              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. PD-1099-13



                         RONALD ANTONIO BONILLA, Appellant

                                                   v.

                                     THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE TENTH COURT OF APPEALS
                          BRAZOS COUNTY

        A LCALA, J., filed a concurring opinion in which J OHNSON, J., joined.

                                   CONCURRING OPINION

        I concur in the Court’s judgment upholding the trial court’s cumulation order against Ronald

Antonio Bonilla, appellant, but I do not join the majority opinion. Although I agree with all of the

Court’s analysis on the ultimate merits and its conclusion that there is “some evidence” in the record

to support the trial court’s cumulation order, I disagree that preservation of error is required to assert

this sufficiency-of-the-evidence challenge on appeal.

        Addressing appellant’s challenge to the adequacy of the evidence supporting the cumulation

order, the court of appeals conducted a “some evidence” test that examined the record for any
                                                                             Bonilla Concurring Op. -2

evidence that would support the trial court’s order. Bonilla v. State, No. 10-12-00064-CR, 2013 WL

3482127, at *4 (Tex. App.—Waco July 11, 2013) (mem. op., not designated for publication).1 The

court of appeals determined that “there was some evidence that the offenses for counts three and four

occurred after September 1, 1997,” based on the trial record that showed that appellant committed

“many instances” of indecency with a child occurring on or after that date. Id. The court of appeals

observed that the 1995 date that was recited in the indictment and in the written judgments was not

dispositive because, in light of the State’s use of the “on or about” language, it was free to prove that

the offenses occurred on any date prior to the presentment of the indictment and within the

limitations period. Id.

        Although the court of appeals refers to its test as the “some evidence” test, I conclude that

it is essentially applying the Jackson v. Virginia sufficiency-of-the-evidence test to the trial court’s

cumulation order. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Jackson sufficiency-of-

the-evidence test, although generally used to determine whether sufficient evidence exists in the

record to support each element of the offense, has also been used by this Court to review other

evidence-based challenges. See, e.g., Moreno v. State, 415 S.W.3d 284, 288 (Tex. Crim. App. 2013)

(probable-cause affidavits); Coble v. State, 330 S.W.3d 253, 265 (Tex. Crim. App. 2010) (future-


1
         A trial court is authorized under the Texas Penal Code to cumulate a defendant’s sentences
for offenses of indecency with a child occurring on or after September 1, 1997. See TEX . PENAL
CODE § 3.03(b)(2). The Texas Penal Code states, “(b) If the accused is found guilty of more than
one offense arising out of the same criminal episode, the sentences may run concurrently or
consecutively if each sentence is for a conviction of: . . . (2) an offense: (A) . . . under Section 21.11
. . . committed against a victim younger than 17 years of age at the time of the commission of the
offense regardless of whether the accused is convicted of violations of the same section more than
once[.]” TEX . PENAL CODE § 3.03(b)(2)(A). This provision permitting cumulation of sentences for
indecency with a child applies only to those offenses committed after the statute’s effective date of
September 1, 1997. See Acts 1997, 75th Leg., R.S., ch 667, § 7.
                                                                           Bonilla Concurring Op. -3

dangerousness special issue); McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000)

(affirmative deadly-weapon findings); see also Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim.

App. 2014) (explaining that Jackson test is used for assessing evidence sufficiency for matters that

relate “directly or indirectly to a defendant’s guilt or sentence”). Because the appellate complaint

here rests on whether there is any evidence in the record to support the cumulation order, it is

analytically similar to other situations involving a review of the sufficiency of the evidence related

to a defendant’s sentence, and therefore, I conclude that the essence of the Jackson test applies by

analogy. And that is essentially the test that other courts of appeals have applied to this situation.

See Owens v. State, 96 S.W.3d 668, 672 (Tex. App.—Austin 2003, no pet.) (“Although the victim’s

testimony sometimes conflicted as to the dates of the sexual assaults, a reasonable view of the

evidence as a whole supported the trial court’s exercise of its discretion to run Owens’s sentences

consecutively.”); Bates v. State, 164 S.W.3d 928, 931 (Tex. App.—Dallas 2005, no pet.) (stating

that, “if the evidence shows the offenses at issue occurred after the effective date of section 3.03(b)

. . . then the trial court has the authority to stack the sentences,” and upholding cumulation order

because “[t]here was no evidence indicating any sexual assault occurred before the summer of

2000”); Hendrix v. State, 150 S.W.3d 839, 854 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)

(applying some-evidence test and upholding cumulation order because “[t]he evidence shows that

the incidents of sexual abuse against B.S. continued to occur up until 2001, well after the September

1, 1997 effective date of the cumulation statute”).

       Like all challenges to the sufficiency of the evidence, it is unnecessary for an appellant to

preserve this type of complaint with an objection at trial. See Rankin v. State, 46 S.W.3d 899, 901

(Tex. Crim. App. 2001). I, therefore, disagree with the majority opinion’s determination that it was
                                                                          Bonilla Concurring Op. -4

appellant’s obligation to complain in the trial court that the cumulation order was improper. I also

find it peculiar that the majority opinion would give appellant relief if there were no evidence to

support the cumulation order on the basis that, in those circumstances, the improper stacking order

would render appellant’s sentence illegal. LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App.

1992) (“An improper cumulation order is, in essence, a void sentence, and such error cannot be

waived.”).2 My bottom line is that I am unpersuaded by the reasoning of the majority opinion that

boils down to this:

    An appellant loses on appeal:   An appellant wins on appeal:     This is the result:

    1. when he does not preserve    when there is no evidence to     To lose his appeal, an

    his complaint, or               support the cumulation order,    appellant must preserve error,

    2. when there is some           because that is an illegal       but to win his appeal, no

    evidence to support the         sentence for which an            preservation of error is

    cumulation order.               appellant obtains relief         required.

                                    regardless of error

                                    preservation.

          Because it would grant relief only under circumstances in which no preservation of error is

required and would deny relief when error has been preserved, the majority opinion’s reasoning to


2
        I note that this is not a situation where the challenge is to the procedures employed with
respect to the cumulation order, which was the situation in Ex parte McJunkins, 954 S.W.2d 39, 39
(Tex. Crim. App. 1997) (op. on reh’g). Because McJunkins addressed only a procedural irregularity
in the way the trial court imposed the agreed-upon cumulative sentences, it cannot stand for the
proposition that a sufficiency-of-the-evidence complaint challenging a cumulation order must be
preserved for appeal through a timely objection at trial. See id. McJunkins, therefore, is of little
consequence to the matters raised in this appeal.
                                                                          Bonilla Concurring Op. -5

require preservation of error is unpersuasive to me. I see no basis for imposing a preservation

requirement in these circumstances, when the preservation analysis will always lead to the same

result as the error analysis, and the two inquiries could thus be conflated into the simpler, more

appropriate test—the traditional sufficiency of the evidence review—that is tailored to address

sufficiency-of-the-evidence complaints like the one asserted in this case. I conclude that appellant

did not forfeit his complaint with respect to the trial court’s cumulation order because his complaint

is in the nature of a sufficiency-of-the-evidence challenge, which does not need to be preserved for

appeal. Analyzing the evidence in the record as a whole, I would hold that there is sufficient

evidence supporting the trial court’s cumulation order. I, therefore, would affirm the judgment of

the court of appeals upholding the trial court’s cumulation order.

Filed: November 19, 2014

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