Tracy Lynn Meneley v. State

Opinion

                                      COURT OF APPEALS

                                       SECOND DISTRICT OF TEXAS

                                                   FORT WORTH

                                        NO. 2-08-244-CR

NO. 2-08-245-CR

TRACY LYNN MENELEY                                                        APPELLANT

                                                   V.

THE STATE OF TEXAS                                                                STATE

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        FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                                MEMORANDUM OPINION^[1]

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                                          I.  INTRODUCTION

Appellant Tracy Lynn Meneley pleaded guilty to two theft charges.  In a single point, Meneley claims that the trial court erred by imposing consecutive, instead of concurrent, sentences following her convictions.  Specifically, Meneley argues that both charges involved Athe repeated commission of the same or similar offenses@ and therefore arose out of the Asame criminal episode@ and that both of her charges were prosecuted in a Asingle criminal action.@  Tex. Penal Code Ann. '' 3.01, 3.03(a) (Vernon 2003).  Because of this, Meneley claims that her sentences should be served consecutively.  We will affirm.

                                  II.  PROCEDURAL BACKGROUND

On May 16, 2008, Meneley was charged in two separate indictments, each for theft of property of a value less than $1,500.  On June 5, 2008, Meneley entered an open plea of guilty to each indictment.  The trial court sentenced Meneley to one year=s imprisonment in each case, to be served consecutively.  Our record does not contain a reporter=s record.

                                  III.  CONSECUTIVE SENTENCING

A complaint about consecutive sentences is reviewed under an abuse of discretion standard.  Macri v. State, 12 S.W.3d 505, 511 (Tex. App.CSan Antonio 1999, pet. ref=d).  The test for abuse of discretion is whether the trial court=s action falls within the zone of reasonable disagreement.  Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

When a defendant has been convicted in two or more cases, the trial court has the discretion, in the second and subsequent case, to order that the sentences imposed run consecutively or concurrently.  Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2006); see LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992).  However, section 3.03 of the Texas Penal Code limits this discretion and mandates that sentences shall run concurrently when the defendant is found guilty of more than one offense arising out of the Asame criminal episode@ that is prosecuted in a Asingle criminal action.@  Tex. Penal Code Ann. ' 3.03(a); Baker v. State, 107 S.W.3d 671, 672B73 (Tex. App.CSan Antonio 2003, no pet.).

Furthermore, the penal code defines Acriminal episode@ as

[t]he commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:

(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

(2) the offenses are the repeated commission of the same or similar offenses.

Tex. Penal Code Ann. ' 3.01.

A Asingle criminal action@ occurs when allegations and evidence of more than one offense arising out of the Asame criminal episode@ are presented in a single trial or plea proceeding.  See, e.g., Ex parte Pharr, 897 S.W.2d 795, 796 (Tex. Crim. App. 1995) (citing LaPorte, 840 S.W.2d at 414).  To prove that two or more offenses were charged in a Asingle criminal action,@ the record must demonstrate that the trial court held one consolidated punishment hearing.  See Robbins v. State, 914 S.W.2d 582, 583 (Tex. Crim. App. 1996) (holding that even though the court conducted two separate plea proceedings, there was one consolidated punishment hearing so defendant was prosecuted in a Asingle criminal action@).  If the record demonstrates that the trial court fully completed one plea proceeding, including the imposition of the sentence, before starting another, then the plea proceedings would not be considered a Asingle criminal action.@  See, e.g., id. at 583B84; Pharr, 897 S.W.2d at 796 (finding no Asingle criminal action@ when defendant pleaded guilty and was sentenced for the first count, then pleaded guilty and was sentenced for the second count).

In order to determine whether plea proceedings were consolidated, a reporter=s record is necessary.  See, e.g., Vallez v. State, 21 S.W.3d 778, 784 (Tex. App.CSan Antonio 2000, pet. ref=d).  Without a record of the original plea proceedings, the court cannot determine whether the plea proceedings were consolidated into a Asingle criminal action@ for purposes of penal code section 3.03.  See, e.g., id.; see also Ponce v. State, Nos. 13-01-00274-CR, 13-01-00275-CR, 2002 WL 34230833, at *2 (Tex. App.CCorpus Christi Aug. 30, 2002, no pet.) (mem. op., not designated for publication) (AAlthough the clerk=s record demonstrates that the causes were heard and sentence imposed on the same day, this does not mean that the causes were consolidated or heard together that day, especially when the original judgments do not refer to each other and each cause has separate paperwork.@).

Here, Meneley argues that A[a]lthough no reporter=s record exists, the clerk=s record clearly shows that the trial court handled [her] cases during the same plea proceeding@ because Meneley entered her guilty pleas on the same date before the same judge, sheCas well as the same defense attorney and prosecutorCsigned identical admonishment forms in each case, and the trial court imposed sentences in each case on the same day.  But without a reporter=s record, we cannot determine whether the trial court held separate or consolidated plea proceedings that day.  See Vallez, 21 S.W.3d at 779B80, 84 (holding that whether plea proceedings were consolidated could not be determined without reporter=s record despite fact that plea papers were signed on same date, State=s punishment recommendation and defendant=s requested punishment were same in each cause, and trial court heard pleas and imposed punishment on same day).

Because we cannot determine, on the record before us, whether Meneley=s causes were prosecuted in a single criminal action, we hold that the trial court did not abuse its discretion in ordering Meneley=s sentences to run consecutively.  See Macri, 12 S.W.3d at 511.

                                          IV.  CONCLUSION

Having overruled Meneley=s single point, we affirm the trial court=s judgments.

SUE WALKER

JUSTICE

PANEL: CAYCE, C.J.; WALKER and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: February 12, 2009

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^[1]See Tex. R. App. P. 47.4.