## NO. 12

- 22

- 00215 -CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

AARON CHANDLER GASTON , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ AP PEAL FROM THE

COUNTY COURT AT LAW NO . 2

SMITH COUNTY, TEXAS

MEMORANDUM OPINION Aaron Chandler Gaston appeals his conviction for driving while intoxicated (DWI) . In a single issue, Appellant contends the trial court abused its discretion in ordering that ” his sentences run consecutively. We modify and affirm as modified.

B ACKGROUND Appellant was charged by informa tion with the offense of DWI in trial court cause number 002 -81237-22 . Pursuant to an open plea, Appellant pleaded “guilty.” During the same plea hearing, Appellant pleaded “ guilty ” to four other cases: three DWI cases (trial court cause numbers 002 -81236- 22, 002 -81235- 22, 002 -80212-22) and a possession of marijuana case (trial court cause number 002 -81234-22)

. Pursuant to plea agreements , Appel lant agreed to serve 200 days of confinement and pay a $100 fine in one of the DWI cases, trial court cause number 002

- 81235- 22, and agreed to twenty days of confinement in the marijuana case. The parties agree d those sentences would run concurrently.
Fo llowing Appellant’s “ guilty ” plea, the trial court conducted a sentencing hearing. The trial court sentenced App ellant to 350 days of imprisonment in this DWI case (trial court cause number 002 -81237- 22). It f urther ordered that Appellant’s sentence be s tacked with the other cases to which he pleaded “guilty.” Appellant objected , and the trial court overruled his2 objection. The trial court’s order, change in status form, and commitment order each note that Ap pellant’s sentence is to run consecuti vely wi th his sentence in cause number 002 -81236-22, another DWI case. Appellant filed a motion for new trial, alleging the cumulation order is improper. The trial court denied the motion. This appeal followed.

C UMULATION OF S ENTENCES In his sole issu e, Appellant contends the trial court abused its discretion when it ordered that his DWI sentences run consecutively. The St ate concedes the error. Standard of Review and Applicable Law Under article 42.08 of the Code of Criminal Procedure, the trial jud ge has the d iscretion to cumulate the sentences for two or more convictions. Smith v. State
, 575 S.W.2d 41, 41 (Tex. Crim. App. 1979); Harvey v. State
, 821 S.W.2d 389, 392 (Tex. App.— Houston [14th Dist.] 1991, pet. ref ’d) ; T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.08 (West 2018). A trial court abuses its discretion when it applies an erroneous legal standard or when no reasonable vie w of the record supports the trial court ’ s conclusion under the correct law and facts viewed in t he light most favorable to its legal conclusio n. DuBose v. State
, 915 S.W.2d 493, 497

– 98 (Tex. Crim. App. 1996), overruled on other grounds by Guzman v. State
, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997). As a practical matter, however, an abuse of discretion generally will be found only if the trial c ourt imposes consecutive sentences where the law requires concurrent sentences, where the court imposes concurrent sentences but the law requires consecutive ones, or where the court otherwise fails to observe the statutory requirements pertaining to sente ncing. Nicholas v. State , 56 S.W.3d 760, 764

– 65 (Tex. App.

— Houston [14th Dist.] 2001, pet. ref’d)

. In short, so long as the law authorizes the imposition of cumulative sentences, a trial judge has abso lute discretion to stack sentences. Qui ntana v. Sta te , 777 S.W.2d 474, 480 (Tex. App.— Corpus Christi 1989, pet. ref ’ d) (citing Smith
, 575 S.W.2d at 41 , Carney v. St ate , 573 S.W.2d 24, 27 (Tex. Crim. App. 1978)). Texas Penal Code Section 3.03 statutorily l imits t he trial court ’ s general authority under
Tex as Code of Criminal Procedure A rticle 42.08 to order consecutive sentences. See LaPorte v. State
, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992) . Subject to some statutory exceptions not pertinent here, S ection 3.03 provides that if a defendant is found guilty of more than one offense prosecuted in a single criminal action, the sentences assessed for those convictions shall run3 concurrently. T EX

. P ENAL C ODE A NN . § 3.03(a) (West Supp. 2022 ); Frank v. State
, 992 S.W.2d 756, 758 (Tex. App.— Houston [ 1st Dist.] 1 999, pet. ref ’ d). A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. T EX

. P ENAL C ODE A NN . § 3.02(a) (West 2021 ). “Criminal episode” mean s the commission of two or more offense s, regardles s of whether the harm is directed toward or inflicted upon more than one person when (1) the offenses are committed pursuant to the same transaction; (2) pursuant to two or more transactions that are connected or constitute a common scheme or p lan; or (3) the offenses are the repeated commission of the same or similar offenses. Id

. § 3.01 (West 2021 ). A defendant i s prosecuted in “a single criminal action” whenever allegations and evidence of more than one offense arising out of the same criminal episode are presented in a single trial or plea proceeding. Ex parte Carter , 521 S.W.3d 344, 346–47 (Tex. Crim. App. 201 7). Analysis Appellant argues, and the State concedes, he was prosecuted in a single criminal action for DWI offenses arising out of the same criminal episode. All of Appellant’s five charges were called together by the trial court on the same day and du ring the same plea hearing

. Appellant pleaded “guilty” to each case at the same time. And the trial court assessed punishment in e ach
case at the same hearing. Four of the charges involved repeated commission of the same offense : DWI . And the remaining charge involved possession of marijuana. The trial court did not order that the DWI sentence in this case run consecutively with t he possession cas e. It ordered it to run consecutively with another DWI case. As a result, the trial court abused its discretion in ordering the sentences run consecutively. See T EX

. P ENAL C ODE A NN . § 3.03(a); Nicholas , 56 S.W.3d at 764-65; Frank
, 992 S.W.2d at 758.
Howev er, the cumulation order does not appear in the judgment , and the State argues we have nothing to reform. But we have the auth ority to modify a judgment to make the record speak the truth when we have the necessary data and information to do so. See T EX

. R. A PP

. P. 43.2(b); see also Ingram v. State , 261 S.W.3d 749, 754 (Tex. App.

— Tyler 2008, no pet.) ; Davis v. Stat e , 323 S.W.3d 190, 198 (Tex. App.

— Dallas 2008, pet. ref'd)

. Here, the cumulation ruling appear s on the trial court’s order, change in status form, and commitment order. Specifically, each one states, “ to run consecutive with 002 -81236-22. ” Furthermore, the tri al court orally pronounced that the sentences would run consecutively. When the oral pronouncement of sentence and the written judgment vary, the oral pronouncement controls.4 Coffey v. State
, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). The rationale for t his rule is that the imposition of sentence is the crucial moment when all of the parties are physically present a t the sentencing hearing and able to hear and respond to the imposition of sentence. Ex parte Madding , 70 S.W.3d 131, 135 (Tex. Crim. App. 200 2)

. Once he leaves the courtroom, the defendant begins serving the sentence imposed. Id. Thus, “it is the pronouncement of sentence that is the appealable event, and the written sentence or order simply memorializes it and should comport therew ith.” Coffey , 979 S.W.3d at 328. Having determined the trial court abused its discretion, we set aside the order of cumulation, and the trial court’s judgment should be modified to reflect that Appellant’s sentence run concurrently

. See Moore v. S tate , 371 S.W.3d 221, 229 (Tex. Crim. App. 2012) (setting aside cumulation order where trial judge abused discretion by cumulatin g sentences and
appe llate court erred by affirming cumulation order); see also Morris v. State , 301 S.W.3d 281,
295- 96 (Tex. Cr im. Ap p. 2009) (citing Beedy v. State , 250 S.W.3d 107, 113 (Tex. Crim. App. 2008) (noting that when trial court erroneously cumul ates sentence, remed y is to delete cumulation order so sentences run concurrently). We sustain Appellant’s sole issue.

D ISPOSI TION Having sustained Appellant’s sole issue, we set aside the cumulation order and modify the judgment to reflect that his sen tence s run concurren tly. We affirm the judgment as modified

.

J AMES T. W ORTHEN Chief Justice
Opinion delivered January 11, 2023. Pane l consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JANUARY 11, 2023

NO. 12-22-00215- CR

AARON CHANDLER GASTON , Appellant V. THE STATE OF TEXAS , Appellee

Ap peal from the County Court at Law No . 2 of Smith County, Texas (Tr.Ct.No. 002-81237-22) THIS CAUSE came to be heard on the appellate record and the brief s filed herein, and the same being considered, it is the opinion of this court that the judgment of t he court below should be modified and as modified, affirmed.
I t is therefore ORDERED, ADJUDGED and DECREED th at the cumulation or der be set aside and the judgment of the court below be modifie d to reflect that Appellant’ s sentence s run concurrently ; in al l other respects the judgment of the t rial court is
affirmed ; and that this decision be certified to the court below for observance. James T. Worthen , Chief Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.