Opinion filed May 21, 2009




                                               In The


   Eleventh Court of Appeals
                                           ____________

             Nos. 11-09-00007-CR, 11-09-00008-CR, 11-09-00009-CR,
                       11-09-00010-CR, & 11-09-00011-CR
                                  __________

                            CODY LEE WILLIAMS, Appellant

                                                  V.

                                STATE OF TEXAS, Appellee


                          On Appeal from the 104th District Court
                                   Taylor County, Texas
             Trial Court Cause Nos. 16923B, 16927B, 16931B, 16932B, & 16964B


                             MEMORANDUM                    OPINION
       Cody Lee Williams appeals five theft convictions. In each case, he entered a plea of guilty
and pleas of true to the jurisdictional allegations of prior theft convictions. No plea bargain
agreements were entered. The trial court then convicted appellant of each offense and sentenced him
to confinement in a state jail facility for two years for each offense. The trial court ordered that the
punishment in Cause No. 11-09-00007-CR would be served after the completion of the punishment
in Cause No. 11-09-00009-CR and that the punishments in Cause Nos. 11-09-00008-CR, 11-09-
00010-CR, and 11-09-00011-CR would be served concurrently but would begin after the punishment
in Cause No. 11-09-00007-CR was served. We modify and affirm.
                                            Issues on Appeal
          In each case, appellant has briefed two issues. First, appellant argues that the “trial court’s
attempt to cumulate sentences was insufficient.” Appellant contends that the trial court did not
properly describe the sentences to be served. Second, appellant challenges the factual sufficiency
to support the total confinement assessed for these five offenses.
                                      Pronouncement of Sentences
          All five cases were heard together. After the presentence investigation report had been
completed, the trial court held a disposition hearing. At the conclusion of the hearing, the trial court
stated:
                 Cause No. 16,931-B, I find the Defendant guilty. I assess [punishment at]
          two years in a state jail.

                  Cause No. 16,923-B, I find the Defendant guilty. I assess punishment at two
          years in a state jail.

                  Cause No. 16, 927-B, I find the Defendant guilty. I assess punishment at two
          years in a state jail.

                  Cause No. 16,932-B, I find the Defendant guilty. I assess punishment at two
          years in a state jail.

                  Cause No. 16,964-B, I find the Defendant guilty. I assess punishment at two
          years in a state jail.

The trial court then explained its reasons for the punishment and admonished appellant concerning
his future. When the trial court formally imposed the sentences, it stated:
                 Cause No. 16,931-B, I sentence you to two years in a state jail.

                 Cause No. 16,923-B, I sentence you to two years in a state jail.

                 Cause No. 16,927-B, I sentence you to two years in a state jail.

                 Cause No. 16,932-B, I sentence you to two years in a state jail.

                 Cause No. 16,964-B, I sentence you to two years in a state jail.




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               The sentence in Cause No. 16,923-B will be stacked on Cause No. 16,931-B.
       And the sentences in Cause Nos. 16,927, 16,932, and 16,964, those three sentences
       will be served concurrently, but they will be stacked on top of Cause No. 16,923.

On the written sentences, the form merely states “consecutively” or “n/a.” On the second page of
the judgments in Cause Nos. 11-09-00007-CR, 11-09-00008-CR, 11-09-00010-CR, and 11-09-
00011-CR, the trial court specified which case the respective punishment would be served
“cumulative to” and “consecutive with.” However, there was no mention in any of the judgments
of sentences being served “concurrently.” Appellant raised no objections to either the oral
pronouncement of the sentences or the written sentences. Appellant has failed to preserve these
complaints for appellate review. TEX . R. APP . P. 33.1.
       As appellant correctly points out, the trial court’s oral pronouncement controls over the
written sentence. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). We note that the
trial court’s oral pronouncements were sufficient. TEX . CODE CRIM . PROC. ANN . art. 42.08 (Vernon
2006). In the interest of justice, the judgments in Cause Nos. 11-09-00008-CR, 11-09-00010-CR,
and 11-09-00011-CR will be modified. The first issue is overruled in each case.
                                       Punishment Assessed
       In each case, appellant asks this court to reconsider our position in both Flores v. State, 936
S.W.2d 478 (Tex. App.—Eastland 1996, pet. ref’d), and Bradfield v. State, 42 S.W.3d 350 (Tex.
App.—Eastland 2001, pet. ref’d), where we held that the term of punishment was not subject to a
factual sufficiency review. Appellant seeks a factual sufficiency review of the trial court’s
assessment of punishment and decision to stack the sentences. For the reasons stated in Flores and
Bradfield, we believe that such a review is not appropriate.
       The trial court assessed punishment within the range authorized by the legislature under TEX .
PENAL CODE ANN . § 12.35 (Vernon 2003) and Article 42.08. A penalty assessed within the range
of punishment established by the legislature will not be disturbed on appeal. Jackson v. State, 680
S.W.2d 809 (Tex. Crim. App. 1984); Bradfield, 42 S.W.3d at 354. Appellant’s second issue is
overruled in each case.
                                      This Court’s Holdings
       In Cause No. 11-09-00007-CR, the judgment of the trial court is affirmed.


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       In Cause No. 11-09-00008-CR, the judgment of the trial court is modified to reflect that this
two-year sentence for theft shall be concurrent with, that is served at the same time as, his two-year
sentences for theft in Trial Court Cause Nos. 16932B and 16964B in the 104th District Court in
Taylor County and that these three sentences in Trial Court Cause Nos. 16927B, 16932B, and
16964B will be served consecutively to, that is after his completion of, his two-year sentence for
theft in Trial Court Cause No. 16923B in the 104th District Court in Taylor County. As modified,
the judgment is affirmed.
       In Cause No. 11-09-00009-CR, the judgment of the trial court is affirmed.
       In Cause No. 11-09-00010-CR, the judgment of the trial court is modified to reflect that this
two-year sentence for theft shall be concurrent with, that is served at the same time as, his two-year
sentences for theft in Trial Court Cause Nos. 16927B and 16964B in the 104th District Court in
Taylor County and that these three sentences in Trial Court Cause Nos. 16927B, 16932B, and
16964B will be served consecutively to, that is after his completion of, his two-year sentence for
theft in Trial Court Cause No. 16923B in the 104th District Court in Taylor County. As modified,
the judgment is affirmed.
       In Cause No. 11-09-00011-CR, the judgment of the trial court is modified to reflect that this
two-year sentence for theft shall be concurrent with, that is served at the same time as, his two-year
sentences for theft in Trial Court Cause Nos. 16927B and 16932B in the 104th District Court in
Taylor County and that these three sentences in Trial Court Cause Nos. 16927B, 16932B, and
16964B will be served consecutively to, that is after his completion of, his two-year sentence for
theft in Trial Court Cause No. 16923B in the 104th District Court in Taylor County. As modified,
the judgment is affirmed.


                                                              TERRY McCALL
                                                              JUSTICE
May 21, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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