of punishment for the offense and that the defendant must appear to be
mentally competent and to be making his plea freely and voluntarily. CRIM. PROC.
art. 26.13(a)(1), (b).
        As we outlined in Engleton v. State, “[i]n an appeal from a judgment
adjudicating guilt, an attack on the original plea of guilty is prohibited unless the
judgment is void.” Engleton v. State, No. 11-11-00017-CR, 2012 WL 4754914,
at *1 (Tex. App.—Eastland Oct. 4, 2012, pet. ref’d) (mem. op., not designated for
publication) (citing Nix v. State, 65 S.W.3d 664, 667–68 (Tex. Crim. App. 2001);
Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001)).4 In this case,
neither the order in which the trial court deferred adjudication and placed
Appellant on community supervision nor the subsequent judgment of the trial court
in which it revoked Appellant’s community supervision and adjudicated
Appellant’s guilt is void. See Nix, 65 S.W.3d at 668 n.14. Here, as in Engleton,
Appellant cannot challenge the voluntariness of his plea in this appeal. Engleton,
2012 WL 4754914, at *1.
        Appellant argued that the court had to admonish him about the possibility of
cumulative sentences. When a trial court grants a deferred adjudication, it must
inform the defendant of the possible consequences of a violation of community
supervision. See CRIM. PROC. art. 42.12, § 5(a), (b). The Court of Criminal
Appeals has held that direct consequences are those that are “definite and largely
or completely automatic.” Mitschke v. State, 129 S.W.3d 130, 135 (Tex. Crim.
App. 2004). A trial court must advise a defendant of “direct consequences that are
punitive in nature or specifically enunciated in the law.” Id. at 136. The Court of


        4
          As we noted in Footnote No. One in Engleton, Nix and Jordan are controlling precedent in this
case, and our decision in Grabowski v. State, 27 S.W.3d 594 (Tex. App.—Eastland 2000, no pet.), in
which we held that an appellant may attack the voluntariness of his original guilty plea after adjudication
of guilt, was decided prior to either Nix or Jordan. Engleton, 2012 WL 4754914, at *1.


                                                    3
Criminal Appeals also has outlined that a “collateral” consequence is one that “lies
within the discretion of the court whether to impose it, or where its imposition is
controlled by an agency which operates beyond the direct authority of the trial
judge.” Id. at 134 n.4 (quoting United States v. Kikuyama, 109 F.3d 536, 537 (9th
Cir. 1997)) (internal quotation marks omitted).
        When the Texas Court of Criminal Appeals addressed this particular issue, it
held, “We do not agree that Article 26.13, supra, obligates the trial court to inform
an accused pleading guilty or nolo contendere of its discretion to cumulate
sentences when admonishing him of the consequences of his plea.” Simmons v.
State, 457 S.W.2d 281, 283 (Tex. Crim. App. 1970). “Neither article 26.13 nor
42.12, section 5(b) requires the trial court to admonish on consecutive or
cumulative sentences.”5             Fletcher v. State, No. 05-91-01798-CR, 1992 WL
389788, at *2 (Tex. App.—Dallas Dec. 28, 1992, no pet.) (not designated for
publication).       The trial court did not abuse its discretion when it cumulated
Appellant’s sentence without having warned him of that possibility. We overrule
Appellant’s sole issue.
                                       III. This Court’s Ruling
        We affirm the judgment of the trial court.



                                                           MIKE WILLSON
                                                           JUSTICE
April 23, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
        5
         We note that the imposition of consecutive sentences is not a direct consequence of a guilty plea
and that various courts have held that a plea is not rendered involuntary by the trial court’s failure to warn
of such a possibility. McGrew v. State, 286 S.W.3d 387, 391 (Tex. App.—Corpus Christi 2008, no pet.).

                                                      4
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