## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00118

- CR

SANTIGIE FULLAH KABIA , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 20F1410

- 102

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION
S antigie Fullah Kabia challenges h is conviction for theft on the ground that h is two

- year sentence of confinement should run concurrently, instead of consecutively, to the sentences impose d in h is three other companion cases. 1 Kabia argues that h is sentences cannot be “stacked” because this offense and Kabia’s companion offenses were part of the same criminal episode. Because we sustain Kab ia’s point of error, we modify the trial court’s judgment to delete the trial court’s cumulation orde r and to correct other minor clerical errors . As modified, we affirm the trial court’s judgment.
I. Factual and Procedural Background Kabia pled guilty to theft of under $2,500.00 and admitted that he had two prior

conv ictions for theft, making the offense a state jail felony. See T EX
. P ENAL C ODE A NN
. § 31.03(e)(4)(D) (Supp.)

. Pursuant to the terms of Kabia’s plea bargai n , the trial court sentenced
h im to two y ears’ confinement , determined that h is sentence would run concurrently with the sentences assessed in the companion cases , but suspended the sentence in favor of placing h im

on regular community supervision for five years. The State l ater mov ed t o revoke Kabia’s community supervision beca use he committed another offense, failed to report to h is community supervision officer, and did not complete h is community service work as ordered, among other things. Kabia pled not true to the St ate’s al legati ons in the revocation motion. After an evidentiary hearing , the trial court found the allegations true, revoked Kabia’s community supervision , and imposed a sentence of two years’

1 In compan ion cases 06

- 23

- 00119

- CR and 06

- 23

- 00120

- CR, Kabia appeals two other convictions for theft. In companion case 06

- 23

- 00121

- CR, Kabia appeals a conv iction for evading arrest.3

confinemen t , but ordered the sentence to run consecut ively to h is companion cases instead of concurrently

. 2
I I. Kabia’s Sentences Were Required to Run Concurrently We review a trial court’s cumulation order for abuse of discretion. See Pettigrew v. State , 48 S.W.3d 769, 770 (Tex. Crim. App. 2001) ; Pri vette v. State , 594 S

. W .3d 629, 631 (Tex. App.

— Texarkana 2019, no pet.). 3 Typically , a trial court has the power to cumulate sentences upon revocation of community supervision, regardless of whether its judgment placing a person on co mmunity supervisi on provi ded for the cumu l a tion. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42.08(a) (Supp.) ; McCullar v. S tat e , 676 S.W.2d 587, 588 (Tex. Crim. App. 1984)

. This power, however, is limited by Section 3.03 of the Texas Penal Code, which state s, i n relevant part, tha t , “[ w] hen th e accuse d is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which the accused has been found guilty shall

. . . run con currently

. ” T EX
. P E NAL C ODE A NN
. § 3.03( a ) (Supp.)

. By its plain language, “ [w] hen Section 3.03(a) applies, it limits the trial court ’ s general statutory authority to impose consecutive, or cumulative, sentences. ” Privette , 594 S.W.3d at 631 ( citing
T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42.0 8 ; LaPor t e , 840 S.W.2d at 415 )

.

2 Pursu a nt to the terms of h is origin al p lea bargain, the trial c ourt also impose d a $500.00 fine and ordered Kabia to pay $1,500.00 in reimbursement f e es .
3 The State questions whether Kabia failed to preserve this issue by failing to object to the trial court’s cumulati on order. “ [A]n improper cumula tion orde r is , in essence, a void s e ntence , and such error cannot be waived. A defect which renders a sentence void may be raised at any time. . . . Consequently, a contemporan eous objection is not necessary to pres erve the error for a ppellate review.” Jackson v. S ta t e , 157 S.W.3d 514, 51 6 (Tex. App.

— Texarkana 2005, no pet.) (quoting LaPorte v. State , 840 S.W.2d 412, 415 (Tex. Crim. App. 1992), overruled on other grounds by Ex parte Carter , 521 S.W.3d 344 (Tex. Crim . App. 2 017) (orig. proceeding) ).4

As a result, if Kabia’s offenses arose out of t he same criminal epi sode and were
p rosecute d in a single criminal action, the trial court could not “ stack ” Kabia’s sentence with the
sentences assessed in h is companion cases. The T e x as Penal Code defines the term “criminal episod e” as the commission of two or more offense s, regardless o f whethe r the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances: (1) the offens e s are committed pursuant to the same transaction or pursuant to two or m ore transactions tha t are connected or cons titute a common scheme or plan; or (2) the offenses are the repeated commission of the same or similar offenses.
T EX
. P ENAL C ODE A NN
. § 3. 0 1

. Here, the record shows that , in October 2020, Kabia repeated the c ommission of theft
t hree times and evaded a rrest pu rsuant to a common scheme to steal eyeglasses from different eyewear retailers. Accordingly, t he State concedes that all four of Ka b i a’s offenses occurred in
the same c riminal episode

. The record also s hows tha t Kabia was p rosecuted for all four offenses in a single criminal action

. See Jackson , 157 S.W.3d at 516 ( n oting that, in LaPorte ,

“ the [ Court of Criminal Appeals ] r easo ned th e Legislature intended a sin gle crim inal act ion to refer to a single trial or plea proceeding ” (citing LaPorte , 840 S.W.2d at 414) )

. 4

4 Our ruling i s di s p ositive of Kabia’s a l ternative point of error, which argues that the trial court erred because the terms of h is plea bargain required h is sentence s to run concurrently.5

In light of the record and the State’s concession , we sustain Kabia’s sole point of error. Accordingly, w e mo dify th e trial court’s judgment to reflect that Ka bia’s sentence will run concurrently to the sentences in h is companion cases.
II I . We Modify t h e Judgment Next, we note that there are two minor clerical errors in the trial court’s judgment. “This
Cour t has t h e power to correct and mod ify the judgmen t of the trial court for accuracy when the necessary data and information are part of the record.” Anthony v. State , 531 S.W.3d 739, 743 (Tex. App.

— Texarkana 2016, no pet.) (citing T EX
. R. A PP
. P. 43.2 (b); Bigley v . State , 865 S.W.2d 26, 27 (Tex. C rim. Ap p. 1993); Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.

— Dal las 1991, pet. ref ’ d) ( en banc) ). “The authority of an appellate court to reform incorrect judgments is not dependent upon the request of a ny pa rty, no r does it turn on the quest ion of

w hether a party has or has not objected in the trial court.” Id

. (quoting Asber ry , 813 S.W.2d at 529

– 30). The reporter’s record shows that Kabia pled not true to the State’s allegations in its
revocation mot ion , but the j u dgment incorrectly state s that K abia pl ed true to the allegations

. Also, even though Kabia received regular community supervision, t he judgment mistakenly
states the following: “The Court previously deferred adjudication of guilt in this case

. Subs e q ue n tly, the State fi led a motion to adju dicate guilt

. ”
P urs uant to additional concessions by the State and our review of the record, we further modify the trial court’s judgment (1) to reflect that Kabia pled “ not true ” to the State’s6

revocation motion a nd (b) to r eflect that Kabia was origina lly placed on regular community supervision instead of deferred adjudication community supervision. IV. Conclusion We modify the trial court’s judgment (1) to refle ct that Kabia’s sentence run s

co n current l y to h is o ther companion cases, (2) to sh ow that Kabia pled “not true” to the State’s revocation motion, (3) to delete references to deferred adjudication community supervision, and (4) to read , “ The trial court previously adj udicated guilt and assess e d commun ity s u pervision

. Sub seq uently , the State filed a motion to revoke community supervision.” As modified, w e affirm the trial court’s judgment.

Charles van Cleef Justice
Date Submitted: Janu ary 11, 202 4 Date Decide d: F eb r u ary 6 , 2024
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