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

N O S . P D
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J A M E S A L L E N S U L L I V A N , 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 E L E V E N T H C O U R T O F A P P E A L S

B R O W N C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h P R IC E , W O M A C K , J O H N S O N , K E A S L E R , H E R V E Y , C O C H R A N a n d A L C A L Á , J J . , j o i n e d . M E Y E R S , J . , f i l e d a d i s s e n t i n g o p i n i o n .

A jury convicted a

ppellant of four

sexual assaults ag ainst three victims and sentenced him
to eig hteen y ear s of imprisonment in eac h case . The trial judge order ed some of the sentenc es to run

concur rently and some to run consec utively

. One of the sentenc es that was stacke d was not elig ible for stacking

. This case prese nts the question of the proper reme dy when one of a series of sentenc es is improperl y s t ac k ed and whether it matters wher e in the series the improperly stacke d sentenc eSULLI VAN — 2

appea rs. We ref

orm the trial court’s judgme nt to ref lect that the improperly stacke d sentenc e is not stacke d and that the two sentenc es invo l v i n g d i ff er ent victims are stacke d. We also ref orm the
sequenc e of stac king to c onform to the trial judg e’s or al pronounc ement of se ntence

.

I. BACKG ROUND A. Trial Appellant worke d at a Texas Youth Commi ssion fac i l i t y . T h e evidenc e showed that appellant sexually assaulted three children who wer e stay ing at t h at facility

. One of the children, A.S., was seventeen y ear s old at t he ti me of the sexual assaults. The other two c hildren, N.P

. and C.C., wer e under ag e sevente en at the time. I n one indictment, appellant was char g ed with multipl e sexual assaults ag ainst N.P. I n another indictment, appellant was char g ed with one sex ual assault
ag ainst A.S. and one ag ainst C.C. Appellant was convicted of two counts of sexual assault ag ainst N.P. and one count eac h for A.S. and C.C. On eac h count, the jury as s es s ed a p u n i shment of confine ment for e ighte en y ear s. The trial judge then asked for the parties’ positions on whether t h e sentenc es should be

serve d concur

rently or consec ut i v el y . T he State urg ed the judge to make all of the sentenc es

consec utive. Appellant urg ed the judge to make all o f t h e sentenc es concur rent. The trial judge stated that he would order the sentenc es in the two counts involving N.P. to be concur rent with eac h other. Wit h respe ct t o t he sentenc es for the counts involving A.S. and C.C., the judge stated that they would “run consec utively with eac h other,” and the sentenc es for counts involving N.P. would “r u n co n secutively to the others.” As a result, the trial judge said that there would be “t h re e

consec utive eig hteen- y ear terms.”SULLI VAN — 3

The trial judge then asked if there was a ny leg al reason why the s entenc es shoul d not now be pronounce d. Def

ense counsel responde d that there was no leg al rea son. The judge then stated: I t’s the sentenc e of this Court, [appellant], that y ou serve the 18 y ear s in the manner that I ’v e pronounce d, the stacking of the two [N.P .] judgme nts on top of the two counts in the other case , so that eac h victim will have what I deem to be appropr iate justice in this matter, but I ’m not g oing to stack the two within itself with the one for the rea sons that I ’ve stated. But the sentenc es will then run as indicated, stacking the two main case s and the two c ounts in addition as reflec ted. The trial judge enter ed a judgme nt for eac h indictment, and eac h judgme nt contained the following written cumulation orde r: The sentenc e imposed in Cause #CR19690 as to Count I [A.S .] shall beg in when the judgme nt in the sentenc e imposed in Cause #CR18971 [N.P .] has cea sed to opera te. The sentenc e imposed in Cause #CR19690 as to Count I I [C .C.] shall beg in when the judgme nt in the sentenc e imposed in Cause #CR19690 Count I [A.S .] has cea sed to opera te. 1 Thus, under the oral pronounce ment the two concur rent sentenc es involving N.P. would be the last in the stacking series but unde r the wr itten judgment they would be the f

irst in the series. B. App eal On appea l, appellant complained that stacking the sentenc e for the count involving A.S. was

err or beca use the rele vant statute permitted stacking only if the victim was y oung er than sevente en. The State conce ded err or. The court of appea ls held that the appropr iate reme dy was to modify the trial court’s judgme nts “to delete the lang uag e order ing cumulation of the sentenc e involving A.S.” 2
To ac complish this objective, the court of appea ls order ed that the judg ments be re vised to ref lect that the s entenc es for the counts involving N.P. run c oncurr ent with eac h other, that the sentenc es

Br acke ted mater ial added to a id the rea der. 1 Sullivan v. State , Nos. 11-10-00027- CR & 11-10-00028- CR, s l i p o p . at 5 (Tex. 2 App.–Eastland Septembe r 29, 2011) ( not desig nated f or publication).SULLI VAN — 4

for the counts involving A.S. and C.C. run concur rent with eac h other, and that the sentenc es for the
counts involving A.S. and C.C. be stacke d on the sentenc es for the counts involving N.P. The result 3 of the court of appea ls’s revised order s is that appellant serve s two consec utive eig hteen- y ear terms instead of thre e. II. ANALYSIS Chapter three of the Texas Penal Code allows for offe nses arising out of the “same criminal episode” to be tried in the same criminal action. The term “same criminal episode” is specific ally 4 define d in chapte r three , and the term includes a situation in which “the offe nses are the repe at ed commission of the same or simil ar offe nses.” When offe nses are tried toge ther pursuant to chapte r 5 three , the sentenc es must be concur rent unless a s p ec i fi c exception within chapte r three provides otherwise. One such exception provides that conse c utive sentenc es may be imposed for convictions

6 for cer tain ty pes of sexual offe nses if the offe nses wer e committed ag ainst a victim y oung er than
sevente en y ear s of ag e. 7 Wit h respe ct to the issue befor e us, the lang uag e of the rele vant portions of chapte r three is unambig uous. The sentenc e for the count involving A.S. does not fall within the exc ep tion

8

Id. at 5-6. 3 T E X
. P E N A L C O D E § 3.02(a)

. 4 Id. , § 3.01(2). 5 Id. , § 3.03(a)

. 6 Id. , § 3.03(b)( 2)(A)

. 7 See Boyk

in v. State , 818 S.W .2d 782, 785 (Tex. Crim. App. 1991) (Courts must g ive eff ect 8 to the plain meaning of the statutory text unless the lang uag e is ambig uous or leads to absurd results that the leg islature could not have possibly intended).SULLI VAN — 5

mentioned above beca

use A.S. was not under sevente en at the time of the offe nse. And beca use no other exception applies, that sentenc e must run concur rent with all other sentenc es obtained in the 9

same crimin al action, i.e., with the sentenc es for the counts involving N.P. and C.C. But the
sentenc es for the counts involving N.P. and C.C. do fall within the exception beca use those victims

wer e y oung er than sevente en, so those sentenc es could run consec utive to eac h other, althoug h they
must run concur

rent with the sente nce f

or the count involving A.S. Consequently , as bot h parties
ag ree , the trial judge err ed in cumulating the sentenc e for the count involving A.S. with the other
sentenc es. Appellant conte nds that the court of appea ls erre d in r ewr iting the trial judge ’s cumulation order s. He claims that the sentenc e rela ting to A.S. was in the middle of the stacking order , and when it is d el et ed , there rema ins no order stacking the s entenc e relating to N.P. onto the s entenc e rela ting to C.C. Thus, he claims, the proper remedy is to delete all of the cumulation orde rs. The State contends that the court of appea ls was corr ect to modify the cumulation order s to delete the improper cumulation of the sentenc e for the count involving A.S., but the State sug g ests that further modification may be require d becaus e t h e s eq uence in which the sentenc es wer e stacke d in the written judg ments varies f rom their seque nce in the tr ial court’s or al pronounc ement. We first observe that the court of appea ls’s reme dy does not entirely fix the err or in the trial judge ’s cumulation orde rs. Under the court of appea ls’s revised order s, the sentenc e for the c ount involving A.S. still i mpermissibly runs conse cutive to the sente nces f or the c ounts involvi ng N.P. Fur ther, as the State sug g ests, the written cumulation order differ s from the trial court’s oral
pronounce ment of sentenc e, althoug h it is unclea r whether that differ ence would have any prac tical

See T E X
. P E N A L C O D E § 3.03(b). 9SULLI VAN — 6

eff ect on appellant’ s incar cer ation. Under the written cumulation order , the sentenc es for the counts involving N.P. are the first in the stacking sequenc e, but in the trial court’s oral pronounce ment they

are last in the stacking sequenc e. The g ener al rule that a trial judge ’s oral pronounce ment controls over the written j udg ment applies t o cumulation order s. Under t h i s principle, we have held that 1 0

a trial judge may not cumulate sentenc es in the written j u d gm en t i f he did not do so in his oral
pronou n ce m en t

. I t follows that a cumulation order in a written judgme nt may not substantively 1 1
vary from the c umulation order c ontained in the trial judg e’s or al pronounc ement of se ntence

. But the trial judge ’s oral pronounce ment suffe rs from some lack of specific ity reg arding the
sequenc e of stacking

. The sentenc es for the counts involving N.P. are clea rly last, but it is not clea

r wher e in the sequenc e the s en t en ce s for the counts involving A.S. and C.C. fall. Unlike in the written orders, t he sentence r elating to A.S. does not clear ly fall betwe en the other sentenc es. I f a cumulation order is not sufficie ntly specific , a rema nd may be per

mitted to allow the trial judge to

reme dy the matter, but we nee d not consider whe ther a rema nd is appropr iate in this case. Onc e 1 2 we take i nto acc ount the i mpermissibili ty of st acking the s entenc e relating to A.S

. , t h e s p ecificity issue vanishes. I n making his oral pronounce ment, the trial judge clea rly intended the sentenc es for the counts in v o l v i n g N. P

. to run consec utive to the sentenc e for the count involving C.C. Remanding the case s to him would result in an order stacking the sentenc es rela ted to N.P. and C.C.

Ex parte M

adding , 70 S.W .3d 131, 135-36 (Te x . Crim. App. 2002). 1 0 Id. at 136. 1 1 Morris v. State , 301 S.W .3d 281, 296 (Tex. Crim. App. 2009); Bee dy v. State , 250 S.W .3d 1 2 107, 114 (Tex. Crim. App. 2008).SULLI VAN — 7

and not stacking the sentenc e re lating to A.S. 1 3 The rema ining question is w hether the judgme nt c an be ref ormed to a ccomplish this intent

or whether the cumulation order must be deleted in its entirety

. When part of a cumulation order is illega l, the remedy is to delete the i l l egal portion. I n Morris v. Stat e , the t rial j udg e st acke d two 1 4
sentenc es and partially stacke d a t h i rd s entence. The trial judge stated on the rec ord that if he 1 5 could not pa

rtially stack the third sentenc e, then he would stack all three sentenc es. The court of 1 6
appea ls deleted the portion of the cumulation order that purported to partially stack the third sentenc e but left intact the pa

rt that stacke d the first two sentenc es. We held that the trial judg e could not 1 7 partial l y s t ack a sentenc e, and we also held that the trial judge could not impose an alterna tive stacking order , so cumulating all three sentenc es on appea l was not an option. We conclude d that 1 8 the cour t of appe als “a

ppropriate ly

deleted the unlawful portion [ of t he cumulation order ] and left

Neither party discusses the possibili ty that the two sentenc es rela ting to N.P. might have 1 3 been stacke d (so that there would still be three consec utive eig hteen- y ear sentenc es) if the trial judge had known that the sentenc e rela ting to A .S. wa s not subje ct to be ing stacke d. Wit h respe ct to that possibili ty , the court of appea ls’s decision to ref orm the cumulation order is a holding adver se to the State. The State did not file a petition for discretionar y revie w sug g esting that the court of appea ls should have re manded the case to the t rial court to consider stacking the two sentenc es re lating to N.P. Consequently , we have no occa sion to addre ss whether this case could have been remande d for that pur

pose or whe ther Morris would bar suc h an outcome. Morris , 301 S.W .3d at 295-96. 1 4 Id. at 294. 1 5 Id. at 294-95. 1 6 Id. at 295. 1 7 Id. at 295-96. 1 8SULLI VAN — 8

the lawf ul portion of the orde r intact.” 1 9
We conclude here that only p ar t o f the trial judge ’s cumulation order is illega l—the inclusion of the sentenc e for the count involving A .S. in the sequence of st acke d sentenc es. I f we had any doubt about what the trial judge intended to do, we wo u l d rema nd these case s to him to ref orm the cumulation order

. But it is clea r from the oral prounounce ment what hi s i n tent was. There fore , in confor

mity with the trial judge ’s oral pronounce ment and with the law, we ref orm the cumulation order

to delete the se ntence for the c ount involving A.S. from the se quence of stacke d
sentenc es and to stack the sentenc e for the counts involving N. P

. u p o n the sentenc e for the count involving C.C. As a conseque nce of our ref ormation, the cumulation order in eac h of the judgme nts is ordere d to rea d as follows: The sentence imposed in Cause #C R19690 as t o Count I shall beg in immediately

. The sentenc e imposed in Cause #CR19690 as to Count I I shall beg in immediate ly

. T h e s en tence s imposed in Cause #CR18971 shall beg in when the judgme nt in the sentenc e imposed in Cause #CR19690 Count I I has ce ased to ope rate

. We so refor

m the trial court’ s judgme nts and otherwise aff irm the judg ments of the cour ts below.

Deliver ed: J anuar

y 9, 2013 Publis h

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

1 9 an appellate court’s ability to ref orm a judg ment to delete a n illega l cumulation order or i mpose a cumulation order

require d by

law).