NUMBERS 13-23-00168-CR, 13-23-00169-CR

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

ADRIAN LEE HERNANDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

ON APPEAL FROM THE 214TH DISTRICT COURT 

OF NUECES COUNTY, TEXAS

 

MEMORANDUM OPINION 

Before Chief Contreras and Justices Longoria and Peña

Memorandum Opinion by Justice Longoria

Appellant Adrian Lee Hernandez challenges the trial court’s revocation of his 

community supervision, arguing that the trial court improperly ordered his sentences for 

two charges “arising from the same criminal episode” to run consecutively. Because we 

agree, we affirm as modified.
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I. BACKGROUND

On April 30, 2021, Hernandez was indicted on two counts of third-degree-felony

family violence assault, alleged to have occurred on December 18, 2020, in trial court 

cause number 21FC-1932-F.1 See TEX. PENAL CODE ANN. § 22.01(b)(2)(A)–(B). That 

same day, Hernandez was separately indicted on two additional counts of third-degreefelony family violence assault, alleged to have occurred on November 17, 2020, in trial 

court cause number 21FC-1934-F.

2 See id. Hernandez entered into a plea agreement in 

which he agreed to plead guilty to all four counts in exchange for a recommendation by 

the State that he receive deferred adjudication probation and that his sentences run 

concurrently in both cause numbers. On July 8, 2021, the trial court accepted 

Hernandez’s guilty pleas, placed him on deferred adjudication probation for four years in 

each cause number, and ordered that his probation terms run concurrently.

On August 8, 2022, the State filed a motion to revoke Hernandez’s probation in 

both causes. A consolidated hearing was held on April 6, 2023, wherein the trial court 

found the violations alleged by the State to be true and adjudicated Hernandez guilty of 

all four underlying offenses. The trial court sentenced Hernandez in each cause number 

to ten years incarceration, stating in open court that the sentences would “run consecutive 

with each other.” The same day, the trial court entered its written judgments adjudicating 

Hernandez guilty but stating that the sentences were to run concurrently. On July 24, 

2023, the trial court signed judgments nunc pro tunc, correcting the judgments to state 

1 Trial court cause number 21FC-1932-F correlates to appellate cause number 13-23-00168-CR.

2 Trial court cause number 21FC-1934-F correlates to appellate cause number 13-23-00169-CR.
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that the sentences were to run consecutively as orally pronounced. This appeal followed.

II. WAIVER

We first address the State’s argument that Hernandez waived any error by failing 

to object when the judge ordered consecutive sentences. At the hearing on revocation, 

when the trial court pronounced his sentence, Hernandez did not object to the trial court’s 

oral pronouncement that the sentences would run consecutively, nor did he file a posthearing motion making any such objection. 

When a defendant is found guilty of more than one offense arising out of the same 

criminal episode and those offenses are prosecuted in a single criminal action, “the 

sentences shall run concurrently.” TEX. PENAL CODE ANN. § 3.03(a). The Texas Court of 

Criminal Appeals has determined that the improper cumulation or “stacking” of sentences 

under § 3.03(a) of the penal code is a Marin category two, waiver-only right; thus, such 

an error can be raised on direct appeal, despite the lack of a trial court objection, as long 

as the appellant did not expressly waive the right at trial. See Ex parte Carter, 521 S.W.3d 

344, 347 (Tex. Crim. App. 2017); Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 

1993) (delineating three distinct categories of rights belonging to litigants: (1) “absolute 

requirements and prohibitions,” which are not optional and can never be waived or 

forfeited; (2) “waivable rights,” which are rights that must be implemented unless 

expressly waived; and (3) “forfeitable rights,” which are rights that must be requested in 

order to be implemented), overruled on other grounds by Cain v. State, 947 S.W.2d 262 

(Tex. Crim. App. 1997). 

The State relies on Bonilla v. State to support its position that Hernandez waived 
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appellate review of his claim for improper-cumulation. 452 S.W.3d 811, 817 (Tex. Crim. 

App. 2014). However, the issue in Bonilla involved the burden placed on the defendant 

to show evidence that the offenses for which he was being tried occurred after the 1997 

amendments to the penal code allowing for cumulation of sentences for child sex 

offenses. See id. at 813. In addition, Bonilla, in a footnote, acknowledged that “[l]ike a 

double-jeopardy violation apparent on the face of the record, an unauthorized cumulation 

order may be raised for the first time on appeal or collateral attack.” Id. at 818 n.30 

(emphasis added) (citing Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000)); 

see also Ex parte Carter, 521 S.W.3d at 348 (holding that an erroneous cumulation order 

is not subject to procedural default). Accordingly, we find that Hernandez has not waived 

his claim for our review.

III. IMPROPER CUMULATION ORDER

Hernandez argues that under § 3.03(a) of the Texas Penal Code, the trial court 

was unauthorized to “stack” his sentences because the offenses arose out of the same 

criminal episode and were prosecuted in a single criminal action. See TEX. PENAL CODE 

ANN. § 3.03(a). As noted, when a defendant is found guilty of multiple offenses “arising 

out of the same criminal episode prosecuted during a single criminal action,” the trial court 

must order the sentences to run concurrently. See id.; Miles v. State, 506 S.W.3d 485, 

486 (Tex. Crim. App. 2016). “Criminal episode” is defined as

the commission of two or more offenses, regardless of whether the harm is 

directed toward or inflicted upon more than one person or item of property, 

under the following circumstances:

(1) the offenses are committed pursuant to the same transaction or 

pursuant to two or more transactions that are connected or constitute 

a common scheme or plan; or
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(2) the offenses are the repeated commission of the same or similar 

offenses.

TEX. PENAL CODE ANN. § 3.01.

The State concedes that the charges against Hernandez were prosecuted in a 

single criminal action and “required concurrent sentences.” Accordingly, we conclude that 

the trial court erred in ordering Hernandez’s sentences to run consecutively. See Beedy 

v. State, 194 S.W.3d 595, 603 (Tex. App.—Houston [1st Dist.] 2006), aff’d, 250 S.W.3d 

107 (Tex. Crim. App. 2008).

Hernandez requests that this Court delete the cumulation orders and affirm the 

judgments as modified. See Beedy v. State, 250 S.W.3d 107, 113 (Tex. Crim. App. 2008) 

(“We therefore reaffirm our cases holding that an unlawful cumulation order is remedied 

by reforming the judgment to set aside the order.”). We sustain Hernandez’s sole issue 

and we modify the judgments of the trial court to delete the cumulation order. See Robbins 

v. State, 914 S.W.2d 582, 584 & n.1 (Tex. Crim. App. 1996).

IV. CONCLUSION

We modify the trial court’s judgments to delete those portions requiring 

Hernandez’s sentences to run consecutively and to decree, instead, that the sentences 

shall run concurrently. We affirm the trial court’s judgments as modified. See TEX. R. APP.

P. 43.2(b).

NORA L. LONGORIA 

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed on the

13th day of June, 2024.