                            NUMBER 13-11-418-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

MICAH ALLEN WALKER
A/K/A MICAH ALLEN WALKER,                                                  Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                  On appeal from the 252nd District Court
                       of Jefferson County, Texas.


                        MEMORANDUM OPINION
               Before Justices Rodriguez, Vela, and Perkes
                  Memorandum Opinion by Justice Vela
      This is an appeal from a judgment adjudicating appellant, Micah Allen Walker a/k/a

Micah Allen Walker, guilty of possession of marihuana in an amount less than five

pounds, but more than four ounces. TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West

2010). The trial court sentenced appellant to two years‘ confinement in the State Jail
Division of the Texas Department of Criminal Justice. By one issue, appellant argues

that the trial court abused its discretion in cumulating his sentence upon an earlier

sentence arising from another case. We affirm.

                                         I. BACKGROUND1

        Appellant was indicted by a Jefferson County grand jury on June 24, 2010, for

possession of marihuana. Id. § 481.121(b) (3) (West 2010). He pleaded guilty and,

pursuant to a plea-bargain agreement, the trial court deferred the adjudication of guilt,

placed appellant on community supervision for a period of four years, and assessed a fine

of $500.     Subsequently, the State filed a motion to revoke appellant‘s probation.

Appellant pleaded true to two counts in the motion to revoke, and the trial court revoked

his community supervision, adjudicated him guilty, and assessed punishment in state jail

for two years. The court then orally pronounced the sentence to run consecutively with a

sentence imposed in another case in which appellant was convicted of possession of

methamphetamine pursuant to section 481.116 of the Texas Health and Safety Code.

See id. § 481.116 (West 2010). The judgment, however, orders the sentences to run

concurrently.

                                            II. ANALYSIS

        Appellant urges in his sole issue that the trial court erred in ordering the sentences

to run consecutively.

        In matters arising from the Texas Controlled Substances Act, section 481.132

applies when cumulating sentences. TEXAS HEALTH & SAFETY CODE ANN. § 481.132


        1
         This case is before this Court from the Ninth Court of Appeals in Beaumont pursuant to an order
issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
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(West 2010). That section provides:

       (a) In this section, ―criminal episode‖ means the commission of two or
           more offenses under this chapter 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, plan, or continuing course of
                   conduct; or

                (2) the offenses are the repeated commission of the same or
                    similar offenses.

       (b) A defendant may be prosecuted in a single criminal action for all
           offenses arising out of the same criminal episode. If a single criminal
           action is based on more than one charging instrument within the
           jurisdiction of the trial court, not later than the 30th day before the date
           of the trial, the state shall file written notice of the action.

                                             ...

       (d) If the accused is found guilty of more than one offense arising out of the
           same criminal episode prosecuted in a single criminal action, sentence
           for each offense for which the accused has been found guilty shall be
           pronounced, and those sentences run concurrently.

Id.

       The State conceded, and we agree, that the two offenses grew out of the same

criminal episode for purposes of the statute. See LaPorte v. State, 840 S.W.2d 412

(Tex. Crim. App. 1992). The issue remains, however, whether appellant has been

prosecuted for the applicable offenses in a "single criminal action." In LaPorte, the court

opined that a ―single criminal action‖ refers to a single trial or plea proceeding. Id. at 415.

In Rollins v. State, the court noted:

       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. Ex Parte Pharr,
       897 S.W.2d 795 (Tex. Crim. App. 1995), citing LaPorte, clarified the

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       situation somewhat. In a post-conviction application for writ of habeas
       corpus, Pharr claimed he had been tried in a single criminal action,
       therefore his two convictions should not have been cumulated. The court
       said the statement of facts showed Pharr pleaded guilty, was admonished,
       was found guilty and was sentenced in the first case. Immediately
       thereafter, the same litany occurred in the second case. The court held the
       record supported the trial court's finding that Pharr was not tried in a single
       criminal action and denied the relief.

994 S.W.2d 429, 432 (Tex. App.—Beaumont 1999, no pet.).

        In Polanco v. State, the court noted that Pharr did not give a ―dictionary definition‖

of a single criminal action, rather, Pharr held that guilty pleas that follow one another are

not single criminal actions. 914 S.W.2d 269, 272 (Tex. App.—Beaumont 1996, pet.

ref‘d). In Polanco, there were two separate indictments, but both cases were presented

to and considered by the court in an intertwined manner. Id. at 271–2. The appellant, in

Polanco, signed separate confessions and entered separate pleas. The balance of the

proceeding was held jointly with respect to among other things, range of punishment,

inquiries regarding competency, and the voluntariness of the plea. Id. at 272. The

Polanco Court ultimately concluded that the court could not order consecutive sentences

because the plea proceedings did not follow one another but were so intertwined that it

was a single criminal action. Id.

       Similarly, in Jackson v. State, the court concluded that a jury trial was a single

criminal action arising out of the same criminal episode. 157 S.W.3d 514, 516 (Tex.

App.—Beaumont 2005, no pet.); see Green v. State, 242 S.W.3d 215, 220 (Tex.

App.—Beaumont 2007, no pet.) (holding that although Green entered separate pleas and

signed separate plea agreements, because the trial court conducted the balance of the

hearing jointly, it was a single criminal action); see also Rollins, 994 S.W.2d at 433

                                              4
(holding that because the trial court treated the charged offenses as a single criminal

action, it was a single criminal action under the statute).

       We look to the original plea in determining whether ordering sentences to run

concurrently    or   consecutively    is   permissible.       See   Hancock   v.   State   No.

09-09-00017-CR, 09-09-00046-CR 2010 WL 2854410, at *2 (Tex. App.—Beaumont, July

21, 2010, no pet.). An improper cumulation order is, in essence, a void sentence, and

error cannot be waived. Jackson, 157 S.W.3d at 516; LaPorte, 840 S.W.2d at 415.

       Here, appellant was indicted under separate indictments and entered separate

pleas during his plea proceeding in each of the two cases. The trial court asked him if he

understood everything he signed in each case. Appellant stated that he understood

everything he signed.       The court then asked if appellant, in each case, actually

committed the crimes for which he had been charged. The trial court stated: ―Then in

each case I find the facts justify a verdict of guilt.‖

       During sentencing, the court concluded: ―Mr. Walker, in each of your cases I‘m

going to follow the agreement that you made with the district attorney. In each case, all

proceedings are deferred for four years.‖

       Although the court called each case individually, he clearly intertwined them both

during the plea hearing and at sentencing. See Polanco, 914 S.W.2d at 271–72. Here,

as in Green, appellant was indicted under separate indictments and entered separate

pleas. 242 S.W.3d at 220. The portions of the hearing where appellant was asked if he

understood the contents of the signed documents and the voluntariness of his pleas were

conducted jointly. The sentencing was also intertwined. Because the original plea did


                                                5
not present separate proceedings, but was intertwined, the court could not order

consecutive sentences. See id.

       Thus, we hold that the action was a single criminal action under the statute and the

trial court erred in its oral pronouncement that appellant‘s sentences should be served

consecutively. Ordinarily, we would reform the judgment. But in this case, the written

judgment correctly reflects that the sentences are to run concurrently. Although we

sustain appellant‘s issue, we affirm the judgment adjudicating guilt and ordering the

sentences to run concurrently, as it appears in the written judgment.

                                      III. CONCLUSION

       The judgment of the trial court is affirmed.




                                                      ROSE VELA
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
20th day of October, 2011.




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