BlSfS^

JAN 1h 2013

SHERRY WIUJAMSON,Cl£flK

By rtapnty

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. PD-1678-11 &PD-1679-11 IHQ- Q^Cl~C,(is

JAMES ALLEN SULLIVAN, Appellant

v.

THE STATE OF TEXAS

ONAPPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

BROWN COUNTY

Keller, P.J., delivered the opinion of the Court in which Price, Womack, Johnson, Keasler, Hervey, Cochran and Alcala, JJ., joined. Meyers,' J., filed a dissenting opinion.

Ajury convicted appellant offour sexual assaults against three victims and sentenced him

to eighteen years ofimprisonment in each case. The trial judge ordered some ofthe sentences to run

concurrently and some to run consecutively. One ofthe sentences that was stacked was not eligible

for stacking. This case presents the question ofthe properremedy when one ofaseries ofsentences

is improperly stacked and whether it matters where in the series the improperly stacked sentence
SULLIVAN —2

appears. We reform the trial court'sjudgment to reflect that the improperly stacked sentence is not

stacked and that the two sentences involving different victims are stacked. We also reform the

sequence ofstacking to conform to the trial judge's oral pronouncement ofsentence.

I. BACKGROUND

A. Trial

Appellant worked at a Texas Youth Commission facility. The evidence showed that

appellant sexually assaulted three children who were staying at that facility. One ofthe children,

A.S., was seventeen years old at the time ofthe sexual assaults. The other two children, N.P. and

C.C, were under age seventeen at the time. In one indictment, appellant was charged with multiple

sexual assaults against N.P. In another indictment, appellant was charged with one sexual assault

against A.S. and one against C.C. Appellant was convicted oftwo counts ofsexual assault against

N.P. and one count each for A.S. and C.C. On each count, the jury assessed a punishment of

confinement for eighteen years.

The trial judge then asked for the parties' positions on whether the sentences should be

served concurrently or consecutively. The State urged the judge to make all ofthe sentences

consecutive. Appellant urged the judge to make all ofthe sentences concurrent. The trial judge

stated that hewould order the sentences inthetwo counts involving N.P. tobeconcurrent with each

other. With respect to the sentences for the counts involving A.S. and C.C, the judge stated that

they would "run consecutively with each other," and the sentences for counts involving N.P. would

"run consecutively to the others." As a result, the trial judge said that there would be "three

consecutive eighteen-year terms."
SULLIVAN —3

The trial judge then asked ifthere was any legal reason why the sentences should not now

be pronounced. Defense counsel responded that there was no legal reason. The judge then stated:

It's the sentence ofthis Court, [appellant], that you serve the 18 years in the manner

that I've pronounced, the stacking of the two [N.P.] judgments on top of'the two

counts in the other case, so that each victim will have what I deem to be appropriate

justice in this matter, but I'm not going to stack the two within itselfwith the one for

the reasonsthat I've stated. But the sentences will then run as indicated, stacking the

two main cases and the two counts in addition as reflected.

The trial judge entered a judgment for each indictment, and each judgment contained the following

written cumulation order:

The sentence imposed in Cause #CR19690 as to Count I [A.S.] shall begin when the

judgment in the sentence imposed in Cause #CR18971 [N.P.] has ceased to operate.

The sentence imposed in Cause #CR19690 as to Count II [C.C] shall begin when the

judgment in the sentence imposed in Cause #CR19690 Count I [A.S.] has ceased to

operate.1

Thus, under the oral pronouncement the two concurrent sentences involving N.P. would be the last

in the stacking series but under the written judgment they would be the first in the series.

B. Appeal

On appeal,appellantcomplainedthat stackingthe sentencefor the countinvolvingA.S.was

error because the relevant statute permitted stacking only ifthe victim was younger than seventeen.

The State concedederror. The court of appeals held that the appropriate remedywas to modifythe

trial court's judgments"to delete the language orderingcumulationofthe sentenceinvolvingA.S."2

To accomplish this objective, the court of appeals ordered that the judgments be revised to reflect

that the sentences for the counts involving N.P. run concurrent with each other, that the sentences

1 Bracketed material added to aid the reader.

2 Sullivan v. State, Nos. 11-10-00027-CR & 11-10-00028-CR, slip op. at 5 (Tex.

App.-Eastland September 29, 2011) (not designated for publication).
'-I ',..,"' ; SULLIVAN —4

r -i>*-' for the counts involving A.S. and C.C run concurrentwith each other, and that the sentencesfor the , -,< \ s

fr' ' , ' , ^ ;' "' '-**?'*

countsinvolving A.S.,andC.C be stackeddri the sentencesforthe coiratsinvolving N:P.?t;Tfie result

s

&-tfV;V insteadbfthree..,'i~ \, v/^i *'j '-i^'A'y - >• •"*/»}.•'&?. •• f?{' '4%*:^,1 <>w,;- ^-v.

H. ANALYSIS •' -.< ^

Chapterthree oftheTexas Penal Code allows foroffenses arising outofthe"same,criminal ''^

I ' -* •'- episode" to be tried in the same criminal action. The term "same crirhihalv'episode'Vis specifically 5* ;* • '

• ; defined in chapterthree, and the term includes a situation in which "the offenses are the repeated

" (', ' commission ofthe same orsimilar offenses."5 When offenses are tried,together pursuant to chapter ^^' .

\ *\r>: \:',^\-;; <*«?;«'*••' /'?**'U- ''-'^ r;- 'J>>, V'^S"- -'\— f^r3- .-..

three, the.sentences must be concurrent,unless a specific exception within chapter three provides

' otherwise.6 One such exception providesthatconsecutive sentencesmay beimposed forconvictions

i, for certain types.ofsexual offenses ifthe 'offenses were committed against a victim younger than -<' ' '

t ' seventeen years ofage.7 ! '. ' '"*

of the courtofappeals'srevisedordersis that appellant servestwo consecutive eighteen-year termse

With respectto the issue before us, the languageof the relevant portions of chapterthree is

unambiguous:8^ The sentence for the count involving A.S. doe's not;Tairwithin the exception

3 Mat5-6.

*'4t Tex. PENALtobE §3.02(a). ' ' ' ' ~-~ "• "•', *- -*V •

' 5 7rf.,s§ 3.01(2). •' ' ''

6"/rf.,§ 3.03(a).- r-i a* ;•" ' • •

7 7rf,'§ 3.03(b)(2)(A). ' . '" ' ^

8 SeeBoykinv. 5to/e,818S.W.2d782,785(Tex.Crim. App. 1991) (Courts must give effect

to the plain meaningofthe statutory text unless the languageis ambiguous or leads to absurd results

mat the legislature could nothave possibly intended)..-,;,,,,. ,,,. ,
SULLIVAN —5

mentioned above because A.S. was not under seventeen at the time ofthe offense. And because no

otherexception applies,9 thatsentence mustrun concurrent with all othersentences obtained in the

same criminal action, i.e., with the sentences for the counts involving N.P. and C.C. But the

sentences for the counts involving N.P. and C.C do fall within the exception because those victims

were youngerthan seventeen,so those sentencescouldrun consecutiveto each other,althoughthey

must run concurrentwith the sentence for the count involving A.S. Consequently, as both parties

agree, the trial judge erred in cumulating the sentence for the count involving A.S. with the other

sentences.

Appellantcontends that the court of appeals erred in rewriting the trialjudge's cumulation

orders. He claims that the sentence relating to A.S. was in the middle of the stacking order, and

when it is deleted, there remains no order stackingthe sentence relating to N.P. onto the sentence

relating to C.C. Thus, he claims, the proper remedy is to delete all of the cumulation orders. The

State contends that the court of appeals was correct to modify the cumulation orders to delete the

improper cumulation of the sentence forthe countinvolving A.S., butthe Statesuggests thatfurther

modification may be required because the sequence in which the sentences were stacked in the

writtenjudgments varies from their sequence in the trial court's oral pronouncement.

We first observethat the court ofappeals's remedydoes not entirelyfix the error in the trial

judge's cumulation orders. Under the court of appeals's revised orders, the sentence for the count

involving A.S. still impermissibly runs consecutive to the sentences forthecounts involving N.P.

Further, as the State suggests, the written cumulation order differs from the trial court's oral

pronouncement ofsentence, although it is unclear whether thatdifference would have any practical

See Tex. Penal Code § 3.03(b).
SULLIVAN —6

effect on appellant's incarceration. Underthe written cumulation order, the sentences for the counts

involving N.P. are the first in the stacking sequence, but in the trial court's oral pronouncement they

are last in the stacking sequence. The general rule that a trial judge's oral pronouncement controls

over the written judgment applies to cumulation orders.10 Under this principle, we have held that

a trial judge may not cumulate sentences in the written judgment if he did not do so in his oral

pronouncement.'' It follows thata cumulation order in a written judgment may notsubstantively

vary from the cumulation order contained in the trial judge's oral pronouncement ofsentence.

But the trial judge's oral pronouncement suffers from some lack ofspecificity regarding the

sequence ofstacking. The sentences for the counts involving N.P. are clearly last, but it is not clear

where in the sequence the sentences for the counts involving A.S. and C.C. fall. Unlike in the

written orders, the sentence relating to A.S. does not clearly fall between the other sentences. If a

cumulation order is not sufficiently specific, a remand may be permitted to allow the trial judge to

remedy thematter,12 butwe need not consider whether a remand is appropriate in this case. Once

we take into account the impermissibility ofstacking the sentence relating to A.S., the specificity

issue vanishes. In making his oral pronouncement, the trial judge clearly intended the sentences for

the counts involving N.P. to run consecutive to the sentence for the count involving C.C.

Remanding the cases to him would result in an order stacking the sentences related to N.P. and C.C.

10 Exparte Madding, 70 S.W.3d 131, 135-36 (Tex. Crim. App. 2002).

11 Mat 136.

12 Morris v. State, 301 S.W.3d 281, 296 (Tex. Crim. App. 2009); Beedy v. State, 250

S.W.3d 107,114 (Tex. Crim. App. 2008).
SULLIVAN — 7

and notstacking the sentence relating to A.S.13

The remaining question is whether the judgment can be reformed to accomplish this intent

or whether the cumulation order must be deleted in its entirety. When partof a cumulation order is

illegal, the remedy is to delete the illegal portion.14 InMorris v. State, the trial judge stacked two

sentences and partially stacked a third sentence." Thetrialjudge stated on the record that if he

could not partially stackthe thirdsentence, then hewould stackall three sentences.16 The courtof

appeals deleted the portion ofthe cumulation order that purported to partially stack the third sentence

but left intact the partthatstacked the first two sentences.17 Weheldthatthetrialjudge could not

partially stack a sentence, and we also held that the trial judge could not impose an alternative

stackingorder,so cumulating all three sentences on appeal was not an option.18 We concluded that

the court of appeals "appropriately deleted the unlawful portion [ofthe cumulation order] and left

13 Neither party discusses thepossibility thatthetwo sentences relating toN.P. might have

been stacked (so that there would still be three consecutive eighteen-year sentences) ifthe trialjudge

had known that the sentence relating to A.S. was not subject to being stacked. With respect to that

possibility, the court ofappeals's decision to reform the cumulation order is a holding adverse to the

State. The State did not file a petition for discretionary review suggesting that the court of appeals

should have remanded the case to the trial court to consider stacking the two sentences relating to

N.P. Consequently, we have no occasion to address whether this case could have been remanded

for that purpose or whether Morris would bar such an outcome.

14 Morris, 301 S.W.3d at 295-96.

13 Id at 294.

16 Id. at 294-95.

17 Id. at 295.

18 Id. at 295-96.
SULLIVAN —8

the lawful portion ofthe order intact."19

We conclude here that only part of the trial judge's cumulation order is illegal—the

inclusion ofthe sentence for the count involving A.S. inthe sequence ofstacked sentences. Ifwe

had any doubt about what the trial judge intended to do, we wouldremand these cases to him to

reform the cumulation order. But it is clear from the oral prounouncement what his intent was.

Therefore, inconformity with the trial judge's oral pronouncement and with the law, we reform the

cumulation order to delete the sentence for the count involving A.S. from the sequence ofstacked

sentences and to stack the sentence for the counts involving N.P. upon the sentence for the count

involving C.C. As aconsequence ofourreformation, the cumulation order in each ofthe judgments

is ordered to read as follows:

The sentence imposed in Cause #CR19690 as to Count Ishall begin immediately.

The sentence imposed in Cause #CR19690 as to Count II shall begin immediately.

The sentences imposed in Cause #CR18971 shall begin when the judgment inthe

sentence imposed inCause #CR19690 Count IIhas ceased to operate.

We so reform the trial court'sjudgments and otherwise affirm the judgments ofthe courts below.

Delivered: January 9, 2013

Publish

Id. See also Rhodes v. State, 240 S.W.3d 882, 889 (Tex. Crim. App. 2007) (discussing

an appellate court's ability to reform ajudgment to delete an illegal cumulation order or impose a

cumulation order required by law).
IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOs. PD-1678-11, PD-1679-11

JAMES ALLEN SULLIVAN, Appellant

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

BROWN COUNTY

Meyers, J., filed a dissenting opinion.

DISSENTING OPINION

We granted Appellant's ground for review in this case, which asked, "Did the

courtof appeals correctly modify thejudgment of the trial court by removing onlythe

portionof special findings that improperly cumulated sentences?" The majority

determines thatthe court of appeals did not correctly modify thejudgment of the trial

court because under the court of appeals's revised order, the sentence for the count

involving the 17-year-old victim still runs consecutive to the sentences for the counts
Sullivan dissent-Page 2

involving one ofthe other victims. The majority then decides to reform the cumulation

order, deleting the sentence for the count involving the 17-year-old victim and stacking

the sentences ofthe two other victims. The majority says:

We conclude here that only part ofthe trial judge's

cumulation order is illegal—the inclusion of the sentence for

the count involvingA.S. in the sequence ofstacked sentences.

If we had any doubtaboutwhat the trial judge intended to do,

we would remand these cases to him to reform the cumulation

order. But it is clear from the oral pronouncement what his

intent was. Therefore, in conformity with the trial judge's oral

pronouncement and with the law, we reform the cumulation

order to delete the sentence for the count involving A.S. from

the sequence ofstacked sentences andto stackthe sentence

for the counts involvingN.P. upon the sentence for the count

involving C.C.

Maj. Op. at *8.

As far as I cantell, we have no authority to reform the trial court'ssequence of

stacking, and we have not been asked to do so. I would hold that the court ofappeals's

modification ofthe trial court'sjudgment was incorrect and would remand the case to the

trial court to permit the trialjudge to correct the cumulation order. Therefore, I

respectfully dissent.

Filed: January 9, 2013

Publish

Meyers, J.