Middleton, Brian Ray

• Court: Court of Criminal Appeals of Texas
• Decided: November 3, 2021
• Docket: PD-1237-20
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. PD-1236-20, PD-1237-20, PD-1238-20, PD-1239-20, PD-1240-20

BRIAN RAY MIDDLETON, APPELLANT v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS LIBERTY COUNTY

KELLER, P.J., delivered the opinion for a unanimous Court.

When a defendant is placed on deferred adjudication, and he is later charged with a new

offense, and the punishment stage for both the deferred-adjudication offense and the new offense

occur in the same proceeding, have the two cases been tried in the same criminal action for the

purpose of determining whether the sentences can be stacked? We answer that question “yes” and

affirm the judgment of the court of appeals.

I. BACKGROUND

A. Plea and Punishment Proceedings

In 2015, Appellant pled guilty to three theft offenses pursuant to an agreement, and he was MIDDLETON — 2

placed on deferred adjudication. He later committed two new thefts. He was charged with the two

new offenses, and the State filed motions to adjudicate guilt in the three earlier cases.1 Appellant

pled guilty to the two new offenses, but the trial court did not formally accept the pleas, instead

ordering a presentence investigation report. On January 9, 2020, the trial court held a hearing on all

five offenses. The trial court began the hearing by calling all of the cause numbers at once: “This

is CR31225, 31226, 31227, 34574, and 345 -- or excuse me -- 34752; State vs. Brian Ray

Middleton.” At the end of the hearing, the trial court found that Appellant violated the conditions

of probation for the three deferred-adjudication offenses, found Appellant guilty of the three

offenses, and found that he was guilty of the two new offenses. The trial court then sentenced

Appellant to two years in state jail for each offense and stacked all five sentences.

B. Appeal

On appeal, Appellant claimed that the trial court was prohibited from cumulating the

sentences pursuant to Section 3.03 of the Penal Code. In addressing this claim, the court of appeals

relied on our opinion in Robbins v. State.2 Robbins was charged with two offenses that arose from

the same criminal episode.3 The trial court conducted two separate plea proceedings, but one

consolidated punishment hearing, and then stacked the sentences.4 We held that the plea proceeding

1 The State’s motions were titled as motions to “revoke,” but they were in fact motions to adjudicate guilt. 2 Middleton v. State, Nos. 09-20-00014-CR, 09-20-00015-CR, 09-20-00016-CR, 09-20-00017-CR, 09-20-00018-CR, 2020 WL 6929642, *3 (Tex. App.—Beaumont November 25, 2020) (not designated for publication) (citing Robbins v. State, 914 S.W.2d 582 (Tex. Crim. App. 1996)). 3 Robbins, supra at 583. 4 Id. MIDDLETON — 3

was not complete until punishment was assessed, and the sentences could not be stacked.5 Relying

upon Robbins, the court of appeals held that the five theft offenses were all tried in a single criminal

action because they were disposed of in a consolidated punishment proceeding.6 Consequently, the

court of appeals modified the trial court’s judgment to reflect that all sentences are concurrent.7

II. ANALYSIS

The State agrees that the sentences in the three adjudicated cases must run concurrently with

each other and that the sentences in the two new cases must run concurrently with each other. The

State contends, however, that the sentences in the new cases can be stacked on the sentences in the

adjudicated cases. We disagree.

Section 3.03 of the Penal Code provides that, absent exceptions specified elsewhere,

sentences shall run concurrently “[w]hen the accused is found guilty of more than one offense arising

out of the same criminal episode prosecuted in a single criminal action.”8 Under the statute, offenses

committed during “the same criminal episode” include offenses that “are the repeated commission

of the same or similar offenses.”9 Because all of Appellant’s offenses were thefts, they constituted

the repeated commission of the same or similar offenses under the statute. And the statute provides

5 Id. at 583-84. 6 Middleton, 2020 WL 6929642, at *3. 7 Id. 8 TEX. PENAL CODE § 3.03(a). 9 Id. § 3.01(2). MIDDLETON — 4

no exceptions to the concurrent-sentencing rule for theft offenses.10 The first question before us,

then, is whether the deferred-adjudication offenses were prosecuted in the same criminal action as

the new offenses.

The phrase “a single criminal action” refers to a single trial or plea proceeding.11 A plea

proceeding is not complete until the punishment is assessed, so even if pleas are taken separately,

a consolidated punishment hearing on two separate offenses will cause them to be prosecuted in a

single criminal action.12

While statute requires that the State give notice when separately indicted offenses are being

consolidated for trial, noncompliance with that requirement does not prevent offenses from being

prosecuted in a single criminal action if that is what actually occurs.13 Although the State did not

give notice that the offenses at issue here would be disposed of in a consolidated punishment

hearing, if the offenses were in fact disposed of in a consolidated punishment hearing, then they were

prosecuted in a single criminal action.

The remaining question is whether the disposition of deferred-adjudication offenses and new

offenses in a single sentencing hearing constitutes the disposition of all the offenses in a consolidated

punishment hearing. We hold that it does. To be placed on deferred adjudication, a defendant

pleads guilty, but the trial court does not make a finding of guilt; rather the trial court finds that the

10 See id. § 3.03(b) (outlining various offenses that are excepted from the concurrent- sentencing rule). 11 LaPorte v. State, 840 S.W.2d 412, 414 (Tex. Crim. App. 1992). 12 Robbins, 914 S.W.2d at 583-84. 13 Laporte, 840 S.W.2d at 414. MIDDLETON — 5

“evidence . . . substantiates the defendant’s guilt [and] defers further proceedings without entering

an adjudication of guilt.”14 The wording of the statute seems to contemplate a pause, as if the case

were taken under advisement. During this pause, the defendant is given the opportunity to complete

a probationary period in compliance with conditions, and if he succeeds, then the charges will be

dismissed.15 If he fails, and the trial judge later finds a violation of probation and decides to

adjudicate guilt, the proceedings continue where they left off: “After an adjudication of guilt, all

proceedings, including the assessment of punishment, pronouncement of sentence, granting of

community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been

deferred.”16 For most purposes, a deferred adjudication does not count as a conviction.17

As we will discuss later, the State relies upon some cases involving regular probation to

support its argument. Underlying these arguments is a presumption that, had Appellant been on

regular probation, the two groups of sentences could be stacked. A defendant placed on regular

probation is considered to have a conviction, with an assessed sentence, at the time probation is

imposed,18 though for some purposes, that conviction is not final.19 The State suggests that regular

14 See TEX. CODE CRIM. PROC. art. 42.12, § 5(a) (West 2014). 15 See id. at § 5(c). 16 Id. at § 5(b). 17 See id.§ 5(a), (c). 18 See Wright v. State, 506 S.W.3d 478, 481 (Tex. Crim. App. 2016) (“In the ‘regular’ community supervision context, sentence is assessed when a defendant is placed on probation.”); Ex parte White, 506 S.W.3d 39, 45 (Tex. Crim. App. 2016) (“While not considered a final conviction for the purpose of Article 11.072 and many enhancement statutes, a judgment imposing regular community supervision is in fact a conviction with an assessed sentence, though that sentence is not imposed, and such a conviction is final for some purposes.”); Mansfield v. State, 306 S.W.3d 773, 775 (Tex. Crim. App. 2010) (“What appellant had to plead and prove was that he had never been MIDDLETON — 6

probation and deferred adjudication are similar enough to be treated the same for the purpose of

determining whether sentences can be stacked. It is true that a defendant whose deferred

adjudication is adjudicated cannot then appeal the original plea, a fact which prompted us to remark

that such a defendant “is in a situation similar in most respects to a defendant who appeals a

revocation order in a regular probation case.”20 But in addition to the semantic difference between

deferring a finding of guilt (deferred adjudication) and finding guilt and suspending the imposition

of sentence (regular probation), there are other practical differences that make deferred adjudication

less like a conviction than regular probation is.

For instance, unlike a defendant placed on regular probation for a felony offense, a defendant

who has been placed on deferred adjudication remains eligible in a later case for regular probation

because he is not considered to have a final felony conviction.21 Even more relevant is the fact that

the deferred-adjudication defendant is exposed to the full range of punishment upon adjudication—a

fact that is not true for a defendant on regular probation.22 In Cabezas, a deferred-adjudication

defendant’s continued exposure to the full range of punishment was part of what prompted us to

reject the State’s claim that for policy reasons, a judge should not be able to impose deferred

convicted of a felony. Caselaw confirms that a conviction in which (regular) probation is granted is still a conviction for this purpose.”). 19 White, supra. 20 Jordan v. State, 36 S.W.3d 871, 876 (Tex. Crim. App. 2001). 21 Id. 22 Cabezas v. State, 848 S.W.2d 693, 695 (Tex. Crim. App. 1993). MIDDLETON — 7

adjudication when he would otherwise be prohibited from imposing regular probation.23 Also, a

defendant whose guilt is adjudicated after a deferral can file a motion for new trial as to the plea

itself when such a motion would be unavailable to a defendant upon revocation of regular

probation.24 If a deferred-adjudication defendant’s post-adjudication motion for new trial is granted,

“the conviction itself would be undone.”25 Because of these unique characteristics of deferred-

adjudication—that it is not a conviction for most purposes, lacks finality in significant respects, and

retains exposure to the full range of punishment—we conclude that a deferred-adjudication plea

proceeding is not complete under the concurrent-sentencing statute until sentence is imposed after

adjudication.

The State asserts that the holding in Robbins that offenses were prosecuted in a single

criminal action if they were disposed of in a consolidated punishment hearing is really just a

reflection that a guilty plea converts a trial into a unitary proceeding, so that the trial is not over until

punishment. But the Code of Criminal Procedure sets up deferred adjudication in line with the

unitary nature of guilty-plea proceedings. As we explained above, at the time adjudication is

deferred, the trial judge does not find guilt. Rather, he pauses the proceedings and takes the case

under a sort of advisement, with the defendant having the opportunity to complete a probationary

23 Id. (rejecting the State’s claim that “by allowing deferred adjudication probation to be granted where court ordered probation is unavailable a trial judge would be able to circumvent minimum sentences, thus allowing habitual offenders to receive probation rather than minimum time” and pointing out that “the trial court is still empowered to assess the full range of punishment upon an adjudication of guilt” and that this was “the true risk of deferred adjudication for a defendant.”). 24 Jordan, 36 S.W.3d at 876. 25 Id. MIDDLETON — 8

period and have the case dismissed. If the defendant fails to complete the probationary period

successfully, and the judge decides not to continue the deferred adjudication, then the judge finds

the defendant guilty and assesses punishment.

The State says that “it is at the very least odd that the Legislature would ever insist on

concurrent sentencing when a probationer commits another offense just like the one the judge put

him on probation for, just because the trial judge heard the revocation with the new offense.” That

might well be true in the regular probation context, but insisting on concurrent sentencing seems

more understandable in the deferred-adjudication context, given the defendant’s exposure to the full

range of punishment and the fact that deferred adjudication is not considered a conviction in most

respects. The State says that it “borders on the absurd that the Legislature would trade the trial

judge’s ability to assess distinct punishments on multiple offenses for the paltry benefit of clearing

a probation revocation from the docket.” But the benefit of disposing of multiple cases at once is

precisely the reason for the concurrent-sentencing scheme.

The State claims that, even though notice of consolidation is not needed for multiple offenses

to be disposed of in a single criminal action, “the parties must still have treated the cases as if formal

notice had been made” and that this did not happen, and could not have, because of the revocation

posture of the deferred-adjudication offenses. We have doubts about the idea that a meeting of the

minds of the parties is a prerequisite to having a single criminal action, but in any event, neither party

objected when the trial court called all of the cases together for sentencing. And as we have

explained above, the plea proceeding in a deferred-adjudication is not complete for concurrent-

sentencing purposes until post-adjudication sentencing occurs.

The State claims that the cases could not have been consolidated because at the time of MIDDLETON — 9

deferred-adjudication, Appellant had not even committed the new offenses. The State argues that,

whatever the timeline for consolidation is, it cannot be years after trial of the earlier cases. This

argument has some inherent appeal. But deferred adjudication is not a complete plea proceeding for

sentencing purposes. And even without a deferred adjudication, a situation could occur in which a

defendant pleads guilty to an offense, commits another offense before the sentencing hearing, and

later has a combined sentencing hearing on both offenses. This could happen if the sentencing

hearing on the first case is reset or if the defendant waives indictment on the second offense and

seeks a speedy disposition of both cases together. Those kinds of situations would still seem to be

subject to the stacking restrictions of Section 3.03, even though the new offense was committed after

the guilty plea in the earlier case.

The State claims that the issues in the two sets of cases were different because the first three

offenses involved the question of whether probation should be revoked while the last two offenses

involved the question of guilt. It claims that there must be “some basic shared procedural aspects”

for cases to be part of the same criminal action. But for all of the offenses at issue here, the question

of sentencing—with the full range of punishment being available—was at issue.26

The State suggests that our decision in Duran supports its position.27 But whatever else may

be said about Duran (the State relies heavily on a concurring opinion that is not binding precedent),

that case involved regular probation, not deferred adjudication.28 The State also suggests that the

26 Although Robbins does not require it, even guilt was at issue for all of the offenses at the final hearing because the trial court had made no findings of guilt on any of the offenses until that time. 27 Duran v. State, 844 S.W.2d 745 (Tex. Crim. App. 1992). 28 Id. at 746. MIDDLETON — 10

decisions in various courts of appeals support its position. Those cases are not binding on us, and

they are distinguishable. As the State acknowledges, Dach and Crider dealt with regular probation,

not deferred adjudication.29 Rivas did involve deferred adjudications, but the deferred-adjudication

cases were decided by a different finder of fact than the new case was.30 The new offense was tried

to a jury, and the adjudication hearing was held by the trial judge during the jury’s deliberations and

was completed before the jury reached its punishment verdict for the new offense.31 In Sanna, the

defendant executed a mid-trial waiver of his right to a jury trial on punishment and agreed to allow

the trial court to resolve the new case and a prior deferred-adjudication case and to decide whether

or not to cumulate sentences.32 Under those circumstances, the court of appeals held that the

defendant “failed to show that he did not waive his right to concurrent sentences.”33 Plus, Sanna was

a mandamus case, which complicates its persuasive value since mandamus requires showing an

indisputable right to relief.34

The State points to other statutes containing language that parallels Section 3.03—a

29 Dach v. State, 49 S.W.3d 490, 491 (Tex. App.—Austin 2001, no pet.); Crider v. State, 848 S.W.2d 308, 309 (Tex. App.—Fort Worth 1993, pet. ref’d). 30 Rivas v. State, Nos. 14-98-01442-CR, 14-98-01443-CR, 14-98-01444-CR, 2001 WL 459947, *5 (Tex. App.—Houston [14th Dist.] May 3, 2001, pet. ref’d) (not designated for publication). 31 Id. 32 In re Sanna, No. 09-12-00018-CR, 2012 WL 252562, *1 (Tex. App.—Beaumont Jan. 25, 2012) (not designated for publication). 33 Id. 34 See id. (remarking about the need to show an “indisputable” right to relief); Simon v. Levario, 306 S.W.3d 318, 321 (Tex. Crim. App. 2009) (“[T]he extraordinary mechanism of a writ of prohibition or mandamus will not lie to resolve “a hotly contested unsettled ‘question of law.’”). MIDDLETON — 11

counterpart in the Controlled Substances Act35 and a court-costs statute prohibiting duplicate costs.36

The State seems to contend that its proposed construction of 3.03 could be applied consistently to

these other statutes. But the State does not contend that we have construed these other statutes in

a way that conflicts with how we construe Section 3.03 today. And if it turns out that these other

statutes must be construed consistent with today’s holding, the State has not shown that this would

give rise to illogical or absurd results.37

Because the deferred-adjudication cases were prosecuted in the same criminal action as the

new cases, we conclude that the court of appeals was correct to hold that the sentences in all of the

cases must run concurrently.

We affirm the judgment of the court of appeals.

Delivered: November 3, 2021

Publish

35 See TEX. HEALTH & SAFETY CODE § 481.132. 36 See TEX. CODE CRIM. PROC. art. 102.073(a) (“In a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.”). 37 The State does not seem to contend that the language of the court-cost statute could somehow be construed to prevent the assessment of costs both at the time adjudication is deferred and at the time sentencing occurs (upon adjudication), nor do we think our holding today would require such a construction. The State does seem to suggest that our holding today might affect what costs can be imposed on sentencing when adjudication and new offenses are combined in the same sentencing hearing, but even assuming the State is correct, that result—preventing duplicate costs when two cases are resolved in the same proceeding—seems perfectly consistent with the policy reasons behind the concurrent sentencing statute. And the cost statute’s focus on “each court cost or fee” does not appear to preclude the possibility of assessing any fees unique to adjudicating guilt in a deferred-adjudication case, if such fees exist.