Rhodes v. State

Meadows, encompassing 152 Tex. each loss event the same or (1953). Moreover, incidents,” although including related “medical all mal may by any persons in claims made and all practice event involve numerous against any all dependent grounds negligence and insureds the Flax acts, constitute a series of Texas law indi lawsuit. We reverse render they liability can still total under the cates be related and Columbia’s $1,000,000. single malpractice Policy form a claim. Am. is limited to See Garcia, Physicians Ins. Exch. v. (Tex.1994) (compar n. 21

ing and ramifications of “Each definition liability Occurrence” in commercial

Claim

policy malpractice policy; and medical al claim

though “each occurrence” medical

malpractice policy coverage has effect repeated expo

similar to continuous or Terry RHODES, Appellant, liability poli surе directive commercial cy, malpractice event involve inde

pendent malpractice grounds that cannot Texas, Appellee. The STATE of repeated exposure be classified to 01-03-00327-CR, Nos. 01-04-00739- same conditions but can constitute series CR, 01-04-00740-CR. related). Thus, giving of acts that are ordinary gener the term “related” its Texas, Court ally accepted meaning, conclude that we (1st Dist.). Houston having logical “related” or causal means 14, 2004. Oct. connection. See Col MeRRIam-WebsteR’s legiate Dictionary (11th ed.2003). July Rehearing Overruled

Here, all the medical incidents involve facility,

the same at the same dur- patient, time, regard period same All x-ray. malprac-

the same of the acts of alleged against Doyan

tice doctors single allegedly

Pearce led to a result that

formed the of the Flаx basis ‍​‌‌‌​‌‌‌‌‌​‌​‌​‌​​​‌‌​​‌​‌​​​‌‌​​‌​​‌​​​‌​‌‌​‌​‌‍lawsuit— apprise lymphoma,

failure to Flax of his

leading delayed diagnosis and thus to a early lymphoma.

Flax’s death from We

hold, therefore, that the medical incidents

that form the basis of the Flax lawsuit are under plain

related medical incidents Policy

meaning language. point of error.

We sustain Columbia’s

Conclusion that, law, hold as a matter of

We Policy

plain language of the at issue $1,000,000 recovery

case limits total Gatewood,

Kelly State Counsel for Of- fenders, Huntsville, TX, Appellant. for Unit, Mayo, Special Prosecution Melinda Amarillo, TX, Appellee.

Panel consists of Chief Justice and Justices ALCALA and RADACK BLAND.

OPINION BLAND, Justice. JANE containing sep- In one indictment three counts, charged appellant arate the State Terry felony with the offenses of Rhodes habitation, burglary of a escape, pun- The indictment includes two theft. paragraphs. enhancement The ishment alleges previous conviction for felo- first County, and the sec- ny escape previous conviction for felo- alleges ond ny burglary of a habitation. Rhodes offenses, time, plеaded guilty trailer, charged to the Rhodes broke into a and not true to para- the enhancement clothing. stole food and He also stole graphs. trial court tractor, convicted Rhodes which he swamp, drove into a offenses, a jury three found whereupon apprehended authorities him. paragraphs both enhancement true. The History Previous Criminal jury punishment years’ assessed at 33 appeal The resolution of this involves years’ for escape, confinement con- convictions, Rhodes’s enhancement and burglary, years’ finement for the and 25 thus detail his criminal record. In we confinement for the theft. The trial court January pleaded guilty Rhodes and ordered the three convictions to run con- burglary a in was convicted of of habitation secutively 45-year prison with a Angelina County, Texas and was sentenced serving aggravated Rhodes is for sexu- years In February to three confinement. al assault conviction. jury aggravat- convicted Rhodes of conclude that in We Rhodes “was an Texas, County, ed sexual assault in Hardin mate in the institutional division of the at 45 assessed con- Department Texas of Criminal Justice” at finement. In while September serv- the time he committed his earlier Smith for the aggravated his sentence sexual offense, County escape and thus the trial conviсtion, assault authorities transferred escape court in the earlier case should Rhodes to Smith on a bench war- have run that sentence consecutive rant, to answer for a theft offense. While ly aggravated to the sentence for sexual County, in escaped Rhodes from Smith serving. assault Rhodes was then Tex. (“the custody County escape”). Smith Po- 42.08(b) (Vernon Code Ceim. PROC. Ann. art. apprehended lice Rhodes. The State such, It Supp.2004). did not. As as the him charged and theft. concedes, State the earlier sentence was offenses, pleaded guilty Rhodes to both law,” by Fullbright not “authorized under May in he was convicted 2000. The 808 (Tex.Crim.App. trial for the court’s Smith Cоun- 1991). therefore conclude that We states, ty escape adjudged “It is further State cannot use Rhodes’s earlier Smith by and decreed this court that the sen- County escape conviction to enhance pronounced begin May tence herein shall Rhodes’s sentences for the three convic 8, 2000.” The trial court thus ordered case, tions this and we remand for County escape Smith sentence to run con- punishment hearing. new currently existing aggravat- with Rhodes’s ed sexual assault sentence. Background

Facts and Procedural Whether the 1999 Facts Sentence “Authorized Law” August escaped In Rhodes from In Wynne Department appeal, of thе Texas Rhodes contends Unit County escape Division that his Criminal Justice —Institutional Smith (TDCJ-ID) County, trial it to Walker Texas. He because the court ordered void with, concurrently it rather than consec stole diesel semi-truck drove to, surrounding prison, utively assault through aggravated the fence sexual prison guard’s firing serving undeterred of offense that Rhodes was TDCJ- ID gunshots at the truck. Rhodes abandoned at the time he escaped maintains, trial stop. particular, truck at a truck Rhodes evaded Rhodes that the refusing quash the State’s capture approximately one week. Dur- court erred indictment, because his sentence for the completed serving the sеntence he was County escape inis contravention of offense, at the time of the judge Procedure, the Texas Code of Criminal shall order the sentence for the subse- which mandates that the sentence run con- quent immediately offense commence secutively. See Tex.Code CRim. PRoc. Ann. completion of the sentence for the 42.08(b) (Vernon 2004). art. original offense. The issue before this Court is whether court, Id. In the trial Rhodes moved to provides which that a sen- indictment, quash his contending that he tence must run consecutively if an inmate TDCJ-ID, was an inmate in the serving commits a criminal offense while incarcer- assault, sentence for aggravаted sexual ated a TDCJ-ID prison, requires that escaped the he County, time Smith the offender commit the offense while thus the trial court’s failure to run the physically located prison within the ‍​‌‌‌​‌‌‌‌‌​‌​‌​‌​​​‌‌​​‌​‌​​​‌‌​​‌​​‌​​​‌​‌‌​‌​‌‍—as consecutively conviction to the 45- the State contends—or whether Article year prison sexual assault sentence ren 42.08(b) applies to any offense committed ders County escape the Smith

by an inmate currently serving his sen- id.; State, Fullbright void. See v. TDCJ-ID, tence within regardless 808, (Tex.Crim.App.1991) his temporal location at the time of the (holding that an aggravated assault convic offense. The issue impres- is one of first tion used to enhance an aggravated rob sion in Texas courts. bery conviction by was unauthorized law Article provides: “void,” and thus aggravated because the If a defendant is years sentenced for an of- assault sentence of five probation fense committed while the was not statutory defendant within the punishment was an inmate in range, the institutional divi- despite the fact that the sentence sion of the Texas Department of Crimi- was statutory pun more lenient than the nal Justice and the defendant has range).1 not ishment considering After evi- brief, 1. In its Fullbright’s (citations omitted). the State Speth, concedes See 6 S.W.3d at 531 applicability to Fullbright, Appeals explained: this case. As the Court of Criminal involving Texas [T]he Cоurt of Criminal case law ... held that "void” sen- legislatively rely upon State tences has viewed punishment defined sen- that is tencing explicit schemes that are about the “not authorized law” for enhancement applicable range category punishment or purposes, punishment even if the is more absolute, systemic system, as features of the lenient than that authorized. The Court later application such that their cannot be abrogated Fullbright, its decision in and held is, "right” waived. That a defendant’s to be that the sentence and the conditions for com sentenced to a term within the defined munity supervision parts are different punishments applicable "universe of to the thus, judgment, and an error in the conditions offense” is absolute and nonwaiveable. community supervision does not render the Speth, 6 S.W.3d at 533 n. 5. As the State State, Speth conviction void. 6 S.W.3d brief, Fullbright conceded in its thus remains (Tex.Crim.App.1999); 532-33 see also Ex here, applicable because the Court of Crimi Williams, (Tex. Parte 65 S.W.3d 657-58 has defined a "sentence” to in Crim.App.2001) (concluding illegal grant that concurrently clude whether it is to run community supervision ap should not be consecutively, as that is of its execution. plied sentences). governing illegal to rule Ross, (Tex. See State v. 953 S.W.2d however, Appeals, The Court of Criminal ("|T]he Crim.App.1997) sentence in this case uрhold continued to the rule lawof that "if a appellant would include the facts that is to law, is not authorized that penitentiary serve 16 ... that his concurrent, imposing punish- of the sentence pay term is and that he must Speth fine.”) added). ment is void” in (emphasis and Ex Parte Williams. $500 The dissent counsel, ways, consider arguments two different we the conse denee and motion, quences interpretations in de court denied two trial Rhodes’s observ termining interpretation adopt, “a which presents this issue beautiful if keeping interpretation in mind that one appellate question.” yields yields results while other absurd that, if the trial State concedes absurdities, interpretation is no the latter failing court erred to stack Smith preferred. Griffith, 116 at 785. County it then cannot legislative turn to the statute’s We also rely upon that to enhance history for clarification. Murdock v. on appeal convictions that are Rhodes’s (Tex.Crim.App.1993). Fullbright, here. S.W.2d at 810. See (cid:127) however, responds, It 42.08— language The literal correctly ran con- escape sentence an in the the defendant was inmate “while because, at currently the time Rhodes es- subject to two institutional division”—is ,not he was an caped County, in Smith it possible interpretations: require can “inmate in the institutional division of the com- stacking only offenses inmate Department Texаs Criminal Justice” mits housed the TDCJ- physically while 42.08(b) contemplated by Article of the institution, require stacking ID or it could The Code Criminal Procedure. State during offense an inmate commits any not “in- maintains that Rhodes was processed an inmate into the time he is 42.08(b) purposes mate” for Article be- division, serving actually and institutional escaped temporarily cause he housed division, while a sentence in the institutional but at the Smith on a bench Jail war- who commits the offense another loca- rant, in an physically was not institu- and e.g., Tex. tion. See Ann. Pen.Code facility tional at the time of his 12.34(a), division 12.31(a), 12.32(a), 12.33(a), §§ escape. (Vernon 2003) for im- (providing 12.35© in the institutional division for prisonment objective interpreting Our first, second, degree third felo- capital, and to the collective intent statute is to adhere circumstances, nies, and, under certain legislators purpose of the who enacted felonies). interpreting Article jail state State, v. 116 785 it. S.W.3d Griffith history, legislative we consider its (Tex.Crim.App.2003). a statute is When statutes, consequences related unambiguous, clear courts should not 116 Griffith, interpretations. alternate meaning wording plain strain the Murdock, 785; at 42. 870 S.W.3d at S.W.2d to the statute a different read give order Legislative History Statutory Intent and State, 590, 592 ing. Smith v. 789 S.W.2d Appeals interpret an un The Texas Court Criminal (Tex.Crim.App.1990). We intent of has that obvious ambiguous literally, explained “[t]he unless statute such 42.08(b) inmates from is to deter results in absurd conse Article construction Gutierrez, during their incarcera- committing 129 crimes quences. See State v. harshly punish those 113, 114 If a tion and to more (Tex.Crim.App.2004). S.W.3d v. are Basden reasonably interpreted in inmates who not deterred.” may be statute munity supervision, banc which from court’s denial of en review our argues Speth "impliedly” Ross. overrules that the "orders agree, the Court of Crimi- pre- We cannot because be into execution in manner carried expressly upon in its relied Ross law.”); see also TexCode scribed Crim. Speth. Speth, See 6 S.W.3d at 532 decision in (Vernon 2002). Proc. Ann. Art. 42.02 Ross, contrasting (relying on com- and note 4 State, (Tex.Crim.App. 897 S.W.2d impunity inmates can commit crimes with 1995) added). (emphasis Leg simply they prison Before the because are in is ab adopted by islature enacted Article surd and should not be inmates Court.”). who committed a serving crime while TDCJ-ID, sentence in the con were Article 42.08 Code Criminal

victed of that crime serving while still their specifically Procedure does not define the sentence, were often allowed to serve the term “inmate.” The Texas Court of Crim- two concurrently.2 sentences House Comm. has, however, inal held that Enfoijcement, Analysis, Tex. plain meaning of the term On Law Bill “a “inmate” is (1985). S.B. 69th Leg., R.S. Inmates ‘person рrison, penitentiary, confined to a therefore had no effective incentive to re Russell, or the like.’” In re 60 frain from engaging in criminal conduct 875, (Tex.Crim.App.2001) (quoting serving sentences, Dictionary while their they suf (6th ed.1990)). Black’s Law (other fered no actual consequences than Boykin ‍​‌‌‌​‌‌‌‌‌​‌​‌​‌​​​‌‌​​‌​‌​​​‌‌​​‌​​‌​​​‌​‌‌​‌​‌‍See also time) good loss of crimes, for their later (courts (Tex.Crim.App.1991) give because their subsequent sentence often plain meaning effect to statutory pro- ran concurrently with original vision, their sen application unless plain tence. Id. The results). House Committee on Law meaning would lead to absurd explained Enforcement it intended The Russell also recоgnized Court provide statutory provisions inmates with a other generally define strong incentive to refrain inmate as engaging from “one who is housed in or con- Russell, in criminal conduct fined to a correctional serving facility.” while a sen added). tence in undisputed TDC. Id. 876-77. It (emphasis that, at the time of State’s his Smith interpretation stacking the escape, Rhodes was confined to a TDCJ- turns the temporary physical facility, ID regardless of fact the that he location defendant, and not on the escaped temporarily while located at the defendant’s status as an inmate the county jail.3 division, institutional is inconsistent with the Legislature’s intent and purpose in In support of its contention that manda- enacting Article and inconsistent tory stacking apply does not to inmates precedent from the Court of Criminal who escape while court on a bench Appeals. Basden, See 897 S.W.2d at 321- warrant, the upon State relies Articles 22 (“Any 42.08(b) interpretation of Article 56.12 and 60.08 the Code of Criminal in creating results whereby situation Procedure.4 Both Article 56.12 and Article 2. Department The Texas penal Corrections was or confined in or correctional institu- Department renamed the Texas of Criminal tion.” Tex.Code Crim. Proc. Ann. art. 42.19 44.08(b). Justice after the enactment of Article (Vernon Supp.2004). Compare with Tex. 1993, Article 44.08 was amended to reflect (Vernon 1998) § 508.081 Gov’t Code Ann. 29, 1993, change. May the name See Act of (providing purposes that term "inmate" for Leg., 73rd § R.S. ch. 1993 Tex. "(A) chapter includes an an administra- Gen. (amending Laws Article releasee; (B) imprisoned tive an inmate in the conforming changes). 42.08 to make division; person institutional a© con- facility county jail fined in a transfer or await- generally Inmate connotes the offender's (I) division; ing: to transfer the institutional status, permanent tempo- institutional not his (ii) hearing.”). a revocation rary physical example, location. For Article 42.19, the Compact, Interstate Corrections defines an inmate as "a male or 4.Article 56.12 of thе Code of Criminal Proce- female of- committed, fender who is provides under sentence to dure as follows: 42.08, however, regarding is silent recognize that an inmate or offender Article

60.08 any from the to Legislative exempt be transferred intent offenses temporarily officer, custody peace temporarily TDCJ-ID an inmate commits while to a warrant. Neither of pursuant bench on a bench warrant. House transferred however, statutes, that an provides these Enforcement, Committee Comm. On Law physi- temporarily inmate who leaves Leg., Report, Tex. S.B. 69th R.S. cal confines of a TDCJ-ID institution ceas- (1985). assessing legislative pur “[I]n an es to be “inmate the institutional pose, court cannot assume that the se Department of of the Texas Crimi- division legislators, a few even lected statements of contemplated by Article Justice” as legislation, reflected sponsors 42.08(b). example, 56.12 re- For Article Legislature.” of the entire the motivation quires of an past notice to victims (Tex. 137, 140 Holberg v. change in the offender’s temporary or a not a Crim.App.2001). Weeks was mem place of confinement. See Tex.Code Crim. legislative Legislature, ber of the (Vernon Supp.2004). Ann. art. 56.12 PROC. thus, subject; his history is silent on Similarly, requires 60.08 a court Article Legislature’s testimony as to the intent an that decides to release offеnder who 42.08(b) not determina enacting Article notify on bench warrant to TDCJ-ID 140; Holberg, 38 Tex. tive. See the release. See Tex.Code PROC.Ann. Crim. Pub. Safety Kreipe, Dept. 60.08(e) (Vernon Supp.2004). art. (Tex.App.-Houston [14th Dist.] concept thus support 60.08 does denied). 2000, pet. offender inmate sta- that a TDCJ-ID loses to answer a temporarily tus while absent Interpretations Two Consequences bench warrant. Giving interpreta- effect to the State’s The State called David Weeks dur one tion in this case of Article hearing testify about his pretrial First, it cre- leads to nonsensical results. legislative understanding history inconsistency similarly between sit- ates legislator, Although Article 42.08. not a serving prison inmates are sen- uated who that he had some involve Weeks testified tences, by punishing those who commit introducing legis the drafting ment facility TDCJ-ID more offenses within the lation, support and he testified offenses harshly than those who commit view, Legislature in bill. In Weeks’s the facilities, or while outside non-TDCJ-ID apply only to that Article 42.08 tended Second, such of unit. prison con the walls the physical within the crimes committed serving inmate an allows an interpretation House prison unit. The Com fines outside Report temporarily a but prison Enforcement’s mittee on Law (a) the of offend- Department Jus- A court that orders release of Criminal Texas 6(a), immediately notify the of tice shall victim er under Section Article offender: an offense ... whenever the the is a at a when offender under code time (1) escapes operated by facility the from impris- physically and not bench warrant division; institutional re- division shall oned the institutional (2) custody the the is from transferred the division port the release to institutional custody division to the institutional Department of Criminal Justice of the Texas peace under a writ attachment or officer day after the date later than the seventh bench warrant. the release. (Vernon Ann. art. 56.12 Tex.Code Crim. Proc. 60.08(e) (Vernon art. Ann. Proc. Tex.Code Crim. added). (emphasis Article Supp.2004) Supp.2004). 60.08(e) provides as follows: walls, prison range years, commit crimes without ment from 25 to 99 or life mandatory punishment, fear of additional imprisonment. Rhodes contends that under that perhaps conditions favor the jury’s harm verdict evidences because it possibility of success.5 If attempt is punishment at the minimum assessed unsuccessful, an simply plead inmate could range burglary allowed for the guilty, and receive sentence to run con- (25 years), theft and near the minimum for current with the currently sentence he (33 County years). Walker serves, as Rhodes did here connection Had the trial court granted his motion to County with his Smith first of —his quash, the indictment have con- would escapеs. two Considering the purposes tained one allegation, enhancement with Article Legisla- we doubt that the punishment range from two to 20 ture consequence, intended such a particu- escape, years, the theft and and five larly when the applicability of the statute imprisonment or life burglary. for the Be- does not turn physical on the location of jury punishment cause the assessed at offender, but rather on the offender’s more than the maximum that should have status as an “inmate.” charge been allowed the court’s on the 42.08(b) We hold that Article re convictions, escape and theft mini- quires a court to stack the sentence for an mum еrroneously authorized for the bur- offense committed an inmate if that conviction, glary we are unable to conclude (1) processed inmate has been into the harmless, that the error is and thus re- (2) TDCJ-ID, and serving a sentence punishment mand this case for a new hear- currently confining him in the institutional ing. See Id. at 811. division of the Department Texas of Crimi Justice, regardless of the inmate’s tem Conclusion poral physical location at the time he com mits the offense. This interpretation is We conclude that the trial court should consistent with the pronouncement by quashed have of the indictment Texas Court of Criminal Appeals that respect to an enhancement for the “[t]he obvious intent of Article County escape because the sentence to deter inmates from committing crimes for the Smith escape should have during their incarceration and to more consecutively, rather than concurrent- harshly punish those inmates who are not ly. We therefore reverse Basden, deterred.” the trial court and remand counts for a 42.08(b) required Rhodes’s Smith new hearing. County escape conviction to run consecu tive aggravated to his sexual assault con En banc consideration requested. viction, thus, concludes, and as the State Fullbright requires that we hold that the majority justices A of the of the Court trial court erred in refusing quash to the request voted to overrule the for en banc first enhancement of the indict consideration. Fullbright, ment. 818 S.W.2d at 810. Justice dissenting KEYES from the Analysis

The Harm overruling request of the for en banc consideration, joined jury by The found both Justice enhancement alle- gations true, to be and applied punish- JENNINGS. ‍​‌‌‌​‌‌‌‌‌​‌​‌​‌​​​‌‌​​‌​‌​​​‌‌​​‌​​‌​​​‌​‌‌​‌​‌‍permit argument It caped also would the they that should be stacked because did prison crimes committed an inmate who has es- not occur inside the unit.

356 KEYES, Justice, his for the V. able enhance

EVELYN would, therefore, escape. I affirm dissenting. instant the trial court. the of I en respectfully dissent from denial of contrary In reaching banc consideration. The issue before this the conclusion— Rhodеs’ for Rhodes’a conviction for that “sentence” his Smith Court is whether (the that, therefore, escape prison County from in is void and escape 1999 Smith prior may be conviction for County escape) escape should used enhance Rhodes’ punishment in prison conviction for from not be used to enhance his escape Rhodes’ primarily on appeals. panel in which Rhodes In this case—the relies now State, (Tex. view, panel’s Fullbright the v. my opinion the that earli- S.W.2d 808 void, Crim.App.1991). Fullbright, er and the In the escape sentence that Court not, prior Appeals pro there- of held that earlier Criminal fore, pur for appellant’s be used to enhance cur- bated sentence used enhancement sentence, because, poses panel here rent is erroneous and creates was void states, “the of disunity opinions aggravated this Court’s and assault sentence between State, probation not within the jurisprudence the current of this five statutory punishment Id. at 810. constituting extraordinary range.” circumstance acknowledges that that the requires panel en banc consideration. See The Court Tex.R.App. (providing Appeals abrogated that en Criminal “later its deci 41.2(c) P. sen only Fullbright, banc consideration should be ordered sion held circumstances). community for extraordinary tence the conditions parts judg are different supervision panel The the trial court’s holds ment, and error in the thus an conditions order the Smith case supervision does not render community County escape run concur- Rhodes’ Smith v. Speth conviction void.” See rently with sentence Rhodes was then (Tex.Crim.App.1999); S.W.3d 532-33 serving aggravated for assault was an un- Williams, 657-58 Ex Parte authorized, void, “sentence” and and thus Nevertheless, (Tex.Crim.App.2001). that' Rhodes’ conviction for that panel fails to distinction between draw for penalty cannot be used to enhance the judg parts a sentence and other escape. panel’s his latest The result ment, the dis govеrned a distinction that only is not to void the enhancement ruling position parte Speth Ex Williams escape, paragraph for Rhodes’ latest but applies and that here. effect, also, in entered to void sentence gloss placed I arises from a County escape problem case. prior hold, in accordance with current the Court Criminal would Ross, imposed that the order that Rhodes’ “sentence” State jurisprudence, (Tex.Crim.App.1997), a case County escape the Smith Fullbright Speth. after and before concurrently the sentence he was decided Ross, “sentence,” serving itself a the Court Criminal then was not to construe article 42.02 upon of a a cumulation was called even but Procedure, which such, separate part As it is a the Code Criminal order. part as “that of to that es- sentence judgment regard entered with defines revoking suspension judgment, if the or order cape. Accordingly, even cumulation sentence, void, imposition of a that orders for the of the order is Rhodes’ sentence void, execu- carried into is not and his that the be escape Smith law.” prescribed by in the be avail- tion manner that should (Ver- panel in this case the exam- Tex.Code ÜRiM. PROC. Ann. art. 42.02 invokes 2004). Appeals ple given by the Court of Criminal pointed non The court out that “the authority argument in Ross as for its own to encompass sentence used the entire includes the terms for that a sentence judgment in that ‘the sentence was out in the cumulation of sentences set ... pronouncing order of the court and, the cumulation of judgment; because judgment ordering the same to exe- ” here, sentences statute at issue article cute,’ but that the term “sentence” had 48.02(b) of the Code of Criminal Proce- “significantly been narrowed” over the dure, a court to order does authorize years “nothing so that it had become more that a sentence for concurrent- judgment setting than the of the ly already with a sentence the defendant is Ross, punishment.” out the terms of that serving, panel holds Rhodes’ sen- (quoting at 750 Thornton void, County escape tence for the (Tex.Crim.App.1979)). and, therefore, prior escape Rhodes’ con- Comparing the definition of a sentence viction not be used to enhance his in article 42.02 the Code of Criminal punishment. current judgment Procedure and the definition of a that, I believe to the extent Ross 42.01, in article which includes affirmative merely observing in dic- holds—instead findings and the terms of the sentence as imposition tum—that the of a concurrent separate parts of the information con- sentence, part sentence is itself judgment, tained in a the Court of Crimi- seрarate part judg- rather than a a finding held that that an ment, holding implicitly has been ab- assault was deadly weap- committed with a rogated by authority. later The Court part on was of the judgment, part but not Criminal revisited the distinction Id.; of the sentence. see also Tex.Code a sentence and a in between 1(21) (Vernon § CRIM. Proc. Ann. art. 42.01 time, Speth, 6 S.W.3d 530. This the court “[ajffirmative Supp.2004-2005) (listing explicitly juxtaposed a as defined findings” separate part judgment); in article 42.02 of the Code Criminal 1(15) § (listing “term of sepa- sentence” as Procedure, judgment, to a in as defined judgment). rate The court then 42.01, noting article that article sec- added, example, “For in sentence one, ‘judgment’ tion Code defines “[t]he case would include appellant facts as the written declaration of the court is to serve sixteen in penitentia- signed judge the trial and entered of 28,1995, ry beginning July that his term is showing acquittal record the conviction or concurrent, that he pay must a $500 of the defendant” and that section one Ross, fine.” (emphasis S.W.2d at 750 provides further “[t]he original). in The court thus included the shall information served be based “fact” that a in sentence was “concurrent” in judgment.” Speth, contained its illustration of the terms of the sentence. 4 (citing S.W.3d at 535 n. Tex.Code Crim. However, immediately 1). the court then reit- § point- Proc. Ann. art. 42.01 The court Legislature erаted that the intent of the that, setting ed out out the information defining the term in article “sentence” judgment, article 42.01 contained clearly 42.02 restrict the definition distinguishes length between “the of com- aspects of that term and to exclude “those munity supervision, and the conditions judgment merely those affecting supervision,” provided for in subsection facts,” sentence,” 1(10), such findings. as affirmative Id. term of the “[t]he 1(15). (emphasis original). Id. at provided for subsection 358

532; judgment al information in the see also from the Tex.Code CRIM. Ann. Proc. (15). sentence). 1(10), 42.01, 42.01, §§ art. The court con- article defining Just as that, therefore, cluded the conditions of the parts judgment, expressly of a distin- community supеrvision specified in article guishes community the conditions of su- 11(a) 42.12, of the section Code of Criminal pervision from term the sentence” “[t]he included in judgment Procedure and set out in so judgment, a article 42.01 42.01, pursuant to article subsection expressly any term distinguishes “[t]he from the separate were sentence included order to article pursuant entered 42.08 of 42.01, in judgment under article sub- this code that the defendant’s sentence is section 15.1 run cumulatively concurrently or with sentences,” another sentence or from the as the Court of Criminal

Just “[t]he term of the sentence.” Tex.Code placement in Speth held of a defen- 42.01, 1(10), (15), §§ Crim. Proc. Ann. art. community supervision dant on under arti- (19).2 terms, By its article 42.08 cannot 3(a) 42.12, cle of the section Code of Crimi- any and does not assess part judgment, nal Procedure was crime; rather, comprehensively pre- it sentence, part but not so I would scribes the under which two terms or more hold in this case that a trial cumu- court’s in any given sentences are cumulated case. article lation order under likewise Thus, logically, article 42.08 does not set part judgment, but not scheme, instead, out a sentencing it sets 42.12, 11(a), Like article sentence. section sentences; out cumulation of terms for the at in article Speth, issue at issue and an article 42.08 order under is not here, information рrovides regarding a itself a rather cumulation but terms under which sentences shall be order. cumulating Nor can an order sen- conformity with served article 42.01’s any longer tences construed as a por- be mandate that sentence shall be “[t]he a plain tion of under the lan- on the “sentence” served based information contained guage 42.02 judgment.” See articles 42.01 and Tex.Code CRIM. 42.01, 1; Procedure; § current Speth, Ann. art. Code of Criminal in- see also Proc. stead, n. 4 a order must (distinguishing S.W.3d at 535 addition- cumulation be con- ("Community supervision”) 1. cases in Article 42.12 this line that conflate terms of provides part: relevant judgment sentence the terms of —in Heath, cluding (holding may impose any 817 S.W.2d 335 judge reasonable con- designed protect by dition that is or restore not authorized "sentence” community, protect law, void), or the vic- restore namely probation, abrogated by rehabilitate, tim, punish, (Tex.Crim. or Williams, reform parte Ex 65 S.W.3d Sims, defendant. App.2001), parte 868 S.W.2d and Ex 11(a). § Proc. Ann. art. (holding TexGode Crim. (Tex.Crim.App.1994) that defen 42.01, "Judgment,” sets out the "infor- right waive to have sentences dant could not judgment” in the 27 dis- mation contained consent), concurrently, by even overruled 1(10) (conditions including § subparts, crete McJunkins, (Tex. parte Ex 1(15) community ‍​‌‌‌​‌‌‌‌‌​‌​‌​‌​​​‌‌​​‌​‌​​​‌‌​​‌​​‌​​​‌​‌‌​‌​‌‍supervision) § ap Crim.App.1997), Speth well as —LaPorte sentence”). ("term of the although pears implicitly, not to hаve been explicitly, abrogated equates extent it to the In LaPorte v. Court of Criminal To be sentence with a conviction. consistent held, improper "An cumulation order holding Speth, be read as essence, LaPorte must is, a void sentence and such error that a cumulation order authorized waived” and that defect which "[a] cannot be void, either a or a statute is not that any void renders a sentence be raised improperly sentences are (Tex.Crim.App. in which time.” 1992). subsequent abrogation cumulated is void. Given the judg- separate strued as

ment.

I jurisprudence believe the current requires

this State us to conclude that a

cumulation order under article part separate part of a but a If that judgment. conclusion is

correct, then, although a cumulation order law,

may be void as not authorized cumulated, improperly is a which

separate part judgment, is not void,

thereby prior made and the convic-

tion punish- be used to enhance the subsequent

ment for a I crime. would

hold that Rhodes’ sentence for the Smith void,

County escape is not if the even judg-

cumulation order that was of his void,

ment of conviction for that prior

and that the properly

used to enhance his sentence the cur- case;

rent and I affirm judg- would

ment of the trial court.

Because I believe panel’s opinion

commits this Court to an erroneous inter-

pretation of the Code of Criminal Proce- applicable cases,

dure to this and I future

respectfully dissent from denial of en banc

consideration. ROBERTSON, Appellant,

Ted Texas, Appellee. STATE

No. 01-03-00633-CR. Texas,

Court of (1st Dist.).

Houston

Dec. 2004.

Discretionary Review Refused

June

Case Details

Case Name: Rhodes v. State

Court Name: Court of Appeals of Texas

Date Published: Jul 27, 2005

Citation: 175 S.W.3d 348

Docket Number: 01-03-00327-CR, 01-04-00739-CR, 01-04-00740-CR

Court Abbreviation: Tex. App.