Regina Carrier v. State

• Court: Court of Appeals of Texas
• Decided: August 15, 2019
• Docket: 09-19-00129-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00128-CR NO. 09-19-00129-CR NO. 09-19-00130-CR NO. 09-19-00131-CR __________________

REGINA CARRIER, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause Nos. 17-28407, 18-28994, 18-30153, 18-30154 __________________________________________________________________

ORDER

Appellant Regina Carrier pleaded guilty in an open plea to four theft charges.

In each case, the trial court found Carrier guilty, imposed a sentence of two years of

confinement in a state jail facility, and ordered that the sentences would run

consecutively.

1 Carrier’s appellate counsel filed a brief that presents counsel’s professional

evaluation of the record and concludes the appeals are frivolous. See Anders v.

California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App.

1978). On May 13, 2019, we granted an extension of time in each case for Carrier

to file a pro se brief. We received no response from Carrier.

Our review of the record reveals arguable error regarding the trial court’s

cumulation order. A trial court has the authority to order sentences to run

consecutively or concurrently. See Tex. Code Crim. Proc. Ann. art. 42.08 (West

2018). However, the trial court’s discretion is limited by section 3.03 of the Penal

Code, which provides: “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.” Tex.

Penal Code Ann. § 3.03(a) (West Supp. 2018). A defendant is prosecuted in a single

criminal action whenever the allegations and evidence of more than one offense

arising out of the same criminal episode are presented in a single trial or plea

proceeding, and the provisions of section 3.03 of the Texas Penal Code apply.

LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992). Because Carrier’s

cases involved repeated commission of the same offense, they arise out of the same

2 criminal episode. See Tex. Penal Code Ann. § 3.01 (West 2011) (defining repeated

commission of the same or similar offenses as a criminal episode). We therefore

conclude that arguable error exists with respect to the trial court’s order that Carrier’s

sentences would run consecutively. Having found arguable error, we must remand

the case to the trial court for appointment of new counsel. See Stafford v. State, 813

S.W.2d 503, 511 (Tex. Crim. App. 1991).

It is, therefore, ORDERED that the appeal is ABATED and the cause is

REMANDED to the trial court for appointment of new counsel for the appellant,

Regina Carrier. A supplemental clerk’s record containing the order appointing new

counsel shall be filed with the trial court by September 13, 2019. The brief of the

appellant shall be due thirty days after the appeal is reinstated. The State’s brief shall

be due thirty days after the appellant’s brief is filed. We remove the case from the

submitted docket. The appeal will be re-submitted after the briefs on the merits have

been filed.

ORDER ENTERED August 15, 2019.

PER CURIAM

Before McKeithen, C.J., Horton and Johnson, JJ.