## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

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R O N A L D A N T O N I O B O N I L L A , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E T E N T H C O U R T O F A P P E A L S

B R A Z O S C O U N T Y
A L C A L A , J . , f

i l e d a c o n c u r r i n g o p i n i o n i n w h i c h J O H N S O N , J . , j o i n e d .

C O N C U R R I N G O P I N I O N I concur in the Court’s judgme nt upholding the trial court’s cumulation order ag ainst Ronald Antonio B onilla, a

ppellant, but I do not join the majority opinion. Although I ag ree with a ll of the Court’s analy sis on the ultimate merits and its conclusion that there is “some evidenc e” in the rec ord
to support the trial court’s cumulation order , I disag ree that prese rvation of err or is require d to asser t this sufficiency -of- the-e vidence challeng e on appe al. Addre ssing appellant’ s challeng e to the adequa cy of the evidenc e supporting the cumulation order , the court of appea ls conducte d a “some ev i d en ce ” t est that examined the rec ord for anyBonilla Concur ring Op. -2 evidenc e that would support the trial court’s order

. Bonilla v. State , No. 10-12-00064- CR, 2013 WL 3482127, at *4 (Tex. App.—Waco J uly 11, 2013) (mem. op., not desig nated for publication). The 1
court of appea ls deter

mined that “ther e was some evidenc e that the offe nses for counts three and four

occur red afte r September 1, 1997,” based on the trial rec ord that showed that appellant committed “many instances” of indece ncy with a child occur ring on or afte r that date. Id

. The court of appea ls observe d that the 1995 date that was rec ited in the indictment and in the written judgme nts was not dispositi ve beca

use, in light of the State’s use of the “on or about” lang uag e, it was fre e to prove that the offe nses occur

red on any date prior to the prese ntment of the indic t m en t an d within the limit ations period. Id. Although the court of a

ppeals refe rs t o its test as t he “some evidenc e” test, I conclude that it is essentially apply

ing the Jack

son v. Virginia sufficie ncy -of- the-e vidence test to the trial court’s cumulation order

. See Jack son v. Virginia , 443 U.S. 307, 319 (1979). The Jack son sufficie ncy -ofthe-e vidence test, althoug h g ener ally used to deter mine whether sufficie nt evi d en ce ex ists in the

rec ord to support each el em en t o f the offe nse, has also been used by this Court to revie w other evidenc e-ba sed challeng es. See, e.g., Moreno v. State , 415 S.W .3d 284, 288 (Tex. Crim. App. 2013) (proba ble-c ause affida vits); Coble v. Stat e , 330 S.W .3d 253, 265 (Tex. Crim. App. 2010) (future

A trial court is authorized under the Texas Penal Code to cumulate a defe ndant’s sentenc es 1 for o ffenses of indece ncy with a child occur ring on or afte r September 1, 1997. See T E X
. P E N A L C O D E § 3.03(b)( 2). The Te x as Penal Code states, “(b) I f the acc used is f ound g uilty of more than one offe nse arising o u t o f t h e same criminal episode, the sentenc es may run concur rently or consec utively if eac h sentenc e is for a conviction of:

. . . (2) an offe nse: (A)

. . . under Section 21.11

. . . comm i t t ed ag ainst a victim y oung er than 17 y ear s of age at t he ti me of the commi ssion of t he offe nse reg ardle ss of whether the acc used is c onvicted of violations of the same section more than once[.]” T E X
. P E N A L C O D E § 3.03(b)( 2)(A)

. This provision permitting cumulation of sentenc es for indece ncy with a child applies only to those offe nses committed afte r the statute’s eff ective date of September 1, 1997. See Acts 1997, 75th L eg ., R.S., ch 667, § 7.Bonilla Concur ring Op. -3 dang erousne ss spec i al issue); McCain v. State , 22 S.W .3d 497, 503 (Tex. Crim. App. 2000) (af firmative deadly -we apon finding s); see also Johnson v. State, 423 S.W .3d 385, 389 (Tex. Crim. App. 2014) (explaining that Jack son test is used for assessing evidenc e sufficie ncy for matters that rela te “directly or i ndirec tly to a def endant’ s g uilt or sentenc e”)

. Be cause the appellate complaint here rests on whether there is any evidenc e in the rec ord t o s u pport the cumulation order , it is analy tically simil ar to other situations involving a revie w of the sufficie ncy of the evidenc e rela ted
to a defenda

nt’s sentenc e, and there fore , I conclude that the essenc e of the Jack son test applies by analog y . And that is e ssentially the test that other c ourts of appe als have applied to this situation. See Owens v. State , 96 S.W .3d 668, 672 (Tex. App.—Austin 2003, no pet.) (“A lthough the victim’s testimony sometimes conflict ed as to the dates of the sexual assaults, a rea sonable view of the evidenc e as a whole supported the t rial court’s exercise of its discretion to run Owens’ s sentence s

consec utively .”); Bates v. S t a t e , 164 S.W .3d 928, 931 (Tex. App.—Dallas 2005, no pet.) (stating that, “if the evidenc e shows the offe nses at issue occur red afte r the eff

ective date of section 3.03(b)

. . . then the trial court has the authority to stack the sentenc es,” and upholdi n g cu m u l at ion order beca use “[t] here was no evidenc e indicating any sexual assault occur red befor e the summer of 2000”); Hendrix v. State , 150 S.W .3d 839, 854 (Tex. App.—Houston [14t h Dist.] 2004, pet. ref ’d) (apply ing some -evide nce te st and upholding c umulation order be cause “[t] he evidenc e shows that the incidents of sexual abuse ag ainst B.S. continued to occur up until 2001, well afte r the September 1, 1997 eff

ective da te of the c umulation statute”). L ike all challeng es to the sufficie ncy of the ev i d en ce, it is unnece ssary for an appellant to
prese rve this ty

pe of c omplaint with an objection at trial. See Rankin v. State , 46 S.W .3d 899, 901 (Tex. Crim. App. 2001). I , there fore , disag ree with the majority opinion’s deter mination that it wasBonilla Concur ring Op. -4 appellant’ s obliga tion to complain in the trial court that the cumulation order was improper. I also find it peculiar that the majority opinion would g ive appellant rel ief if there wer e no evidenc e to support the cumulation order on the basis that, in those circ umstances, the improper stacking order would rende r appellant’ s sentenc e illega l. LaPorte v. State , 840 S.W .2d 412, 415 (Tex. Crim. App. 1992) (“A n im p ro p er cumulation order is, in essenc e, a void sentenc e, and such err or cannot be waived.” ). My bottom line is tha t I am unpersua ded by the rea soning of the majority opinion that

2 boils down to thi s: An appe llant loses on appea l: 1. when he does not prese rve his complaint, or 2. when ther e is some evidenc e to support the cumulation order

. An appe llant wins on appea l: when ther e is no evidenc e to support the cumulation orde r, beca use that is an illeg al
sentenc e for

which an appellant obtains re lief
reg ardle ss of err or prese rvation. This is the result: To lose his appea l, an appellant must prese rve e rror , but to win his appeal, no
prese rvation of e rror

is require d.

Be cause it would g rant relief only under circ umstances in which no prese rvation of err or is require d and would deny relief when err or has been prese rved, the majority opinion’s r easoning to

I note that this is not a situation wher e the challeng e is to the proce dures empl o y ed with 2 respe ct to the cumulation order , which was the situation in Ex parte McJ unkins , 954 S.W .2d 39, 39 (Tex. Crim. App. 1997) (op. on reh’ g ). Be cause McJ unkins addre ssed only a proce dural irreg ularity in the way the trial court imposed the ag ree d-upon cumulat i v e sentenc es, it cannot stand for the proposition that a sufficie ncy -of- the-e vidence co m p l aint challeng ing a cumulation order must be prese rved for appe al t h rough a timely objection at trial. See id

. McJ unkins , there fore , is of littl e conseque nce to the ma tters ra ised in this appeal.Bonilla Concur ring Op. -5 require prese rvation of err or is unpersua sive to me. I see no basis for i m p o s i n g a prese rvation require ment in these circ umstances, when t he prese rvation analy sis will alway s lead to the same result as the err or analy s i s , an d t h e two inquiries could thus be confla ted into the simpler, more appropr iate test—the traditional suff i ci en cy of the evidenc e revie w—that is tailored to addre ss sufficie ncy -of- the-e vidence complaints like the one asser ted in this case . I conclude that appellant did not forf

eit his complaint with respe ct to the trial court’s cumulation order beca use his complaint is in the nature of a sufficie ncy -of- the-e vidence challeng e, which does not need to be prese rved for
appea l. Analy

zing the evidence i n t h e re cord as a whole, I would hold that there is sufficie nt evidenc e supporting the trial c ourt’s cumulation orde r. I , there fore , would aff irm the judgme nt of the cour t of appe als upholding the trial court’ s cumulation order

. Filed: Nove mber 19, 2014 Publis h