                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS

                                                      §
    TERNORRIS DUNCAN,                                                   No. 08-12-00362-CR
                                                      §
                                 Appellant,                               Appeal from the
                                                      §
    v.                                                             283rd Judicial District Court
                                                      §
    THE STATE OF TEXAS,                                               of Dallas County, Texas
                                                      §
                                 Appellee.                              (TC# F-1071647-T)
                                                      §

                                              OPINION

         Ternorris Duncan appeals the trial court’s judgment revoking his deferred-adjudication

probation for aggravated assault with a deadly weapon. In a single issue, Duncan contends that

the trial court erred by ordering that the twenty-year sentence he received in this case run

cumulative to the ten-year sentence he received in another case, Cause No. F-1172025-T. 1

Because the trial court erred in cumulating the sentences, we reform the judgment to delete the

cumulation order and affirm as reformed.

                       FACTUAL AND PROCEDURAL BACKGROUND

         In March 2010, Duncan assaulted Janine Jones, a former girlfriend and the mother of one

of his children, while retrieving personal items from her bedroom. When Jones accused Duncan



1
 Duncan is also appealing the trial court’s judgment in that case, which has been assigned appellate Cause No.
08-12-00328-CR.
of seeing other women, Duncan pointed a pistol at Jones’s head and threatened to kill her if she

attempted to keep him from seeing their daughter. Approximately two months later, Duncan

assaulted Courtney Richardson, the woman with whom he was living. Duncan was dissatisfied

with Richardson’s response regarding her whereabouts and punched her in the face several times.

Sadly, this incident was not a single, isolated event. In January 2011, Duncan again assaulted

Richardson, who was then 38 weeks pregnant with Duncan’s child.                             After arguing with

Richardson, Duncan pushed her, grabbed her by the neck, struck her with a skillet, kicked her in

the stomach, and—though later denied by Richardson—struck her with a handgun.2

          Duncan was charged in two separate indictments with committing aggravated assault upon

Jones with a deadly weapon (Cause No. F-1071647-T) and committing continuous violence

against Richardson (Cause No. F-1172025-T).                       Pursuant to two separate plea-bargain

agreements, Duncan pled guilty to each charged offense. In each case, the trial court found the

evidence sufficient to find Duncan guilty, but deferred further proceedings and placed Duncan on

probation.

          The State subsequently filed motions to revoke Duncan’s un-adjudicated probation in both

cases. The motions were heard by the trial court at one consolidated proceeding. The trial court

found that Duncan violated several of the conditions of his probation, adjudicated him guilty, and

sentenced him to the aforementioned terms of imprisonment. The trial court further ordered the

sentences to run consecutively.

                                       CONSECUTIVE SENTENCES

          In his sole issue, Duncan contends that the trial court improperly “stacked,” or cumulated,

his sentences because the two offenses arose from the same criminal episode and were prosecuted
2
    The record also contains evidence that Duncan harassed Richardson and made threatening phone calls to her.
                                                          2
in a single criminal action.3 We agree.

                                              Standard of Review

        We review a trial court’s decision to “stack,” or cumulate, sentences for an abuse of

discretion. See TEX.CODE CRIM.PROC.ANN. art. 42.08(a)(West Supp. 2012); Nicholas v. State, 56

S.W.3d 760, 764-65 (Tex.App.--Houston [14th Dist.] 2001, pet. ref’d). The test for abuse of

discretion is whether the trial court’s action falls within the zone of reasonable disagreement.

Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App. 2003).

                                                Applicable Law

        Under Article 42.08(a) of the Texas Code of Criminal Procedure, a trial court has the

discretion to sentence a defendant convicted in two or more cases to concurrent or cumulative

sentences.     TEX.CODE CRIM.PROC.ANN. art. 42.08(a).                   A trial court’s ability to cumulate

sentences, however, is limited by Section 3.03(a) of the Texas Penal Code. Subject to narrow

exceptions inapplicable here, Section 3.03(a) mandates that if a defendant is tried in a single

criminal action for two or more offenses arising from the same criminal episode, the sentences

imposed must run concurrently. TEX.PENAL CODE ANN. § 3.03(a)(West Supp. 2012).

                                                   Discussion

        Duncan has established that the offenses of aggravated assault with a deadly weapon and

continuous violence against the family arose from the “same criminal episode” and that he was

prosecuted in a “single criminal action.”

                                        1. Same Criminal Episode


3
  Despite Duncan’s failure to object to the imposition of sentence at trial or in a post-judgment motion, he has not
forfeited appellate review of his complaint. See LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App.
1992)(holding that because “[a]n improper cumulation order is, in essence, a void sentence,” it may be challenged for
the first time on appeal). The State does not contend otherwise on appeal.
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       Duncan argues that since “[b]oth offenses involve family violence assaults against persons

with whom [he] had a dating relationship[,]” the offenses arose from the same criminal episode

because “[t]hey involve essentially the same conduct, against persons with the same type of

status.” We agree.

       Section 3.01 of the Texas 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 ANN. § 3.01(West 2011). To be characterized as a single criminal episode,

multiple offenses occurring on different dates, in different places, and against several

complainants must either: (1) be the same or similar; (2) share a common scheme or plan; or (3)

have been repeated in a similar fashion. See Baker v. State, 107 S.W.3d 671, 673 (Tex.App.--San

Antonio 2003, no pet.)(considering offenses committed against three different women at three

different locations within an eleven-month period as offenses committed in a single episode

because each offense was against “a woman living on or near Hope’s Ferry, occurred in or near her

home while she was alone, and took place in the early morning hours.”); Hernandez v. State, 938

S.W.2d 503, 508-09 (Tex.App.--Waco 1997, pet. ref’d)(treating April 16 cocaine sale and

September 22 marihuana sale merely repetitious commissions of same offense); Guidry v. State,

909 S.W.2d 584, 585 (Tex.App.--Corpus Christi 1995, pet. ref’d)(holding that two aggravated

robberies were similar because the perpetrator branded a knife during both offenses, so their

                                               4
sentences should run concurrently).

       The offenses committed here by Duncan are similar offenses in that they share a common

gravamen—assaultive conduct.       Each offense requires proof that the defendant engaged in

conduct constituting assault as defined under Section 22.01(a)(1) of the Texas Penal Code as an

essential element of the crime. See TEX.PENAL CODE ANN. § 22.02(a)(West 2011)(Aggravated

Assault with a Deadly Weapon)(“A person commits an offense if the person commits assault as

defined in § 22.01 and the person: (1) causes serious bodily injury to another, including the

person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.”);

TEX.PENAL CODE ANN. § 25.11(a)(West 2011)(Continuous Violence Against the Family)(“A

person commits an offense if, during a period that is 12 months or less in duration, the person two

or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against

another person or persons whose relationship to or association with the defendant is described by

Section 71.0021(b), 71.003, or 71.005, Family Code.”). Further, both offenses were committed

in a similar fashion. Duncan assailed two of his paramours in their homes and used a handgun in

two of the attacks.

       The State contends that both offenses are not similar for purposes of Section 3.03(a)

because each offense has elements unique to it and because the offenses “are included in entirely

separate titles and chapters within the Penal Code.” We do not dispute that the two offenses are

distinguishable. Whereas the offense of continuous violence against the family requires proof of

repeated assaults be perpetrated upon a family member during a 12-month period as elements of

the crime, the offense of aggravated assault with a deadly weapon does not. And whereas the

offenses of aggravated assault with a deadly weapon is found in Chapter 22, “Assaultive


                                                5
Offenses,” of Title 5, “Offenses Against the Person,” of the Texas Penal Code, the offense of

continuous violence against the family is found in Chapter 25, “Offenses Against the Family,” of

Title 6, “Offenses Against the Family,” of the Penal Code. But we do not agree that these

distinctions render the two offenses dissimilar for purposes of Section 3.03(a). The two offenses

share a critical connection—the common gravamen of assaultive conduct—and were perpetrated

in a similar fashion—assailing two romantic interests in their homes with the use of a handgun in

two of the attacks. Accordingly, we conclude that both offenses arose from the “same criminal

episode.” See Baker, 107 S.W.3d at 673; Guidry, 909 S.W.2d at 585.

                                    2. Single Criminal Action

       Duncan argues that he was prosecuted in a single criminal action “because the finding of

guilt and pronouncement of sentence [occurred] in a single proceeding . . . .” We agree.

       “[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, as that term is defined

in Chapter 3, are presented in a single trial or plea proceeding, whether pursuant to one charging

instrument or several . . . .” LaPorte, 840 S.W.2d at 415. A plea proceeding is not complete until

punishment has been assessed. Robbins v. State, 914 S.W.2d 582, 583 (Tex.Crim.App. 1996).

Here, the State presented allegations and evidence of more than one offense arising out of the same

criminal episode in a single plea proceeding with no distinction of evidence, i.e., the consolidated

proceeding at which the court heard both of the State’s motions to revoke Duncan’s community

supervision, adjudicated Duncan’s guilt, and assessed his sentences. The intertwining of facts

rendered it a single criminal action.

       Relying on Justice Baird’s concurring opinion in Duran v. State, 844 S.W.2d 745


                                                 6
(Tex.Crim.App. 1992), the State contends that Duncan failed to prove he was prosecuted in a

single criminal action because he did not show that the two offenses “were consolidated at the time

he pled guilty and at the time of the revocation hearing.” The State’s reliance on Justice Baird’s

concurring opinion in Duran is misplaced.

       In Duran, the appellant’s probations in two related drug cases were revoked at a joint

revocation hearing and the sentences were ordered to run consecutively. Id. at 746. On appeal,

the appellant argued that the sentences were improperly cumulated because they were the result of

a single trial.   Id. The majority of the court of criminal appeals was not swayed by the

appellant’s argument because the record did not show whether the original plea proceedings had

been consolidated. Id. In his concurrence, Justice Baird expressed the view that a defendant is

not entitled to concurrent sentences under Section 3.03 unless both the plea proceedings and the

hearings on the motions to revoke probation are held jointly. Id. at 748 (Baird, J., concurring).

       But Justice Baird’s view was subsequently rejected by the majority of the court of criminal

appeals in Robbins. There, the appellant was charged in separate indictments with two offenses

of aggravated sexual assault that arose out of the same transaction. 914 S.W.2d at 583. The trial

court conducted two separate plea proceedings, but one consolidated punishment hearing. Id.

On appeal, the appellant argued that the trial court erred in ordering the sentences served

consecutively, because they were prosecuted in the same criminal action. Id. The court of

criminal appeals agreed, explaining that a plea proceeding is not complete until punishment has

been assessed, and therefore, the causes were prosecuted in the “same criminal action.” Id. at

583-84. Justice Baird noted his dissent, citing his concurring opinion in Duran. Id. at 584.

       The situation in this case is more analogous to that in Robbins than in Duran. Here, as in


                                                7
Robbins, adjudication of guilt and punishment occurred in a single unified hearing.

Consequently, we conclude—consistent with the decisions in La Porte and Robbins—that Duncan

was prosecuted in a single criminal proceeding. See Martin v. State, 143 S.W.3d 412, 414-15

(Tex.App.--Austin 2004, no pet.)(relying on La Porte and Robbins, among others, in concluding

that a defendant has been prosecuted in a single criminal proceeding when multiple offenses

arising out of the same criminal episode are tried jointly at any phase).

       Duncan has met his burden of establishing that the trial court improperly “stacked,” or

cumulated, his sentences. Accordingly, we conclude that the trial court erred in exercising its

discretion by ordering that Duncan’s sentence in this case run cumulative to the sentence he

received in Cause No. F-1172025-T.

       Duncan’s issue is sustained.

                                         CONCLUSION

       When a trial court erroneously cumulates sentences, the appropriate remedy is to reform

the judgment and delete the cumulation order. Robbins, 914 S.W.2d at 584. Accordingly, we

reform the judgment of the trial court in this cause and delete all reference suggesting that the

sentence in this cause is to run cumulative to, consecutive to, or in any way after completion of the

sentence in Cause No. F-1172025-T. The judgment is affirmed as reformed.



October 18, 2013
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)



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