Opinion filed June 15, 2017

In The

Eleventh Court of Appeals 

__________

No. 11-16-00107-CR

__________

KENNETH LASHON GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR38038

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. The trial court ordered that Appellant serve the sentence in Count II

consecutively to the sentence in Count I. 

 

1TEX. PENAL CODE ANN. § 22.011(a)(1)(A), (B) (West 2011).
2

In his first appeal, Appellant asserted 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 asserts that the 

trial court erred when it ordered consecutive sentences because his two sexual assault 

convictions arose out 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. The State 

notified this court 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 exclusively to 

the trial judge.” Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008) (citing 

TEX.CODE CRIM. PROC. ANN. art. 42.08 (West 2006); TEX. PENAL CODE ANN. § 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. (citing 

CRIM. PROC. art. 42.08; PENAL § 3.03; Barrow, 207 S.W.3d at 380). “Like the 

assessment of individual punishment, a trial judge’s decision to cumulate under 

Texas Code of Criminal Procedure, Article 42.08(a), is ‘a normative, discretionary 

 

2Green 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. (quoting 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. PENAL

§ 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 PENAL § 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

We 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 TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.