Duran v. State

844 S.W.2d 745, 1992 WL 390404

• Court: Court of Criminal Appeals of Texas
• Decided: January 5, 1993
• Docket: 1414-91, 1415-91
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant pled guilty to possession of cocaine in cause number 531,501 and possession of marihuana in cause number 531,-502 in the 263rd District Court in Harris County and was subsequently placed on probation. After finding appellant violated his probation by committing assault, the trial court revoked appellant’s probation and ordered his two eight-year sentences to run consecutively. The Court of Appeals affirmed the judgments in an unpublished opinion. Duran v. State, (Tex.App. Nos. 01-90-00766-CR and 01-90-00767-CR— Houston [1st Dist.], del. Nov. 14, 1991), 1991 WL 235351. We granted appellant’s petitions for discretionary review to determine whether the Court of Appeals was correct in holding: (1) the State’s failure to file a notice of consolidation as required by V.T.C.A., Penal Code, Section 3.02(b), precludes application of V.T.C.A., Penal Code, Section 3.03; (2) the trial court has the authority to cumulate sentences for two offenses arising out of the same criminal episode which are prosecuted in a single trial; and (3) whether appellant waived his complaint because he failed to complain at trial. We shall affirm the judgments of the Court of Appeals.¹

Appellant contends that the Court of Appeals improperly stacked the sentences because they were the result of a single trial and thus the sentences should have been concurrent. In LaPorte v. State, 840 S.W.2d 412 (Tex.Cr.App.1992), we held:

“If the facts show the proceeding is a single criminal action based on charges arising out of the same criminal episode, the trial court may not order consecutive sentences.”

LaPorte v. State, supra. Because the facts in the instant case do not show the proceeding to be a single criminal action, LaPorte is not controlling.

In LaPorte, sentences were ordered to run consecutively where there was a single trial based upon separate indictments. In the instant case, there is no evidence in the record that a single criminal action occurred.

The judgments of the Court of Appeals are affirmed.

CLINTON, J., dissents.

1 . Although appellant failed to preserve error by not objecting, the Court of Appeals addressed the merits of appellant’s claim in the interest of justice.