                                                                                ACCEPTED
                                                                            04-14-00050-CR
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                       6/22/2015 6:08:26 PM
                                                                             KEITH HOTTLE
                                                                                     CLERK

               CAUSE NO. 04-14-00050-CR

                                                         FILED IN
         IN THE FOURTH COURT OF APPEALS 4th COURT OF APPEALS
                                         SAN ANTONIO, TEXAS
                SAN ANTONIO, TEXAS
                                                   6/22/2015 6:08:26 PM
                                                     KEITH E. HOTTLE
                                                           Clerk
              TAYLOR RAE ROSENBUSCH,
                      Appellant

                            V.

                 THE STATE OF TEXAS,
                       Appellee


 Appeal from the 226th District Court of Bexar County, Texas
Trial Court Cause Numbers 2011-CR-11074 & 2011-CR-11075


              APPELLANT’S REPLY BRIEF



                                                          John F. Carroll
                                                         Attorney at Law
                                                 111 West Olmos Drive
                                             San Antonio, Texas 78212
                                           Telephone: (210) 829-7183
                                           Facsimile: (210) 829-0734
                                                         SBN: 03888100
                                                jcarrollsatx@gmail.com

                                                 Attorney for Appellant




                                  ORAL ARGUMENT REQUESTED
                                                TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................................................. ii

TABLE OF AUTHORITIES ........................................................................................... iii

   CASES .............................................................................................................................. iii

   STATUTES AND RULES.................................................................................................... iii

REPLY TO AUTHORITIES CITED BY STATE IN RESPONSE TO ISSUES FOR
REVIEW ONE-THREE: FAILURE TO ADMONISH ON CUMULATION OF
SENTENCES ..................................................................................................................... 1

CONCLUSION .................................................................................................................. 3

CERTIFICATE OF SERVICE. ....................................................................................... 4

CERTIFICATE OF COMPLIANCE .............................................................................. 4




                                                                    ii
                          TABLE OF AUTHORITIES

CASES

Garza v. State, 788 S.W.2d 651, 657 (Tex. App.-Corpus Christi 1990)………………..3

McGrew v. State, 286 S.W.3d 387 (Tex. App.-Corpus Christi, 2008, no pet.) ………..1

Millslagle v. State, 150 S.W.3d 781, 784-785 (Tex. App. – Austin 2004)...……………3

Simmons v. State, 457 S.W.2d 281 (Tex. Crim. App. 1970)..………..………..………..2

Tyson v. State, 172 S.W.3d 172, 176(Tex. App.-Fort Worth 2005)..…………………..3

STATUTES AND RULES

Code of Criminal Procedure 26.13.………………….………………….……………....2

Texas Rules of Appellate Procedure 38………………….………….…….……………1




                                       iii
TO THE HONORABLE FOURTH COURT OF APPEALS:

       Now Comes Taylor Rae Rosenbusch, Appellant, and files this Appellant’s Reply

Brief as follows:

REPLY TO AUTHORITIES CITED BY STATE IN RESPONSE TO ISSUES FOR
 REVIEW ONE-THREE: FAILURE TO ADMONISH ON CUMULATION OF
                         SENTENCES

       In her first three issues for review, Appellant has complained of the trial court’s

failure to admonish her prior to accepting her guilty pleas as to the court’s power to

cumulate her sentences as to the two indictments in issue. Specifically, Appellant

complains that the trial court’s failure to so admonish resulted in a violation of due

process and due course of law and rendered her guilty pleas involuntary.

       In response, the State cites McGrew v. State, 286 S.W.3d 387 (Tex. App.-Corpus

Christi, 2008, no pet.) for the proposition that a failure to admonish as to the possibility

of consecutive sentencing does not result in an involuntary guilty plea. However, that

ruling is actually dicta. In McGrew, the Court of Appeals found, and held, that the issue

had been waived under Tex. R. App. P. 38 due to the failure to brief. That was the

holding of the Court of Appeals. The Court did go on to state, in dicta, that the point on

appeal was without merit because there was no obligation of the trial court to admonish

as to the possibility of a consecutive sentence. The Court of Appeals recognized that the

issue had not yet been addressed by the Court of Criminal Appeals. In addition to the fact

that the ruling was dicta, the McGrew case presented a different set of circumstances as it

involved a single charge and a single conviction and a single sentence (as opposed to the

two indictments for two deaths arising from a single act and the simultaneous prosecution


                                             1
of the two cases). The cumulation order related to an already existing conviction for

which the defendant had previously been sentenced and was actually serving the

sentence-he was on parole and was facing revocation of that parole as a result of the new

offense conduct. In the instant case there was no prior conviction and no prior or existing

imposition of sentence. The trial court admonished Appellant once as to the range of

punishment:

               THE COURT:        Okay. Step up a little bit closer. I just need to
       hear you. So my understanding is that to both of these counts you have pled
       guilty. Is that correct?

              THE DEFENDANT:                Yes, sir.

              THE COURT:           Okay. Before I accept that plea, I need to make
       sure that you understand the consequences and that your plea is free and
       voluntary. The range of punishment for what you just pled to is a felony of
       the second degree. A person convicted of that level of offense, and these are
       same levels, is by confinement of no less than two years nor more than 20
       years and up to a $10,000 fine, possible fine. Do you understand that?

              THE DEFENDANT:                Yes, sir.

       (RR Vol. IV, page 4, lines 11-23).

       The State also cited Simmons v. State, 457 S.W.2d 281 (Tex. Crim. App. 1970).

That case involved pleas of guilty to multiple charges. The trial court imposed concurrent

sentences-not cumulative. The defendant asserted on appeal that article 26.13, Code of

Criminal Procedure, required that the trial court admonish a defendant of the possibility

of cumulative sentences. The Court held that Article 26.13 did not require such an

admonishment. The defendant did not raise the issue of whether his plea was rendered

involuntary as a result of the failure to so admonish or whether such admonishments were



                                               2
required as a matter of due process and due course of law. There was no cumulation order

under review in that case.

       Finally, the State cited three cases as authority for the proposition that a defendant

is not entitled to notice of the trial court’s authority to cumulate sentences. Each of the

cited cases involved pleas of not guilty and trials on guilt innocence to a jury. The

voluntariness of guilty pleas was not in issue: Tyson v. State, 172 S.W.3d 172, 176 (Tex.

App. – Fort Worth 2005, pet. ref’d)(guilt innocence tried on charges of aggravated sexual

assault and sexual assault of a child); Millslagle v. State, 150 S.W.3d 781, 784-785 (Tex.

App. – Austin 2004, pet ref’d, untimely filed)(cumulation of sentences imposed after a

trial on guilt innocence for indecency with a child and aggravated sexual assault-Court of

Appeals relied on several factors including that total sentence did not exceed the statutory

maximum for any one offense of conviction-in the instant case the twenty four year

cumulative sentence exceeds the statutory maximum for a second degree felony); Garza

v. State, 788 S.W.2d 651, 657 (Tex. App. – Corpus Christi 1990, no pet.)(guilt innocence

trial on three charges-sentences cumulated with previously imposed sentence that was

based on a guilty plea).

                                     CONCLUSION

       WHEREFORE, for the reasons stated herein and in her principal Brief, Appellant

Taylor Rosenbusch respectfully requests that the Court reverse the judgment and

sentence imposed and remand this case to the trial court for a new trial, or set aside the

punishment verdict and remand the case to the trial court for a new trial on the issue of

punishment, or set aside the trial court’s order cumulating sentences.


                                             3
                                         Respectfully submitted,

                                         John F. Carroll
                                         Attorney At Law
                                         111 West Olmos Drive
                                         San Antonio, Texas 78212
                                         210/829-7183 - Telephone
                                         210/829-0734 - Facsimile
                                         jcarrollsatx@gmail.com

                                         ATTORNEY FOR APPELLANT,
                                         TAYLOR RAE ROSENBUSCH

                                         By: /s/ John F. Carroll
                                         John F. Carroll
                                         State Bar No. 03888100



                            CERTIFICATE OF SERVICE

       I do hereby certify that a true and correct copy of the above has been delivered to
the Bexar County District Attorney=s Office, Paul Elizondo Tower, 101 W. Nueva, 4th
Floor, San Antonio, Texas 78205 on the 22nd day of June, 2015.

                                         /s/ John F. Carroll
                                         John F. Carroll

                         CERTIFICATE OF COMPLIANCE

       I certify under Texas Rule of Appellate Procedure 9.4(i)(3) that this Brief was
prepare using Microsoft Word and that the word count shows that the total number of
words in this brief is 1203 on the 22nd day of June, 2015.

                                         /s/ John F. Carroll
                                         John F. Carroll




                                            4
