
NOS. 07-08-0428-CR; 07-08-0429-CR; 07-08-0430-CR; 07-08-0431-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 16, 2009
______________________________

THOMAS R. JOHNSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE COUNTY COURT AT LAW #1 OF LUBBOCK COUNTY;

NO. 2008-450,511, 2008-450,513, 2008-450,517, 2008-450,887;

HONORABLE LARRY B. (RUSTY) LADD, JUDGE
_______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Â Â Â Â Â Â Â Â Â Â Nine separately-filed informations charged appellant Thomas Johnson with nine acts
of public lewdness,
 committed over a period of approximately one year against nine
different victims.  Waiving a jury, appellant entered an open plea of guilty to the nine
charges.  The trial court assessed punishment at 365 days in jail in each of the nine cases
and, in four of the nine, suspended the sentences.  The trial court ordered some of the
sentences to be served concurrently and others consecutively.  Through one issue,
appellant contends the trial courtâs order cumulating the sentences is void. The State
agrees, conceding the trial court entered an invalid cumulation order, and asks us to reform
the judgments and affirm them as reformed.  We will do so.
Background
Â Â Â Â Â Â Â Â Â Â On August 19, 2008, the trial court called all nine cause numbers for trial.  Appellant
indicated he would plead guilty to each of the offenses and requested that the causes be
consolidated into a single plea hearing.  The State objected to the consolidation of the
causes.  Both sides presented argument and the trial court deferred its ruling until the close
of punishment evidence.
Â Â Â Â Â Â Â Â Â Â The court admonished appellant and accepted his open plea of guilty to each of the
nine charges simultaneously. Thereafter, the trial court heard punishment testimony from
eight male witnesses, who described their public encounters with appellant in which he
touched or squeezed their crotch areas.  The trial court also admitted the recorded
statement of a female witness, indicating appellant reached from behind her and touched
her breast. 
Â Â Â Â Â Â Â Â Â Â At the close of the evidence, the trial court heard additional arguments from the
parties regarding whether the nine causes should be consolidated into a single criminal
action.  The court ruled the offenses would not be consolidated and that some of
appellantâs sentences would run consecutively to, rather than concurrently with, his other
sentences.  
Â Â Â Â Â Â Â Â Â Â The sentencing for all nine causes was also conducted simultaneously. The trial
court ordered appellant to serve the sentences imposed in the first five causes
concurrently.  In those five judgments, which are not appealed, the court assessed
punishment at 365 days confinement, with credit for time served.  In the four judgments
being appealed, the trial court assessed punishment at 365 days confinement, with the
period of confinement being suspended in favor of community supervision for a term of two
years.  During sentencing, the trial judge said, âThose sentences are to run concurrently
but will be accumulated to the other sentence . . . .â The judge went on to say, âWhen those
sentences are over, you will begin a probated sentence.â  The written judgments,
 however,
do not provide expressly for the sentences to be served consecutive to any particular
sentence.
  The trial court certified appellantâs right of appeal as to the four suspended
sentences and this appeal followed.  For purposes of our analysis, we will treat the written
judgments as providing for a consecutive sentence, i.e., the commencement of the four
appealed sentences on appellantâs completion of the five concurrent sentences not
appealed.  
Analysis
Â Â Â Â Â Â Â Â Â Â We review a complaint about consecutive sentences under an abuse of discretion
standard. Harvey v. State, 821 S.W.2d 389, 392 (Tex.App.âHouston [14th Dist.] 1991, pet.
ref'd).  Generally, a defendant has no right to serve sentences imposed for different
offenses concurrently; rather, the decision to cumulate sentences lies within the discretion
of the trial court.  Beedy v. State, 250 S.W.3d 107, 110 (Tex.Crim.App. 2008); Coleman
v. State, 898 S.W.2d 327, 329 (Tex.App.âTyler 1993) affâd, 897 S.W.2d 319
(Tex.Crim.App. 1995); see Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2006).  This
discretion is absolute so long as cumulative sentencing is authorized by law.  See Beedy, 
250 S.W.3d at 110 (â[w]hen a trial judge lawfully exercises the option to cumulate, that
decision is unassailable on appealâ); Nicholas v. State, 56 S.W.3d 760, 764-65
(Tex.App.âHouston [14th Dist.] 2001, pet. refâd) (holding same); accord Revels v. State, No.
05-07-01555-CR, 2008 WL 5177374, at *8 (Tex.App.âDallas Dec. 11, 2008, no pet.)
(mem. op., not designated for publication).  See also Barrow v. State, 207 S.W.2d 377,
380-81 (Tex.Crim.App. 2006) (discussing trial courtâs discretionary decision whether to
cumulate sentences).
Â Â Â Â Â Â Â Â Â Â Â Â But, under Penal Code section 3.03(a), when multiple offenses arising out of the
same criminal episode are consolidated for a single trial,
 and the defendant is found guilty
of more than one offense, the trial court has no discretion to cumulate the sentences.  The
sentences must run concurrently.
  Tex. Penal Code Ann. Â§ 3.03(a) (Vernon Supp. 2008). 
The applicability of section 3.03 depends on choices made by the parties, beginning with
the choice of the State to join multiple charges in a single criminal action.  Ex parte
McJunkins, 954 S.W.2d 39, 40 (Tex.Crim.App. 1997).  When a defendant has multiple
charges and the trial court calls each case separately and handles each case individually,
even though one case is called immediately after the other, the cases are not prosecuted
in a single action.  See Ex parte Pharr, 897 S.W.2d 795, 796 (Tex.Crim.App. 1995) (per
curiam) (affirming trial court finding to that effect in habeas corpus action).  However, âif the
facts show the proceeding is a single criminal action based on charges arising out of the
same criminal episode, the trial court may not order consecutive sentences.â LaPorte v.
State, 840 S.W.2d 412, 415 (Tex.Crim.App. 1992). See also Bull v. State, No. 07-06-0176-CR, 07-06-0177-CR, 2007 WL 2296480, *3 (Tex.App.âAmarillo Aug. 10, 2007, pet. refâd)
(mem. op., not designated for publication) (finding the trial court abused its discretion by
sentencing appellant consecutively when, despite the absence of a record showing that
appellant's two indictments were presented in a single plea proceeding in 1996, he was
adjudicated and punishment was set in a single unified proceeding).  Whether the State
gave notice of consolidation under Penal Code section 3.02 does not determine the
applicability of section 3.03(a)âs restriction on sentencing.  McJunkins, 954 S.W.2d at 41. 
Â Â Â Â Â Â Â Â Â Â Here, the State agrees that the trial court improperly cumulated appellant's
sentences.  In doing so, the State also does not dispute appellantâs assertion that the
offenses with which appellant was charged fit within the legislatureâs definition of a âsingle
criminal episode.â
 See Tex. Penal Code Ann. Â§ 3.03 (Vernon Supp. 2008); Ex parte
Pharr, 897 S.W.2d at 796; LaPorte, 840 S.W.2d at 414-15.  The State also agrees that
although the trial court reserved its ruling on appellantâs request to consolidate, it
admonished appellant and accepted his pleas to each of the nine charges simultaneously. 
Further, the trial court heard evidence on each of the nine charges in the same plea
proceeding.  Lastly, the trial court sentenced appellant in each cause in the same
proceeding.  Thus despite its ruling made after punishment evidence was presented that
the causes would not be consolidated, the facts show the court conducted a single action.
LaPorte, 840 S.W.2d at 415.  The record requires us to conclude the nine causes of action
were in fact joined for trial in a single criminal action, and appellantâs conviction on multiple
offenses triggered the mandatory concurrent sentencing requirement of section 3.03(a). 
See Tex. Penal Code Ann. Â§ 3.03 (Vernon Supp. 2008); Robbins,Â 914 S.W.2d at 582-83;
LaPorte, 840 S.W.2d at 412-15.  The trial court therefore abused its discretion by
cumulating appellantâs sentences.
Â Â Â Â Â Â Â Â Â Â An improper cumulation order is a void sentence.  LaPorte, 840 S.W.2d at 415. A
party does not have to object to an improper cumulation order during trial in order to
preserve error for appellate review.  McJunkins, 954 S.W.2d at 41 (approving holding of
LaPorte, 840 S.W.2d at 415).
  When a trial court enters a void or unlawful cumulation
order, the proper remedy is deletion of the cumulation order.  See Beedy, 250 S.W.3d at
110; LaPorte, 840 S.W.2d at 414, Robbins v. State, 914 S.W.2d 582, 584 (Tex.Crim.App.
1996).   See also Polanco v. State, 914 S.W.2d 269, 272 n.2 (Tex.App.âBeaumont 1996,
pets. ref'd) (deleting cumulation order when there was evidence that guilty plea
proceedings were intertwined); Smith v. State, 753 S.W.2d 456, 458 (Tex.App.âHouston
[14th Dist.] 1988, no pet.) (holding trial court erred by cumulating sentences at probation
revocation hearing when the two offenses arose out of same criminal episode).  See also
Dotson v. State, No. 02-03-00463-CR, 2008 WL 2780663, *7 n.22 (Tex.App.âFort Worth
July 17, 2008, no pet.) (mem. op., not designated for publication) (recognizing same).
Â Â Â Â Â Â Â Â Â Â Â Accordingly, we reform each of the trial courtâs four judgments, 2008-450,511, 2008-450,513, 2008-450,517, and 2008-450,887, to delete any portion requiring appellantâs
sentences to run consecutively and to decree, instead, that each of the sentences are to
run concurrently.  As reformed, each of the four judgments is affirmed.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â James T. Campbell
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice
Do not publish.

-size:12.0pt;line-height:200%'>State failed to prove, beyond
reasonable doubt, that the act occurred and it was attributable to
appellant.  We overrule the issue and
affirm the judgment. 
Â Â Â Â Â Â Â Â Â Â Â  Evidence
may be offered at the punishment phase as to any matter the court deems
relevant to sentencing including the prior criminal record of the defendant,
his general reputation, his character, and any other evidence of an extraneous
crime or bad act that is shown beyond a reasonable doubt to have been committed
by the defendant regardless of whether he has previously been charged with or
finally convicted of the crime or act.Â  Tex. Code Crim. Proc. Ann. art. 37.07 Â§3(a)(1) (Vernon Supp. 2010).Â  This same rule applies when the trial court,
as opposed to a jury, determines punishment.Â 
Smith v. State, 292 S.W.3d 36, 42-43 (Tex. App.ÂHouston
[14th Dist.] 2006), affÂd, 227 S.W.3d
753 (Tex. Crim. App. 2007).Â  
Â Â Â Â Â Â Â Â Â Â Â  The
prior sexual assault in question involved the sexual assault of a child.Â  A grand jury no billed him of the charge in
2008.Â  Appellant now contends that it was
not shown beyond a reasonable doubt that he committed an offense.Â  
Â Here, appellant testified at the punishment
hearing about the prior assault.Â 
Furthermore, the trial court received into evidence a statement he had
made to police.Â  That evidence
illustrated that appellant had touched the vagina and grabbed the breasts of a
naked girl whom he later learned was under seventeen years of age.Â  Furthermore, he not only knew she had been
drinking alcohol at the time, but also was willing to have sex with her.Â  Such is ample evidence for a trier of fact to determine that
appellant committed the bad act in question.Â 
And, though appellant argues that the trial court made no express
finding to that effect, he cites us to no authority indicating that such a finding was
necessary.Â  But, even if it was, we note the trial courtÂs comment,
when pronouncing sentence:Â  Â. . . Now,
for whatever reason it was no-billed, the matter before the Court is that that
is still a criminal act, wouldnÂt you say?ÂÂ 
That utterance certainly implies that the trial court found appellantÂs
conduct to be a bad act worthy of consideration when assessing punishment.Â  Thus, we find no error.Â  See
Young v. State, 283 S.W.3d 854, 876-77 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 130 S.Ct. 1015, 175 L.Ed.2d 622 (2009) (holding that the defendantÂs
out-of-court admission that he committed the act along with his possession of a
gun and forensic evidence was sufficient to prove the bad act was attributable
to appellant beyond reasonable doubt).Â  
Accordingly, we overrule appellantÂs
issue and affirm the judgment. 
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Brian
Quinn 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Chief
Justice
Do
not publish.
