# BlSfS^ JAN 1 h 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 

### ON APPELLANT'S PETITION FOR DISCRETIONARYREVIEW FROM THE ELEVENTH COURT OF APPEALS BROWN COUNTY 

## Keller, P.J., delivered the opinion ofthe Court in which Price, 

## Womack, Johnson, Keasler, Hervey, Cochran andAlcala, JJ., joined. Meyers,' J., filed a dissenting opinion.


### A

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

### to eighteenyears of imprisonmentin each case. The trialjudge ordered some of the sentences to run 

## concurrently and someto run consecutively. One ofthe sentences thatwas stackedwas not eligible for stacking. This case presents the question oftheproperremedy when one ofaseries ofsentences 

## is improperly stacked and whether it matters where in the series the improperly stacked sentenceSULLIVAN —2 

### appears. We reform the trial court'sjudgmentto reflectthat 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 trialjudge'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 atthe time. In one indictment, appellantwas 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 thejudge 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, thejudge stated that 

## they would "run consecutively with each other," andthe 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 trialjudge entered ajudgment for each indictment, and eachjudgment 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 writtenjudgment 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 ofappeals 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 ofappeals 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 sentences for the , -, < \ s fr' ' , ' , ^ ;' "' '-**?'* countsinvolving A.S.,and C.C be stackeddri the sentences forthecoiratsinvolving N:P.?t;Tfieresult

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 of the same or similaroffenses."5 When offenses are tried,togetherpursuantto 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 exceptionprovides thatconsecutive sentences may beimposedforconvictions i, for certain types.of sexual offenses ifthe 'offenses were committed against a victim younger than -<' ' ' 

### t ' seventeen years ofage.7 ! '. ' '"* terms of the courtofappeals's revisedordersis thatappellant servestwo consecutive eighteen-year e

With respectto the issue before us, the languageof the relevant portions ofchapterthree 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 meaning ofthe 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 that sentence 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 ofappeals 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 ofappeals'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. Under the 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 writtenjudgment 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 writtenjudgment may not substantively vary from the cumulation order contained in the trial judge's oral pronouncement ofsentence. But the trialjudge'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. Ifa cumulation order is not sufficiently specific, a remand may be permitted to allow the trialjudge to remedy thematter,12 butwe need notconsider 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 trialjudge 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 not stacking 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 partofa cumulation order is illegal, the remedy is to delete the illegal portion.14 InMorris v. State, thetrial judge stacked two sentences andpartially stacked a third sentence." Thetrialjudge stated on the record that if he could notpartially stackthe third sentence, then he would stackall three sentences.16 The courtof appeals deleted the portion ofthe cumulation order that purported to partially stack the third sentence but leftintact the partthat stacked the first two sentences.17 Weheldthatthetrialjudgecould 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 ofappeals "appropriately deleted the unlawful portion [ofthe cumulation order] and left

13 Neitherparty 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 ofappeals 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 ofthe 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 trialjudge'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 of ourreformation, the cumulation order in each of thejudgments is ordered to read as follows: 

### The sentence imposed in Cause #CR19690 as to Count I shall begin immediately. The sentence imposed in Cause #CR19690 as to Count II shall begin immediately. The sentences imposed in Cause #CR18971 shall begin when thejudgment inthe sentence imposed in Cause #CR19690 Count IIhas ceased to operate. We so reform the trial court'sjudgments and otherwise affirm thejudgments 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 a judgment 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 ofappeals's revised order, the sentence for the count involving the 17-year-old victim still runs consecutive to the sentences for the countsSullivan dissent-Page 2 

### involving one ofthe other victims. The majority then decides to reform thecumulation 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 trialjudge'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 trialjudge's oral 

### pronouncement and with thelaw, we reform thecumulation order to delete the sentence for the count involving A.S. from 

### the sequence of stacked 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's sequence 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 thecase to the trial court to permit the trialjudge to correct the cumulation order. Therefore, I respectfully dissent.

Filed: January 9, 2013 Publish Meyers, J.