Bonie Elizabeth Kopplin v. the State of Texas
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Opinion
In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-25-00181-CR ___________________________
BONIE ELIZABETH KOPPLIN, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 485th District Court Tarrant County, Texas Trial Court No. 1771337
Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION
I. INTRODUCTION
Appellant Bonie Elizabeth Kopplin pled guilty to indecency with a child by
sexual contact (Count One), online solicitation of a minor (Count Two), possession of
child pornography (Count Three), and tampering with evidence (Count Four).
Following a bench trial on punishment, the trial court sentenced her to concurrent
terms of seven years’ confinement for Counts Two, Three, and Four; and it deferred
finding her guilty and placed her on deferred-adjudication probation for a period of
ten years for Count One. Notably, the trial court’s judgments and deferred-
adjudication order state that Kopplin’s probation on Count One is “to be served
consecutively with Counts Two, Three, and Four” and will “begin only when [her]
sentence[s for] Counts Two, Three, and Four have been completed.”
In her sole issue on appeal, Kopplin contends that the trial court erred by
ordering the term of deferred-adjudication probation imposed in Count One to run
cumulatively to the prison sentences imposed in the remaining counts. The State
concedes the error, and we agree. Accordingly, we will modify the trial court’s
judgments and deferred-adjudication order (1) to delete the portions requiring
Kopplin’s deferred-adjudication probation to begin after the completion of the prison
sentences imposed in Counts Two, Three, and Four and (2) to reflect that Kopplin’s
deferred-adjudication probation for Count One is to run concurrently with her prison
2 sentences for the remaining counts. We affirm the trial court’s judgments and
deferred-adjudication order as modified.
II. DISCUSSION
We review a trial court’s decision to cumulate sentences for an abuse of
discretion. Isadore v. State, No. 02-21-00198-CR, 2023 WL 3878448, at *7 (Tex.
App.—Fort Worth June 8, 2023, pet. ref’d) (mem. op., not designated for
publication); Waddell v. State, 456 S.W.3d 366, 369 (Tex. App.—Corpus Christi–
Edinburg 2015, no pet.). A trial court abuses its discretion if it imposes cumulative
sentences where the law requires concurrent sentences. Byrd v. State, 499 S.W.3d 443,
446 (Tex. Crim. App. 2016). A claim for improper cumulation may be raised for the
first time on appeal, and an improper cumulation order may be modified on appeal.
Ex parte Carter, 521 S.W.3d 344, 347 (Tex. Crim. App. 2017).
Cumulative sentencing is permitted only as provided by statute. Hamilton v.
State, No. 05-20-01119-CR, 2022 WL 2680611, at *1 (Tex. App.—Dallas July 12,
2022, no pet.) (mem. op., not designated for publication); Bargas v. State, 252 S.W.3d
876, 902 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). Pursuant to
Article 42.08(a) of the Texas Code of Criminal Procedure, when a defendant has been
convicted in two or more cases, the trial court has discretion to order the judgment
and sentence imposed in the second conviction to either (1) begin to run after the
judgment and sentence imposed in the preceding conviction ceased to operate, or
(2) run concurrently with the judgment and sentence imposed in the preceding
3 conviction. Tex. Code Crim. Proc. art. 42.08(a). Pursuant to Section 3.03 of the
Texas Penal Code, if the convictions arise out of the “same criminal episode” and the
cases are tried together, the sentences must run concurrently unless the convictions
are for certain specified offenses and the trial court exercises its discretion to cumulate
the sentences. See Tex. Penal Code § 3.03(a), (b).
Significantly, an order of deferred-adjudication probation may not be
cumulated onto sentences for a conviction. Obi v. State, No. 02-23-00037-CR,
2023 WL 8820265, at *2 (Tex. App.—Fort Worth Dec. 21, 2023, no pet.) (mem. op.,
not designated for publication); Hamilton, 2022 WL 2680611, at *2 (citing Hurley v.
State, 130 S.W.3d 501, 507 (Tex. App.—Dallas 2004, no pet.)). This is because an
order of deferred-adjudication probation does not include an adjudication of guilt and
is thus not a “conviction” for purposes of Article 42.08(a) and Section 3.03. See Beedy
v. State, 194 S.W.3d 595, 602 (Tex. App.—Houston [1st Dist.] 2006) (“We conclude
that appellant’s deferred-adjudication community supervision was not a conviction for
purposes of [A]rticle 42.08 and [S]ection 3.03(c).”), aff’d, 250 S.W.3d 107, 113 (Tex.
Crim. App. 2008); Hurley, 130 S.W.3d at 507 (“[W]e conclude [appellant’s] deferred
adjudication was not a conviction or finding of guilt for purposes of [A]rticle 42.08
and [S]ection 3.03(b).”). Because the trial court’s judgments and deferred-adjudication
order provided that Kopplin’s deferred-adjudication probation would run
consecutively to her prison sentences, we hold that the trial court abused its
discretion, and we sustain Kopplin’s sole issue. See Obi, 2023 WL 8820265, at *2
4 (holding that trial court had abused its discretion because its “judgments and orders of
deferred adjudication required . . . [appellant’s] deferred[-]adjudication community
supervision [to] run consecutively to his prison sentences”); Hurley, 130 S.W.3d at 507
(“[T]he trial court abused its discretion in ordering the deferred adjudication to begin
after [appellant] served his sentence.”).
III. CONCLUSION
Having sustained Kopplin’s sole issue, we now turn to the proper remedy.
“The appropriate remedy for an unauthorized order cumulating sentences is to reform
the judgment and [to] delete the cumulation order.” Hamilton, 2022 WL 2680611,
at *2; see Beedy, 194 S.W.3d at 603. Accordingly, we modify the trial court’s judgments
and deferred-adjudication order (1) to delete the portions requiring Kopplin’s
deferred-adjudication probation to begin after the completion of the prison sentences
imposed in Counts Two, Three, and Four and (2) to reflect that Kopplin’s
deferred-adjudication probation is to run concurrently with the prison sentences
imposed in Counts Two, Three, and Four. We affirm the trial court’s judgments and
deferred-adjudication order as modified. See Obi, 2023 WL 8820265, at *2; see also
Hurley, 130 S.W.3d at 507 (“We modify the trial court’s order deferring adjudication of
guilt to delete that portion requiring [appellant’s] deferred[-]adjudication community
supervision to begin after [appellant’s] sentence for indecency with a child ceases to
operate.”); cf. Beedy, 194 S.W.3d at 603 (“Although at first blush, it seems unlikely that
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