Opinion filed June 15, 2017




                                          In The

          Eleventh Court of Appeals
                                       __________

                                No. 11-16-00107-CR
                                    __________

                 KENNETH LASHON GREEN, Appellant
                                             V.
                      THE STATE OF TEXAS, Appellee

                     On Appeal from the 385th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR38038


                      MEMORANDUM OPINION
      The jury convicted Kenneth Lashon Green of two counts of sexual assault.1
The jury assessed punishment for each count at confinement for four years and a fine
of $1,000. The trial court ordered that Appellant serve the sentence in Count II
consecutively to the sentence in Count I.




      1
       TEX. PENAL CODE ANN. § 22.011(a)(1)(A), (B) (West 2011).
       In his first appeal, Appellant asserted issues other than the cumulation-order
issue now before us, and we affirmed.2 Appellant filed a writ of habeas corpus, and
the Court of Criminal Appeals determined that, because Appellant’s prior appellate
counsel was ineffective for failing to challenge the trial court’s cumulation order,
Appellant could file an out-of-time appeal. In this appeal, Appellant asserts that the
trial court erred when it ordered consecutive sentences because his two sexual assault
convictions arose out of the same criminal episode. We modify and affirm.
                                           I. Analysis
       On appeal, Appellant argues that the trial court erred when it ordered that he
serve consecutive punishments for his two convictions for sexual assault. The State
notified this court that it would not file a brief and that it agreed with Appellant’s
position to delete the cumulation order. Although the State concedes error, that
concession is not conclusive on appeal. Saldano v. State, 70 S.W.3d 873, 884 (Tex.
Crim. App. 2002); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008,
pet. ref’d).    We must conduct an independent examination of the merits of
Appellant’s claim. Isham, 258 S.W.3d at 248.
       “The Legislature has assigned the task of cumulating sentences exclusively to
the trial judge.” Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008) (citing
TEX. CODE CRIM. PROC. ANN. art. 42.08 (West 2006); TEX. PENAL CODE ANN. § 3.03
(West Supp. 2016); Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006)).
“In some cases, the trial judge is required to cumulate individual punishment, while
in other cases, the trial judge’s decision to cumulate is discretionary.” Id. (citing
CRIM. PROC. art. 42.08; PENAL § 3.03; Barrow, 207 S.W.3d at 380). “Like the
assessment of individual punishment, a trial judge’s decision to cumulate under
Texas Code of Criminal Procedure, Article 42.08(a), is ‘a normative, discretionary

       2
         Green v. State, No. 11-11-00273-CR, 2013 WL 4715692 (Tex. App.—Eastland Aug. 30, 2013,
pet. dism’d, untimely filed) (mem. op., not designated for publication).
                                               2
function that does not turn on discrete findings of fact.’” Id. (quoting Barrow, 207
S.W.3d at 380). “As a result, when a trial judge lawfully exercises the option to
cumulate, that decision is unassailable on appeal.” Id. (citing Barrow, 207 S.W.3d
at 381). However, Section 3.03 of the Texas Penal Code limits when a trial court
may cumulate sentences for offenses that arise out the same criminal episode. PENAL
§ 3.03.
      Section 3.03 provides that, for multiple sexual assaults that occur within the
same criminal episode, the trial court may only cumulate sentences when the victim
of the sexual assault was younger than seventeen years of age. Id. § 3.03(b)(2)(A).
In this case, Appellant’s victim was older than seventeen years of age at the time
Appellant committed the offenses. Consequently, the trial court, under Section 3.03,
could only order that the sentences be served concurrently. Sullivan v. State, 387
S.W.3d 649, 651 (Tex. Crim. App. 2013); see PENAL § 3.03(a). Where there is an
unlawful cumulation or stacking order, the appropriate remedy is the order’s
deletion. Morris v. State, 301 S.W.3d 281, 294–95 (Tex. Crim. App. 2009); Beedy,
250 S.W.3d at 114. We sustain Appellant’s single issue on appeal.
                                   II. This Court’s Ruling
      We modify the judgment of the trial court in Count II to delete the cumulation
order and to reflect that the sentences in Counts I and II are to be served concurrently.
As modified, we affirm the judgments of the trial court.




                                                       MIKE WILLSON
June 15, 2017                                          JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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