                                   NO. 07-06-0176-CR
                                       07-06-0177-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                  AUGUST 10, 2007
                          ______________________________

     ALISTER CARLTON BULL A/K/A ALEISTER CARLTON BULL, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

             FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

            NO. 36,932-B, 36,933-B; HONORABLE JOHN BOARD, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                         OPINION


       Appellant Alister Carlton Bull a/k/a Aleister Carlton Bull appeals his two convictions

for aggravated assault with a deadly weapon. In two issues, he asserts that the trial court

erred by stacking his sentences and that cumulative sentencing was cruel and unusual

punishment. We modify one of the judgments, affirm it as modified, and affirm the other

judgment.
                                      Background


      In August 1996, in an altercation outside an Amarillo bar, appellant stabbed the

establishment’s manager, Brian Day and one of its security personnel, John Jones.

Appellant was indicted separately for the offenses of aggravated assault of Day and Jones

with a deadly weapon. The matters proceeded under Potter County Cause Numbers

36,932-B and 36,933-B. In December 1996, appellant plead guilty as charged in both

cases and received deferred adjudication with community supervision in each case.


      In 1998, alleging violations of the terms of community supervision, the State filed

motions to proceed with adjudication in both cases. The motions were resolved through

orders of modification. Alleging new violations of probation, the State filed motions to

proceed in both cases in 2000. Before these motions were heard, appellant absconded

and was not located until November 2005. The State filed amended and second amended

motions to proceed in both cases in February 2006. The trial court held a consolidated

hearing of the State’s motions to proceed in both cases in March 2006.


      At the conclusion of the hearing, the court rendered judgments of guilt in both cases

and sentenced appellant to twenty years confinement in the Texas Department of

Corrections, Institutional Division in each case. The court ordered the sentences run

consecutively.


      Appellant did not object to cumulative sentencing at the March 2006 hearing, but

raised this complaint in motions to reconsider filed in both cases. The record contains no



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indication that the court took action on these motions. Appellant timely perfected appeal

in both cases.


                                    Issues Presented


       Appellant presents two issues. First, he claims the trial court abused its discretion

by imposing concurrent sentences on offenses arising out of the same criminal episode

prosecuted in a single criminal action. Second, he contends under the facts of his cases,

consecutive sentencing violated his protections under the United States and Texas

Constitutions against cruel and unusual punishment.


                                   Standard of Review


       We review a complaint about consecutive sentences under an abuse of discretion

standard. Harvey v. State, 821 S.W.2d 389, 392 (Tex.App.–Houston [14th Dist.] 1991, pet.

ref'd). An abuse of discretion generally will be found only if (1) the trial court imposes

consecutive sentences when the law requires concurrent sentences, (2) the trial court

imposes concurrent sentences when the law requires consecutive sentences, or (3) the

trial court otherwise fails to observe the statutory requirements pertaining to sentencing.

Nicholas v. State, 56 S.W.3d 760, 765 (Tex.App.–Houston [14th Dist.] 2001, pet. ref'd).


                           Issue One - Consecutive Sentences


       Cumulative sentencing is permitted only as provided by statute. See Tex. Code

Crim. Proc. Ann. art. 42.08 (Vernon 2006); Harvey, 821 S.W.2d at 392. The parties’



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arguments focus upon Tex. Pen. Code Ann. § 3.03 (Vernon Supp. 2006).1 In relevant part

§ 3.03 provides:


      (a) 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), [which has no application here] the
      sentences shall run concurrently.2


                                  Same Criminal Episode


      As noted, the two indictments leading to appellant’s convictions arose from a single

altercation outside an Amarillo bar. During the course of the altercation appellant stabbed

two victims with a deadly weapon.


      Section 3.01 provides:


               In this chapter, "criminal episode" means the 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.




      1
          Citations to Tex. Pen. Code. Ann. shall hereinafter be by section number only.
      2
         The applicable portion of § 3.03 in place in August 1996 bears no substantive
difference to the current version of the section.

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       We find, and in its brief the State agrees, that the cases before us arose out of the

same criminal episode.


                                    Single Criminal Action


       Although agreeing with appellant that the trial court erred in cumulating his

sentences, the State points out the record before us does not include a reporter’s record

from the 1996 plea hearings. Based on the record, we are thus unable to conclude that

appellant plead guilty to the allegations in both indictments in one action. Thus, we must

inquire further into the applicability of § 3.03.


       Before us is the reporter’s record of the March 2006 hearing of the State’s 2006

motions to proceed. At this hearing, the court called the cases together, adjudicated

appellant guilty of both offenses, and assessed punishment, in one proceeding. Prior to

commencement of the evidence supporting revocation, the court reviewed separately the

allegations of the motions, which were virtually identical, but gave common admonishments

of voluntariness of pleas, competency, and citizenship. The presentation of testimonial

evidence that followed was inseparable between the two cases. The one piece of

documentary evidence received, a fictitious driver’s license obtained by appellant, bears

equally on both cases.


       The Penal Code does not define the term "single criminal action," but the court of

criminal appeals has held "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

                                               5
instrument or several, and the provisions of Section 3.03 then apply." LaPorte v. State,

840 S.W.2d 412, 415 (Tex.Crim.App. 1992).


       In Robbins v. State, 914 S.W.2d 582 (Tex.Crim.App. 1996) the defendant plead

guilty separately to two indictments arising from the same criminal episode, but the trial

court conducted one consolidated punishment hearing. Id. at 583. The court of criminal

appeals held that the plea proceedings were not completed until punishment was

assessed. Id. at 584. Because the offenses were consolidated for the punishment

hearing, it found § 3.03 applied and the trial court erred by cumulating sentences. Id.


       Here, adjudication of guilt and punishment occurred in a single unified hearing with

no distinction of evidence. The intertwining of facts rendered it a single criminal action.

See, Polanco v. State, 914 S.W.2d 269, 272 n.2 (Tex.App.–Beaumont 1996, pet. ref'd)

(court pondered a pragmatic approach that inquires whether a separate statement of facts

could be prepared for each proceeding, without reference to the other; a test the cases at

bar could not survive because of their factual interdependence).


       Despite the absence of a record showing that appellant’s two indictments were

presented in a single plea proceeding in 1996, he was adjudicated and punishment set in

a single unified proceeding; therefore, we concur that Penal Code sections 3.01 and 3.03

required that appellant’s sentences run concurrently, and the trial court abused its

discretion by sentencing appellant consecutively. Appellant’s first issue is sustained.




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                            Cruel and Unusual Punishment


      In his second issue appellant seeks reversal and remand for the claim that the trial

court’s cumulation of sentences constitutes cruel and unusual punishment forbidden by

U.S. Const. Amend. VIII, Tex. Const. art. I § 13, and Tex. Code Crim. Proc. Ann. art. 1.09

(Vernon 2005). We do not address the parties’ arguments here as our disposition of

appellant’s first issue makes consideration of his second issue unnecessary.


                                      Conclusion


      While the State and appellant agree that the court erred in rendering consecutive

sentences, they do not agree on the proper disposition by this Court. Appellant seeks

reversal and remand, while the State asks us to reform the judgment in Cause No. 36,933-

B deleting therefrom all references that the sentence runs cumulative to, consecutive to,

or in any way after completion of appellant’s sentence in Cause No. 36,932-B.


      When a trial court erroneously cumulates sentences, the appropriate remedy is to

reform the judgment and delete the cumulation order. Robbins, 914 S.W.2d at 584.


      Accordingly, we reform the judgment of the trial court in Cause No. 36,933-B and

delete all reference suggesting that the sentence in that cause is to run cumulative to,

consecutive to, or in any way after completion of the sentence in Cause No. 36,932-B. The

judgment is affirmed as reformed, and the judgment in Cause No. 36,932-B is affirmed.




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      Also pending before the Court is appellant’s motion requesting that we discharge

his appellate attorney. The motion is overruled.




                                        James T. Campbell
                                            Justice




Do not publish.




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