Jimmy Scott v. State

• Court: Court of Appeals of Texas
• Decided: March 3, 2021
• Docket: 09-19-00260-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00256-CR NO. 09-19-00257-CR NO. 09-19-00258-CR NO. 09-19-00259-CR NO. 09-19-00260-CR __________________

JIMMY SCOTT, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause Nos. 08-04333, 08-04335, 08-04483, 08-04524, 08-04525 __________________________________________________________________

MEMORANDUM OPINION

Jimmy Scott appeals from the final judgments in five cases, each of which

involved Scott’s conviction for theft, all of which were state jail felonies. 1 In two

appellate issues, Scott argues that the trial court erred in the manner it stacked his

1Tex. Penal Code Ann. § 31.03(e)(4). 1 sentences. 2 The State concedes the trial court erred by stacking the sentences it gave

Scott in trial court causes 08-04333, 08-04335, 08-04483, 08-04524 and 08-04525.

Accordingly, we sustain Scott’s issues and reform the judgments in trial court cause

numbers 08-04333, 08-04335, 08-04483, 08-04524 and 08-04525 to reflect that

Scott must serve the sentences in these causes concurrently.

Standard of Review

We review complaints about a trial court’s decision to “stack” or run sentences

consecutively for abuse of discretion. 3 Generally, an abuse of discretion occurs if

the record shows the trial court lacked the authority to stack the defendant’s

sentences in the manner the court ordered in the case or cases that the defendant

appealed. 4

Analysis

Unless an exception applies, the Penal Code provides that when an “accused

is found guilty of more than one offense arising out of the same criminal episode

prosecuted in a single criminal action, a sentence for each offense for which [the

2Curiously, the stacking orders in the judgments are in all five of Scott’s cases, though it appears obvious to us that Scott needed to serve one of the sentences first before he could possibly have started serving the others. 3See Tex. Code Crim. Proc. Ann. art. 42.08(a); Beedy v. State, 194 S.W.3d

595, 597 (Tex. App.—Houston [1st Dist.] 2006), aff’d, 250 S.W.3d 107 (Tex. Crim. App. 2008). 4Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—Houston [14th Dist.]

2001, pet. ref’d). 2 accused] has been found guilty shall . . . . run concurrently.” 5 There are six

exceptions to the above rule in section 3.03 of the statute containing the above quoted

rule. 6 We agree with the brief filed by the State in which it concedes that none of the

exceptions in section 3.03 apply to the convictions at issue. 7 And since Scott’s thefts

were tried in a single criminal action, the general rule, which provides for cumulative

sentences, is the rule that applies to Scott’s cases even though the District Clerk

assigned Scott’s cases separate cause numbers. 8 Because Scott was convicted in a

single criminal action, we hold the trial court abused its discretion by stacking

Scott’s sentences rather than requiring him to serve them concurrently. 9

When a trial court includes an unlawful cumulation order in the court’s

judgment, the appropriate remedy is for the reviewing court to delete the erroneous

part of the judgment, that is the part in the judgment that erroneously cumulated the

defendant’s sentence. 10 For that reason, we modify the judgments and delete the

cumulation orders found in the judgments in trial court cause numbers 08-04333,

08-04335, 08-04483, 08-04524, and 08-04525.11

5Tex. Penal Code Ann. § 3.03(a). 6Id. § 3.03(b)(1)-(6). 7Id. 8Id. 9See id. § 3.03; Robbins v. State, 914 S.W.2d 582, 583-84 (Tex. Crim. App.

1996). 10Beedy v. State, 250 S.W.3d 107, 113-114 (Tex. Crim. App. 2008). 11See Robbins, 914 S.W.2d at 584 & n.1.

3 Conclusion

We modify the trial court’s judgments in trial court cause numbers 08-04333,

08-04335, 08-04483, 08-04524, and 08-04525 by deleting the language in those

judgments requiring Scott to begin serving his sentences in those cases after

completing his sentence in one of his other cases. In place of the language

cumulating Scott’s sentences, the judgments in trial court cause numbers 08-04333,

08-04335, 08-04483, 08-04524, and 08-04525 now state that Scott’s sentences in

cause numbers 08-04333, 08-04335, 08-04483, 08-04524, and 08-04525 will be

served concurrently.

For the reasons explained above, the trial court’s judgment is

AFFIRMED AS MODIFIED.

_________________________ HOLLIS HORTON Justice

Submitted on February 16, 2021 Opinion Delivered March 3, 2021 Do Not Publish

Before Kreger, Horton and Johnson, JJ.