In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-10-00147-CR

______________________________

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 Carter
2

MEMORANDUM OPINION

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 paragraph, 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-INSTITUTIONAL DIVISION IN COUNT I: TEN 

(10) YEARS INSTITUTIONAL DIVISION, TDCJ, PROBATED FOR TEN (10) 

YEARS. 

Taylor contends the consecutive sentence 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 TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005). We are 

unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant 

issue. See TEX. R. APP. P. 41.3.

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

concurrent sentences. See Ex parte 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 reversible error, but is an unlawful order. Beedy v. State, 250 S.W.3d 107, 

115 (Tex. Crim. App. 2008). 
3

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

consecutively. TEX. CODE CRIM. PROC. ANN. art. 42.08 (Vernon Supp. 2010). 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 

TEX. PENAL CODE ANN. § 3.03 (Vernon Supp. 2010); 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 out of 

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

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

episode, culminating in the vehicle collision. The consecutive 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 

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

an improper 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. TEX. PENAL CODE ANN. § 3.03(b)(1)(A). Here, one of the convictions was for aggravated 

assault, and subsection (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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