Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-21-00321-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

AFFIRMED

Appellant Charles Copeland appeals his conviction (two counts of indecency with a child 

by exposure), arguing that the trial court committed reversible 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, we affirm.

BACKGROUND

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 the 
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jury that the State was seeking consecutive sentences: “We’d like to add an instruction to the jury 

regarding 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.

The jury was instructed 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

assessing 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 followed.

STANDARD OF REVIEW

The first part of a jury charge appeal is to determine whether the trial 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 TEX.

CODE CRIM. PROC. ANN. art. 36.19; Almanza v. State, 686 S.W.2d 157, 160–74 (Tex. Crim. 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.

DUTY TO INSTRUCT ON “STACKING”

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 36.19 of the Texas 

Code of Criminal Procedure via article 36.14. The State responds that, because the decision to run 

Copeland’s sentences consecutively or concurrently lies solely within the trial court’s purview, the 
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law regarding “stacking” 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 Criminal 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....” TEX. CODE CRIM. PROC.

ANN. 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. Crim. App. 1982) (plurality opinion)). 

The current guidance 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).
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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 grounds 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 Criminal 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 TEX. CODE CRIM. PROC. ANN. art. 37.07
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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 incentivize a jury to pad its

sentences to hedge against concurrent sentences. See Camacho v. State, 2007 WL 3270766, at *5. 

While 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 362 (discussing the waning 

applicability of a “good conduct time” instruction). 

Ultimately, juries 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 TEX. PEN. CODE ANN. § 3.03; TEX. CODE CRIM. PROC. ANN. art. 42.08). The 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 KY.REV. STAT. ANN. § 532.055; Dotson v. Com., 

740 S.W.2d 930, 931 (Ky. 1987). But no such practice has been adopted in Texas.
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CONCLUSION

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