           JAN 1 h 2013
       SHERRY WILLIAMSON, CLERK
  By                    —Deputy



                  IN THE COURT OF CRIMINAL APPEALS
                                           OF TEXAS

                                     NOS, PD-1678-11 &PD-1679-11            IHQ- Q~3Cl~C.IL-
                                  JAMES ALLEN SULLIVAN, Appellant



                                       THE STATE OF TEXAS

             ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
                        FROM THE ELEVENTH COURT OF APPEALS
                                         BROWN COUNTY



                   Keller, P.J., delivered the opinion of the Court in which Price,
Womack, Johnson, Keasler, Hervey, Cochran and Alcala, JJ., joined. Meyers,'
J., filed a dissenting opinion.



           Ajury convicted appellant offour sexual assaults against three victims and sentenced him
to eighteen years ofimprisonment in each case. The trial judge ordered some ofthe sentences to run
concurrently and some to run consecutively. One ofthe sentences that was stacked was not eligible
for stacking. This case presents the question ofthe proper remedy when one ofaseries ofsentences
is improperly stacked and whether it matters where in the series the improperly stacked sentence
                                                                                SULLIVAN —2

appears. We reform the trial court'sjudgment to reflect that the improperly stacked sentence is not
stacked and that the two sentences involving different victims are stacked. We also reform the

sequence ofstacking to conform to the trial judge's oral pronouncement ofsentence.


                                       I. BACKGROUND


                                             A. Trial


       Appellant worked at a Texas Youth Commission facility. The evidence showed that
appellant sexually assaulted three children who were staying at that facility. One of the children,
A.S., was seventeen years old at the time ofthe sexual assaults. The other two children, N.P. and
C.C, were under age seventeen at the time. In one indictment, appellant was charged with multiple
sexual assaults against N.P. In another indictment, appellant was charged with one sexual assault
against A.S. and one against C.C. Appellant was convicted oftwo counts ofsexual assault against
N.P. and one count each for A.S. and C.C. On each count, the jury assessed a punishment of

confinement for eighteen years.

        The trial judge then asked for the parties' positions on whether the sentences should be
served concurrently or consecutively. The State urged the judge to make all of the sentences

consecutive. Appellant urged the judge to make all ofthe sentences concurrent. The trial judge
stated thathewould order thesentences inthetwo counts involving N.P. to beconcurrent with each

other. With respect to the sentences for the counts involving A.S. and C.C, the judge stated that
they would "run consecutively with each other," and the sentences for counts involving N.P. would
"run consecutively to the others." As a result, the trial judge said that there would be "three

consecutive eighteen-year terms."
                                                                                     SULLIVAN —3

        The trial judge then asked if there was any legal reason why the sentences should not now

be pronounced. Defense counsel responded that there was no legal reason. The judge then stated:

        It's the sentence of this Court, [appellant], that you serve the 18 years in the manner
        that I've pronounced, the stacking of the two [N.P.] judgments on top of'the two
        counts in the other case, so that each victim will have what I deem to be appropriate
        justice in this matter, but I'm not going to stack the two within itself with the one for
        the reasons that I've stated. But the sentences will then run as indicated, stacking the
        two main cases and the two counts in addition as reflected.


The trial judge entered a judgment for each indictment, and each judgment contained the following

written cumulation order:


       The sentence imposed in Cause #CR 19690 as to Count I [A.S.] shall begin when the
       judgment in the sentence imposed in Cause #CR18971 [N.P.] has ceased to operate.
       The sentence imposed in Cause #CR19690 as to Count II [C.C] shall begin when the
       judgment in the sentence imposed in Cause #CR19690 Count I [A.S.] has ceased to
        operate.1

Thus, under the oral pronouncement the two concurrent sentences involving N.P. would be the last

in the stacking series but under the written judgment they would be the first in the series.

                                              B. Appeal

       On appeal, appellantcomplained that stackingthe sentencefor the count involvingA.S. was

error because the relevant statute permitted stacking only if the victim was younger than seventeen.

The State conceded error. The court of appeals held that the appropriate remedy was to modify the

trial court'sjudgments"to deletethe language orderingcumulation of the sentence involving A.S."2

To accomplish this objective, the court of appeals ordered that the judgments be revised to reflect

that the sentences for the counts involving N.P. run concurrent with each other, that the sentences


       1 Bracketed material added to aid the reader.

       2    Sullivan v. State, Nos. 11-10-00027-CR & 11-10-00028-CR, slip op. at 5 (Tex.
App.-Eastland September 29, 2011) (not designated for publication).
                                                                                                                                                           *-   a




                                                                                                     j                 *0                .* "   SULLIVAN —4

                 1 for the counts involving A.Sv and C.C. run concurrentwith each other, and that the "sentences for the ,., >
                                                                                 1
                   counts involving A.S. andC.C. bestacked onthesentences forthecounts involving N:P.3. Theresult
1       (•

                  f-ofthe court ofappeals's reyisedorders is that appellant servestwosconsecutive eighteen-yearterms

ryi-;;             instead of three. ,ku ,          v,\ '          fix,',            ;.'.            >.»-i- *.r&X-;             /V&'S.
             ^                 "V     T* ^    \»«» "".   .   !•   **^i'.."<     -m. , •     ,<.,"*       .<*.* --   . -i :% $   ,1-.' <-<•.
                                                                                                                                     i


                                                                              H. ANALYSIS


                           Chapter three ofthe Texas Penal Code allows for offenses'arising'out ofthe "same criminal ^' r^

                   episode" to be tried in the same criminal action. The term "same criminal episode" is specifically

; ' *            * defined in. chapterthree, and the term includes a situation in which'"the offenses are the repeated /"-

f (.               commission ofthe same orsimilar offenses:"* When offenses are tried together pursuant tochapter
    *



                   three, the sentences must be concurrent unless a specific exceptionwithin chapter, three provides

                   otherwise. Onesuchexceptionprovidesthat consecutive sentencesmaybe imposedfor convictions l

                   for certain types.ofsexual offenses if the offenses were committed against a victim; younger than

                   seventeen years of age.7

                          Withrespect-to the issue before us, the language of the relevant portions of chapter three is - ^

                   unambiguous.8 ^The sentence" for'the count involving A.S. does not fall'within the exception                                                     t
j , .•

                   -_—__——^^____—__                                                                  a




                     .    3 7dat5-6:               :'' "                 '                                            '*                 '*        '   .

                          4' Tex. PenalCode §3.02(a).                         J '                           *                    -
                         ' 5^H,'§ 3.01(2).          -'-            ':'f-                '            /r< •          • *. ' " -'•
                          6-
                               /</., § 3.03(a).
                           r


                          7 /</.,§ 3.03(b)(2)(A).

                          8 See Boykin v. 5/0^,^18S.W.2d 782,785 (Tex. Crim. App. 1991) (Courts must give effect
                  to the plain meaning of the statutorytext unless the language is ambiguous or leads to absurdresults
                  that the legislature could not have possibly intended). ,      .,....,,,..(,,„,,,. ,,,.
                                                                                     SULLIVAN —5

mentioned above because A.S. was not under seventeen at the time of the offense. And because no

otherexception applies,9 that sentence mustrun concurrent with all other sentences obtained in the

same criminal action, i.e., with the sentences for the counts involving N.P. and C.C. But the

sentences for the counts involving N.P. and C.C do fall within the exception because those victims

were younger than seventeen, so those sentences could run consecutive to each other, although they

must run concurrent with the sentence for the count involving A.S. Consequently, as both parties

agree, the trial judge erred in cumulating the sentence for the count involving A.S. with the other

sentences.


        Appellant contends that the court of appeals erred in rewriting the trial judge's cumulation

orders. He claims that the sentence relating to A.S. was in the middle of the stacking order, and

when it is deleted, there remains no order stacking the sentence relating to N.P. onto the sentence

relating to C.C, Thus, he claims, the proper remedy is to delete all of the cumulation orders. The

State contends that the court of appeals was correct to modify the cumulation orders to delete the

impropercumulation of the sentence for the count involvingA.S., but the Statesuggests that further

modification may be required because the sequence in which the sentences were stacked in the

written judgments varies from their sequence in the trial court's oral pronouncement.

       We first observe that the court ofappeals's remedy does not entirely fix the error in the trial

judge's cumulation orders. Under the court of appeals's revised orders, the sentence for the count

involving A.S. still impermissibly runs consecutive to the sentences for the counts involving N.P.

       Further, as the State suggests, the written cumulation order differs from the trial court's oral

pronouncement of sentence, although it is unclear whether that difference would haveanypractical


          See Tex. Penal Code § 3.03(b).
                                                                                    SULLIVAN —6

effect on appellant's incarceration. Under the written cumulation order, the sentences for the counts

involving N.P. are the first in the stacking sequence, but in the trial court's oral pronouncement they

are last in the stacking sequence. The general rule that a trial judge's oral pronouncement controls

over the written judgment applies to cumulation orders.10 Under this principle, we have held that

a trial judge may not cumulate sentences in the written judgment if he did not do so in his oral

pronouncement.'' It follows that a cumulation order in a written judgment may not substantively

vary from the cumulation order contained in the trial judge's oral pronouncement of sentence.

       But the trial judge's oral pronouncement suffers from some lack ofspecificity regarding the

sequence ofstacking. The sentences for the counts involving N.P. are clearly last, but it is not clear

where in the sequence the sentences for the counts involving A.S. and C.C fall. Unlike in the

written orders, the sentence relating to A.S. does not clearly fall between the other sentences. If a

cumulation order is not sufficiently specific, a remand may be permitted to allow the trial judge to

remedy the matter,12 but we neednot consider whether a remand is appropriate in this case. Once

we take into account the impermissibility of stacking the sentence relating to A.S., the specificity

issue vanishes. In making his oral pronouncement, the trial judge clearly intended the sentences for

the counts involving N.P. to run consecutive to the sentence for the count involving C.C.

Remanding the cases to him would result in an order stacking the sentences related to N.P. and C.C




       10 Ex parte Madding, 70 S.W.3d 131, 135-36 (Tex. Crim. App. 2002).

       11   Id. at 136.

       12   Morris v. State, 301 S.W.3d 281, 296 (Tex. Crim. App. 2009); Beedy v. State, 250
S.W.3d 107,114 (Tex. Crim. App. 2008).
                                                                                    SULLIVAN —7

and not stacking the sentence relating to A.S.13

        The remaining question is whether the judgment can be reformed to accomplish this intent

or whether the cumulation order must be deleted in its entirety. When partof a cumulation order is

illegal, the remedy is to delete the illegal portion.14 In Morris v. State, the trial judge stacked two

sentences and partially stacked a third sentence.15 The trial judge stated on the record that if he

could not partially stack the third sentence, thenhe would stack all three sentences.16 The court of

appeals deleted the portion ofthe cumulation order that purported to partially stack the third sentence

but left intact the partthat stacked the first two sentences.17 We heldthat the trial judge could not

partially stack a sentence, and we also held that the trial judge could not impose an alternative

stacking order, so cumulating all three sentences on appeal wasnot an option.18 Weconcluded that

the court of appeals "appropriately deleted the unlawful portion [of the cumulation order] and left




        13 Neither partydiscusses the possibility that the two sentences relating to N.P. mighthave
been stacked (so that there would still be three consecutive eighteen-year sentences) ifthe trial judge
had known that the sentence relating to A.S. was not subject to being stacked. With respect to that
possibility, the court ofappeals's decision to reform the cumulation order is a holding adverse to the
State. The State did not file a petition for discretionary review suggesting that the court of appeals
should have remanded the case to the trial court to consider stacking the two sentences relating to
N.P. Consequently, we have no occasion to address whether this case could have been remanded
for that purpose or whether Morris would bar such an outcome.

        14 Morris, 301 S.W.3d at 295-96.

        15 Hat294.

        16 Id. at 294-95.

        17 Id. at 295.

        n Id. at 295-96.
                                                                                 SULLIVAN —8

 the lawful portion of the order intact."19

            We conclude here that only part of the trial judge's cumulation order is illegal—the
 inclusion ofthe sentence for the count involving A.S. in the sequence of stacked sentences. If we

 had any doubt about what the trial judge intended to do, we would remand these cases to him to

 reform the cumulation order. But it is clear from the oral prounouncement what his intent was.

 Therefore, inconformity with the trial judge's oral pronouncement and with the law, we reform the

 cumulation order to delete the sentence for the count involving A.S. from the sequence ofstacked
 sentences and to stack the sentence for the counts involving N.P. upon the sentence for the count

 involving C.C. As aconsequence ofour reformation, the cumulation order in each ofthe judgments
 is ordered to read as follows:


          The sentence imposed in Cause #CR19690 as to Count I shall begin immediately.
          The sentence imposed in Cause #CR19690 as to Count II shall begin immediately.
          The sentences imposed in Cause #CR18971 shall begin when the judgment in the
          sentence imposed in Cause #CR19690 Count IIhas ceased to operate.

We so reform the trial court's judgments and otherwise affirm the judgments of the courts below.


Delivered: January 9, 2013
Publish




           Id. See also Rhodes v. State, 240 S.W.3d 882, 889 (Tex. Crim. App. 2007) (discussing
an appellate court's ability to reform ajudgment to delete an illegal cumulation order or impose a
cumulationorder required by law).
             IN THE COURT OF CRIMINAL APPEALS
                                      OF TEXAS

                             NOs. PD-1678-11, PD-1679-11



                         JAMES ALLEN SULLIVAN, Appellant

                                              v.



                                 THE STATE OF TEXAS


         ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
               FROM THE ELEVENTH COURT OF APPEALS
                                    BROWN COUNTY


              Meyers, J., filed a dissenting opinion.

                                DISSENTING OPINION


       We granted Appellant's ground for review in this case, which asked, "Did the

court of appeals correctly modify thejudgmentof the trial court by removing onlythe

portion of special findings that improperly cumulated sentences?" The majority

determines thatthe court of appeals did not correctly modify thejudgment of the trial

court because under the court of appeals's revised order, the sentence for the count

involving the 17-year-old victim still runs consecutive to the sentences for the counts
                                                                       Sullivan dissent-Page 2

involving one of the other victims. The majority then decides to reform the cumulation

order, deleting the sentence for the count involving the 17-year-old victim and stacking

the sentences of the two other victims. The majority says:

              We conclude here that only part of the trial judge's
              cumulation order is illegal—the inclusion of the sentence for
              the count involving A.S. in the sequence of stacked sentences.
              If we had any doubt about what the trialjudge intended to do,
              we would remand these cases to him to reform the cumulation
              order. But it is clear from the oral pronouncement what his
              intent was. Therefore, in conformity with the trial judge's oral
              pronouncement and with the law, we reform the cumulation
              order to delete the sentence for the count involving A.S. from
              the sequence of stacked sentences and to stackthe sentence
              for the counts involving N.P. upon the sentence for the count
              involving C.C.

Maj. Op. at *8.

       As far as I can tell, we have no authority to reform the trial court's sequence of

stacking, and we have not been asked to do so. I would hold that the court ofappeals's

modification of the trial court's judgment was incorrect and would remand the case to the

trial court to permit the trial judge to correct the cumulation order. Therefore, I

respectfully dissent.


                                                         Meyers, J.

Filed: January 9, 2013
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