COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

TERNORRIS DUNCAN , Appellant ,

v. THE STATE OF TEXAS , Appellee. § § § § § § No. 08

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Appeal from the
283 rd Judicial District Court of Dallas County , Texas (TC# F

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O P I N I O N Ternorris Duncan appeals the trial court’s judgment revoking his deferred

- adjudication probation for aggravated assault with a deadly weapon. In a single issue , Duncan contends that the trial court erred by ordering that the twenty

- year sentence he received in this ca se run cumulative to the ten

- year sentence he received in another case , Cause No. F

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Because the trial court erred in cumulating the se ntences, we reform the judgment to delete the cumulation order and affirm as reformed.

FACTUAL AND PROCEDURAL BACKGROUND In March 2010, Duncan assaulted J ani n e Jones, a former girlfriend and the mother of one of his children, while retrieving personal items from her bedroom. When Jones accused Duncan

1 Duncan is also appealing the trial court’s judgment in that case , which has been assigned appellate Cause No. 08

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of seeing other women, Duncan point ed a pistol at Jones’s head and threate ned to kill her if she attempted to keep him from seeing their daughter. Approximately two months later, Duncan assaulted Courtney Richardson , the woman with whom he was living. Duncan was d issatisfied with Richardson’s res ponse regarding her whereabouts and punched her in the face seve ral times. Sadly, this incident was not a single, isolated event

. In January 2011 , Duncan again assaulted Richardson, who was then 38 weeks pregnant with Duncan’s child. After arguing with Richardson, Duncan pushed her, grabbed her by the neck, struck h er with a skillet, kicked her in the stomach , and

— though later denied by Richardson

— struck her with a handgun. 2
Duncan was charged in two se parate indictments with committing aggravated assault upon Jones with a deadly weapon ( Ca use No. F

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. Pursuant to two separate plea

- bargain agreements, Duncan pled guilty to each charged offense

. In each case, the trial court found the evidence sufficient to find Duncan guilty, b ut deferred further proceedings and placed Duncan on probation

. The State subsequently filed motions to revoke Duncan’ s un - adjudicated probation in both cases. The motions were heard by the trial court at one consolidated proceeding. The trial court found t hat Duncan violated several of the conditions o f his probation , adjudicated him guilty, and sentenced him to the aforementioned terms of imprisonment. The trial court further ordered the sentences to run consecutively. C ONSECUTIVE SENTENCES
In his sole issue , Duncan contends that the trial court improperly “stacked,” or cumulated , his sentences because the two offenses arose from the same criminal episode and were prosecuted

2 The record also contains evidence that Duncan harassed Richardson and made t hreatening phone calls to her.3

in a single criminal action. 3 We agree . Standard of Review We revi ew a trial court’s decision to “stack,” or cumulate, sentences for an abuse of discretion. See T EX .C ODE C RIM .P ROC .A NN
. art. 42.08(a) (West Supp. 201 2 ); Nicholas v. State , 56 S.W.3d 760, 7 64

- 65 (Tex.App.

-- Houston [14th Dist.] 2001, pet. ref’d). T he test for abuse of discre tion is whether the trial court’ s action falls within the z one of reasonable disagreement. Manning v. State , 114 S.W.3d 922, 926 (Tex.Crim.App. 2003). Applicable Law Under A rticle 42.08 (a) of the Texas Code of Criminal P rocedure , a trial court has the discretion to sentence a defendant convicted in two or more cases to concurrent or cumulative
sentences. T EX .C ODE C RIM .P ROC .A NN
. art. 42.08(a). A trial court’s ability to cumulate sentences, however, is limited by Section 3.03(a) of the Texas Penal Code. Subject to narrow exceptions inapplicable here , Section 3.03(a) mandates that if a defendant is tried in a single criminal action for two or more offenses arising from the same criminal episode, the sentences imposed must run concurrently. T EX .P ENA L C ODE A NN
. § 3.03(a) (West Supp. 201 2 ). Discussion Duncan has established that the offenses of aggravated assault with a deadly weapon and continuous violence against the family arose from the “same criminal episode” and that he was prosecuted in a “singl e criminal action.” 1. Same Criminal Episode

3 Despite Duncan’s failure t o object to the imposition of sentence at trial or in a post

- judgment motion, he has not forfeit ed appellate review of his complaint. See LaPorte v. State , 840 S.W.2d 412, 415 (Tex.Crim.App. 1992)(holding that because “[a]n improper cumulation order is, in essence, a void sentence,” it may be challenged for the first time on appeal). The State does not contend otherwise on appeal

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Duncan argues that since “[b]oth offenses involve family violence assaults against persons with whom [he] had a dating relationship[,]” the offenses arose from the same criminal episode because “[t]hey involve essentially the same conduct, against persons with the same type of status.” We agree. Section 3.01 of the Texas Penal Code defines “criminal episode” as : [T] he 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 (2) the offenses are the repeated co mmission of the same or similar offenses.
T EX .P ENAL C ODE A N N
. § 3.01( West 2011 ). To be characterized as a single criminal episode, multiple offenses occurring on different dates, in different places, and against several complainants must either : (1) be the same or similar; (2) share a common scheme or plan; or ( 3) have been repeated in a similar fashion. See Baker v. State , 107 S.W.3d 671, 673 (Tex.App.

- - San Antonio 2003, no pet.) (considering offenses committed against three different women at three different locations within an eleven

- month period as offenses c ommitted in a single episode because each offense was against “a woman living on or near Hope’s Ferry, occurred in or near her home while she was alone, and took place in the early morning hours

. ”); Hernandez v. State , 938 S.W.2d 503, 508

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-- Wac o 1997, pet. ref’d)(treating April 16 cocaine sale and September 22 marihuana sale merely repetitious commissions of same offense); Guidry v. State , 909 S.W.2d 584, 585 (Tex.App.

-- Corpus Christi 1995, pet. ref’d)(holding that two aggravated robberies were similar because the perpetrator branded a knife during both offenses, so their5

senten ces should run concurrently). The offenses committed here by Duncan are similar offenses in that they share a commo n
gravamen

— assaultive conduct. Each offense require s proof that the defendant engage d in conduct constituting assault as defined under S ection 22.01( a)(1) of the Texas Penal Code as an essential element of the crime. See T EX .P ENAL C ODE A NN
. § 22.02(a) (West 2011) (Aggravated Assault with a Deadly Weapon)(“A p erson commits an offense if the person commits assault as defined in § 22.01 and the person: (1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commiss ion of the assault.”);
T EX .P ENAL C ODE A NN
. § 25.11 (a) (West 2011) (Continuou s Violence Against the Family) (“A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 2 2.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71.0021(b), 71 .003, or 71.005, Family Code.”). Further, b oth offenses were committed
in a similar fashion. Duncan assailed two of his paramours in their homes and used a handgun in two of the attacks

. The State contends that both offenses are not similar for purposes of Section 3.03(a) because each offense has elements unique to it and because the offenses “are included in entire ly separate titles and chapters within the Penal Code.” W e do not dispute that the two offenses are distinguishable. Whereas t he offense of continuous violence against the family requires proof of repeated assaults be perpetrated upon a family member dur ing a 12

- month period as element s of the crime , the offense of aggravated assault with a deadly weapon does not

. And whereas the offenses of aggravated assault with a deadly weapon is found in Chapter 22, “Assaultive6

Offenses ,” of Title 5, “Offenses Again st the Person,” of the Texas Penal Code, the offense of continuous violence against the family is found in Chapter 25, “Offenses Against the Family,” of Title 6, “Offenses Against the Family,” of the Penal Code. But we do not agree that these distinctions render the two offenses dissimilar for purposes of Section 3.03(a). The two offenses share a critical connection

— the common gravamen of assaultive conduct

— and were perpetrated in a similar fashion

— assailing two romantic interests in their homes with the use of a handgun in
two of the attacks. Accordingly, we conclude that b oth offenses arose from the “same criminal episode .” See Baker , 107 S.W.3d at 673 ; Guidry , 909 S.W.2d at 585. 2. Single Criminal Action Duncan argues that he was prosecuted in a single criminal action “because the finding of guilt and pronouncement of sentence [o c curred] in a single proceeding

. . . . ” We agree. “[A] defendant is prosecuted in ‘a single criminal action’ whenever allegations and evidence of more than one offense arising out of the same criminal episode, as that term is defined in Chapter 3, are presented in a single trial or plea proceeding, whether pursuant to one charging instrument or several

. . . . ” LaPorte , 840 S.W.2d at 415

. A plea proceeding is not complete until punishment has been assessed. Robbins v. State , 914 S.W.2d 582 , 583 (Tex.Crim. App. 1996).
Here , the State presented allegations and evidence of more than one offense arising out of the same criminal episode in a single plea proceedi ng w ith no distinction of evidence , i.e. , the consolidated proceeding at which the court heard both of the State’s motions to revoke Duncan’s community supervision, adjudicated Duncan’s guil t, and assessed his sentences. The intertwining of facts rendered it a single criminal action. Relying on Justice Baird’s concurring opinion in Duran v. State , 844 S.W.2d 7457

(Tex.Crim.App. 1992), t he State contends that Duncan failed to prove he was prosecuted in a single criminal action because he did not show that t he two offenses “were consolidated at the time he pled guilty and at the time of the revocation hearing.” The State’s reliance on Justice Baird’s concurring opinion in Duran is misplaced.
In Duran , the appellant’s probations in two related drug cases were revoked at a joint revocation hearing and the sentences were ordered to run consecutively. Id . at 746. On appeal, the appellant argued that the sentences were improperly cumulated because they were the result of a single trial. Id . The majority of the court of criminal appeals was not swayed by the appellant’s argument because the record did not show whether the original plea proceedings had been consolidated. Id . In his concurrence, Ju stice Baird expressed th e view that a defendant is not entitled to concurrent sentences under S ection 3.03 unless both the plea proceedings and the hearings on the motions to revoke probation are held jointly. Id. at 748 (Baird, J., concurring).
But Justice Baird’s view was sub sequently rejected by the majority of the court of criminal appeals in Robbins

. There, the appellant was charged in separate indictments with two offenses of aggravated sexual assault that arose out of the same transaction. 914 S.W.2d at 583

. The trial
court conducte d two separate plea proceedings, but one consolidated punishment hearing. Id

. On appeal, the appellant a rgued that the trial court erred in ordering the sentences served consecutively, because they were prosecut ed in the same criminal action. Id. The court of criminal appeals agreed, explaining that a plea proceeding is not complete until punishment has been assessed, and therefore, the causes were prosecut ed in the “same criminal action. ” Id . at 583

- 84. Ju st ice Baird noted his dissent, citing his concurring opinion in Duran

. Id

. at 584. The situation in this case is more analogous to that in Robbins than in Duran . Here, as in8

Robbins , a djudication of guilt and punishment occur red in a single unified hearin g. Consequently, we conclude

— consistent with the decisions in La Porte and Robbins

— that Duncan was prosecuted in a single criminal proceeding. See Martin v. State , 143 S.W.3d 412, 414

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-- Austin 2004, no pet.)(relying on La Porte and Robbins , a mong others, in concluding that a defendant has been prosecuted in a single criminal proceeding when multiple offenses arising out of the same criminal episode are tried jointly at any phase).
Duncan has met h is burden of establishing that the trial court improperly “stacked,” or cumulated, his sentences. Accordingly, we conclude that the trial court erred in exercising its discretion by ordering that Duncan’s sentence in this case run cumulative to the sentence he received in Cause N o. F

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. Duncan’s issue is sustained

. CONCLUSION When a trial court erroneously cumulates sentences, the appropriate remedy is to reform the judgment and delete the cumulation order. Robbins , 914 S.W.2d at 584. Accordingly, we reform the judgment of the trial court in this cause and delete all reference suggesting that the sentence in this cause is to run cumulative to, consecutive to, or in any way after completion of the sentence in Cause No. F

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October 18, 2013 YVONNE T. RODRIGUEZ, Justice Before McClure, C.J., Rivera, and Rodriguez, JJ. (Do Not Publish)