Jejuan Shawntel Cooks v. The State of Texas--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-99-043-CR & 10-99-044-CR

JEJUAN SHAWNTEL COOKS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court Nos. 96-10-16,053-CR & 96-10-16,054-CR

O P I N I O N

Appellant was arrested for committing burglary of two different buildings on August 18, 1996. Appellant was charged with two indictments, one for each offense, and each case was assigned a different cause number. In two plea hearings, appellant pled guilty and was sentenced to two years in prison, probated for five years, for each offense. The State subsequently moved to revoke appellant s probation in each case, alleging seven violations of the conditions of appellant s probation. After a hearing, the trial court found the State s allegations to be true, revoked appellant s probation, and ordered his two-year sentences to run consecutively.

In a single point of error, Appellant claims the trial court erred in ordering the sentences to run consecutively because the offenses arose out of the same criminal episode and were prosecuted in a single criminal action. Tex. Pen. Code Ann. 3.03 (Vernon 1999). Although the court reporter was unable to transcribe the record of the revocation hearing, the parties have stipulated that both motions to revoke were heard simultaneously.

When found guilty of more than one offense arising out of the same criminal episode and prosecuted in the same criminal action, an accused is entitled to serve the sentences for each offense concurrently. Tex. Pen. Code Ann. 3.03 (Vernon 1999). Because appellant failed to show he was prosecuted in a single criminal action, we do not reach the issue of whether appellant s offenses arose out of the same criminal episode.

A single criminal action occurs 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). In Duran v. State, the Court of Criminal Appeals discussed the term criminal action in the context of a plea proceeding and a subsequent probation revocation hearing:

[T]he term criminal action includes not only appellant s plea of guilty but also the hearings on the State s motion to revoke his probation. Therefore, to be entitled to concurrent sentences under 3.03 appellant must establish that the offenses were consolidated at the time of his plea as well as the hearings on the motions to revoke his probation. Although the record demonstrates the State s motions to revoke appellant s probation were consolidated, the record fails to establish the offenses were consolidated at the time of his pleas.

Duran v. State, 844 S.W.2d 745, 748 (Tex. Crim. App. 1992) (Baird, J., concurring) (emphasis added).

Absent a record of the appellant s plea hearings, we cannot determine whether the pleas were consolidated into a single hearing. Neither the trial court s docket sheet nor any of the various filings contained in the clerk s record indicate that the pleas were joined. The appellant has failed to show the offenses were consolidated at the time of his pleas as well as the hearing on the State s motions to revoke probation. He has therefore failed to establish his entitlement to concurrent sentences under Section 3.03 of the Texas Penal Code. Appellant s sole point of error is overruled.

The judgment of the trial court is affirmed.

ROBERT M. CAMPBELL

Justice (Sitting by Assignment)

Before Chief Justice Davis,

Justice Vance and

Justice Campbell (Sitting by Assignment)

Affirmed

Opinion delivered and filed March 29, 2000

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