*1 cases, may, appropriate dismissed declaring
with a final order lawsuit
frivolous.
It therefore that relief is de- is ordered addition, applicant
nied. In we cite for
abuse of the writ.
MEYERS, J., participate. did not SULLIVAN, Appellant
James Allen
The STATE of Texas. PD-1678-11,
Nos. PD-1679-11. Appeals
Court Criminal of Texas.
Jan. Howard, TX,
Patrick Dale Bangs, for James Allen Sullivan. Fletcher, Amarillo,
Melinda Lisa C. McMinn, Austin, TX, Attorney, State’s State.
KELLER, P.J., delivered opinion PRICE, WOMACK, in which Court JOHNSON, KEASLER, HERVEY, ALCALÁ, JJ„ COCHRAN and joined. juryA convicted of four sex- ual assaults three victims and him eighteen years sentenced of im- prisonment in each case. The trial judge ordered some of the sentences run concurrently and some to run consecu- tively. One of the stacked was not eligible stacking. presents question This case proper remedy when one of a series of improperly stacked and *2 consecutively to the others.” “run would in the series where it matters whether result, appears. judge said that there stacked As a improperly judgment eighteen-year “three consecutive reform the would be We sen- improperly that reflect terms.” the two and that not stacked
tence is if there was then asked judge The trial victims are involving different sentences should why the sentences any legal reason sequence of reform the We also stacked. counsel Defense pronounced. not now be conform to stacking to legal was no reason. that there responded of sentence. then stated: judge The I. BACKGROUND Court, [appel- of this It’s the sentence Trial
A. lant], years the 18 in the you that serve pronounced, the stack- manner that I’ve a Texas Youth at worked Appellant top on two ing [N.P.] facility. The evidence showed Commission case, in the other the two counts three sexually assaulted appellant that facility. what I deem staying at that each victim will have who were children children, A.S., matter, was seventeen justice One of the in this appropriate assaults. time of the sexual years old at the to stack the two within going I’m not but C.C., children, N.P. and two The other for the reasons itself with one time. In at the age were under seventeen the sentences will then I’ve stated. indictment, charged appellant was one indicated, main stacking the two run as against assaults multiple with sexual two counts in addition as and the cases indictment, appellant In another reflected. against one sexual assault charged with judgment entered a judge The Appellant was A.S. and one indictment, judgment and each con- each of sexual assault of two counts convicted following written cumulation or- tained the for A.S. one count each against N.P. and der: count, jury assessed On each and C.C. eighteen of confinement for punishment a imposed Cause
years. I as to shall [A.S.] # CR19690 Count par- for the judge The trial then asked judgment in the sen- begin when the the sentences positions ties’ on whether # CR18971 imposed tence Cause concurrently or consecu- be served should operate. The sen- has ceased to [N.P.] to make urged judge tively. The State as to # CR19690 tence Cause consecutive. all of begin II shall when the Count [C.C.] make all of the sen- urged imposed in in the sentence judge stated The trial tences concurrent. I has # Count [A.S.] Cause CR19690 he order the sentences would operate.1 ceased to N.P. to be concurrent two counts Thus, under the respect to sen- with each other. With involving N.P. two concurrent involving A.S. and tences series but would be the last C.C., they would stated that they would be other,” under the each consecutively “run with the first in the series. involving N.P. for counts reader. added to aid the 1. Bracketed material Appeal
B.
specific
concurrent unless a
exception
within chapter
provides
three
otherwise.6
appeal,
complained
On
One such exception provides that consecu
stacking the sentence for the count involv-
*3
may
tive sentences
for convic
ing A.S. was error because the relevant
tions for certain types of sexual offenses if
permitted stacking only
statute
if the vic-
offenses were committed
a vic
younger
tim was
than seventeen. The
tim younger
years
than
age.7
seventeen
of
State conceded error. The court of ap-
peals
appropriate remedy
held that
respect
us,
With
to the issue before
modify
was to
the trial
judgments
the language of the relevant portions of
“to delete the language ordering cumula-
chapter three is unambiguous.8 The sen
tion of the
sentence
A.S.”2 To
tence for the count involving A.S. does not
accomplish
objective,
ap-
this
fall within
exception
mentioned above
peals
ordered that the
be re-
because A.S. was not under seventeen at
vised to reflect that the
the time of the offense. And because no
counts involving N.P. run concurrent with
exception
other
applies,9 that
sentence
other,
each
the sentences for the
must run concurrent with all other sen
counts involving A.S. and C.C. run concur-
tences obtained in the same criminal ac
other,
rent with each
and that
the sen-
tion, i.e., with the sentences for the counts
tences for the counts involving A.S. and
involving N.P. and
C.C.
C.C. be stacked on the sentences for the
for the counts involving N.P. and C.C. do
counts involving N.P.3 The result of the
fall within the exception because those vic
court of appeals’s revised orders is that
seventeen,
tims were younger than
eighteen-
serves two consecutive
those sentences could run consecutive to
year terms
instead
three.
other,
each
although they must run con
current with the sentence for the count
II. ANALYSIS
Consequently,
par
as both
Chapter three of the Texas Penal Code
agree,
ties
erred in cumu-
allows for offenses
out
arising
of the “same
lating the sentence for the count involving
episode”
criminal
be tried
the same
A.S. with the other sentences.
criminal action.4 The term “same criminal
episode”
specifically
is
in chapter
defined
contends that the
three, and the term includes a situation in peals erred in rewriting
which
repeated
“the offenses are the
com
cumulation orders. He claims that
mission of the same or similar offenses.”5
relating
A.S. was
the middle
When
together pursuant
offenses are tried
of the stacking
when
it is delet-
three,
to chapter
ed,
the sentences must be
there remains no
order
State,
Id.,
3.03(b)(2)(A).
2. Sullivan v.
§
Nos. 11-10-00027-CR & 7.
11-10-00028-CR,
We
here
only part
conclude
of the ment of the trial
by removing only
court
judge’s
illegal—
cumulation order is
portion
special
the
findings that improp-
inclusion of
sentence for the count
erly cumulated
majority
sentences?” The
involving
sequence
A.S.
of stacked
determines that the court of appeals did
If
any
sentences.
we had
correctly
doubt about not
modify
of the
do,
what
the trial judge intended to
we
trial court because under
would remand
order,
these cases to him to re- peals’s revised
the sentence for the
form the cumulation order. But it is clear
count involving
17-year-old
victim still
pronouncement
from the oral
what his in-
runs consecutive to the sentences for the
Therefore,
tent
conformity
was.
with
involving
counts
one of the other victims.
the trial judge’s
majority
and The
then decides to reform the
law,
with the
we reform the cumulation cumulation
deleting the sentence for
order to delete the sentence for the count
the count involving
17-year-old
victim
Morris,
and says: majority
er victims. only part here conclude
We illegal— order is cumulation the sentence for inclusion of involving sequence
count any doubt If we had sentences. intended to
about what to him
do, these cases we would remand But it order. the cumulation
to reform from the oral
is clear Therefore, in con- intent was.
what his pro-
formity with the trial law, reform with the
nouncement and to delete the sen-
the cumulation A.S. from the count
tence for of stacked sentences sequence
to stack the sentence for the upon
count *6 Op. at *8.
Maj. tell, authority far as I can no
As sequence of reform the trial court’s and we have not been asked to
stacking,
do so. I would hold modification of
appeals’s and would remand
judgment was incorrect permit trial court to
the case to the the cumulation order. to correct
Therefore, I respectfully dissent. DAUGHERTY,
Tonya Jean of Texas. STATE
No. PD-1717-11. Appeals of Texas.
Court Criminal
Jan.