Opinion filed June 15 , 2017



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 16

- 00107

- CR

__________
KE N N ETH LAS H ON GREEN , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 385th District Court Midland County , Texas Trial Court Cause No. CR 38038

M E M O R A N D U M O P I N I O N The jury convicted Kenneth Lashon Green of two counts of sexual assault. 1 The jury assessed punishment for each count at confinement for four years and a fine
of $1,000

. T he trial court ordered th at Appellant serve the sentence in Count II
consecutive ly to the sentence in Count I

.

1 T EX

. P ENAL C ODE A NN

. § 22.011 ( a)(1)(A) , (B) (West 2011 ).2

I n his first appeal, Appellant a s serted issues other than the cumulation

- order issue now before us, and we affirmed. 2 Appellant filed a writ of habeas corpus
, and the Court of Criminal Appeals determined that
, because Appellant ’s prior appellate
counsel was ineffective for failing to challenge the trial court’s cumulation order
, Appellant could file an out

- of

- time appeal. In this appeal, Appellant assert s that the
trial court erred when it ordered consecutive sentences because his two sexual assault
convictions arose o u t of the same criminal episode

. We modify and affirm.
I. Analysis On appeal, Appellant argues that the trial court erred when it ordered that he serve consecutive punishments for his two convictions for sexual assault. T he State
notified th is c ourt that it would not file a brief and that it agreed with Appellant’s position to delete the cumulation order

. Although the State concedes error, that concession is not conclusive on appeal. Saldano v. State , 70 S.W.3d 873, 884 (Tex. Crim. App. 2002); Isham v. State , 258 S.W.3d 244, 248 (Tex. App.

— Eastland 2008, pet. ref ’ d). We must conduct an independent examination of the merits of Appellant ’ s claim. Isham , 258 S.W.3d at 248.

“ The Legislature has assigned the task of cumulating sentences exclusivel y to the trial judge. ” Beedy v. State , 250 S.W.3d 107, 110 (Tex. Crim. App. 2008) (citing
T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.08 (West 2006) ; T EX

. P ENAL C ODE A NN

. § 3.03 (West Supp. 2016 ) ; Barrow v. State , 207 S.W.3d 377, 380 (Tex. Crim. App. 2006) )

.

“ In some cases, the trial judge is required to cumulate individual punishment, while in other cases, the trial judge ’ s decision to cumulate is discretionary. ” Id. ( cit ing
C RIM

. P ROC . art. 42.08; P ENAL § 3.03; Barrow , 207 S.W.3d at 380 )

. “ Like the

assessment of indiv idual punishment, a trial judge’ s decision to cumulate under
Texas Code of Criminal P rocedure, Article 42.08(a), is ‘ a normative, discretionary

2 Green v. State , No. 11

- 11

- 00273

- CR, 2013 WL 4715692 (Tex. App.

— Eastland Aug. 30, 2013, pet. dism’d, untimely filed) (mem. op., not designated for publication).3

function that does not turn on discrete findings of fact. ’ ” Id. ( quo ting Barrow , 207
S.W.3d at 380 )

. “ As a result, when a trial judge lawfully exercises the option to cumulate, that decision is unassailable on appeal. ” Id. ( citing Barrow , 207 S.W.3d at 381)

. However, Section 3.03 of the Texas Penal Code limits when a trial court may cumulate sentences for offenses that arise out the same criminal episode

. P ENAL § 3.03

. Section 3.03 provides that
, for multiple sexual assaults that occur within the

same criminal episode, the trial court may only cumulate sentences when the victim
of the sexual assault was younger than seventeen years of age. Id. § 3.03(b)(2)(A). In this case, Appellant’s victim was older than seventeen years of age at the time Appellant committed the offenses. Consequently, the trial court, under Section 3.03, could only order that the sentences be served concurrently. Sullivan v. State , 387 S.W.3d 649, 651 (Tex. Crim. App. 2013) ; see P ENAL § 3.03 (a)

. Where there is an
unlawful cumulation or stacking order
, the appropriate remedy is the order’s
deletion. Morris v. State , 301 S.W.3d 281, 294

– 95 (Tex. Crim. App. 2009) ; Beedy
, 250 S.W.3d at 114

. We sustain Appellant’s single issue on appeal.
II. This Court’s Ruling
W e modify the judgment of the trial court in Count II to delete the cumulation
order and to reflect that the sentences in Counts I and II are to be served concurrently

. As modified, we affirm the judgments of the trial court.

MIKE WILLSON
June 15 , 2017 JUSTICE Do not publish. See T EX

. R. A PP

. P. 47.2(b)

. Panel consists of: Wright, C.J., Willson, J., and Bailey, J.