### In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06

- 1 0

- 00 147

- CR

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WILLIE KELTON TAYLOR , Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 217th Judicial District Court

Angelina County, Texas

Trial Court No. CR

- 28819

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter2 MEMORANDUM OPINIO N

Following a major vehicle collision, Willie Kelton Taylor was charged in the same

indictment for aggravated assault with a deadly weapon and intoxication assault. Taylor was

found guilty of both offenses in the 217th Judicial District Court of Angelina County. 1 After

pleading “true” to an enhancement pa ragraph, Taylor was sentenced to fifteen years’

imprisonment for aggravated assault with a deadly weapon. As to intoxication assault, the trial

court imposed the following sentence:

UPON COMPLETION OF THE SENTENCE IN COUNT I, THEN

DEFENDANT IS SENTENCED AS FOLLOWS FOR COUNT II AND THE

SENTENCE BEGINS UPON DEFENDANT’S RELEASE ON PAROLE OR
OTHERWISE, FROM TDCJ

- INST IT UTIONAL DIVISION IN COUNT I: TEN (10) YEARS INSTITUTIONAL DIVISION, TDCJ, PROBATED FOR TEN (10)

YEARS.

Taylor contends the consecutive senten ce is void. The State, with professional candor, concedes

that the trial court erred in “stacking” the sentences. 2 We modify the judgment, and we affirm the

modified judgment.

1 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See T EX

. G OV ’ T C ODE A NN

. § 73.001 (Vernon 2005). We are unaware of any conflict between p recedent of the Twelfth Court of Appeals and that of this Court on any relevant

issue. See T EX

. R. A PP

. P. 41.3.

2 This was not a plea bargain case, and the State does not otherwise contend there was a voluntary waiver of the right to

concurrent sentence s. See Ex p arte McJunkins , 954 S.W.2d 39 (Tex. Crim. App. 1997) (holding that a defendant may waive a claim of error regarding a cumulation order by entering a binding negotiated plea agreement). Here, the

cumulative sentence is not classified as a rever sible error, but is an unlawful order. Beed y v. State , 250 S.W.3d 107, 115 (Tex. Crim. App. 2008).3

Generally, a trial court has authority to order sentences to run concurrentl y or

consecutively. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.08 (Vernon Supp. 20 10 ). However, a trial

court’s discretion is limited by Section 3.03 of the Texas Penal Code, which reads:

When the accused 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 he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently. 3

T EX

. P ENAL C ODE A NN . § 3.03 (Vernon Supp. 20 1 0); LaPorte v. State , 840 S.W.2d 412, 415 (Tex.

Crim. App. 1992); see Jackson v. State , 157 S.W.3d 514, 516 (Tex. App.

— Texarkana 2005, no

pet.). “If the facts show the proceeding is a single criminal action based on charges arising o ut of

the same criminal episode, the trial court may not order consecutive sentences.” LaPorte , 840

S.W.2d at 415. In this case, t here is no question that both offenses arose from the same criminal

episode , culminating in the vehicle collision

. The cons ecutive sentence was unlawful. Id. ; see

Robbins v. State , 914 S.W.2d 582, 584 (Tex. Crim. App. 1996). The proper remedy for an

improper cumulation order is to delete the cumulation order. Beedy , 250 S

. W.3d at 113.

The State suggests that we consider whether Taylor was required to object at trial to the

consecutive sentence in order to preserve error. The Texas Court of Criminal Appeals and this

C ourt have held that a contemporaneous objection is not required to preserve a claim of error for

an improp er cumulation order. LaPorte , 840 S.W.2d at 415; Jackson , 157 S.W.3d at 517.

3 Subsection (b) allows consecutive sentences if “each” of the convictions is for intoxication manslaughter or

intoxication assault. T EX

. P ENAL C ODE A NN

. § 3.03(b)(1)(A). Here, one of the convictions was for aggravated

assault

, and s ubsection (b) does not apply to Taylor’s case.4

Accordingly, we modify the judgment to delete the language cumulating the sentences.

As modified, we affirm the trial court’s judgment.

Jack Carter

Justice

Date Submitted: December 6, 2010

Date Decided: December 7, 2010

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