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

              No. 06-09-00159-CR
        ______________________________


        RAYMOND LEE REESE, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 124th Judicial District Court
                Gregg County, Texas
              Trial Court No. 34609B




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                                     OPINION

I.          BACKGROUND

            Raymond Lee Reese appeared on the first day of his felony trial for driving while

intoxicated (DWI) but after that first day, must have seen the handwriting on the wall1 because he

failed to appear for the second day of the trial, January 18, 2006. Reese’s absence failed to hinder

the progress of the trial; the wheels of justice continued to grind and he was tried in absentia2 on

the DWI charge, was found guilty, and was sentenced to seven years’ imprisonment.3 The DWI

conviction was then not his sole problem because he was charged by indictment with the further

offense of bail jumping and failure to appear4 when he failed to reappear to continue his trial.

After being apprehended, Reese entered a plea of guilty to the charge of bail jumping and failure to

appear on October 9, 2006. Reese was sentenced to five years’ imprisonment for the bail

jumping/failure to appear offense, which sentence was ordered to run consecutively with the

seven-year sentence imposed as a result of his DWI conviction.5



1
    Daniel 5:5.
2
    See TEX. CODE CRIM. PROC. ANN. art. 33.03 (Vernon 2006).
3
 Reese’s appeal of his DWI conviction to this Court in cause number 06-08-00047-CR was affirmed. In that appeal,
Reese complained, inter alia, of the cumulation order. Because Reese did not appeal the trial court’s judgment in the
failure to appear case, this Court held that it lacked jurisdiction to address the merits of the cumulation order. Reese v.
State, 273 S.W.3d 344, 348 (Tex. App.––Texarkana 2008, no pet.).
4
    TEX. PENAL CODE ANN. § 38.10 (Vernon 2003).
5
 Although the jury assessed punishment at seven years’ imprisonment on January 18, 2006, for Reese’s DWI
conviction, he was not formally sentenced for that conviction until March 7, 2008. Reese’s sentence for the DWI

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        Reese waived his right to file a direct appeal, but was granted an out-of-time appeal after

having filed an application for a writ of habeas corpus with the Texas Court of Criminal Appeals.

The Texas Court of Criminal Appeals held that the waiver did not bar Reese from appealing issues

related to his sentence.

        On his appeal of the bail jumping/failure to appear conviction, Reese claims that the trial

court erred in ordering the two sentences (DWI and bail jumping/failure to appear) to be served

consecutively, assuming the position that: (1) Section 3.03 of the Texas Penal Code mandates

concurrent sentencing because the offense of bail jumping/failure to appear is tied to the offense of

DWI, maintaining that both offenses of which he was convicted are part of the same criminal

episode; and (2) the court did not impose the sentence for Reese’s DWI conviction until after

imposition of sentence for the bail jumping/failure to appear conviction.

        Because we find no error on the part of the trial court in ordering these two sentences to run

consecutively, we affirm the order cumulating the two sentences.

II.     ANALYSIS

        Article 42.08(a) of the Texas Code of Criminal Procedure 6 gives the trial court the

discretion to cumulate sentences; therefore, a complaint about consecutive sentences is reviewed




conviction was made subject to the cumulation order issued in the judgment of conviction by the trial court on the
charge of bail jumping and failure to appear.
6
  Article 42.08 of the Texas Code of Criminal Procedure provides, in relevant part:

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using an abuse of discretion standard. TEX. CODE CRIM. PROC. ANN. art. 42.08(a); Malone v.

State, 163 S.W.3d 785, 803 (Tex. App.––Texarkana 2005, pet. ref’d).

        The Concurrent-Sentence Provision of Texas Penal Code Section 3.03 Does Not Apply

        Section 3.03 of the Texas Penal Code limits the trial court’s discretion in cumulating

(stacking) sentences:

        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), the sentences shall run concurrently.

TEX. PENAL CODE ANN. § 3.03(a) (Vernon Supp. 2009). The Legislature has defined “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 (Vernon 2003).


                (a)      When the same defendant has been convicted in two or more cases, judgment and
       sentence shall be pronounced in each case in the same manner as if there had been but one
       conviction. . . . [I]n the discretion of the court, the judgment in the second and subsequent
       convictions may either be that the sentence imposed or suspended shall begin when the judgment
       and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the
       sentence imposed or suspended shall run concurrently with the other case or cases . . . .
TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (Vernon Supp. 2009).

                                                         4
       Reese contends the offenses of bail jumping/failure to appear and DWI are part of the same

“criminal episode” in accord with the definition of that phrase set forth in the above statute. When

two or more offenses are part of the same criminal episode, Reese argues, sentences for those

offenses must run concurrently, even when proceedings are separate. No authority is cited for

this proposition; the lack of any authority cited to support that claim is quite understandable

because we find none. On the contrary, a plain reading of the statute mandates the opposite

conclusion. In accord with Section 3.03 of the Texas Penal Code, sentences are concurrent only if

two predicate conditions are first met: (1) the offenses arise out of the same criminal episode; and

(2) the offenses are prosecuted in a single criminal action. See TEX. PENAL CODE ANN. § 3.03(a).

       A “single criminal action” refers to a single trial or plea proceeding; as such, a defendant is

prosecuted in a “single criminal action” when allegations and evidence of more than one offense

arising out of the same criminal episode are presented in a single trial or plea proceeding. Baker

v. State, 107 S.W.3d 671, 673 (Tex. App.––San Antonio 2003, no pet.). As explained in LaPorte

v. State, 840 S.W.2d 412, 414–15 (Tex. Crim. App. 1992):

       [A] prosecutor is encouraged to clear case dockets by trying more than one case in a
       single trial whenever multiple offenses arising from a single criminal episode are
       alleged against a single defendant, and a defendant benefits by not being burdened
       with the possibility of consecutive sentences and a string of trials for offenses
       arising out of a single criminal episode. Section 3.04 provides a defendant the
       right to have separate trials if he so desires.

       Accordingly, “[i]f the facts show the proceeding is a single criminal action based on

charges arising out of the same criminal episode, the trial court may not order consecutive


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sentences.” Id. at 415. Therefore, in order to show entitlement to concurrent sentencing, Reese

must establish not only that the offenses arose out of the “same criminal episode,” but that he was

also prosecuted in a “single criminal action.” If either predicate is not proven, the sentences were

properly cumulated. See Ex parte McJunkins, 954 S.W.2d 39, 40–41 (Tex. Crim. App. 1997)

(Section 3.03 comes into effect through trial in single criminal action of multiple offenses arising

from single criminal episode when State chooses to join offenses in single criminal action and

defendant chooses not to demand severance); Duran v. State, 844 S.W.2d 745, 747 (Tex. Crim.

App. 1992).

       Here, Reese was tried by jury on the DWI charge in January 2006. Reese then entered a

guilty plea to the charge of bail jumping/failure to appear in October 2006. Because Reese was

not tried in a single trial or plea proceeding, the predicate showing of prosecution in a single

criminal action cannot be made. Accordingly, the mandatory concurrent-sentence provision of

Section 3.03 of the Texas Penal Code does not apply. TEX. PENAL CODE ANN. § 3.03 (Vernon

Supp. 2009); Duran, 844 S.W.2d at 747. Because Reese was not prosecuted in a “single criminal

action,” we do not address the issue of whether the offenses here were part of “the same criminal

episode.”

       The Order of Convictions Permits Consecutive Sentencing

       Apart from his argument that consecutive sentences are not authorized under Section 3.03

of the Texas Penal Code, Reese complains that the sentence in this case (bail jumping/failure to



                                                 6
appear) was stacked upon a sentence (the DWI) that was not assessed and imposed at the time the

cumulation order was entered October 9, 2006. The sentence in the DWI case was assessed by

jury January 18, 2006, and imposed by judgment of the trial court March 7, 2008. In contrast, the

sentence in this case was assessed and imposed October 9, 2006. Reese contends that because the

trial court stacked the sentence for bail jumping/failure to appear on a sentence that had not been

imposed at the time sentence was assessed and imposed in this case, there was no previous

sentence in existence upon which the current sentence could be stacked. We find no merit in this

contention.

       The Texas Court of Criminal Appeals has determined that there is no requirement that the

sentence in the first conviction be imposed before a sentence in a second conviction can be

cumulated with the first sentence. Barela v. State, 180 S.W.3d 145, 149 (Tex. Crim. App. 2005).

In that case, Barela pled guilty in Arizona to two counts of attempted second-degree murder.

After the plea was accepted and entered, the court reset the matter for sentencing. Barela escaped

from jail and absconded, fleeing to Texas prior to the date of the sentencing hearing. Once in

Texas, Barela was indicted and convicted of two other counts of aggravated robbery and sentenced

to forty years’ imprisonment. At sentencing, the court ordered that the sentence in the aggravated

robbery case not commence until Barela completed his sentence in Arizona. Id. at 146–47.

       On appeal, Barela asserted the trial court abused its discretion by cumulating the sentences

because he was sentenced in Texas before he was sentenced in Arizona. The Texas Court of



                                                7
Criminal Appeals affirmed the court of appeals’s conclusion that the cumulation order was proper.

Id. at 147. In reaching this conclusion, the court recognized that Article 42.08 of the Texas Code

of Criminal Procedure focuses on the order of conviction, not the order of sentencing, and under

Arizona law, Barela was convicted in Arizona at the time the trial court entered his plea. The

plain language of Article 42.08(a) of the Texas Code of Criminal Procedure emphasizes that a

subsequent conviction can be cumulated with a prior conviction. Id. at 149. “It is the order of

conviction, rather than the order of sentencing, that is important when contemplating the propriety

of a cumulation order.” Id. The court recognized that there is no statutory requirement that a

sentence must be imposed in the first conviction before a stacked sentence may be imposed in a

subsequent sentence. Id. (citing Nicholas v. State, 56 S.W.3d 760, 766 (Tex. App.––Houston

[14th Dist.] 2001, pet. ref’d)).

        The fact that Reese was not formally sentenced in the DWI case before he was formally

sentenced in the bail jumping/failure to appear case is not relevant to the propriety of the

cumulation order. Barela, 180 S.W.3d at 149. We find no abuse of discretion on the part of the

trial court in entering the cumulation order in accordance with Article 42.08 of the Texas Code of

Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 42.08 (Vernon Supp. 2009).

        We affirm the judgment of the trial court.




                                      Bailey C. Moseley


                                                 8
                               Justice

Date Submitted:   February 9, 2010
Date Decided:     February 10, 2010

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