Sullivan, James Allen

387 S.W.3d 649, 2013 Tex. Crim. App. LEXIS 1887, 2013 WL 85379
Court of Criminal Appeals of Texas·Decided January 9, 2013·No. PD-1678-11, PD-1679-11·Published·Cited by 13 cases

Opinions

KELLER, P.J.,

delivered the opinion of the Court

in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, COCHRAN and ALCALÁ, JJ„ joined.

A jury convicted appellant of four sexual assaults against three victims and sentenced him to eighteen years of imprisonment in each case. The trial judge ordered some of the sentences to run concurrently and some to run consecutively. One of the sentences that was stacked was not eligible for stacking. This case presents the question of the proper remedy when one of a series of sentences is improperly stacked and [650]*650whether it matters where in the series the improperly stacked sentence appears. We reform the trial court’s judgment to reflect that the improperly stacked sentence is not stacked and that the two sentences involving different victims are stacked. We also reform the sequence of stacking to conform to the trial judge’s oral pronouncement of sentence.

I. BACKGROUND

A. Trial

Appellant worked at a Texas Youth Commission facility. The evidence showed that appellant sexually assaulted three children who were staying at that facility. One of the children, A.S., was seventeen years old at the time of the sexual assaults. The other two children, N.P. and C.C., were under age seventeen at the time. In one indictment, appellant was charged with multiple sexual assaults against N.P. In another indictment, appellant was charged with one sexual assault against A.S. and one against C.C. Appellant was convicted of two counts of sexual assault against N.P. and one count each for A.S. and C.C. On each count, the jury assessed a punishment of confinement for eighteen years.

The trial judge then asked for the parties’ positions on whether the sentences should be served concurrently or consecutively. The State urged the judge to make all of the sentences consecutive. Appellant urged the judge to make all of the sentences concurrent. The trial judge stated that he would order the sentences in the two counts involving N.P. to be concurrent with each other. With respect to the sentences for the counts involving A.S. and C.C., the judge stated that they would “run consecutively with each other,” and the sentences for counts involving N.P. would “run consecutively to the others.” As a result, the trial judge said that there would be “three consecutive eighteen-year terms.”

The trial judge then asked if there was any legal reason why the sentences should not now be pronounced. Defense counsel responded that there was no legal reason. The judge then stated:

It’s the sentence of this Court, [appellant], that you serve the 18 years in the manner that I’ve pronounced, the stacking of the two [N.P.] judgments on top of the two counts in the other case, so that each victim will have what I deem to be appropriate justice in this matter, but I’m not going to stack the two within itself with the one for the reasons that I’ve stated. But the sentences will then run as indicated, stacking the two main cases and the two counts in addition as reflected.

The trial judge entered a judgment for each indictment, and each judgment contained the following written cumulation order:

The sentence imposed in Cause # CR19690 as to Count I [A.S.] shall begin when the judgment in the sentence imposed in Cause # CR18971 [N.P.] has ceased to operate. The sentence imposed in Cause # CR19690 as to Count II [C.C.] shall begin when the judgment in the sentence imposed in Cause # CR19690 Count I [A.S.] has ceased to operate.1

Thus, under the oral pronouncement the two concurrent sentences involving N.P. would be the last in the stacking series but under the written judgment they would be the first in the series.

[651]*651B. Appeal

On appeal, appellant complained that stacking the sentence for the count involving A.S. was error because the relevant statute permitted stacking only if the victim was younger than seventeen. The State conceded error. The court of appeals held that the appropriate remedy was to modify the trial court’s judgments “to delete the language ordering cumulation of the sentence involving A.S.”2 To accomplish this objective, the court of appeals ordered that the judgments be revised to reflect that the sentences for the counts involving N.P. run concurrent with each other, that the sentences for the counts involving A.S. and C.C. run concurrent with each other, and that the sentences for the counts involving A.S. and C.C. be stacked on the sentences for the counts involving N.P.3 The result of the court of appeals’s revised orders is that appellant serves two consecutive eighteen-year terms instead of three.

II. ANALYSIS

Chapter three of the Texas Penal Code allows for offenses arising out of the “same criminal episode” to be tried in the same criminal action.4 The term “same criminal episode” is specifically defined in chapter three, and the term includes a situation in which “the offenses are the repeated commission of the same or similar offenses.”5 When offenses are tried together pursuant to chapter three, the sentences must be concurrent unless a specific exception within chapter three provides otherwise.6 One such exception provides that consecutive sentences may be imposed for convictions for certain types of sexual offenses if the offenses were committed against a victim younger than seventeen years of age.7

With respect to the issue before us, the language of the relevant portions of chapter three is unambiguous.8 The sentence for the count involving A.S. does not fall within the exception mentioned above because A.S. was not under seventeen at the time of the offense. And because no other exception applies,9 that sentence must run concurrent with all other sentences obtained in the same criminal action, i.e., with the sentences for the counts involving N.P. and C.C. But the sentences for the counts involving N.P. and C.C. do fall within the exception because those victims were younger than seventeen, so those sentences could run consecutive to each other, although they must run concurrent with the sentence for the count involving A.S. Consequently, as both parties agree, the trial judge erred in cumu-lating the sentence for the count involving A.S. with the other sentences.

Appellant contends that the court of appeals erred in rewriting the trial judge’s cumulation orders. He claims that the sentence relating to A.S. was in the middle of the stacking order, and when it is deleted, there remains no order stacking the [652]*652sentence relating to N.P. onto the sentence relating to C.C. Thus, he claims, the proper remedy is to delete all of the cumu-lation orders.

Free access — add to your briefcase to read the full text and ask questions with AI

Sullivan, James Allen, 387 S.W.3d 649, 2013 Tex. Crim. App. LEXIS 1887, 2013 WL 85379 (Tex. 2013).

387 S.W.3d 649 (Sullivan, James Allen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Joe Angel Morales v. the State of Texas
Tex. App. Ct., 3rd Dist. (Austin), 2026
Dakota Lee Hoyt v. the State of Texas
Court of Appeals of Texas, 2024
Dalton Ty Allen Crowder v. the State of Texas
Court of Appeals of Texas, 2023
Bryan Isadore v. the State of Texas
Court of Appeals of Texas, 2023
Sean Krenzer v. the State of Texas
Court of Appeals of Texas, 2022
Kenneth Lashon Green v. State
Court of Appeals of Texas, 2017
Byrd, Thomas Leon
499 S.W.3d 443 (Court of Criminal Appeals of Texas, 2016)
Reginald Allen Mason v. State
Court of Appeals of Texas, 2016
Byrd, Thomas Leon
Court of Appeals of Texas, 2015
Armando Castilleja v. State
Court of Appeals of Texas, 2014
James Alba v. State
Court of Appeals of Texas, 2014
Patrick Monroe Brown v. State
Court of Appeals of Texas, 2014
Naum Antonio Fuentes-Sanchez v. State
Court of Appeals of Texas, 2014