Kenneth Lashon Green v. State
11-16-00107-CR
| Tex. App. | Jun 15, 2017Background
- Kenneth Lashon Green was convicted by a jury of two counts of sexual assault; each count carried a four-year sentence and $1,000 fine.
- The trial court ordered the sentence for Count II to run consecutively to Count I.
- On initial appeal Green raised other issues and the court affirmed; he later sought habeas relief claiming appellate counsel was ineffective for not challenging the cumulation order.
- The Court of Criminal Appeals granted him an out-of-time appeal, finding ineffective assistance, allowing this appeal to address the cumulation order.
- Green contends the trial court erred by ordering consecutive sentences because both convictions arose from the same criminal episode and the victim was over 17.
- The State conceded the cumulation order should be deleted; the appellate court nevertheless independently reviewed the legal issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could lawfully order consecutive sentences for the two sexual-assault convictions arising from the same criminal episode | Green: Under Penal §3.03, because the victim was older than 17 and the offenses arose from the same criminal episode, sentences must run concurrently | State: Conceded error and agreed the cumulation order should be deleted | The court held the cumulation order was unlawful under Penal §3.03 and modified the judgment to make the sentences concurrent |
Key Cases Cited
- Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) (appellate courts independently review concessions of error)
- Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008) (trial judge’s authority and discretion to cumulate sentences)
- Barrow v. State, 207 S.W.3d 377 (Tex. Crim. App. 2006) (discussion of cumulation as a discretionary, normative function)
- Morris v. State, 301 S.W.3d 281 (Tex. Crim. App. 2009) (remedy for unlawful sentence cumulation is deletion of the cumulation order)
- Sullivan v. State, 387 S.W.3d 649 (Tex. Crim. App. 2013) (application of Penal §3.03 to sexual-assault offenses arising from same criminal episode)