
NO. 07-09-0375-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 7, 2010
______________________________

CARLOS BARRIENTOS MARTINEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 121ST DISTRICT COURT OF YOAKUM COUNTY;

NO. 2690; HONORABLE KELLY G. MOORE, JUDGE
_______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Â Â Â Â Â Â Â Â Â Â In accordance with a plea bargain, appellant, Carlos Barrientos Martinez, was
convicted of possession of a controlled substance, cocaine, in an amount less than one
gram and sentenced to two years incarceration in the Institutional Division of the Texas
Department of Criminal Justice and $1,000 fine.  However, the sentence of confinement
was suspended and appellant was placed on community supervision for a period of five
years.  The clerkâs record was filed on December 28, 2009.
Â Â Â Â Â Â Â Â Â Â Texas Rule of Appellate Procedure 25.2(a)(2) requires that a trial court shall enter
a certification of defendantâs right of appeal each time it enters a judgment of guilt or other
appealable order.  Tex. R. App. P. 25.2(a)(2); Hargesheimer v. State, 182 S.W.3d 906, 911
(Tex.Crim.App. 2006).  An appeal must be dismissed if a certification that shows the
defendant has the right of appeal has not been made part of the record under the
applicable rules.  Tex. R. App. P. 25.2(d).  An appellate court that has an appellate record
that includes a certification is obligated to review the record to ascertain whether the
certification is defective.  Dears v. State, 154 S.W.3d 610, 615 (Tex.Crim.App. 2005).  
Â Â Â Â Â Â Â Â Â Â Pursuant to an amendment to Rule 25.2(d), which became effective on September
1, 2007, the certification of defendantâs right of appeal must be signed by the defendant
and a copy must be given to him.  Tex. R. App. P. 25.2(d).  Additionally, the certification
shall include a notice that the defendant has been informed of his rights concerning appeal,
as well as his right to file a pro se petition for discretionary review.
 
Â Â Â Â Â Â Â Â Â Â The certification contained in the clerkâs record does not contain the defendantâs
signature.  As such, it does not reflect whether a copy of the certification was given to the
defendant nor does it indicate whether the defendant was given the required
admonishments.  Therefore, the certification on file is defective.
Â Â Â Â Â Â Â Â Â Â Consequently, we abate this appeal and remand the cause to the trial court for
further proceedings.  Upon remand, the trial court shall utilize whatever means necessary
to secure a certification of defendantâs right of appeal that complies with Rule 25.2(d). 
Once properly executed, the certification shall be included in a supplemental clerkâs record
and filed with the Clerk of this Court on or before February 1, 2010.
Â Â Â Â Â Â Â Â Â Â This order constitutes notice to all parties of the defective certification pursuant to
Rule 37.1 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 37.1.  If a
supplemental clerkâs record containing a proper certification is not filed in accordance with
this order, this matter will be referred to the Court for dismissal.  See Tex. R. App. P.
25.2(d).
Â Â Â Â Â Â Â Â Â Â It is so ordered.
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Per Curiam
Â 
Do not publish.  

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NOS. 07-08-0502-CR, 07-08-0503-CR; 07-08-504-CR;
Â 
07-08-0505-CR;
07-08-0506-CR
Â 
IN THE COURT OF APPEALS
Â 
FOR THE
SEVENTH DISTRICT OF TEXAS
Â 
AT
AMARILLO
Â 
PANEL B
Â 

JULY
15, 2010
Â 

Â 
ALFREDO SOLIS, APPELLANT
Â 
v.
Â 
THE STATE OF TEXAS, APPELLEE 

Â 

Â 
 FROM THE 251ST DISTRICT COURT OF POTTER
COUNTY;
Â 
NO. 57,754-C, 57,761-C, 57,762-C, 57,763-C, 57,764-C;
Â 
Â HONORABLE ANA ESTEVEZ, JUDGE

Â 

Â 
Before QUINN,
C.J., and CAMPBELL and HANCOCK, JJ.
Â 
Â 
MEMORANDUM OPINION
Â 
Appellant Alfredo Solis appeals ten
convictions for aggravated sexual assault of a child, sexual assault of a
child, and indecency with a child by sexual contact.Â  Through one issue, he argues the trial court
abused its discretion by ordering the jury-imposed sentences for three of the
convictions to run consecutively.Â  We
disagree, and will affirm.
Â 
Background
Indictments filed in five cases
alleged appellant committed multiple sexual offenses against one child, his
stepdaughter.Â  The cases were
consolidated for trial.Â  
At trial appellant plead guilty to
each of the indicted offenses.Â  After the
State presented evidence, the court instructed the jury to return a verdict of
guilty on each count.Â  The jury entered
verdicts accordingly.Â  Appellant elected
assessment of punishment by the jury.Â 
During its deliberation on punishment, the foreman sent the court a note
inquiring:
Â1)Â Â Â Â Â Â  If given probation on one count of the lessor (sic) charges, does that ensure that if the
defendant gets out he for sure will be on probation?
2)Â Â Â Â Â Â Â Â  If not does probation have to be given
on all charges.(sic)Â
The court responded with a
supplemental charge instructing the jury to continue its deliberations.Â  The jury returned verdicts assessing two
fifty-year sentences for aggravated sexual assault of a child,[1]
two twenty-year sentences for sexual assault of a child,[2]
five twenty-year sentences for indecency with a child by sexual contact,[3]
and one nine-year probated sentence for indecency with a child by sexual
contact. 
The State moved for consecutive
sentencing and Athat [appellant=s] probation term not begin until he
is paroled on the last sentence prior to that.@Â  Appellant objected to
stacked sentences.Â  After the trial court
made some comments, apparently based on the juryÂs note, concerning the juryÂs
wishes regarding appellantÂs eventual possible release from confinement, and
further argument from counsel, the court ÂstackedÂ one of the fifty-year
sentences, one of the twenty-year sentences and the probated sentence.Â  It ordered the remaining sentences run
concurrently.Â  The effect of the courtÂs
sentencing was seventy years confinement followed by nine years probation.Â  Appellant timely filed notice of appeal.
Issue
Appellant raises one issue on appeal:
Where a defendant in his mid-50s opts for jury sentencing, and where the
trial court concludes from the punishment verdicts that the jury intended the
defendant to be released at some time in the future, is the trial court
entitled to frustrate that intention by cumulating the sentences of
imprisonment to make release much less likely?[4]
Discussion
Statute authorizes a trial court to
cumulate sentences imposed for certain offenses arising out of the same
criminal episode and prosecuted in a single criminal action.Â  Tex. Penal Code Ann. Â§ 3.03
(Vernon Supp. 2009).Â  Those
offenses include indecency with a child, and aggravated sexual assault and
sexual assault of a child younger than seventeen.Â  Tex. Penal Code Ann. Â§Â§ 3.03(b)(2)(A); 21.11; 22.011; 22.021 (Vernon Supp. 2009); see DeLeon
v. State, 294 S.W.3d 742 (Tex.App.ÂAmarillo 2009, pet. refused) (applying statute).
The Court
of Criminal Appeals has indicated that a trial courtÂs decision to cumulate
sentences constitutes an abuse of discretion only when cumulation
is not permitted by statute.Â  See Beedy v. State, 250 S.W.3d 107, 110 (Tex.Crim.App. 2008) (Awhen a trial judge
lawfully exercises the option to cumulate, that decision is unassailable on
appeal@); Barrow v.
State, 207 S.W.3d 377, 380-81 (Tex.Crim.App.
2006) (discussing trial court=s discretionary
decision whether to cumulate sentences).Â 
Accord Nicholas v. State, 56 S.W.3d 760, 764-65 (Tex.App.BHouston
[14th Dist.] 2001, pet. refused) (noting, as a practical matter, an abuse of
discretion occurs in sentencing for multiple offenses only if the trial court
imposes consecutive sentences where the law requires concurrent sentences,
where the court imposes concurrent sentences but the law requires consecutive
ones, or where the court otherwise fails to observe the statutory requirements
pertaining to sentencing); Revels v. State, No. 05-07-01555-CR, 2008
Tex. App. Lexis 9197, at *18 (Tex.App.BDallas
Dec. 11, 2008, no pet.).
Appellant does not
contend the trial courtÂs cumulation order in this
case contravened the statute.Â  The trial court did not alter the
individual sentences imposed by the jury, and none exceed the statutory
range.Â  All the sentences were subject to
cumulation.Â 
Tex. Penal Code Ann. ' 3.03(b)(2)(B)
(Vernon Supp. 2009).
Nonetheless,
appellant contends the order was an abuse of discretion because of the peculiar
circumstances.Â  He points to the trial
courtÂs comment, which he contends indicates the court understood the jury
intended that appellant eventually be eligible for release from
imprisonment.Â  He then argues that, despite
its understanding of the juryÂs intention, the trial court ordered cumulation of sentences, making his eventual eligibility
for release much less likely.Â  This
action, appellant posits, must constitute an abuse of discretion.
Effectively,
appellantÂs argument is an iteration of the position rejected by the Court of
Criminal Appeals in Barrow.Â  207 S.W.3d at 381-82.Â  There, Judge Meyers, in dissent, took the
position that allowing the trial judge to cumulate jury-determined sentences
contradicts a Texas defendantÂs statutory right to have punishment assessed by
the jury.Â  Id. at 382.Â  Addressing constitutional challenges to
judge-ordered cumulation, the majority opinion
pointed out that, by statute, Texas permits a defendant to opt for
jury-assessed punishment but the Legislature also has assigned the decision
whether to cumulate sentences to the trial court.Â  Id. at 380.Â  
Because the jury
simply has no role in the decision whether sentences are to be served
consecutively or concurrently when statute permits, and the decision is left to
the discretion of the trial court, Barrow,
207 S.W.3d at 380,[5]
we are unable to agree that the juryÂs intentions regarding appellantÂs
eventual eligibility for release could operate to limit the trial courtÂs
discretion to order cumulation.[6]
Â 
We accordingly overrule appellant=s issue and affirm the judgments of
the trial court.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  James
T. Campbell
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Justice
Do not publish.Â  




[1]Â  Tex. Penal Code Ann. ' 22.021(a)(2)(B)
(Vernon Supp. 2009).


[2]Â 
Tex. Penal Code Ann. ' 22.011(a)(2)
(Vernon Supp. 2009).


[3]Â 
Tex. Penal Code Ann. ' 21.11(a)(1)
(Vernon Supp. 2009).


[4] The State contends appellantÂs issue was not
preserved for our review.Â  See Tex. R. App. P. 33.1; Pena v.
State, 285 S.W.3d 459, 462-464 (Tex.Crim.App.
2009) (discussing preservation of error).Â 
Although the StateÂs argument has some merit, we find appellantÂs
objection to the imposition of cumulative sentencing for the fifty-and
twenty-year sentences was conveyed to the trial court, and was overruled by the
courtÂs sentencing decision, so as to preserve the complained-of error for our
review.


[5]
Cf. Gordon v. State, 633 S.W.2d 872, 879 n.16 (Tex.Crim.App. 1982) (citing
O=Bryan v. State, 591 S.W.2d 464, 476, 478 (Tex.Crim.App. 1979) (AThe duration of confinement following its assessment of
punishment is not a legitimate concern of a jury@).Â  


[6] Although we need not address it, we agree with the
State also that the jury foremanÂs note is subject to more than one
interpretation as an indicator of the juryÂs thinking regarding appellantÂs
eventual release from confinement. 


