Larry Harlan Boyd v. State

• Court: Court of Appeals of Texas
• Decided: August 22, 2019
• Docket: 13-18-00342-CR
• Status: Published

Opinion

NUMBER 13-18-00342-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LARRY HARLAN BOYD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Hinojosa Memorandum Opinion by Justice Hinojosa

Appellant Larry Harlan Boyd pleaded guilty to two counts of possession with intent

to promote child pornography and twenty-three counts of possession of child

pornography, all second-degree felonies. See TEX. PENAL CODE ANN. § 43.26(e), (a). The

jury sentenced him to prison terms of twenty years on each of the possession with intent

to promote counts, and ten years on each of the possession counts. The trial court entered judgments in conformity with the jury’s verdict and ordered the sentences to run

consecutively. By one issue, Boyd argues the trial court erred in ordering these sentences

to run consecutively. We affirm.

I. CONSECUTIVE SENTENCES

Boyd contends that pursuant to § 3.03 of the Texas Penal Code, the trial court

should have ordered concurrent sentences. See id. § 3.03 (providing for cumulation of

sentences for certain offenses).

A. Standard of Review

We review a trial court’s decision to “stack” or cumulate sentences for an abuse of

discretion. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a); Waddell v. State, 456 S.W.3d

366, 369 (Tex. App.—Corpus Christi–Edinburg 2015, no pet.). The trial court has

discretion to cumulate sentences for two or more convictions. TEX. CODE CRIM. PROC.

ANN. art. 42.08(a); Waddell, 456 S.W.3d at 369. A trial court abuses its discretion only if

it: (1) “imposes consecutive sentences when the law requires concurrent sentences,” (2)

“imposes concurrent sentences when the law requires consecutive ones,” or (3)

“otherwise fails to observe the statutory requirements pertaining to sentencing.” Waddell,

456 S.W.3d at 369.

B. Discussion

Under the Texas Penal Code, a defendant may be prosecuted in a single criminal

action for all offenses arising out of the same criminal episode. TEX. PENAL CODE ANN.

§ 3.02(a). When multiple offenses arising out of the same criminal episode are

consolidated in a single trial and the defendant is found guilty of more than one offense,

the trial court may not cumulate sentences in most circumstances. Id. § 3.03(a).

2 However, the trial court has discretion to cumulate sentences for convictions of

possession or promotion of child pornography if there is “some evidence” that the

offenses occurred after September 1, 2005. Id. § 3.03(b)(3)(A); see Bonilla v. State, 452

S.W.3d 811, 817 (Tex. Crim. App. 2014) (setting forth “some evidence” standard under

§ 3.03(b)(2)(A)).

Here, Boyd pleaded guilty and was convicted of multiple possession of child

pornography offenses alleged to have occurred on or about May 10, 2017 and on or about

May 31, 2017. Thus, there was “some evidence” that the offense occurred after

September 1, 2005. See Bonilla, 452 S.W.3d at 817; Gerron v. State, 524 S.W.3d 308,

329 (Tex. App.—Waco 2016, pet. ref’d.). Accordingly, we conclude that the trial court did

not err or abuse its discretion in cumulating the sentences. See Bonilla, 452 S.W.3d at

817; Gerron, 524 S.W.3d at 329. We overrule Boyd’s sole issue.

II. CONCLUSION

Having overruled Boyd’s sole issue, we affirm the trial court’s judgment.

LETICIA HINOJOSA Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 22nd day of August, 2019.