Ex Parte: Thomas, Marcus Antray v. The State of Texas--Appeal from 265th Judicial District Court of Dallas County (memorandum opinion )

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MO1)IFY and AFFIRM; Opinion Filed March 1, 2013. In The Qrourt of ppeat jfiftj Oitritt of exa at atta No, No. No. No. No. No. No. 05-12-00392-CR 05-12-00393-CR 05-12-00394-CR 05-12-00395-CR 05-12-00396-CR 05-12-00397-CR 05-12-00398-CR MARCUS ANTRAY THOMAS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F06-65061-R, F06-65062-R, F06-65539-R, F06-65970-R, F06-73553-R, F06-73554-R, F06-87892-R MEMORANDUM OPINION Before Justices Moseley, O Neill, and Lewis Opinion by Justice O Neill Marcus Antray Thomas appeals his convictions in seven drug cases. In three points of 1 error, appellant contends the mandatory cumulation provision of section 48 1.134 of the Texas Health and Safety Code does not apply to these cases; alternatively, the trial court abused its 1 Appellant was granted out-of-time appeals by the Texas Court of Criminal Appeals. discretion by entering cumulation orders that were not orally pronounced at sentencing and the cumulation order in cause no. 05 I 200396( R should be deleted from the judgment. The State concedes the trial court improperly applied seci ion 481 133(h) and that the cumulation orders . should be deleted. We modify the trial court s judgments and affirm as modified. Appellant waived a jury and pleaded guilty to the following ollenses: (1) possession with intent to deliver cocaine in an amount of four grams or more but less than 200 grams. See Thx. HEALTH & SAFETY CoDE ANN. § 481.112(a), (d) (West 2010); (2) possession with intent to deliver 3,4-methylenedioxy methamphetamine (MDMA) in an amount of four grams or more but less than 400 grams. Id. § 481.113(a), (d) (West Supp. 2012); (3) possession of MDMA in an amount of one gram or more but less than four grams. Id. § 481.1 16(a), (c) (West 2010); (4) delivery of cocaine in an amount of one gram or more but less than four grams. Id. § 481.112(a). (c); (5) possession with intent to deliver cocaine in an amount of four grams or more hut less than 200 grams in a drug-free zone and while using or exhibiting a deadly weapon, a firearm. hi. § 481.112(a), (d). 481.134(b) (West 2010 & Supp. 2012); (6) possession with intent to deliver MDMA in an amount of four grams or more but less than 400 grams in a drug-free zone and while using or exhibiting a deadly weapon, a firearm, Id. § 48 1.113(a), (d), 481.134(b) (West Supp. 2012); and (7) delivery of cocaine in an amount of four grams or more but less than 200 grams. Id. § 481.112(a), (d) (West 2010). The trial court found appellant guilty and assessed punishment at ten years imprisonment and a $500 fine in each case. The judgments in five cases order the sentences to run consecutively to the sentences in cause nos. 05-12-00396-CR and 05-12-00397-CR. The judgments in cause nos. 05-12-00396-CR and 05-12-00397-CR are ordered to run consecutively with one another. -2- In his Inst point ol error, appellant conten(ls the mandatory cumulation provision in section 481.1 34 does not apply to any of his cases. Appellant asserts that because all of the convictIons are ftr offenses contained within Chapter 481 of the Texas Controlled Substances Act, the mandatory cumulation provision does not apply. The State agrees, stating that section 481 .132(d), not section 481 134(h), applies to these cases. . Section 48L132 of the Texas Health and Safety Code states that if a defendant is convicted of more than one offense arising out of the same criminal episode prosecuted in one trial, then the sentences for the convictions must run concurrently. TEx. HEALTH & SAFETY CODE ANN. 48 1.132(d). A criminal episode is defined as the commission of two or more offenses under Chapter 481 of the Texas Controlled Substances Act and the offenses are repeated commissions of the same or similar offense. Id. § 481.1 32(a)(2), Section 481.134 provides for increased punishment for offenses committed within drugfree zones such as schools, youth centers, playgrounds. and public swimming pools. See TEx. HEALTH & SAFETY CODE ANN. § 48 1.134. Subsection (h), the cumulation provision, states punishment 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. Id. § 48 1.134(h). Thus, subsection (h) orders the cumulation of sentences when at least one offense ftr which a defendant is convicted is for an offense that is not listed within section 48 1.134. See Id. § 481 .134(c), (h). Section 481.134(h) does not apply to allow cumulation of drug-free zone offenses with other sentences for offenses under Chapter 481. See Williams v. State, 253 S.W.3d 673, 677 78 (Tex. Crim. App. App. 2008). Appellant was indicted for and convicted of seven offenses under chapter 481 of the health and safety code. The offenses were repeated commissions of the same offense, and thus -3- part of the same criminal episode. See Ti;x, REALm & StiiirY CODE ANN, § Appellant was prosecuted for all seven offenses See TEX, ( ODE ANN. * 3.03(a). None of in a single criminal action. 4X1,132(a)(2). PENAL the convictions was for an olfcnsc outside Chapter 481 of the health and safety code. Thus, the prohibition against concurrent sentencing found in section 481 .134(h) does not apply to these cases. See Williams, 253 S.W.3d at 678. Rather, section 481.132(d) governs sentencing. See Id, We sustain appellant s first issue. We modify each judgment to delete the cumulation order. See T[x. R. Apr. P. 43.2(h); Bigley v. State, 865 S.W.2d 26, 27 28 (Tex. Crim. App. 1993); Asberrv r. Stare, 813 S.W.2d 526, 529 30 (Tex. App. DalIas 1991, pet. ref d). Because of our disposition of appellant s first issue, we do not address his remaining issues. As modified, we affirm the trial court s judgments. I / A / I / Ii A // / /1 /f / i ¢ ¢- -. c A MJCHAELJ.O NEILL JUSTICE V Do Not Publish TEX. R. App. P.47 I 20392F.U05 -4- 0 jfiftlj Qlourt of tppea1 itrict of exa at aLta JUDGMENT MARCUS ANTRAY THOMAS, Appellant No, 051 2M0392-CR V. Appeal from the 265th Judicial District Court of Dallas County, Texas (Tr,Ct.No. F06-6506 1 -R). Opinion delivered by Justice O Neill, Justices Moseley and Lewis participating. THE STATE OF TEXAS, Appellee Based on the Court s follows: opinion of this date, the trial court s judgment is MODIFIED as The Cumulation Order is deleted. As modified, we AFFIRM the trial court s judgment. Judgment entered March 1, 2013. / k I 4 T /MIAEL J. O NLL / / / JUSTICE / 4 Qtourt of ppeat jfift itrttt of !texa at aLta JUDGMENT MARCUS ANTRAY THOMAS, Appellant No. O5 1 2M0393-CR Appeal from the 265th Judicial District Court of Dallas County. Texas (Tr.Ct.No. FO665O62-R). Opinion delivered by Justice O Neill, Justices Moseley and Lewis participating. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the trial court s judgment is MODIFiED as follows: The Cumulation Order is deleted. As modified, we AFFIRM the trial court s judgment. Judgment entered March 1, 2013. v1I(i I\lI. J. (YNFI[J. J( :511(1: (court of tppea1 if iftj Ohtrict of exa at OaUa JUDGMENT MARCUS ANTRAY THOMAS, Appellant No. 05-1 2-00394-CR V. Appeal from the 265th Judicial District Court of Dallas County. Texas (Tr.Ct.No. F06-65539-R). Opinion delivered by Justice O Neill, Justices Moseley and Lewis participating. THE STATE OF TEXAS. Appellee Based on the Court s opinion of this date, the trial court s judgment is MODIFIED as follows: The Cumulation Order is deleted. As modified, we AFFIRM the trial court s judgment. Judgment entered March 1, 2013. 1 K I I.-\E1_ J. (1 NLlI A. JL .STICE Qtourt of pptat if iftj Otztrict of exa at a(La JUDGMENT MARCUS ANTRAY THOMAS. Appellant No. 05- 12-00395-CR Appeal from the 265th Judicial District Court of Dallas County, Texas (Tr.Ct.No. F06-65970-R). Opinion delivered by Justice O Neill, Justices Moseley and Lewis participating. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the trial court s judgment is MODIFIED as follows: The Cumulation Order is deleted. As modified, we AFFIRM the trial court s judgment. Judgment entered March 1, 2013. MICHAEL J. O NEILL JUSTICE Qlourt of ppeat jftftb Itritt of txa at atta JUDGMENT MARCUS ANTRAY THOMAS, Appellant No. 05=1 2=00396-CR V. Appeal from the 265th Judicial District Court of Dallas County, Texas (Tr.Ct.No. F06-73553-R). Opinion delivered by Justice O Neill, Justices Moselcy and Lewis participating. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the trial court s judgment is MODIFIED follows: The Cumulation Order is deleted. As modified, we AFFIRM the trial court s judgment. Judgment entered March 1, 2013. / / F MrCHAEL J 0 NEILL JUSTICE as Qtourt of ZLppea1 jftttlj itrict of exa at atta JUDGMENT MARCUS ANTRAY THOMAS, Appellant No. 05-I 2-00397-CR V. Appeal from the 265th Judicial District Court of Dallas County. Texas (Tr.Ct.No. F06-73554-R). Opinion delivered by Justice O Neill, Justices Moseley and Lewis participating. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the trial court s judgment is MODIFIED as follows: The Cumulation Order is deleted. As modified, we AFFIRM the trial court s judgment. Judgment entered March 1, 2013. ?vll( l l.\ll_ J. ( ) ¢ NEll .1. it STlCI Qourt of Ztppeat jf iftb itrirt of txa at afta JUDGMENT MARCUS ANTRAY THOMAS, Appellant No, 05-1 2-00398-CR V. Appeal from the 265th Judicial District Court of Dallas County, Texas (Tr.Ct.No. F06-87892-R). Opinion delivered by Justice O Neill, Justices Moseley and Lewis participating. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the trial court s judgment is MODIFIED as follows: The Cumulation Order is deleted. As modified, we AFFIRM the trial court s judgment. Judgment entered March 1, 2013.

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