                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00162-CR



            NELSON PRIVETTE, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 8th District Court
              Hopkins County, Texas
              Trial Court No. 1725820




      Before Morriss, C.J., Burgess and Stevens, JJ.
              Opinion by Justice Stevens
                                              OPINION
        Nelson Privette appeals from an order of deferred adjudication entered after he had

completed the sentence imposed in a companion case that arose out of the same criminal episode.

On appeal, Privette contends that the trial court erred by cumulating the community supervision

with the sentence from the companion offense, in violation of Section 3.03(a) of the Texas Penal

Code, which requires sentences to run concurrently if certain requirements are met. Because these

requirements were not met, concurrent sentences were not required. Accordingly, we affirm the

trial court’s order.

I.      Background

        As a result of an automobile accident, Privette was charged in separate indictments with

two counts of aggravated assault with a deadly weapon. In a consolidated proceeding, Privette

entered an open plea of guilty to both charged offenses, and his judicial confessions were entered

into evidence. After a consolidated punishment hearing, the trial court found Privette guilty of the

first offense and sentenced him to two years’ imprisonment. 1 At the same time, the trial court reset

consideration of the second offense for twenty-one months out. After Privette had completed his

imprisonment for the first offense, the trial court deferred adjudication of Privette’s guilt on the

second offense and placed him on ten years’ community supervision. Privette appeals the order

of deferred adjudication.




1
The appeal of that conviction was dismissed. Privette v. State, No. 06-17-00198-CR, 2018 WL 736352, at *1 (Tex.
App.—Texarkana Feb. 6, 2018, no pet.) (mem. op., not designated for publication).

                                                      2
II.         No Abuse of Discretion

            In his sole issue on appeal, Privette contends that by recessing the second offense until after

he had completed his sentence for the first offense, then deferring adjudication of his guilt for the

second offense and placing him on community supervision, the trial court impermissibly

cumulated the sentences for the first and second offense in violation of Section 3.03 of the Texas

Penal Code. The State argues that Section 3.03 does not apply to this case.

            We review a trial court’s order that allegedly cumulates sentences for an abuse of

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

3.03(a) provides:

            When the accused is found guilty of more than one offense arising out of the same
            criminal episode prosecuted in a single criminal action, a sentence for each offense
            for which he has been found guilty shall be pronounced. Except as provided by
            Subsection (b),[2] the sentences shall run concurrently.

TEX. PENAL CODE. ANN. § 3.03(a) (Supp.). When Section 3.03(a) applies, it limits the trial court’s

general statutory authority to impose consecutive, or cumulative, sentences. 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) (orig. proceeding); see TEX. CODE CRIM. PROC. ANN. art.

42.08. To determine whether the trial court abused its discretion, we must determine first whether

Section 3.03(a) applies to the order of deferred adjudication.

            For it to apply, Section 3.03(a) requires that (1) an accused be found guilty of more than

one offense, (2) the offenses arose out of the same criminal episode, and (3) the offenses were



2
    Section 3.03(b) lists offenses for which sentences may run consecutively, none of which are involved here.
                                                            3
prosecuted in a single criminal action. “[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, 840 S.W.2d at 415. As relevant here, under Section 3.03(a), a

criminal episode is defined as “the commission of two or more offenses, regardless of whether the

harm is directed toward or inflicted upon more than one person . . . [and] the offenses are

committed pursuant to the same transaction.” TEX. PENAL CODE. ANN. § 3.01(1). Here, it is

undisputed that Privette was prosecuted in a single criminal action for more than one offense

arising out of the same criminal episode.

       It is also undisputed that Privette was found guilty of one offense that arose out of that

criminal episode. Even so, although he pled guilty to a second offense arising out of that criminal

episode, the trial court deferred the adjudication of his guilt. As explained by the Texas Court of

Criminal Appeals, “Under the deferred adjudication scheme, a judge does not make a ‘finding of

guilt’; instead the judge makes a finding that the evidence ‘substantiates the defendant’s guilt’ and

then defers the adjudication.” Donovan v. State, 68 S.W.3d 633, 636 (Tex. Crim. App. 2002)

(quoting predecessor statute to TEX. CODE CRIM. PROC. ANN. art. 42A.101(a)). This “no ‘finding

or verdict of guilt’” is “one of the signal benefits of deferred adjudication.” Id.

       Since the trial court deferred the adjudication of Privette’s guilt here, it made no finding of

guilt on the second offense. As a result, Privette has not been found guilty of more than one offense




                                                  4
arising out of the same criminal episode. For that reason, we find that Section 3.03(a) does not

apply to the order of deferred adjudication. 3

         We also note that, in his brief, Privette refers to the order of deferred adjudication as a

sentence in arguing that Section 3.03(a) requires that the sentences run concurrently. Yet, a

“sentence” is defined as “that part of the judgment, or order revoking a suspension of the

imposition of a sentence, that orders that the punishment be carried into execution in the manner

prescribed by law.” TEX. CODE CRIM. PROC. ANN. art. 42.02. For there to be a sentence, there

must be a conviction. Donovan, 68 S.W.3d at 636 (without a conviction there is “no sentence to

impose or suspend”). When a defendant receives deferred adjudication, “there is no conviction,

and therefore, no sentence.” Id. And deferred adjudication community supervision is not a

sentence. Beedy v. State, 250 S.W.3d 107, 114 (Tex. Crim. App. 2008) (“Having been placed on

deferred adjudication community supervision, [defendant]’s punishment has not been assessed and

[defendant] has not been sentenced as defined in Article 42.02.”).




3
 As Privette acknowledges in his brief, the facts here are somewhat unique. Two of the cases cited by Privette in
support of his argument involve convictions in which the defendant was found guilty in more than one offense arising
from the same criminal episode, so Section 3.03(a) applied. See Ross v. State, Nos. 05-14-00014-CR & 05-14-00015-
CR, 2014 WL 7399314 (Tex. App.—Dallas Dec. 17, 2014, pet. ref’d) (mem. op., not designated for publication);
Taylor v. State, No. 06-10-00147-CR, 2010 WL 4961799 (Tex. App.—Texarkana Dec. 7, 2010, no pet.) (mem. op.,
not designated for publication).
          In Hurley v. State, there were two offenses arising out of the same criminal episode, and Hurley received a
finding of guilt and prison sentence for one offense and deferred adjudication for the other. Hurley v. State, 130
S.W.3d 501, 503 (Tex. App.—Dallas 2004, no pet.). The offenses were among the offenses for which Section 3.03(b)
authorized sentences to be consecutive for convictions on more than one offense, and the issue was whether a deferred
adjudication was a conviction so that the deferred adjudication community supervision could be “stacked” onto the
prison sentence. Id. at 505–06. The Dallas Court of Appeals held that deferred adjudication was not a conviction,
and even though it acknowledged that a deferred adjudication order does not impose a sentence, it still treated the
order as a sentence and held that the trial court was not authorized to order the community supervision to commence
after the prison term was completed. Id. at 506–07; cf. Ex parte Garza, 192 S.W.3d 658, 661–62 (Tex. App.—Corpus
Christi 2006, orig. proceeding). Since Hurley addresses Section 3.03(b), it is distinguishable from this case.
                                                         5
        As a result, since there was no sentence imposed by the order of deferred adjudication, we

find that Section 3.03(a)’s requirement that “the sentences shall run concurrently” does not apply

to that order. 4

        Since Section 3.03(a) does not apply to the order of deferred adjudication, we find that the

trial court did not abuse its discretion. We overrule Privette’s sole issue.

        For the reasons stated, we affirm the trial court’s judgment.




                                                            Scott E. Stevens
                                                            Justice

Date Submitted:           November 14, 2019
Date Decided:             November 26, 2019

Publish




4
By our holding, we do not decide whether Section 3.03(a) would apply if Privette is later adjudicated guilty. See
Drain v. State, 540 S.W.3d 637 (Tex. App.—Amarillo 2018, no pet.); Martin v. State, 143 S.W.3d 412 (Tex. App.—
Austin 2004, no pet.).
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