Ashley Nicole Sias v. The State of Texas--Appeal from 252nd District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-507 CR
NO. 09-06-508 CR
NO. 09-06-509 CR
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ASHLEY NICOLE SIAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 94436, 94455, and 94652
MEMORANDUM OPINION

This case presents the question of whether the trial court erred in stacking Ashley Nicole Sias's sentences. We hold that it did not.

Pursuant to plea bargain agreements, Sias pled guilty to three felony theft charges. In each case, the trial court deferred adjudication and placed Sias on community supervision. The State subsequently filed motions to revoke Sias's unadjudicated probations, and at the revocation hearing, Sias pled true to violating the terms of her community supervision. Her sentencing hearing was subsequently conducted in each cause number on the same date, and at the sentencing hearing the trial court adjudicated her guilt and sentenced her on each conviction to two years in a state jail facility. The trial judge ordered her sentence in trial cause number 94455 to run consecutive to her sentence in trial cause number 94436, and ordered her sentence in trial cause number 94652 to run consecutive to her sentence in trial cause number 94455.

On appeal, Sias argues that the trial court improperly cumulated her sentence in cause number 94652 because it arose from the same criminal episode and was prosecuted in the same criminal action as cause number 94455. She concludes that, as a result, her sentence is void and that her sentence in cause number 94652 must run concurrent with her other sentences. The State concedes that the thefts in cause numbers 94455 and 94652 occurred in the same criminal episode but contends that the claims were not prosecuted in the same criminal action.

The trial court's authority to order sentences to run consecutively or concurrently is granted by the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon 2006). However, the trial court's discretion is limited by section 3.03 of the Penal Code, which provides: "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) [not applicable here], the sentences shall run concurrently." Tex. Pen. Code Ann. 3.03 (Vernon Supp. 2006).

The Penal Code does not define "prosecuted in a single criminal action." However, the Court of Criminal Appeals has stated that "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 . . . are presented in a single trial or plea proceeding, whether pursuant to one charging instrument or several, and the provisions of Section 3.03 then apply." LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992).

Here, the offenses were not prosecuted in a single criminal action and section 3.03 does not apply. At the guilty plea hearing, the hearing deferring adjudication of guilt, the revocation hearing, (1) and the sentencing hearing following adjudication of guilt, (2) the trial court called each case separately and dealt with each one individually before calling the next case. The cases bore separate cause numbers and were not consolidated. As a result, we hold that Sias's offenses were not "prosecuted in a single criminal action" under section 3.03. See Ex parte Pharr, 897 S.W.2d 795, 796 (Tex. Crim. App. 1995); see also Robbins v. State, 914 S.W.2d 582, 583-84 (Tex. Crim. App. 1996). Because cause numbers 94652 and 94455 were not prosecuted in a single criminal action, we hold that the trial court did not err in ordering Sias's sentence in cause number 94652 to run consecutive to her sentence in cause number 94455. We overrule Sias's sole issue on appeal.

The judgments in trial cause numbers 94436, 94455, and 94652 are affirmed.

AFFIRMED.

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HOLLIS HORTON

Justice

 

Submitted on May 18, 2007

Opinion Delivered July 25, 2007

Do Not Publish

 

Before Gaultney, Kreger, and Horton, JJ.

1. Similar to a recent case decided by this Court, at Sias's motion-to-adjudicate-guilt hearing, the trial judge called the cases separately and (1) the court described the prior history of the case, (2) the court then stated the probation term Sias was alleged to have violated and then asked Sias if the allegation was true or not true, (3) Sias responded "true" to the allegation, and (4) the court moved on to the next case. See Nichols v. State, No. 09-06-261-CR, No. 09-06-262-CR, No. 09-06-263-CR, No. 09-06-264-CR, 2007 Tex. App. LEXIS 2989, at *3, n.1 (Tex. App.-Beaumont Apr. 18, 2007, pet. filed) (not designated for publication). At the conclusion of the adjudication hearing, the trial judge stated, "I'm going to accept your plea in all cases, reset this matter for sentencing on August 7th at 9:30. I'm going to get an updated report in each case. We'll see you at that time." The trial court did not "accept" the pleas of "true" individually and separately. However, like Nichols, the record reveals that at this hearing and at the other three hearings the trial court called each case individually and treated each case separately. See id. Therefore, the intertwining treatment of cases as described by this Court in Polanco v. State, 914 S.W.2d 269, 271-72 (Tex. App.-Beaumont 1996, pet. ref'd), is not present, and the record is sufficient to conclude that Sias was not tried in a single criminal action.

2. Sias claims that the sentencing hearing following adjudication of guilt was one consolidated punishment hearing because the trial court initially called a cause number, unrelated to the trial cause numbers at issue here, heard arguments from counsel, and then proceeded to call the other causes without additional comments from counsel before sentencing Sias in all cases. While the record reflects that at the outset of this hearing, the trial court called cause number 97004, heard arguments, and then proceeded to sentence Sias, the record also indicates that in each case relevant to this appeal, the trial court individually called the cause number, found the evidence sufficient to find the alleged probation violation true, found the violation true, revoked Sias's unadjudicated probation, found Sias guilty of the charged offense, assessed punishment, credited prior service time, and then orally announced its ruling on the cumulation of Sias's sentences. The trial court then re-called cause number 97004, found the evidence sufficient to find Sias guilty of that offense, and assessed punishment. We hold that the trial court's procedure did not amount to a consolidated punishment hearing. See Robbins v. State, 914 S.W.2d 582, 583-84 (Tex. Crim. App. 1996).