Oscar Ventura v. The State of Texas--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

OSCAR VENTURA, )

) No. 08-02-00460-CR

Appellant, )

) Appeal from the

v. )

) 346th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20010D01479)

)

O P I N I O N

Oscar Ventura appeals an alleged stacking order. We affirm.

FACTUAL SUMMARY

On May 30, 2001, Appellant waived his right to a jury trial and entered a negotiated plea of guilty to possession of cocaine. In accordance with the plea bargain, the trial court placed Appellant on shock probation for a term of ten years. The trial court later revoked Appellant=s probation and sentenced him to imprisonment for a term of ten years. At that same revocation hearing, the trial court revoked Appellant=s community supervision in cause number 65173 and assessed punishment at imprisonment for ten years in that case.[1] The following exchange then occurred between the attorneys and the trial court:

[The State]: Your Honor, if the Court would consider stacking one on top of the other. However, if the Court won=t consider that, then I would ask the Court to address each one separately in each respective cause number.

[The Court]: Do you have anything to say why I shouldn=t stack them to amount to 20 years?

[Defense]: Your Honor, the Court placed him on probation on both cases, and under the sentences concurrent, the probation is to run concurrent So, you know --

[The Court]: I=ll tell you what I=m going to do. I=m going to let you brief that point, and I=ll withdraw that sentence.

In the meantime, on Cause Number 65173, I sentence him to 10 years in the Institutional Division of the Texas Department of Criminal Justice.

In Cause Number 20010D01479, I sentence him to 10 years in the Institutional Division of the Texas Department of Criminal Justice.

They are to run consecutive unless you show me where I=m wrong.

The trial court signed the written judgment and sentence approximately one month after the revocation hearing and oral pronouncement of sentence. The judgment does not contain a cumulation order but instead provides that the sentence is AConcurrent Unless Otherwise Specified.@

CONSECUTIVE SENTENCES

In his sole point of error, Appellant contends that the trial court erred in cumulating the sentences. In support of his argument, Appellant cites O=Hara v. State, 626 S.W.2d 32, 35 (Tex.Crim.App. 1981) which held that a trial court may not add a cumulation order onto a sentence already imposed after a defendant has suffered punishment under the sentence as originally imposed. In this case, however, the record does not support Appellant=s claim that the trial court has entered a cumulation order in this case as the judgment states that the sentence is concurrent unless specified otherwise. The trial court did not Aspecify otherwise@ anywhere in the written judgment or sentence; therefore, the sentences are to run concurrently. Accordingly, Appellant=s sole point of error is overruled and the judgment of the trial court is affirmed.

June 24, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] Appellant has also appealed cause number 65173. We have affirmed that conviction by an opinion and judgment entered this same date. Oscar Ventura v. State, 08-02-00461-CR (Tex.App.--El Paso June 24, 2004, no pet.h.).