Affirmed and Opinion filed August 21, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00333-CR
                              NO. 14-13-00334-CR

                  NICHOLAS JARED MIRELES, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 176th District Court
                            Harris County, Texas
                  Trial Court Cause Nos. 1281111 & 1288900

                                  OPINION

      Appellant pleaded guilty in a consolidated trial to one count of intoxication
manslaughter and one count of intoxication assault. The jury recommended four
years’ imprisonment on the first count and seven years’ community supervision on
the second. The trial court entered judgment accordingly, along with a stacking
order providing that appellant could not begin his community supervision until he
had completed his term of imprisonment. The only question on appeal is whether
the trial court erred by not ordering the community supervision to run concurrently
with the prison sentence.

                                Standard of Review

      We review a trial court’s stacking order for an abuse of discretion. See
Beedy v. State, 194 S.W.3d 595, 597 (Tex. App.—Houston [1st Dist.] 2006), aff’d,
250 S.W.3d 107 (Tex. Crim. App. 2008); Harvey v. State, 821 S.W.2d 389, 392
(Tex. App.—Houston [14th Dist.] 1991, pet. ref’d). A trial court abuses its
discretion when it fails to apply the law correctly or when no reasonable view of
the record could support the trial court’s decision. See Nicholas v. State, 56 S.W.3d
760, 764 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

      A trial court’s authority to stack is provided by statute. When interpreting a
statute, we apply a de novo standard of review, mindful that our primary objective
is to ascertain and give effect to the intent of the legislature. See Nguyen v. State,
359 S.W.3d 636, 641–42 (Tex. Crim. App. 2012). We focus on the literal text of
the statute, applying the plain and ordinary meaning of the words that have been
used, unless doing so yields an absurd result. See Tex. Gov’t Code § 311.011; Ex
parte Ervin, 187 S.W.3d 386, 388 (Tex. Crim. App. 2005). If the statute is clear
and unambiguous, we must presume that the legislature meant what it expressed.
See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

                               The Current Statutes

      Two statutes govern the trial court’s authority to stack. The first is Article
42.08 of the Texas Code of Criminal Procedure, which provides as follows:

      When the same defendant has been convicted in two or more cases,
      judgment and sentence shall be pronounced in each case in the same
      manner as if there had been but one conviction. Except as provided by
      Sections (b) and (c), in the discretion of the court, the judgment in the
      second and subsequent convictions may either be that the sentence
                                          2
       imposed or suspended shall begin when the judgment and the sentence
       imposed or suspended in the preceding conviction has ceased to
       operate, or that the sentence imposed or suspended shall run
       concurrently with the other case or cases, and sentence and execution
       shall be accordingly . . . .
       When the exceptions are considered,1 Article 42.08 effectively provides the
trial court with three distinct options: (1) the court may impose sentences of
confinement to be served either concurrently or consecutively; (2) the court may
suspend sentences of confinement and order periods of community supervision to
be served either concurrently or consecutively; or (3) the court may impose a
sentence, suspend another sentence, and order the suspended sentence to run either
concurrently with the imposed sentence or after the imposed sentence has ceased to
operate.

       The second statute, Section 3.03 of the Texas Penal Code, contains special
stacking rules when the defendant is convicted of multiple offenses in a
consolidated trial. In pertinent part, Section 3.03 provides as follows:

              (a) 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), the sentences shall run concurrently.
              (b) If the accused is found guilty of more than one offense
       arising out of the same criminal episode, the sentences may run
       concurrently or consecutively if each sentence is for a conviction of:
                      (1) an offense:
                            (A) under Section 49.07 [intoxication assault] or
                      49.08 [intoxication manslaughter], regardless of whether
                      the accused is convicted of violations of the same section

1
  Section (b) of Article 42.08 requires stacked sentences for certain inmate offenders. Section (c)
states that a trial court may not stack a prison sentence on top of a period of community
supervision; the prison sentence must always be imposed first.
                                                3
                         more than once or is convicted of violations of both
                         sections . . . .

          Under the plain language of Section 3.03(a), a court must order a
defendant’s sentences to run concurrently when the defendant has been convicted
of more than one offense in a consolidated trial. Section 3.03(b) restores the trial
court’s discretion to stack sentences, even when the offenses are tried together, if
the resulting convictions involve certain enumerated offenses, such as intoxication
assault and intoxication manslaughter.

                                   The History of the Statutes

          When Article 42.08 was first enacted in 1965, it only gave the trial court the
discretion to stack a defendant’s “punishment.”2 The Court of Criminal Appeals
construed this language narrowly in 1986 when, in Green v. State, it held that
punishment did not include community supervision, and that a trial court did not
have the authority to stack a probated sentence under the statute. See 706 S.W.2d
653, 657–58 (Tex. Crim. App. 1986).

          The legislature amended Article 42.08 in response to Green by deleting all
references to “punishment” and replacing them with “sentence imposed or

2
    The original text stated as follows:
          When the same defendant has been convicted in two or more cases, and the
          punishment assessed in each case is confinement in an institution operated by the
          Department of Corrections or the jail for a term of imprisonment, judgment and
          sentence shall be pronounced in each case in the same manner as if there had been
          but one conviction, except that in the discretion of the court, the judgment in the
          second and subsequent convictions may either be that the punishment shall begin
          when the judgment and sentence in the preceding conviction has ceased to
          operate, or that the punishment shall run concurrently with the other case or cases,
          and sentence and execution shall be accordingly.
Act effective Jan. 1, 1966, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws 317, 486–87.


                                                   4
suspended.” See Act effective Aug. 31, 1987, 70th Leg., R.S., ch. 513, § 1, 1987
Tex. Gen. Laws 2125, 2125. In its amended form, which is still in effect today, the
statute plainly applies to community supervision. See Pettigrew v. State, 48 S.W.3d
769, 772 (Tex. Crim. App. 2001) (stating that the legislature amended Article
42.08 to “broaden a trial court’s ability to stack sentences by affording the option
of stacking periods of community supervision”).

      When Section 3.03 was enacted in 1973, it contained virtually the same
language as the current Section 3.03(a), but without any exceptions. See Act
effective Jan. 1, 1974, 63d Leg., R.S., ch. 399, sec. 3.03, 1973 Tex. Gen. Laws
883, 891. No exceptions were added to Section 3.03 when Article 42.08 was
amended in 1987. The first exception provision, Section 3.03(b), did not arrive
until 1995, and it applied only in a narrow circumstance: when the defendant was
convicted of more than one count of intoxication manslaughter. See Act effective
Sept. 1, 1995, 74th Leg., R.S., ch. 596, § 1, 1995 Tex. Gen. Laws 3435, 3435. In
2005, the legislature expanded on this provision by including intoxication assault
among the list of enumerated offenses subject to the exception. See Act effective
Sept. 1, 2005, 79th Leg., R.S., ch. 527, § 1, 2005 Tex. Gen. Laws 1429, 1429.

                                  In Pari Materia

      When two statutes address the same general subject, they are considered as
being in pari materia. See State v. Vasilas, 253 S.W.3d 268, 271 (Tex. Crim. App.
2008). All acts and parts of acts in pari materia must be read and construed
together as though they were parts of one and the same law, even if they were
enacted at different times. Id. Whenever possible, we must harmonize any conflict
between the two statutes so that each is given effect. Id. at 272. If the statutes are
irreconcilable, then we must apply the more “special” statute as an exception to the
general one. See Tex. Gov’t Code § 311.026.

                                          5
      Article 42.08 and Section 3.03 are in pari materia because they both govern
the trial court’s authority to order concurrent or consecutive sentences. See Barrow
v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006) (“[T]he Texas Legislature
has assigned the decision to cumulate, vel non, in Section 3.03 of the Penal Code
and Article 42.08 of the Code of Criminal Procedure, to the trial court.”). Although
they have their differences, the two statutes do not irreconcilably conflict. Article
42.08 is the more general statute, describing the trial court’s broad authority to
stack, regardless of whether the defendant was convicted in separate trials or in a
consolidated trial. Section 3.03 is the more “special” of the two, applying
specifically when sentences are imposed for more than one conviction obtained in
a consolidated trial. In those circumstances, Section 3.03(a) operates as a limitation
on the trial court’s broad discretion, unless an exception applies under Section
3.03(b). See LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992) (“The
trial court’s general authority under Article 42.08, V.A.C.C.P., to order
consecutive sentences is statutorily limited by Section 3.03 whenever a single
criminal action arising out of the same criminal episode occurs . . . .”).

                           The Arguments of the Parties

      Appellant asserts that Section 3.03(a) applies to the exclusion of Article
42.08 because both of his convictions were obtained in a consolidated trial.
Appellant then argues that the trial court could not stack his community
supervision on top of his sentence under the authority of Section 3.03(b) because
that exception provision only uses the word “sentence.” Appellant compares this
term with the language of Article 42.08, which uses “sentence imposed or
suspended.” Citing Green v. State and other authorities, appellant argues that
community supervision is not a sentence and that Section 3.03(b) does not apply.



                                           6
       The State agrees that Section 3.03 governs the outcome of this case, but the
State focuses on Section 3.03(b) rather than Section 3.03(a). During oral argument,
the State asserted that we should interpret Section 3.03(b) as applying to periods of
community supervision because trial judges and other criminal practitioners have
always understood the statute to operate in that manner. We are not aware of any
cases since 1973, when Section 3.03 was first enacted, to state otherwise and
expressly hold that the statute does not apply to community supervision. The State
accordingly argues that the trial court’s judgment should be affirmed because the
court had the discretion to stack appellant’s community supervision under the
exception of Section 3.03(b).

                                           Analysis

       We begin with the State’s argument, which contends that the word
“sentence” under Section 3.03 should be construed to include community
supervision. The State argues that “sentence” should have this expansive definition
because the in pari materia doctrine instructs us to incorporate Article 42.08 in our
reading of Section 3.03. Assuming without deciding that this argument is correct,
the trial court would have no discretion under Section 3.03(a) but to order a
defendant’s sentences, including any periods of community supervision, to run
concurrently unless an exception applied. An exception would apply in this case
because both of appellant’s convicted offenses are enumerated in Section 3.03(b).
Thus, if we were to accept the State’s position, then we would affirm the trial
court’s stacking order under the plain terms of Section 3.03(b).3


3
 At least one other intermediate appellate court has construed Section 3.03(b) to apply to periods
of community supervision, though its opinion is unpublished and has no precedential value. See
Tex. R. App. P. 47.7(a); Gonzalez v. State, Nos. 04-08-00156-CR, 04-08-00157-CR, & 04-08-
00158-CR, 2009 WL 222159, at *1 (Tex. App.—San Antonio Jan. 28, 2009, pet. ref’d) (mem.
op., not designated for publication).
                                                7
      Appellant asserts that “sentence” does not have this expansive definition. He
cites decisions from the Court of Criminal Appeals, which exclude community
supervision from the definition of this term. Appellant directs us to Green v. State,
wherein the court noted that community supervision (or “probation”) has never
been defined or regarded as a type of “punishment” or “sentence.” See 706 S.W.2d
at 656. He also cites Speth v. State, in which the court plainly held that
“community supervision is not a sentence or even a part of a sentence.” See 6
S.W.3d 530, 532 (Tex. Crim. App. 1999). Rather, it is “an arrangement in lieu of
the sentence.” Id.

      Appellant attempts to limit the application of Section 3.03(b) so that Section
3.03(a) controls instead. But if appellant is correct that Section 3.03(b) does not
encompass community supervision, then appellant cannot also maintain that
Section 3.03(a) is controlling. Both provisions refer to “sentences” without ever
mentioning community supervision or sentences that are “suspended.” We must
presume that the legislature chose its words carefully, recognizing that every word
in a statute was included for some purpose and that every word excluded was
omitted for a purpose. See Ex parte Santellana, 606 S.W.2d 331, 333 (Tex. Crim.
App. 1980). When two provisions contain parallel language—in this case,
“sentences”—we cannot reasonably conclude that one provision applies to
community supervision while the other does not. Appellant’s argument is flawed to
suggest otherwise.

      During oral argument, appellant asserted that the legislature intended for
“sentences” to have different meanings under Sections 3.03(a) and 3.03(b) because
of a textual difference between the two provisions. Appellant asserted that the term
was broader under Section 3.03(a) because that provision requires the sentence for
each offense to be “pronounced.”

                                         8
       The pronouncement is just the oral statement of the sentence, which must be
communicated to the defendant in open court. See Tex. Code Crim. Proc. art.
42.03; Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). We do not
believe that the act of pronouncing converts a “sentence” into a broader term
encompassing community supervision. If a trial court grants community
supervision, the court pronounces the community supervision as a suspension of
the sentence. See Kesaria v. State, 148 S.W.3d 634, 644 (Tex. App.—Houston
[14th Dist.] 2004) (“[C]ommunity supervision is the suspension of the sentence
received by the defendant at trial.”), aff’d, 189 S.W.3d 279 (Tex. Crim. App.
2006). Thus, we do not construe the pronouncement language in Section 3.03(a) as
providing any textual basis for expanding the meaning of “sentence.”

       If “sentence” does not include community supervision, as appellant
vigorously argues, then we cannot perceive how Section 3.03 would ever apply to
his case. By default, the trial court’s authority to stack would be governed by
Article 42.08.4 Based on the language of that statute, the trial court’s stacking order
cannot be said to be an abuse of discretion.


4
  Professors Dix and Schmolesky have suggested that a trial court always has the discretion to
stack periods of community supervision under Article 42.08 because community supervision is
not a “sentence” within the meaning of Section 3.03. Consider their following explanation:
               May the trial court cumulate community supervision terms for multiple
       convictions achieved in a single criminal action? The Code of Criminal Procedure
       gives the court discretion to cumulate probation terms provided that the total of
       the terms in a felony case does not exceed 10 years. In a misdemeanor case
       involving at least one DWI conviction, the total of the terms cumulated may not
       exceed the maximum period of confinement authorized for all the offenses or four
       years whichever is less. In all other misdemeanor cases, the total of the terms may
       not exceed the maximum period of confinement for all the offenses or three years
       whichever is less.
               There is no reason why these same rules should not apply when multiple
       convictions are achieved in the same criminal action because it is the community
       supervision terms that are being cumulated, not the sentences. Therefore, if a jury
       in a single criminal action were to give probation for two felony convictions, the
                                               9
                                        Conclusion

       We need not decide which theory is correct in this case, appellant’s or the
State’s. Both arguments are premised on notions that ultimately lead to a
conclusion that the trial court did not abuse its discretion by entering its stacking
order. Therefore, we overrule appellant’s sole issue and affirm the judgment of the
trial court.



                                           /s/     Tracy Christopher
                                                   Justice

Panel consists of Justices Christopher, Jamison, and McCally.
Publish — Tex. R. App. P. 47.2(b).




       trial court should be authorized under these rules to make those terms concurrent
       or to “stack” them for a total of up to 10 years’ community supervision.

George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice and Procedure
§ 38:38 (3d ed. 2011) (footnotes omitted) (emphasis added).

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