                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00216-CR
                           ____________________

                 JEFFERSON ANDREW LYKINS, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                    On Appeal from the 410th District Court
                         Montgomery County, Texas
                       Trial Cause No. 13-03-02353 CR
________________________________________________________             _____________

                          MEMORANDUM OPINION

      In two issues, Jefferson Andrew Lykins 1 appeals from the sentence and court

costs assessed in a judgment that resulted from his conviction for evading arrest or

detention using a vehicle. See Tex. Penal Code Ann. § 38.04 (West Supp. 2014).2

On appeal, Lykins argues the trial court abused its discretion by cumulating his
      1
      Jefferson Andrew Lykins is also known as Jeffrey Lykins, Jeffrey Andrew
Lykins, Jeff A. Lykins, Jeff Lykins, Jefferson Lykins, Jefferson A. Lykins, and
Andrew Lykins.
      2
       Although the Legislature amended the statute after the commission of the
alleged offense, we cite to the current version of the statute because the subsequent
amendments do not affect the outcome of this appeal.
                                         1
sentence upon another sentence that he contends arose from the same criminal

episode. Lykins also challenges the trial court’s assessment of attorney’s fees as

costs. We modify the judgment to delete the trial court’s award of $5,250 in

attorney’s fees as costs because there was no evidence before the trial court

showing that Lykins was no longer indigent, but we overrule Lykins’s issue that

argues the trial court did not have the discretion to stack his sentence. As modified,

the trial court’s judgment is affirmed.

      In issue one, Lykins argues that the trial court abused its discretion in

cumulating his sentence in this case upon his sentence in trial court cause number

1045003, a sentence that Lykins received for aggravated robbery. Lykins contends

that both convictions were for crimes that arose in the same criminal episode. We

review a trial court’s decision to cumulate sentences using an abuse-of-discretion

standard. See Tex. Code Crim. Proc. Ann. art. 42.08 (West Supp. 2014); Nicholas

v. State, 56 S.W.3d 760, 764-65 (Tex. App.—Houston [14th Dist.] 2001, pet.

ref’d). Under that standard, we examine the record to determine whether the trial

court’s action fell “‘within the zone of reasonable disagreement.’” Manning v.

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

810 S.W.2d 372, 391 (Tex. Crim. App. 1991)).

      Lykins relies on article 42.08 of the Texas Code of Criminal Procedure and

section 3.03 of the Texas Penal Code to support his argument that the trial court
                                          2
abused its discretion in cumulating his sentence. Article 42.08 is a broad grant of

authority that allows trial courts to order that a defendant’s sentence run

consecutively or concurrently. See Tex. Code Crim. Proc. Ann. art. 42.08. Section

3.03(a) of the Penal Code, however, limits the trial court’s discretion in some

situations, and it requires concurrent sentencing where the defendant is found

guilty of more than one offense arising from the same criminal episode and where

the accused is prosecuted for multiple offenses in a single criminal action. Tex.

Penal Code Ann. § 3.03(a) (West Supp. 2014).3 If either predicate is not proven,

the sentences can be cumulated, which is also referred to as stacking the sentence.

See Reese v. State, 305 S.W.3d 882, 885 (Tex. App.—Texarkana 2010, no pet.)

(citing Ex parte McJunkins, 954 S.W.2d 39, 40-41 (Tex. Crim. App. 1997)).

      Our review of the record shows that Lykins’s sentence in this case was

stacked on another sentence he received, and that in both cases, Lykins was not

prosecuted in a single criminal action. “[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, whether pursuant to one charging instrument or several[.]” LaPorte v.

State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992) (en banc). In the case now on


      3
       We cite to the current version of the statute as the subsequent amendments
do not affect the outcome of this appeal.
                                          3
appeal, a Montgomery County jury found Lykins guilty of evading arrest or

detention using a vehicle based on a crime that occurred on October 1, 2002. The

trial court sentenced Lykins to life in prison and ordered that his sentence

commence when he completed his sentence in cause number 1045003, a

conviction rendered by the 351st District Court of Harris County, Texas. The

record shows that in trial court cause number 1045003, Lykins pled guilty to a

charge of aggravated robbery, a crime that was alleged to have occurred on

September 30, 2002, and the judgment in that case reflects that he received a

twenty-five-year sentence.

      The two offenses at issue were not tried at the same time, nor were Lykins’s

sentences the result of a single plea proceeding. Instead, the sentence onto which

the trial court stacked Lykins’s sentence in this case involved a separate

proceeding conducted in a different county at a different time. See Tex. Penal Code

Ann. § 3.03(a); LaPorte, 840 S.W.2d at 415. Because the two cases at issue in this

appeal were not prosecuted in a single criminal action, the trial court did not abuse

its discretion by cumulating the sentence it gave Lykins in this case on his sentence

in the other. See LaPorte, 840 S.W.2d at 415; Reese, 305 S.W.3d at 884-85. We

overrule issue one.




                                         4
      In issue two, Lykins argues that after being found indigent, his status did not

change before he was sentenced. He concludes the trial court abused its discretion

by assessing him with $5,250 in attorney’s fees in the judgment.

      A trial court may tax the defendant with attorney’s fees if there is a material

change in the defendant’s ability to pay attorney’s fees between the date the trial

court initially determined the defendant to be indigent and appointed trial counsel

and the date the trial court renders its final judgment. See Tex. Code Crim. Proc.

Ann. arts. 26.04(p), 26.05(g) (West Supp. 2014); 4 see also Roberts v. State, 327

S.W.3d 880, 884 (Tex. App.—Beaumont 2010, no pet.). In this case, the record

shows that the trial court found Lykins to be indigent and appointed trial counsel

before Lykins was tried on the charge of evading arrest. Following his conviction

for evading arrest, the trial court found Lykins remained indigent; once again, the

trial court appointed counsel to represent Lykins in this appeal.

      The trial court made no express findings regarding whether there had been a

change in Lykins’s status as an indigent defendant. Nor is there any evidence in the

record that would support any implied finding that Lykins’s financial

circumstances materially changed following the trial court’s initial determination

that he was indigent. Because no evidence supports any implied finding that there


      4
      We cite to the current version of the articles in the Code of Criminal
Procedure, because the subsequent amendments have no material effect here.
                                          5
had been any material change in Lykins’s ability to pay attorney’s fees, the trial

court erred in awarding the fees as costs. See Tex. Code Crim. Proc. Ann. art.

26.05(g); Roberts, 327 S.W.3d at 884. In its brief, the State agrees that the trial

court should not have taxed any attorney’s fees as costs.

      We are authorized by the Texas Rules of Appellate Procedure to render the

judgment the trial court should have rendered. See Tex. R. App. P. 43.2, 43.3.

Therefore, we modify the judgment the trial court rendered by deleting the award

of $5,250 in attorney’s fees as costs of court. Otherwise, the trial court’s judgment

is affirmed.

      AFFIRMED AS MODIFIED.




                                             ________________________________
                                                      HOLLIS HORTON
                                                          Justice


Submitted on July 7, 2014
Opinion Delivered September 24, 2014
Do Not Publish

Before Kreger, Horton and Johnson, JJ.




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