# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04
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- CR Charles I. COPELAND , Appellant
v. The STATE of Texas, Appellee From the 437th Judicial District Court , Bexar County, Texas Trial Court No. 2015CR10159 Honorable Melisa C. Skinner , Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Patricia O. Alvarez, Justice Irene Rios , Justice Beth Watkins , Justice Delivered and Filed: November 2, 2022 AFF IRMED Appellant Charles Copeland appeals hi s conviction (t wo counts of indecency with a child by exposure ), arguing that the trial court committed reversi ble error in the punishment phase by refusing to instruct the jury that Copeland’s sentences could run consecutively if the trial court so ordered
. Finding no error, w e affirm. B ACKGROUND Appellant Charles Copeland was convicted of two counts of indecency with a child by exposure. During punishment phase proceedings, Copeland asked the trial court to instruct the04
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- jury that the State was seeking consecutive sentences: “ We ’ d like to add an instruction to the jury reg arding the possibility or potential for a stacked sentence, a consecutive sentence, and that it ’ s up to the Court to determine whether the sentences for each count will run consecutive or concurrent. ” The trial court denied the request. T he jury was inst ructed that the offense of indecency with a child by exposure is subject to a term of imprisonment “ not more than ten years or less than two years. ” It was charged with assess ing Copeland’s punishment for each count within that range. It was not informed that the trial court could cause those punishments to run consecutively , i.e., that the trial court could “stack” the sentences
. This appeal follow ed
. S TANDARD OF R EVIEW The first part of a jury charge appeal is to determine whether the tri al court committed error , i.e., “ that any requirement of various statutory provisions referenced in Article 36.19 ‘ has been disregarded. ’ ” See Posey v. State , 966 S.W.2d 57, 59 (Tex. Crim. App. 1998) (citing T EX . C ODE C RIM . P RO C . A NN . art. 36.19 ; Almanza v. State , 686 S.W.2d 157, 160

– 74 (Tex. Cr im
. App. 1984) (op. on reh ’ g) ). If this court finds error in the jury charge, then the error is subject to harm analysis. See id
. D UTY TO I NSTRUCT ON “S TACKING ” A. Parties’ Arguments Copeland argues that the trial court’s refusal to inform the jury that the trial court may choose to run the jury’s assigned punishments consecutively violates article 3 6 .1 9 of the Texas Code of Criminal Procedu r e via article 36.1 4 . The State responds that , because the decisi on to run Copeland ’ s sentences consecutively or concurrently lies solely within the trial court’s purview , the04
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- law regarding “ s tacking” is not applicable law for the jury and that the trial court has no duty to instruct the jury on it. B. Law Texas Code of C riminal Procedure 36.14 states in relevant part: “ [T] he judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case ....” T EX . C ODE C RIM . P RO C . A

NN . art. 36.14 ; accord Walters v. State , 247 S.W.3d 204, 208 (Tex. Crim. App. 2007) ; Alcoser v. State , No. PD
- 0166
- 20, 2022 WL 947580, at *2 (Tex. Crim. App. Mar. 30, 2022)
. How a judge decides what law is applicable for punishment instruction is ultimately the responsibility of the trial court and must be based on available statutes and caselaw
. Taylor v. State , 332 S.W.3d 483, 488 (Tex. Crim. App. 2011) (citing Delgado v. State , 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) ) ; Posey v. State , 966 S.W.2d 57, 69 (Tex. Crim. App. 1998) (citing Doyle v. State , 631 S.W.2d 732, 738 (Tex. Cr im
. App. 1982) (plurality opinion) )
. The current gui dance regarding a “ stacking” instruction is that it is improper to give. See Robles v. State , No. 02
- 21
- 00131
- CR, 2022 WL 3097288, at *3 (Tex. App.

— Fort Worth Aug. 4, 2022, no pet. h.) (citing Stewart v. State , 221 S.W.3d 306, 316 (Tex. App.

— Fort Worth 2007, no pet.) ; Clay v. State , 102 S.W.3d 794, 798 (Tex. App.

— Texarkana 2003, no pet.)); Tellez v. State , No. 08
- 13
- 00141
- CR, 2015 WL 5449728, at *7

– 8 (Tex. App.

— El Paso Sept. 16, 2015, pet. ref ’ d) (not designated for publication); Villarreal v. State , No. 13
- 08
- 00601
- CR, 2010 WL 2638486, at *2 (Tex. App.

— Corpus Christi

– Edinburg June 29, 2010, no pet.) (mem. op., not designated for publication ) ; Peterson v. State , Nos. 01
- 02
- 00603
- CR, 01
- 02
- 00604
- CR, 2003 WL 22681607, at *5 (Tex. App.

— Houston [1st Dist.] Nov. 13, 2003, pet. ref ’ d) (mem. op., not designated for publication)
.04
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- “Stacking” , like sentencing, 1 has been described as a normative policy decision
. Barrow v. State , 207 S.W.3d 377, 382 (Tex. Crim. App. 2006). But while Texas provides a statutory right for defendants to elect a jury sentencing , 2 the decision whether to run a defendant’s sentences consecutively or concurrently has remained firmly within the discretion of the trial court
. Barrow , 207 S.W.3d at 382 ; accord Grizzle v. State , No. 10
- 14
- 00204
- CR, 2015 WL 222349, at *5 (Tex. App.

— Waco Jan. 15, 2015, pet. ref’d)
. The effect has been that no Texas court of appeals has held that a trial judge is expected to instruct on cumulative sentencing
. See, e.g., Stewart v. State , 221 S.W.3d 306 , 316 (Tex. App.

— Fort Worth 2007, no pet.) ; Clay v. State , 102 S.W.3d 794, 798 (Tex. App.

— Texarkana 2003, no pet.). C. Analysis Copeland’s point is well
- taken that when jurors are not instructed on the possibility of

“ stacking, ” their own process lacks transparency to them, and they cannot be said to be making a fully rational decision as to what they believe is the most appropriate punishment. See Fuller v. State , 829 S.W.2d 191, 200 ( Tex. Crim. App. 1992) , overruled on other g rounds by Castillo v. State , 913 S.W.2d 529 (Tex. Crim. App. 1995) (citing Barrow , 207 S.W.3d at 382) ( “ Our precedents teach that qualified prospective jurors must be willing to consider the full range of punishment applicable to the offense submitted for their consideration .”)
. This point is especially well
- taken, considering that Texas Code of C riminal Procedure Article 37.07, section 4(a) , regarding the possibility of parole, is a mandatory instruction. See Luquis v. State , 72 S.W.3d 355, 363 (Tex. Crim. App. 2002) ; Villarreal v. State , 205 S.W.3d 103, 107 (Tex. App.

— Texarkana 2006, pet. ref’d, untimely filed)
.

1 “Deciding what punishment to assess is a normative process, not intrinsically factbound.” Mendiola v. State , 21 S.W.3d 282, 285 (Tex. Crim. App. 2000) (quoting Miller

–

El v. State , 782 S.W.2d 892, 895

– 96 (Tex. Crim. App. 1990)). 2 T EX . C ODE C RIM . P RO C . A N N . art. 37.0704
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- However, instructing the jury on the trial court’s “stacking” discretion could skew results against justice and against a defendant’s best interest. See Camacho v. State , No. 04
- 06
- 00713
- CR, 2007 WL 3270766, at *5 (Tex. App.

— San Antonio Nov. 7, 2007, no pet.)
. In Camacho , the defendant
- appellant complained that a “stacking” instruction could in centivize a jury to pad its sentences to hedge against concurrent sentences
. See Camacho v. State , 2007 WL 3270766, at *5
. W hile acknowledging that a jury is presumed to follow the trial court’s instructions, we simply note that a trial court cannot know what conclusions a jury will draw from an instruction that a trial court could “stack” sentences. See Luquis , 72 S.W.3d at 3 6 2 (discussing the waning applicability of a “good conduct time” instruction). U ltimately, j uries must not be invited to gamble on the final sentencing outcome ; they can only be asked to consider the question before them
. 3 See Thompson v. State , 89 S.W.3d 843, 850

‒ 51 (Tex. App.

— Houston [1st Dist.] 2002, pet. ref’d)
. Here, the jury was tasked with deciding what the punishment should be for each count that Copeland was convicted of, not ultimately how long he should be in prison. That was for the trial court to decide
. See Barrow , 207 S.W.3d at 380 (citing T EX . P EN . C ODE A NN . § 3.03 ; T EX . C ODE C RIM . P RO C . A NN . art. 42.08 ). T h e trial court did not err in denying Copeland’s requested “stacking” instruction
. See Stewart , 221 S.W.3d at 316 ; Clay , 102 S.W.3d at 798 .

3 In Kentucky, the legislature has empowered jurors to make a recommendation to the trial judge regarding whether a defendant’s sentences should run concurrently or consecutively. See K Y . R EV . S TAT . A NN . § 532.055 ; Dotson v. Com ., 740 S.W.2d 930, 931 (Ky. 1987)
. But no such practice has been adopted in Texas.04
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- C ONCLUSION Although Copeland raised the issue of jury charge error after the trial court refused to give his requested “stacking” instruction, we conclude that the trial court’s ruling did not constitute error . Thus, we affirm the trial court’s judgment
. Patricia O. Alvarez, Justice DO NOT PUBLISH