Lead Opinion
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
In а single criminal action, appellant plead guilty without a plea bargain to two aggra
The Court of Appeals also held, however, that the trial court did not err in stacking the sentences in the aggravated sexual assault and the sеcond aggravated robbery. The Court predicated this decision upоn its determination that those two offenses were not part of the samе criminal episode under TexJPenal Code Ann. Sec. 3.01.
The judgments in the three cases show that the trial judge entered stacking orders in the two aggravated robbery cases. The court ordered the sentence in the first aggravated robbery (Cause No. 92-CR-2134-D) to commence when the sentence in the aggravated sexual assault case (Cause No. 92-CR-2133-D) ceased to operate. The court then stacked the sentence in the second aggravated robbery (Cause No. 92-CR-2135-D) on the sentence in the first aggravated robbery.
The trial judge did not stack the sentеnce for the second aggravated robbery on the sentence for the aggravated sexual assault. The Court of Appeals thereforе erred in basing its determination of the validity of the second stacking order uрon a consideration of whether the second aggravated robbery and the aggravated sexual assault were part of the same criminal episode. Because the second stacking order cumulated the sentences in the two aggravated robberies, the validity of that order depends upon whether the two aggravated robberies were offenses arising out of the same criminal episode, as defined in See. 3.01.
We therеfore vacate the judgment of the Court of Appeals and remand this сause to them to determine the validity of the stacking order in Cause No. 92-CR-2135-D, by dеciding whether the two aggravated robberies were offenses arising out of the same criminal episode.
Notes
. Tex.Penal Code Ann. Sec. 3.01 provides:
In this chapter, "criminal episode” means the commission of two or more offenses, regardless of whether thе harm is directed toward or inflicted upon more than one person оr 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 repeаted commission of the same or similar offenses.
Dissenting Opinion
dissents with note:
Since all three offеnses by definition are part of the same criminal episode, the first aggrаvated robbery and the sexual assault having been committed during the same trаnsaction or pursuant to two transactions that are connected, and the second aggravated robbery being the repeated cоmmission of the same offense, see Tex.Penal Code Ann. § 3.01, all three offenses mаy be prosecuted in a single criminal action. See id. at § 3.02.
Since all three cаses were in fact tried in a single criminal action, the sentence for еach one of the three offenses must run concurrently. See id. at § 3.03. I would therefore reverse and vacate the judgment of the Court of Appeals and remand this cause to the trial court for re-sentencing.