MO1)IFY and AFFIRM; Opinion Filed March 1, 2013.




                                                       In The
                                         Qrourt of ppeat
                                 jfiftj Oitritt of exa at atta
                                              No,   05-12-00392-CR
                                              No.   05-12-00393-CR
                                              No.   05-12-00394-CR
                                              No.   05-12-00395-CR
                                              No.   05-12-00396-CR
                                              No.   05-12-00397-CR
                                              No.   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.
                                                                      1 In three points of

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 drug-

free 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,                                         §   4X1,132(a)(2).

Appellant was prosecuted for all seven offenses          in a single criminal action.                          See TEX,   PENAL

(‘ODE ANN. * 3.03(a). None       of   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
                                                                                                         Ii
                                                                             /    A                     /1
                                                                        A         //       /            /f
                                                                    /   /‘       /         i   -.        ••-




                                                                I
                                                                         A                          c
                                                          MJCHAELJ.O’NEILL
                                                          JUSTICE
                                                                                       V




Do Not Publish
TEX. R. App. P.47

I 20392F.U05




                                                   -4-
                                           0
                                    Qlourt of tppea1
                        jfiftlj   itrict of exa at aLta

                                           JUDGMENT


MARCUS ANTRAY THOMAS,                                Appeal from the 265th Judicial District
Appellant                                            Court of Dallas County, Texas (Tr,Ct.No.
                                                     F06-6506 1 -R).
No, 051 2M0392-CR        V.                          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.




                                                           4
                                                            /           I
                                                                                 k               4
                                                             /   /     T
                                                          /MIAEL J. O’NLL
                                                         / JUSTICE
                                                                            /
                                Qtourt of ppeat
                        jfift itrttt of !texa at aLta

                                         JUDGMENT


MARCUS ANTRAY THOMAS,                            Appeal from the 265th Judicial District
Appellant                                        Court of Dallas County. Texas (Tr.Ct.No.
                                                 FO665O62-R).
No. O5 1 2M0393-CR                               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,                            Appeal from the 265th Judicial District
Appellant                                        Court of Dallas County. Texas (Tr.Ct.No.
                                                 F06-65539-R).
No. 05-1 2-00394-CR      V.                      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.                            Appeal from the 265th Judicial District
Appellant                                        Court of Dallas County, Texas (Tr.Ct.No.
                                                 F06-65970-R).
No. 05- 12-00395-CR                              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,                           Appeal from the 265th Judicial District
Appellant                                       Court of Dallas County, Texas (Tr.Ct.No.
                                                F06-73553-R).
No. 05=1 2=00396-CR      V.                     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    as
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
                                   Qtourt of ZLppea1
                         jftttlj itrict of exa at atta


                                          JUDGMENT


MARCUS ANTRAY THOMAS,                            Appeal from the 265th Judicial District
Appellant                                        Court of Dallas County. Texas (Tr.Ct.No.
                                                 F06-73554-R).
No. 05-I 2-00397-CR       V.                     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,                            Appeal from the 265th Judicial District
Appellant                                        Court of Dallas County, Texas (Tr.Ct.No.
                                                 F06-87892-R).
No, 05-1 2-00398-CR      V.                      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.
