State v. Crook

248 S.W.3d 172, 2008 Tex. Crim. App. LEXIS 157, 2008 WL 313626
CourtCourt of Criminal Appeals of Texas
DecidedFebruary 6, 2008
DocketPD-0001-07
StatusPublished
Cited by82 cases

This text of 248 S.W.3d 172 (State v. Crook) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Crook, 248 S.W.3d 172, 2008 Tex. Crim. App. LEXIS 157, 2008 WL 313626 (Tex. 2008).

Opinions

OPINION

HERVEY, J.,

delivered the opinion of the Court

in which MEYERS, PRICE, and KEASLER, JJ., joined.

In this case, we decide that the trial court was required to order appellee’s thirteen fines (of $10,000 each) to run concurrently.

A jury convicted appellee in a single criminal action of thirteen counts of barra-try,1 which arose out of the same criminal episode.2 The jury assessed punishment on each count at 10 years confinement with a recommendation of community supervision (probation) for this portion of appel-lee’s sentence. The jury also assessed a $10,000 fine on each count with no recommendation of probation for this portion of appellee’s sentence. The trial court placed appellee on probation for seven years on each count and ordered these periods of probation to run concurrently. Over the state’s objection, the trial court also ordered the $10,000 fines to run concurrently. The state appealed, claiming that this portion of appellee’s sentence is illegal,3 because the trial court was required to order the fines to run consecutively instead of concurrently. The court of appeals rejected this claim,4 and we granted review.5

With exceptions not applicable here, the general rule in cases like this is set out in [174]*174Section 3.03(a), Tex Pen.Code, which, in relevant part, provides that “sentences shall run concurrently” when “the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action.”6 It is undisputed in this case that appellee was “found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action.” We do not understand the State to claim otherwise or to dispute that appellee’s probationary terms should run concurrently. We understand the State to claim only that appellee’s fines should run consecutively (and not concurrently).

This Court has decided, however, that a fine is part of a sentence. See State v. Ross, 953 S.W.2d 748, 750 (Tex.Cr.App. 1997) (“[A] sentence is nothing more than the portion of the judgment setting out the terms of punishment. For example, the sentence in this case would include the facts that appellant is to serve sixteen years in the penitentiary beginning July 28, 1995, that his term is concurrent and that he must pay a $500 fine.”) (emphasis in original); see also State v. Kersh, 127 5.W.3d 775, 777 (Tex.Cr.App.2004) (sentence includes a fine).7 The concurrent sentences provision of Section 3.03(a) would, therefore, seem to plainly require that the fines in this case run concurrently.

The state argues, however, that this would be inconsistent with over 100 years of case law, which the state claims requires a holding in this case that fines run consecutively even though the terms of confinement (in this case, the probationary terms) run concurrently.8 These cases, however, either pre-date Section 3.03(a)9 or rely on these pre-section 3.03(a) cases in holding that the concurrent sentences provision of Section 3.03(a) does not apply to fines.10 These cases, therefore, provide little, if any, guidance on whether this Court should construe the concurrent sentences provision of Section 3.03(a) to apply to fines. In addition, we have not found, and the state does not cite to, any decision from this Court addressing the issue of whether the concurrent sentences provision of Section 3.03(a) should be construed to apply to fines. We, therefore, conclude that this is an issue of first impression before this Court.

The argument has been made that the Legislature could not have intended the concurrent sentences provision of Section [175]*1753.03(a) to apply to fines, because a fine does not “run” like a term of confinement (or probation), which, unlike a fine, involves the passage of time. See Mountain v. State, 789 S.W.2d at 664-65 (setting out, but not necessarily adopting, the argument that “as a matter of common sense, only that portion of a sentence involving the passage of time can ‘run’ ”); see also Juarez, 796 S.W.2d at 526 (relying on the Practice Commentary to Section 3.03 to decide that its concurrent sentences provision does not apply to fines).11 It is, however, not apparent to us that the Legislature’s use of the term “run” in Section 3.03(a) was meant to make a distinction between a term of confinement (or probation) and a fine for concurrent sentencing purposes.12 The Practice Commentary is not definitive either, since its first sentence would seem to support construing the concurrent sentences provision of Section 3.03(a) to apply to the entire sentence, including fines. See Practice Commentary to Section 3.03 (“In effect this section treats multiple convictions resulting from prosecution of joined offenses as a single conviction for sentencing purposes.”).

The legislative history of Section 3.03(a) also does not support the claim that the Legislature’s use of the term “run” in Section 3.03(a) was intended to make a distinction between terms of imprisonment and fines for concurrent sentencing purposes. What is presently Section 3.03(a) was enacted by the 63rd Legislature in 1973 as part of the complete revision of the Texas Penal Code.13 Prior to the enactment of Section 3.03(a) in 1973, the state could not obtain multiple convictions in the same criminal proceeding when a person committed multiple crimes during the same criminal episode. Section 3.03(a) changed prior law by providing for multiple convictions in one criminal proceeding under these circumstances with the defendant having the right to “concurrent sentences.” 14

Testifying on behalf of the Criminal Defense Lawyers Association at a Senate [176]*176Sub-Committee on Criminal Matters hearing on March 27, 1978, Frank Maloney described the structure of Chapter 3. He testified that Chapter 3 was intended to permit the state to obtain multiple convictions and sentences in one criminal proceeding for multiple offenses committed during the same “criminal episode.” He testified that all sentences in convictions obtained under Section 3.03(a) would run concurrently with the defendant being required to serve the harshest one imposed. He further described the defendant’s right to sever,15 which, if exercised, would expose the defendant to the possibility of consecutive sentences in the trial court’s discretion.16

Testifying on behalf of the Texas County and District Attorneys Association at a House Criminal Jurisprudence Sub-Committee hearing on February 26, 1973, Tom Hanna, who was the Jefferson County District Attorney, agreed with Frank Malo-ney’s description of Chapter 3. Mr. Hanna also testified that one of the purposes of Chapter 3 was to provide prosecutors with the ability to clear crowded dockets and to save tax-payer money by disposing of multiple crimes in one trial. He further testified that sentences under Section 3.03(a) must “run concurrently” unless the defendant exercised the right to sever, in which case the trial court would have the discretion to stack the sentences. Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
248 S.W.3d 172, 2008 Tex. Crim. App. LEXIS 157, 2008 WL 313626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-crook-texcrimapp-2008.