## NUMBER S 13

- 21

- 000 86

- C R & 13

- 21

- 00087

- CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

BRI T TNY SHAY CARAWAY A/K/A

BRITNY CARAWAY

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

On appeal from the 24th District Court

of DeWitt C ounty, Texas.



## MEMORANDUM OPINION

Before Justices Hinojosa, Tijerina, and Silva

Memorandum Opinion by Justice Silva

I n a consolidated hearing , t he trial court adjudicated a ppellant Brit t ny Shay

Caraway a/k/a Britny Caraway ’ s guilt and revoked her community supervision for two

third

- degree offenses of possession of a controlled substance (POCS) and sentenced her2 to ten years ’ imprisonment on each offense. 1 See T EX

. H EALTH & S AFETY C ODE A NN

.

§ § 481.115(c), 481 .134 ( d )

. The trial court ordered the sentences to run consecutively. By

one issue, Caraway argues the trial court abused its discretion in doing so

. We affirm.

I. B ACKGROUND

On April 15

, 2015, Caraway was indicted in trial court cause number 15

- 04

- 12,222

for the offense of POCS in penalty group one, namely, methamphetamine in the amount

of less than one gram in a drug

- free zone, a state jail felony enhanced to a third

- degree

felony. See id. § 481.134 (d)

. Caraway pleaded guilty pursuant to a plea bargain

agreement on August 13, 2015. As part of the agreement, the State dismissed a POCS

charge stemming from a n unrelated May 2015 arrest. The trial court deferred adjudication

of guilt and placed Caraway on community supervision for a period of four years.

On February 9, 2016, Caraway was subsequently arrested for POCS in penalty

group one, namely, methamphetamine in the amount greater than one gram but less than

four grams, a third

- degree felony. See id. § 481.115(c). Caraway was indicted in trial court

cause number 16

- 07

- 12,474

, and the State filed a motion to adjudicate guilt in trial court

cause number 15

- 04

- 12,222, alleging Caraway ’ s February 9, 2016 arrest w as a violation

of her existing community supervision conditions.

1 This appeal concerns two cases: trial court cause number 15

- 04

- 12,222, which was appealed to

this C ourt in appellate cause number 13

- 21

- 00086

- CR; and trial court cause number 16

- 07

- 12,474, which

was appealed to this C ourt in appellate cause number 13

- 21

- 00087

- CR. The State’s motion s to adjudicate,

filed in each case, were heard by the trial court in one proceeding, allowing us to consider each appeal in

this consolidated memorandum opinion. See State v. Rendon , 476 S.W.3d 77, 79 (Tex. App.

— Corpus

Ch risti

– Edinburg 2014), aff’d , 477 S.W.3d 805 (Tex. Crim. App. 2015); see also Leal v. State , No. 13

- 20

-

00162

- CR, 2020 WL 5056527, at *1 n.1 (Tex. App.

— Corpus Christi

– Edinburg Aug. 27, 2020, no pet.)

(mem. op., not designated for publication). Additionally, we amend t he style of t his consolidated

memorandum opinion to reflect the alternative spellings of Caraway’s first name in the two judgment s on

appeal

.3 On September 20, 2016, Caraway and the State entered into a plea bargain

agreem e nt, wherein Caraway pleaded guilty in trial court cause number 16

- 07

- 12,474 in

exchange for four years ’ deferred adjudication community supervision. On the same day,

the trial court signed the State ’ s motion to dismiss its pending adjudication motion in trial

court cause number 15

- 04

- 12,222 and modified Caraway ’ s community supervision

conditions , ordering her to attend out p atient treatment. Caraway ’ s conditions were

modified once more in January 2017 in both cause numbers

, and Caraway was ordered

t o attend treatment at a n inpatient Substance Abuse Felony Punishment Facility (SAFPF)

.

Caraway was unsuccessful ly discharge d from SAFP F in 2017

. I n lieu of the State

pursuing its motions to adjudicate

, Caraway agreed to the trial court ’ s imposition of jail

sanctions

, and Caraway was ordered to attend a SAFPF relapse treatment program. In

2018, Caraway was unsuccessful ly discharged from SAFPF and ordered to repeat the

SAFPF relapse treatment program. In 2019, the trial court extended Caraway ’ s

community supervision term for two years in each case

. Caraway was unsuccessfully

discharged from SAFPF again in 2020 following an arrest for POCS

.

In April 2020, the State moved to adjudicate guilt in both cases

, alleging

, in relevant

par t

, that Caraway committed the offense of POCS on or about April 13, 2020 ; tested

positive for methamphetamine on various dates ; and had been unsuccessfully discharged

from SAFPF in 2017, 2018, and 2020

. The trial court held a hearing on March 17, 2021

,

wherein Caraway ’ s defense counsel informed the trial court that she wished to have both

cases heard “ together. ” After the trial court accept ed Caraway ’ s mixed pleas of true and

not true, the State called several witnesses, including the community supervision unit4 supervisor

, a counselor from the outpatient facility Caraway attended, and the arresting

officer from Caraway ’ s April 13, 2020 arrest

. Caraway also testified, as did her sister,

stepmother, and father.

During closing argument, the State requested that the trial court “ adjudicate both

cause numbers to find her guilty in each case and to sentence her to 10 years [ ’ ]

confinement in each case and to stack those two sentences

. ” Caraway asked for her

community supervision to be reinstated

, and alternatively, she requested that the trial

court order “ a minimum sentence, not to be stacked in each case. ” Caraway objected to

the State’s request for the imposition of a consecutive sentence, arguing that s he did not

believe that the “ Code permits stacking when we have one consolidated hearing

. ” The

trial court found all the allegations true in the State ’ s motion s to adjudicate

, sentenced

Caraway to ten years ’ imprisonment in each cause

, and stated : “ It ’ s the order of the Court

that these sentences are to run consecutive and the language that needs to be in the

orders is that [‘] Cause No. 12

- 474 does not begin until 12,222, [’] the actual language [sic]

[‘] ceases to operate. [’] ”

Caraway objected to the trial court ’ s cumulation of her sentence i n a motion for

new trial, which was overruled by operation of law. This appeal followed.

II. C ONSECUTIVE S ENTENCING

By a single issue in each appeal

, Caraway argues the trial court abused its

discretion by ordering her sentences to run consecutively because she was not convicted

of an offense for which Texas Penal Code § 3.03 authorizes consecutive sentencing. See

T EX

. P ENAL C ODE A NN

. § 3.03

. The State counters that Caraway “ specifically waived the5 right to have the cases heard separately, wanting them tried together in the adjudication

hearing ”

— thereby “ subject [ ing ] [ Caraway ] to consecutive sentence s

. ” Alternatively, the

State observes that al though the trial court orall y imposed a consecutive sentence

,

neither of the two judgments on appeal “ reflect that the cases are to run consecutive ” ;

thus, “ the trial court should be in all things affirmed. ”

A. Standard of Review and Applicable Law

We review a trial court ’ s decision to cumulate sentences for an abuse of discretion.

See Byrd v. State

, 499 S.W.3d 443, 446 (Tex. Crim. App. 2016) ; Waddell v. State

, 456

S.W.3d 366, 369 (Tex. App.

— Corpus Christi

– Edinburg 2015, no pet.)

. “ That discretion to

cumulate or not is largely

— but not entirely

— unfettered. ” Ex parte Carter

, 521 S.W.3d

344, 351

– 52 (Tex. Crim. App. 2017) ( Yeary, J., concur ring ) (explaining the common law

and statutory history behind consecutive and concurrent sentencing). A reviewing court

will generally only find a n abuse of discretion if “ (1) the trial court i mposes consecutive

sentences when the law requires concurrent sentences, (2) the trial court imposes

concurrent sentences when the law requires consecutive ones, or (3) the trial court

otherwise fails to observe the statutory requirements pertaining to sentencing. ” Ex parte

Scott

, 541 S.W.3d 104, 118 n.16 (Tex. Crim. App. 2017) (quoting Beedy v. State

, 194

S.W.3d 595, 597 (Tex. App.

— Houston [1st Dist.] 2006))

. We review de novo whether

cumulative sentencing is statutorily permissible in a given case

. Ex parte Vela

, 460

S.W.3d 610, 612 (Tex. Crim. App. 2015) ; Williams v. State

, 253 S.W.3d 673, 677 (Tex.

Crim. App. 2008)

. “ The overarching rule of statutory construction is that we construe a

statute in accordance with the plain meaning of its text unless the text is ambiguous or6 the plain meaning leads to absurd results that the legislature could not possibly have

intended. ” Ex parte Vela

, 460 S.W.3d at 612 ; see T EX

. G OV ’ T C ODE A NN

. § 311.011(a).

A rticle 42.08 of the code of criminal procedure generally affords a trial court the

discretion to cumulate the sentences for two or more convictions. T EX

. C ODE C RIM

. P ROC

.

A NN

. art. 42.08(a ); see Cisneros v. State

, 622 S.W.3d 511, 522 (Tex. App.

— Corpus

Christi

– Edinburg 2021, no pet.)

. However, § 3.03 (a) of the penal code provides that

“ sentences shall run concurrently ‘ [w]hen the accused is found guilty of more than one

offense arising out of the same criminal episode prosecuted in a single criminal action ’”

—

absent the applicability of exceptions specified in § 3.03(b)

. Middleton v. State

, 634

S.W.3d 46, 49 (Tex. Crim. App. 2021) (emphasis added) (quoting T EX

. P ENAL C ODE A NN

.

§ 3.03 (a) ) ; see also Miles v. State

, 506 S.W.3d 485, 486 (Tex. Crim. App. 2016)

(observing that § 3.03(b) “ sets out exceptions to the general rule

— circumstances in which

sentences may be cumulated: the sentences may run concurrently or consecutively if

each sentence is for a conviction for the specified offenses that are listed in the several

subsections ” )

.

Under § 3.03 (a)

, “ offenses committed during ‘ the same criminal episode ’ include

offenses that ‘ are the repeated commission of the same or similar offenses. ’” Middleton

,

634 S.W.3d at 49 (concluding that appellant ’ s multiple theft offenses

, occurring on

different dates and indicted separately

, constituted the “ same criminal episode ” for

sentencing purposes (quoting T EX

. P ENAL C ODE A NN

. § 3.01(2 ) ) ) ; see Waddell

, 456

S.W.3d at 369 (concluding § 3.01, which defines “ criminal episode

, ” “ does not require that

all the offenses arising out of the same criminal episode occur within any particular time7 frame ” (quoting Casey v. State

, 349 S.W.3d 825, 831 (Tex. App.

— El Paso 2011, pet.

ref ’ d) ))

. T he phrase “ a single criminal action ” in § 3.03(a) “ refers to a single trial or plea

proceeding

. ” Middleton

, 634 S.W.3d at 50. M ultiple indictments can be considered to have

been “ prosecuted in a single criminal action ” when disposed of in a consolidated

punishment hearing

. Id. at 5 0

– 52 (concluding that § 3.03(a) extends to multiple deferred

adjudication cases heard jointly in a single punishment proceeding ) ; s ee also Ex parte

Carter

, 521 S.W.3d at 352 ( observing that a defendant may be incentivized to agree to

consolidation of a punishment proceeding because “ he could insist upon the imposition

of concurrent rather than consecutive sentences, thus taking the normative decision away

from the trial judge ” ).

Pertinent here, the Texas Health and Safety Code § 481.132 concerns multiple

prosecutions of offenses under Chapter 481

. 2 See T EX

. H EALTH & S AFETY C ODE A NN

.

§ 481.132. Section 481.132 contains substantially similar language as § 3.03 of the penal

code and provides that “ [i] f the accused is found guilty of more than one offense arising

out of the same criminal episode prosecuted in a single criminal action, sentence for each

offense for which the accused has been found guilty shall be pronounced, and those

sentences run concurrently. ” Id. § 481.132(d) ; see Newman v. State , 268 S.W.3d 266,

26 8 (Tex. App.

—Amarillo 2008, pet. ref’d) (observing that the “ verbiage is quite similar ”

between the two statutes)

. “ C riminal episode ” is defined under § 481

. 132 as “ the

commission of two or more offenses under this chapter ” provided that “ the offenses are

2 Although this consolidated appeal involves offenses under Chapter 481 of the Texas Health and

Safety Code

, n either party briefed the applicability of § 481.132. See T EX

. H EALTH & S AFETY C ODE A NN

. § 481.132.8 the repeated commission of the same or similar offenses

. ” T EX

. H EALTH & S AFETY C ODE

A NN

. § 481.132(a)(2); see Williams

, 253 S.W.3d at 677

.

An exception to § 481.132 ’ s concurrent sentencing requirement exists for drug

free zone convictions under § 481.134 : “ P unishment that is increased for a conviction for

an offense listed under this section may not run concurrently with punishment for a

conviction under any other criminal statute

. ” T EX

. H EALTH & S AFETY C ODE A NN

.

§ 481.134(h) (emphasis added)

. In other words, where a defendant is convicted of

multiple offenses under Chapter 481, his convictions will “ not implicate the mandatory

cumulation provision so as to require cumulation of his sentence with his prior drug

- free

zone sentence. ” Moore v. State

, 371 S.W.3d 221, 227

– 28 (Tex. Crim. App. 2012) (citing

T EX

. H EALTH & S AFETY C ODE A NN § § 481.115, 481 .134)) ; see, e.g.

, Williams

, 253 S.W.3d

at 678 ( “ [B] ecause Appellant was not convicted of a criminal offense not listed within

§ 481.134, the consecutive sentencing provision of § 481.134(h) does not apply [;

t] herefore, § 481

. 132 (d) determines whether the sentences are to run concurrently. ” ).

When applicable, § 481.134 (h) controls over § 3.03 (a)

. See Williams

, 253 S.W.3d at 678

(citing T EX

. G OV ’ T C ODE A NN

. § 311.026 ) ; see also Williams v. State

, No. 01

- 11

- 00017

-

CR, 2012 WL 2357416, at *13 (Tex. App.

— Houston [1st Dist.] June 21, 2012, pet. ref ’ d)

(mem. op., not designated for publication)

.

B. Analysis

The State is correct in that neither of the judgments on appeal reflect the trial

court ’ s oral imposition of a consecutive sentence. However, when there is a variance

between the oral pronouncement and the written judgment, “ the oral pronouncement9 controls. ” Burt v. State

, 445 S.W.3d 752, 757 (Tex. Crim. App. 2014); see also Ette v.

State

, 559 S.W.3d 511, 517 (Tex. Crim. App. 2018). Thus, we must determine whether

the trial court abused its discretion in its oral imposition of c onsecutive sentence s

, and we

begin with our analysis of the applicability of the sentenc ing provision s in the penal code

and health and safety code

. See T EX

. H EALTH & S AFETY C ODE A NN

. § 481.132; T EX

. P ENAL

C ODE A NN

. § 3.03 ; see also W alker v. State

, No. 13

- 11

- 418

- CR, 2011 WL 5005669, at *1

(Tex. App.

— Corpus Christi

– Edinburg Oct. 20, 2011, no pet.) (mem. op., not designated

for publication) (conducting an analysis of whether the trial court abused its discretion in

ordering sentences to run consecutively where the written judgments did not reflect the

court ’ s oral pro no uncements).

Caraway was convicted of two POCS offenses. See T EX

. H EALTH & S AFETY C ODE

A NN

. § § 481.115(c), 481 .134. Although the POCS offenses occurred on separate dates

and were indicted separately

, the unambiguous language of both provisions dictates that

the repeated commission of the same offenses cons t itutes the same criminal episode.

See T EX

. H EALTH & S AFETY C ODE A NN

. § 481.132( a ) , (d) ; T EX

. P ENAL C ODE A NN

. § 3.03 (a) ;

see also Middleton

, 634 S.W.3d at 49 ; Williams

, 253 S.W.3d at 678 ; see, e.g.

, Walker

,

2011 WL 5005669, at *1 ( concluding two sentences under Chapter 481

, though indicted

separately

, “ grew out of the same criminal episode ” )

. Neither party disputes that Caraway

requested that the cases be “ tried together in the adjudication hearing

, ” and the trial court

obliged. Therefore

, the offenses arising out of the same criminal episode were also

“ prosecuted in a single criminal action

. ” See T EX

. H EALTH & S AFETY C ODE A NN

.

§ 481.132(d); T EX

. P ENAL C ODE A NN

. § 3.03 (a) ; see also Middleton

, 634 S.W.3d at 49.10 Moreover, § 3.03(b) enumerates the offenses that may be ordered to run consecutively,

and POCS is not expressly included in that list. See T EX

. P ENAL C ODE A NN

. § 3.03 (b). And

a lthough Caraway was convicted of an offense under § 481.134(h), Caraway ’ s second

offense is also contained within Chapter 481, rend er ing the cumulative provision of

§ 481.134 inapplicable. See Williams

, 253 S.W.3d at 678

.

Accordingly

, §§ 3.03(a) and 481.132(d) control led and mandated an imposition of

concurrent sentence s. See Miles

, 506 S.W.3d at 488 (concluding that “ the unambiguous

language of [ § ] 3.03 dictates that ” sentences arising out of the same criminal episode and

prosecuted in a single criminal action “ may not be stacked and ‘ shall run concurrently ’” ) ;

see also Thomas v. State

, No. 05

- 12

- 00392

- CR, 2013 WL 1277885, at *2 (Tex. App.

—

Dallas Mar. 1, 2013, no pet.) (mem. op., not designated for publication) (concluding the

trial court abused its discretion in assessing cumulative sentences where appellant was

indicted separately and convicted of multiple offenses under Chapter 481); Walker

, 2011

WL 5005669, at *1 (same)

. We conclude that t he trial court abused its discretion in

ordering the sentences to run cumulatively. See Byrd

, 499 S.W.3d at 446

.

B ecause the written judgments here do not reflect that the sentences are to run

cumulatively , we need not modify the judgment

. See Moore

, 371 S.W.3d at 229 ( “ In the

absence of that [cumulative] order, the sentences will necessarily run concurrently. ” ); see

also Walker

, 2011 WL 5005669, at *3 (concluding “ the trial court erred in its oral

pronouncement that appellant ’ s sentences should be served consecutively ” but finding

reformation of the judgment unnecessary where the written judgment already indicated

that the sentences were to run concurrently ).11 W e sustain appellant ’ s sole issue in each appeal

.

I II

. C ONCLUSION

We affirm the trial court ’ s judgment s

.

CLARISSA SILVA

Justice

Do not publish.

T EX

. R. A PP

. P. 47.2 ( b ).

Delivered and filed on the

3rd day of March

, 202 2

.