Affirmed as modified; Opinion Filed January 21, 2020.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-01255-CR
                                       No. 05-18-01257-CR

                         CHRISTOPHER LEE WHALEY, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                       On Appeal from the 282nd Judicial District Court
                                    Dallas County, Texas
                       Trial Court Cause Nos. F13-60638-S, F13-70117-S

                              MEMORANDUM OPINION
                          Before Justices Bridges, Whitehill, and Nowell
                                   Opinion by Justice Whitehill
       The trial court adjudicated appellant’s guilt on two offenses in a consolidated hearing and

sentenced him to five years on each offense with the sentences to run consecutively. Appellant

argues that the trial court erred by stacking his sentences and in assessing duplicative costs and the

State agrees. In a cross-point, the State requests that we modify the judgment to reflect that the

court made a deadly weapon finding.

       We conclude that the offenses were part of the same criminal episode prosecuted in a single

criminal action and therefore the trial court erred by stacking the sentences. And, because the

offenses were adjudicated in a single proceeding, costs should not have been assessed for both

offenses. We thus modify the judgments to delete the cumulation order and to reflect a deadly

weapon finding in trial court cause number F13-60638-X (appeal number 05-18-01255-CR), and
to delete the court costs assessed in cause number F13-70117-S (appeal number 05-18-01257-CR).

As modified, we affirm the trial court’s judgments.

                                         I. BACKGROUND

        Appellant and the State entered a plea bargain pursuant to which appellant pled guilty and

judicially confessed to third-degree family violence assault in exchange for four years’ deferred

adjudication community supervision and a $1,500 fine. Appellant also pled guilty in an aggravated

assault case in exchange for four years deferred adjudication community supervision and a $1,500

fine.

        Four years later, the State moved to adjudicate guilt in each case. In a consolidated hearing,

appellant entered open pleas of not true to the State’s allegations. After hearing evidence, the trial

court found the allegations true and sentenced appellant to five years in prison in each case. The

Court assessed $449 in court costs for each case and ordered that the sentences run consecutively.

                                           II. ANALYSIS

A.      First Issue: Were the Sentences Erroneously Stacked?

        Yes, they were part of a single criminal episode, the similar crimes were tried together, and

no exception applies.

        Appellant’s first issue argues that his sentences should run concurrently but instead were

erroneously cumulated or stacked. The State agrees.

        We review the trial court’s decision to stack or cumulate sentences for abuse of discretion.

Hurley v. State, 130 S.W.3d 501, 503 (Tex. App.—Dallas 2004, no pet.). As explained below,

however, the court’s discretion to stack sentences is limited by Penal Code §3.03. See TEX. PENAL

CODE ANN. § 3.03(a).

        When a defendant has been convicted in two or more cases, the trial court has discretion to

order the judgment and sentence imposed in the second conviction either (i) to begin to run after


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the judgment and sentence imposed in the preceding conviction has ceased to operate, or (ii) to

run concurrently with the judgment and sentence imposed in the preceding conviction. See TEX.

CODE CRIM. PROC. ANN. art. 42.08(a). If the convictions arise out of the “same criminal episode”

and the cases are tried together, the sentences must run concurrently unless the convictions are for

certain specified offenses and the trial court exercises its discretion to cumulate or stack the

sentences. See TEX. PENAL CODE § 3.03 (a)-(b). Appellant and the State agree that none of the

§3.03(b) exceptions apply and the case was tried in a single criminal action.1 Thus, we examine

whether the offenses were part of a single criminal episode. See TEX. PENAL CODE § 3.01.

           Appellant argues that the offenses, both family violence assaults committed against the

same person constituted the same criminal episode because they were “the repeated commission

of the same or similar offense.” We agree.

           The penal code defines “criminal episode” as:

           [T]he commission of two or more offenses, regardless of whether the harm is
           directed toward or inflicted upon more than one person or item of property, under
           the following circumstances:

           (1) the offenses are committed pursuant to the same transaction or pursuant to two
           or more transactions that are connected or constitute a common scheme or plan; or

           (2) the offenses are the repeated commission of the same or similar offenses.

TEX. PENAL CODE § 3.01.

           In the aggravated assault with a deadly weapon case appellant was charged with causing

injury to Williams, his girlfriend, by cutting her with a knife, striking her with his hand, squeezing

her neck with his hands and arm, and kicking her with his foot. In the family violence assault case,




     1
        A defendant is prosecuted in a “single criminal action” whenever allegations and evidence of more than one offense arising out of the same
criminal episode . . . are presented in a single trial or plea proceeding, whether pursuant to one charging instrument or several . . . .” LaPorte v.
State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992), overruled on other grounds by Ex parte Carter, 521 S.W.3d 344 (Tex. Crim. App. 2017). The
record reflects that this occurred here.

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appellant was charged with impeding Williams’s breathing and circulation by applying pressure

to her throat and neck by blocking Williams’s nose and mouth with his hand.

       Both offenses were assaults on Williams. When the gravamen of both offenses involves

assaultive conduct committed by similar manner and means, the offenses are deemed part of the

same criminal episode. See Duncan v. State, No., 08-12-00362-CR, 2013 WL 5716393, at *3

(Tex. App.—El Paso 2013, no pet.) (mem. op., not designated for publication); see also Johnson

v. State, Nos. 07-08-0428-CR, 07-08-0430-CR, 07-09-0431-CR, 2009 WL 2059439, at *1 (Tex.

App.—Amarillo 2009, no pet.) (mem. op. not designated for publication) (sentences for nine acts

of public lewdness committed over a one year period against nine different victims could not be

cumulative). On this record, we conclude the offenses were part of the same criminal episode and

thus the sentences should not run consecutively. Appellant’s first issue is sustained.

       The appropriate remedy in this situation is for this court to modify the trial court’s judgment

to delete the cumulation order. LaPorte, 840 S.W.2d at 415; see also TEX. R. APP. P. 43.2.

Accordingly, we modify the judgments to reflect that the sentences do not run consecutively.

B.     Second Issue: Are the Costs Duplicative?

       Appellant and the State agree that the court erroneously assessed duplicative costs. The

code of criminal procedure provides that:

       (a) In a single criminal action in which a defendant is convicted of two or more
       offenses or of multiple counts of the same offense, the court may asses each court
       cost or fee only once against the defendant.

       (b) In a criminal action described by subsection (a), each court cost or fee the
       amount of which is determined according to the category of offense must be
       assessed using the highest category of offense that is possible based on the
       defendant’s convictions.

TEX. CODE CRIM. PROC. art. 102.073.




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       Here, because the cases were tried in the same proceeding, the court should only have

assessed costs for the higher category offense, the second-degree aggravated assault conviction.

We sustain appellant’s second issue.

C.     Cross-Point: Should the Judgment be Modified?

       The State’s cross-point asks us to modify the judgment in the assault with a deadly weapon

case to show that, notwithstanding the judgment’s “N/A” notation, the court made a deadly weapon

finding. We are authorized to reform a judgment to make the record speak the truth when we have

the necessary information to do so. Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993).

       Here, the record reflects that the court made an affirmative deadly weapon finding that

“Defendant used or exhibited a deadly weapon, namely, Knife and a Hand and a Foot” during the

commission of the aggravated assault with a deadly weapon. Therefore, the notation “N/A” is in

error. We sustain the State’s cross-point and modify the judgment accordingly.

                                       III.   CONCLUSION

       We modify the judgments to reflect that (i) the sentences do not run consecutively, (ii) the

court made a deadly weapon finding in trial court cause number F13-60638-X (appeal number 05-

18-01255-CR), and to (iii) delete the court costs assessed in cause number F13-70117-S (appeal

number 05-18-01257-CR). As modified, the trial court’s judgments are affirmed.




                                                  /Bill Whitehill/
                                                  BILL WHITEHILL
                                                  JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2 (b)
181255F.U05



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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 CHRISTOPHER LEE WHALEY,                            On Appeal from the 282nd Judicial District
 Appellant                                          Court, Dallas County, Texas
                                                    Trial Court Cause No. F-13-60638-S.
 No. 05-18-01255-CR         V.                      Opinion delivered by Justice Whitehill.
                                                    Justices Bridges and Nowell participating.
 THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to reflect that: the court made a deadly weapon finding and the sentence does not run
consecutively with the sentence in cause number F13-7011-S.

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 21st day of January, 2020.




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 CHRISTOPHER LEE WHALEY,                            On Appeal from the 282nd Judicial District
 Appellant                                          Court, Dallas County, Texas
                                                    Trial Court Cause No. F13-70117-S.
 No. 05-18-01257-CR         V.                      Opinion delivered by Justice Whitehill.
                                                    Justices Bridges and Nowell participating.
 THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows: to reflect that the sentence does not run consecutively with the sentence in cause
number F13-60628-X and to delete the court costs assessed in this case.

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 21st day of January, 2020.




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