Opinion issued March 26, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00990-CR NO. 01-13-00991-CR ——————————— JOSE FRANCO CAMPUZANO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas Trial Court Case Nos. 1315239 and 1315240 MEMORANDUM OPINION
A jury found appellant, Jose Franco Campuzano, guilty of the offenses of
intoxication manslaughter1 and intoxication assault,2 and it found that he used a
deadly weapon, namely, a motor vehicle, in the commission of each offense. For
the offense of intoxication manslaughter, the jury assessed appellant’s punishment
at confinement for fifteen years. For the offense of intoxication assault, the jury
assessed his punishment at confinement for five years, suspended the sentence, and
placed him on community supervision for five years. And the trial court ordered
that the sentences run consecutively. In three issues, appellant contends that his
trial counsel provided him with ineffective assistance and the trial court erred in
denying his motion to suppress his blood-alcohol test results and in cumulating his
sentences.
We affirm.
Background
Javier Macias, the complainant in the intoxication-assault case, testified that
at approximately 3:00 p.m. on August 1, 2011, he went to visit appellant at his
house, and they shared a “12-pack” of beer. Later that evening, appellant drove
them to a nightclub in his father’s red Ford F-150 pickup truck, stopping along the 1 See TEX. PENAL CODE ANN. § 49.08 (Vernon 2011); trial court case number 1315239; appellate cause number 01-13-00990-CR. 2 See TEX. PENAL CODE ANN. § 49.07; trial court case number 1315240; appellate cause number 01-13-00991-CR.
2 way to purchase a second case of beer. Macias, wearing a gray shirt, and
appellant, wearing a “striped” shirt, arrived at the nightclub at around 9:00 p.m.
and stayed until midnight. During that time, they each drank half of the second
case of beer. At around midnight, appellant drove them to a second nightclub,
where together they consumed “about 7” more beers. Over the course of the
evening, Macias and appellant each consumed a total of “15 or 16 beers.” When
they left the second club at around 1:00 a.m., appellant drove, and Macias sat in the
passenger seat, where he “passed out.” The next thing that Macias remembered
was “waking up in a hospital” with both of his legs broken.
Cesar Alamilla testified that on the night of August 1, 2011, he was at work
at a business on Chrisman Road in Houston when a co-worker, Alejandro Perez,
came in looking for a fire extinguisher and reported that there had been a traffic
collision. Alamilla followed Perez outside, where he saw an F-150 truck and a
white Ford Thunderbird “in the road crushed into each other.” Alamilla tried to
look inside the truck, but could not see because it was dark, the windows were
rolled up, and there was “smoke inside.” He noted that the truck was on fire and
flames were spreading. While Perez tried to extinguish the fire, Alamilla called for
emergency assistance. He then saw someone inside the truck, knocking on the
passenger-side window and trying to “push out.” Because the passenger door
would not open, Perez broke the window with the fire extinguisher and helped the
3 man, whom Alamilla described as wearing a white shirt, out of the truck and
“dragged him . . . off to the side” because the truck was still on fire. Another man
was still in the truck, “a little bit farther in,” “kind of laying in the back seat,” and
“passed out.” Jordan Jimenez, another co-worker of Alamilla, reached in and
“grabbed” the man, but “he was hanging on something.” Alamilla then reached in
with Jimenez, and, together, they extracted the second man, whom Alamilla
described as wearing a “striped” shirt.
Harris County Sheriff’s Office (“HCSO”) Deputy J. Craig testified that after
midnight on August 2, 2011, he was dispatched to a “major” collision on Chrisman
Road. At the scene, Craig checked on the driver of the Thunderbird, Daniel
Padilla, and found that he “had no pulse.” Craig spoke with witnesses who said
that they had pulled from the truck the two men, appellant and Macias, lying on the
ground. When Craig bent down to determine whether appellant and Macias, both
unconscious, were still breathing, he smelled alcohol on their breath. He noted that
appellant was wearing a “plaid” shirt and missing a shoe.
HCSO Deputy M. Smith testified that he was dispatched to investigate the
collision, which had occurred at around 2:00 a.m. on August 2, 2011. He
explained that Chrisman Road is “an extremely dark,” two-lane, rural road, with
ditches on both sides and a 35 mile-per-hour speed limit. Smith noted that the last
name of the registered owner of the red F-150 truck that had been involved in the
4 collision matched that of appellant, neither appellant nor Macias had been wearing
a seatbeat, the firewall and floorboard of the truck were folded up into the
passenger compartment, and a “green and white and black” left shoe with a “big
number 24” on the side was embedded in the driver’s-side floorboard. He also
found a beer bottle in the truck and smelled the odor of alcohol emanating from
appellant and Macias.
From his investigation and review of videotapes recorded by surveillance
cameras in the area, and which were published to the jury, Smith opined that
Padilla, the driver of the Thunderbird, had been traveling northbound on Chrisman
Road and appellant, the driver of the truck, had been traveling southbound in the
northbound lane. Appellant’s truck collided with Padilla’s Thunderbird almost
“head on,” the car and truck crushed and “[e]mbedded into each other,” and they
traveled “as one vehicle,” spinning counterclockwise, for “approximately 50 feet,”
before coming to a stop and catching fire.
HCSO Deputy B.G. Wilbanks, an accident reconstruction specialist, opined,
based on his investigation, that just before impact, Padilla’s Thunderbird had been
traveling at a speed of 43 miles per hour and appellant’s truck had been traveling at
94 miles per hour.
HCSO Deputy P. Begley testified that Deputy Smith sent him to the separate
hospitals to which appellant and Macias had been taken to further investigate. At
5 Memorial Hermann Hospital, he found appellant, lying unconscious and intubated,
in the emergency room. He noted that appellant was wearing a plaid shirt, and in a
bag at the foot of his bed was a “black, green, and white tennis shoe with the
number 24 on the side of it.” Because the shoe in the bag matched that shoe
embedded in the driver’s-side floorboard of the truck that had been involved in the
collision, Begley contacted Smith, notified him of appellant’s condition, and
suggested that, “due to the circumstances of the wreck and all the totality of it, a
blood draw was warranted.” Begley explained that he did not obtain a search
warrant for appellant’s blood seizure because he obtained the blood specimen
pursuant to the “implied consent” statute. 3
Laura Neal, a charge nurse at Memorial Hermann Hospital, testified that
while she was on duty on August 2, 2011, emergency personnel brought appellant
in for treatment. At 3:05 a.m., she drew blood from appellant to assess his medical
status, including any intoxication. Karen James, Director of Laboratory Services at
the hospital, testified that a serum test revealed that appellant’s blood-alcohol
concentration was 0.285 milligrams per deciliter. A Memorial nurse, Ashley
McVeigh, testified that at approximately 4:06 a.m., at Deputy Begley’s request,
she performed a “legal blood draw” on appellant. Dr. A. Kelly, a toxicologist at
the Harris County Institute of Forensic Sciences (“HCIFS”), testified that a whole-
3 See TEX. TRANSP. CODE ANN. §§ 724.011, .014 (Vernon 2011).
6 blood test revealed that appellant’s blood-alcohol concentration was 0.21. And Dr.
J. Waltershed of HCIFS opined, based on these results and on retrograde
extrapolation, that appellant’s blood alcohol concentration at the time of the
collision was between 0.21 and 0.25, and “about 10 to 15 drinks were required for
[appellant] to get to that level.”
Appellant testified that earlier in the evening on the night of the collision,
Macias had come to his house and offered him a single beer. Appellant drove
them in his father’s red truck to a nightclub, and they stopped along the way and
purchased a “20-pack” of beer. Appellant admitted that during the course of the
evening he had consumed half of “the 20 and a 12-pack more,” which was “enough
to be intoxicated,” and he was driving the truck when he and Macias left the
nightclub at around 1:00 a.m. He asserted, however, that they had stopped at a
convenience store and switched seats. Appellant explained that because he felt
intoxicated and needed to “sleep [it] off,” he got into the passenger seat and
“nodded off” while Macias was inside the convenience store, and Macias was
driving the truck at the time of the collision.
Motion to Suppress
In his first issue, appellant argues that the trial court erred in denying his
motions to suppress “the blood draw taken by law enforcement” because “the State
failed to carry its burden in proving the warrantless seizure of blood was
7 reasonable under the United States and Texas Constitutions.” See U.S. CONST.
amend. IV; TEX. CONST. art. I, § 9. He asserts that the State failed to establish the
existence of exigent circumstances and “[could] not rely on the implied consent
statutes” because he “was not under arrest.”
We review a trial court’s denial of a motion to suppress evidence under a
bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.
Crim. App. 2013). We give almost total deference to a trial court’s determination
of historical facts, especially if those determinations turn on witness credibility or
demeanor, and we review de novo the trial court’s application of the law to facts
not based on an evaluation of credibility and demeanor. Gonzales v. State, 369
S.W.3d 851, 854 (Tex. Crim. App. 2012); Neal v. State, 256 S.W.3d 264, 281
(Tex. Crim. App. 2008). At a suppression hearing, the trial court is the sole and
exclusive trier of fact and judge of the witnesses’ credibility, and it may choose to
believe or disbelieve all or any part of the witnesses’ testimony. Maxwell v. State,
73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855
(Tex. Crim. App. 2000). We generally consider only the evidence adduced at the
suppression hearing unless the parties consensually re-litigate the issue at trial, in
which case we also consider relevant trial testimony. Rachal v. State, 917 S.W.2d
799, 809 (Tex. Crim. App. 1996).
8 When, as here, the trial court does not make findings of fact, we view the
evidence in the light most favorable to the trial court’s ruling and assume that the
trial court made implicit findings of fact that support its ruling, as long as those
findings are supported by the record. Ross, 32 S.W.3d at 855. We will affirm the
trial court’s decision if it is correct under any theory of law applicable to the case.
Id. at 855–56.
A blood draw conducted at the direction of a law enforcement officer is a
search subject to the reasonableness requirement of the Fourth Amendment.
Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1834 (1966). A warrantless
search of a person is unreasonable unless it falls within a recognized exception to
the warrant requirement. Missouri v. McNeely, —U.S.—, 133 S. Ct. 1552, 1558
(2013). A warrantless seizure of a blood specimen may be constitutionally
permissible if a law enforcement officer has probable cause to arrest, exigent
circumstances exist, and a reasonable method of extraction is available.
Schmerber, 384 U.S. at 767–68, 86 S. Ct. at 1834. Further, voluntary consent to
search is among the recognized exceptions. Schneckloth v. Bustamonte, 412 U.S.
218, 219, 93 S. Ct. 2041, 2043–44 (1973); McGee v. State, 105 S.W.3d 609, 615
(Tex. Crim. App. 2003).
In Schmerber, the United States Supreme Court upheld a warrantless blood
draw for the offense of driving while intoxicated (“DWI”). 384 U.S. at 772, 86 S.
9 Ct. at 1836. The Court concluded that exigent circumstances were present because
the defendant-driver and his companion had each sustained injuries, law
enforcement officers had to use time to take the defendant to a hospital and to
investigate the scene of the collision, and the delay necessary to obtain a warrant
threatened the destruction of evidence because “the percentage of alcohol in the
blood begins to diminish shortly after drinking stops, as the body functions to
eliminate it from the system.” Id. at 770–71, 86 S. Ct. at 1836.
In McNeely, the Court clarified that Schmerber did not create a per se
exigency exempting blood-alcohol tests from the warrant requirement. 133 S. Ct.
at 1556. Rather, the Court recognized that exigent circumstances, based in part on
the rapid dissipation of alcohol in the body, may allow law enforcement to obtain a
blood sample without a warrant. Id. at 1561. However, courts must determine on
a case-by-case basis whether exigent circumstances exist, considering the totality
of the circumstances. Id. The Court held that “[i]n those drunk-driving
investigations where police officers can reasonably obtain a warrant before a blood
sample can be drawn without significantly undermining the efficacy of the search,
the Fourth Amendment mandates that they do so.” Id.
In Texas, our “implied consent statute” provides in pertinent part that,
[i]f a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, . . . while intoxicated, . . . the person is deemed to have consented, subject to this chapter, to submit to the taking of one
10 or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.
TEX. TRANSP. CODE ANN. § 724.011 (Vernon 2011). Such a person retains the
right, subject to automatic suspension of his or her license, to refuse to provide a
specimen. Id. § 724.013, .035. “A person who is dead, unconscious, or otherwise
incapable of refusal is considered not to have withdrawn consent provided by
section 724.011.” Id. § 724.014(a). If, however, a person under arrest for DWI
refuses to voluntarily submit to the taking of a specimen, and the person was the
operator of a vehicle involved in an accident involving serious bodily injury or
death as a result of the offense, or the officer has credible evidence that the person
has been at least twice previously convicted of DWI, the officer “shall require the
taking of a specimen of the person’s breath or blood.” Id. § 724.012(b) (the
“mandatory statute”).
The Texas Court of Criminal Appeals has recently held that the “provisions
of the Transportation Code, do not, taken by themselves, form a constitutionally
valid alternative to the Fourth Amendment warrant requirement.” State v.
Villarreal, —S.W.3d—, No. PD–0306–14, 2014 WL 6734178, at *20 (Tex. Crim.
App. Nov. 26, 2014) (noting dispute before it “center[ed] on whether a warrantless,
nonconsensual search of a DWI suspect’s blood conducted pursuant to Section
724.012(b) complies with the Constitution”); see Gore v. State, 451 S.W.3d 182,
11 193 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) (holding “implied consent
that cannot be withdrawn does not meet the requirements for voluntary consent
under the Fourth Amendment”).
Here, in his supplemental motions to suppress his blood-alcohol test result,
appellant asserted that his blood specimen was obtained pursuant to the
“mandatory statute,” in violation of his constitutional and statutory rights, as
follows:
At the hospital, an order was issued by deputies of the Harris County Sheriff’s Department to hospital personnel, requiring that blood samples be drawn from [appellant], pursuant to Section 724.012 of the Texas Transportation Code. The blood samples, obtained in response to police instructions, were not drawn pursuant to a search warrant. No exigent or emergency conditions existed to excuse the need for obtaining a search warrant for the blood evidence. No known attempt was made by law enforcement personnel to obtain a search warrant. The United States Supreme Court, in Missouri v. McNeely, 569 U.S.____ (2013), has recently addressed warrantless drawing of blood in a DWI context, and its proscription thereof by the Fourth Amendment of the U.S. Constitution. The McNeely opinion holds that, absent exigent circumstances, a police officer must obtain a search warrant or [a defendant’s] consent to obtain blood evidence. The opinion states that mere dissipation of alcohol from a defendant’s bloodstream does not inherently constitute exigent circumstances. Id. . . . By implication, the provisions of the above Section 724.012 would constitute a per se procedure, and are unconstitutional.
During the hearing on appellant’s motions, the following discussion took
place:
12 [Appellant]: While we’re here, can we address th[e] motion[s] to suppress on the warrantless blood draw? [Trial court]: Yes. [Appellant]: What I was suggesting to the [State] as far as to abbreviate this as much as possible, I think that if they—if we collectively can stipulate to the fact that blood was drawn without a warrant. We can stipulate to the contention that the policeman drawing the blood without a warrant based on the death pursuant to that implied consent statute. [Trial court]: Sure. [Appellant]: Which I think was 724 out of the Transp[ortation] Code, and then I think that he was also angling it to the fact that we had an unconscious defendant at that point. I think we could all stipulate to the existence of those facts. What we bring up then is that 724.012 was challenged and arguably stricken by [Missouri v. McNeely] . . . . .... [Trial court]: You think [McNeely] undoes the statutory basis for an automatic blood draw? ....
[Appellant]: Arguably yes. .... [Trial court]: For a DWI. [Appellant]: For a DWI, and taking them directly to a hospital and drawing the blood. It didn’t appear to be any exigent circumstances. . . . [Trial court]: Other than the dissipating blood pressure. [Appellant]: Right, that was the only circumstances they were arguing was the exigent circumstance. The Supreme Court said, simply enough, that was not enough, but they said we are not going to—we do not want any bright line rules, and the State was seeking that to be a
13 per se standard. The Supreme Court rejects it, says . . . we’re going to do this on a case by case review basis. It would be our contention that 724.012 becomes Texas’ version of what a—what Texas thinks is a bright line rule, but there are portions of 724.012 that really are no different than what was going on in [McNeely]. . . . [Trial court]: Right. But in this situation we have a person deceased and then as a result the police do a mandatory blood draw; is that right? [State]: No. Technically we do not—we believe we could have done a mandatory blood draw, but the way that we’re arguing it is as an implied consent blood draw, that he wasn’t able to give or revoke consent— technically he wasn’t able to revoke consent because he’d already given it as a part of the driving on the roads in Texas. So we took the draw based on implied consent purposes and for exigency circumstances. So not technically as a mandatory draw would have been done because we couldn’t even get DIC’s and all the refusals and the THP 51 and everything that is required for a mandatory sample. [Trial court]: All right. Well— [Appellant]: Absent a showing of some reason, I think [McNeely] says they still have to have a— [State]: Well, let me—[McNeely] very clearly says, look, exigency has to be reviewed on a totality of the circumstances. . . . [McNeely] does not speak to mandatories. It does not speak to implied consent. It doesn’t speak to anything that we’ve got here, other than exigency factors . . . . [Trial court]: Okay. I’m not going to have this discussion before we get this jury, because I’m not going to make a quick decision. I may side with you, but based on what I have before me now I can’t make this decision now. My guess is that both of you want to talk to ‘em about blood draws?
14 [Appellant]: Well, I’m assuming at some point when she[] makes an opening statement she’s going to want to get right into it. [Trial court]: Right. So I guess we cut the jury loose right after we pick ‘em and we argue it.
(Emphasis added.) The record does not reveal, however, that further discussion
took place on this point.
Instead, after Dr. Kelly, the HCIFS toxicologist, testified in front of the jury
that appellant’s blood-alcohol concentration, at the time of the collision, was 0.21,
the trial court admitted into evidence the toxicology report, stating the same, and
published it to the jury. And after the trial court had released the jury for the day,
it denied appellant’s motions to suppress, as follows:
[Trial court]: Okay. I have reviewed the Defense’s motion[s] to suppress, and their first supplement[s] to the motion[s] to suppress. [Defense counsel], do you have anything additional that you’d like to add? [Appellant]: No, your Honor. I think we basically have covered it in the evidence. I don’t have anything significant to add. [Trial court]: All right. Then based on my listening to the evidence and reviewing your motion, your motion to suppress is denied on that basis, of [McNeely] and the implied consent section. [Appellant]: I understand. Note our exception.
To preserve a complaint for appellate review, a party must present to the
trial court a timely request, objection, or motion stating the specific grounds for the
ruling desired. TEX. R. APP. P. 33.1(a). Further, the trial court must have ruled on
15 the request, objection, or motion, either expressly or implicitly, or refused to rule
and the complaining party must have objected to the refusal. Id. “A ruling made
on a motion to suppress after an officer has testified about the facts sought to be
suppressed in front of a jury does not preserve error since the ruling is untimely
obtained.” Sanders v. State, 387 S.W.3d 680, 686 (Tex. App.—Texarkana 2012,
pet. struck).
Because appellant did not obtain a ruling on his motions to suppress his
blood-alcohol test result until after Dr. Kelly had already testified to that result and
the trial court had already admitted into evidence the toxicology report reflecting
the result and published it to the jury, appellant did not preserve error. See Trung
The Luu v. State, 440 S.W.3d 123, 128 (Tex. App.—Houston [14th Dist.] 2013, no
pet.) (holding error not preserved when trial court did not rule on motion to
suppress until after evidence admitted without objection); Thomas v. State, 884
S.W.3d 215, 216–17 (Tex. App.—El Paso 1994, pet. ref’d). Further, appellant did
not object to Kelly’s testimony regarding his blood-alcohol test result or the
admission into evidence of the toxicology report and its publication to the jury.
See Ratliff v. State, 320 S.W.3d 857, 861–62 (Tex. App.—Fort Worth 2010, pet
ref’d) (holding error not preserved where defendant did not obtain ruling on
motion to suppress or object when testimony regarding evidence at issue presented
to jury). Even if we were to assume that the trial court actually refused to rule on
16 his motions to suppress, appellant did not object to any such refusal, and, thus, no
error is preserved. See TEX. R. APP. P. 33.1(a) (requiring objection to refusal to
rule). Accordingly, we hold that appellant has not preserved his first issue for our
review.
We overrule appellant’s first issue.
Ineffective Assistance of Counsel
In his second issue, appellant argues that his trial counsel provided
ineffective assistance because counsel “failed to challenge the constitutionality” of
Transportation Code sections 724.011 and 724.014 in light of McNeely. See —
U.S.—, 133 S. Ct. 1552.
To prove a claim of ineffective assistance of counsel, appellant must show
that (1) his trial counsel’s performance fell below an objective standard of
reasonableness and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068
(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s
performance, we look to the totality of the representation to determine the
effectiveness of counsel, indulging a strong presumption that counsel’s
17 performance falls within the wide range of reasonable professional assistance or
trial strategy. See Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App.
2006). Appellant has the burden to establish both prongs by a preponderance of
the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “An
appellant’s failure to satisfy one prong of the Strickland test negates a court’s need
to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.
App. 2009).
Generally, a silent record that provides no explanation for counsel’s actions
will not overcome the strong presumption of reasonable assistance. Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). However, if “no reasonable
trial strategy could justify the trial counsel’s conduct, counsel’s performance falls
below an objective standard of reasonableness as a matter of law.” Andrews v.
State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).
Here, there is no evidence in the record before us concerning whether
appellant’s trial counsel considered challenging the constitutionality of sections
724.011 and 724.014 and, if so, the reasons counsel chose not to do so. Appellant
asserts that, although the record is silent regarding his counsels’ reasoning for not
challenging the constitutionality of these statutes, “there is no reasonable trial
strategy for failing to do so, especially considering that counsel was relying on
McNeely in an attempt to suppress the blood draw.”
18 In his brief, appellant concedes that “McNeely may not have specifically
addressed whether implied consent survives its decision.” He asserts, however,
that two post-McNeely cases “evidence that the issue is ripe for review.” In Reeder
v. State, the Texarkana Court of Appeals noted that McNeely “casts grave doubt
on” whether the validity of a warrantless blood draw can be upheld on implied
consent law. 428 S.W.3d 924, 929 (Tex. App.—Texarkana 2014, pet. granted).
And, in its original opinion in Aviles v. State, the San Antonio Court of Appeals
concluded that the warrantless seizure of the defendant’s blood under the
“mandatory statute,” section 724.012, did not violate his Fourth Amendment
rights, and the Texas Court of Criminal Appeals refused his petition for review.
385 S.W.3d 110, 116 (Tex. App.—San Antonio 2012, pet. ref’d), cert. granted,
134 S. Ct. 902 (2014). The United States Supreme Court, however, granted
certiorari, vacating the appellate court’s judgment and remanding the matter for
further consideration in light of McNeely. Aviles v. Texas, —U.S.—, 134 S. Ct.
902, 902 (2014); see Aviles v. State, 443 S.W.3d 291 (Tex. App.—San Antonio
2014, pet. filed) (op. on remand).
The instant record shows, however, that appellant was sentenced on October
15, 2013, and it was not until three months later, in January 2014, that Reeder was
decided and the Supreme Court granted certiorari in Aviles. Counsel’s
performance must be “measured against the state of the law in effect during the
19 time of trial and we will not find counsel ineffective where the claimed error is
based upon unsettled law.” Ex parte Chandler, 182 S.W.3d 350, 359 (Tex. Crim.
App. 2005). Appellant has not provided any authority existing at the time of trial
in this case demonstrating that his trial counsels’ representation of him was
deficient based on settled legal principles. See id. Accordingly, we hold that
appellant has not demonstrated that his trial counsels’ performance fell below an
objective standard of reasonableness. Strickland, 466 U.S. at 687–88, 104 S. Ct. at
2064; Lopez, 343 S.W.3d at 143–44.
We overrule appellant’s second issue.
Sentencing
In his third issue, appellant argues that the trial court erred in “ordering that
[his] sentences run consecutively because a probated sentence cannot run
consecutively with a term of prison.” Appellant asks that “the order cumulating
his sentences be stricken and the judgments be reformed to set aside the order.”
We review a trial court’s cumulation order for an abuse of discretion.
Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). An abuse of
discretion generally will be found only if (1) the trial court imposes consecutive
sentences when the law requires concurrent sentences, (2) the trial court imposes
concurrent sentences when the law requires consecutive ones, or (3) the trial court
otherwise fails to observe the statutory requirements pertaining to sentencing. See
20 Nicholas v. State, 56 S.W.3d 760, 764–65 (Tex. App.—Houston [14th Dist.] 2001,
pet. ref’d). An improper cumulation order is void, and the remedy is to reform the
trial court’s written judgment to delete the cumulation order. Robbins v. State, 914
S.W.2d 582, 584 (Tex. Crim. App. 1996); LaPorte v. State, 840 S.W.2d 412, 415
(Tex. Crim. App. 1992).
A trial court may order that sentences for two or more convictions be
cumulated only as provided by statute. 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).
The Texas Code of Criminal Procedure generally authorizes a trial court to order
consecutive sentences when a defendant is convicted in two or more cases, as
(a) When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be accordingly . . . . .... (c) If a defendant has been convicted in two or more cases and the court suspends the imposition of the sentence in one of the cases, the court may not order a sentence of confinement to commence on the completion of a suspended sentence for an offense.
21 TEX. CODE CRIM. PROC. ANN. art. 42.08 (Vernon Supp. 2014). “[T]he trial court’s
general authority under Article 42.08 to order consecutive sentences is statutorily
limited by [Penal Code] Section 3.03.” LaPorte, 840 S.W.2d at 415.
Section 3.03 provides in pertinent part as follows:
(a) When the 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 he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently. (b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of: (1) an offense: (A) under Section 49.07 [intoxication assault] or 49.08 [intoxication manslaughter], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections . . . .
TEX. PENAL CODE ANN. § 3.03 (Vernon Supp. 2014). Thus, when a defendant has
been convicted of more than one offense arising out of the same criminal episode
prosecuted in a consolidated trial, a trial court must order that the sentences run
concurrently, unless the convictions involve certain offenses. See id. § 3.03(a).
When, as here, a defendant is convicted of intoxication assault or intoxication
manslaughter, the sentences may run concurrently or consecutively. See id.
§ 3.03(b)(1)(A).
Here, the jury assessed appellant’s punishment at confinement for fifteen
years for the offense of intoxication manslaughter. For the offense of intoxication
22 assault, the jury assessed his punishment at confinement for five years, suspended
the sentence, and placed him on community supervision for five years. The trial
court then ordered that the sentences run consecutively, with appellant serving his
sentence of confinement first, followed by his period of community supervision.
Appellant concedes that the “charges of intoxication manslaughter and
intoxication assault, although presented in two charging instruments, arose from
the same criminal episode” and “[t]herefore, the cumulation of the punishments
rendered is controlled by” section 3.03. He argues, however, that the trial court
could not legally stack his community supervision on top of his sentence of
confinement under section 3.03(b) because it only authorizes the cumulation of
“sentences”; “community supervision is an arrangement in lieu of the sentence, not
. . . part of the sentence”; and “community supervision is not governed by the rules
of sentencing.” See Ex parte Williams, 65 S.W.3d 656, 657 (Tex. Crim. App.
2001); Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). Appellant
further argues that “because a term of community supervision is not a sentence
unless the supervision is revoked and a term of prison or jail is assessed, it cannot
be stacked on top of a prison term.” See McCullar v. State, 676 S.W.2d 587, 588
(Tex. Crim. App. 1984). And he compares the use of the term “sentence” in
section 3.03 with the terms “sentence imposed or suspended” in article 42.08.
23 In Mireles v. State, the Fourteenth Court of Appeals considered similar
arguments. 444 S.W.3d 679 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The
court concluded that article 42.08 and section 3.03 are in pari materia, do not
irreconcilably conflict, and may be harmonized. Id. at 682. It noted that it was
“not aware of any cases since 1973, when Section 3.03 was first enacted, to . . .
expressly hold that the statute does not apply to community supervision.” Id. at
683. It reasoned that if section 3.03(b) does not encompass community
supervision, then section 3.03(a) likewise would not, because both provisions refer
to “sentences,” without mentioning community supervision or sentences that are
“suspended.” Id. And if section 3.03 did not apply, then the trial court would be
governed by the more general article 42.08, which grants it the discretion to order
consecutive sentences. Id. at 684. The court concluded that, either under the plain
terms of section 3.03(b) or article 42.08, the outcome was the same in that the trial
court had the discretion to stack the sentences. See id.
Similarly, we hold here that the trial court did not err in ordering that
appellant’s sentences run consecutively, with appellant first serving his fifteen-year
sentence of confinement, followed by his five-year period of community
supervision.
We overrule appellant’s third issue.
24 Conclusion
We affirm the judgments of the trial court.
Terry Jennings Justice
Panel consists of Chief Justice Radack and Justices Jennings and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).