      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00103-CR
                                       NO. 03-13-00182-CR
                                       NO. 03-13-00183-CR
                                       NO. 03-13-00184-CR
                                       NO. 03-13-00185-CR



                                   Ray M. Miranda, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NOS. CR 10-1056, CR-09-0509, CR-09-0522, CR-10-0921, & CR-09-0521
                HONORABLE R. BRUCE BOYER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Ray M. Miranda pleaded guilty to two counts of third-degree-felony theft

and three counts of state-jail-felony theft. See Tex. Penal Code § 31.03(e)(4)(A), (e)(5)(B) (changing

classification of theft based on value of property stolen). The trial court sentenced Miranda to ten

years’ imprisonment for both of the third-degree-felony thefts and two years’ confinement in a state

jail facility for each of the three state-jail-felony thefts, with sentences to run consecutively. On

appeal, Miranda asserts—and the State concedes—that the trial court erred in ordering his sentences

to run consecutively. We modify the judgments of conviction to delete the cumulation order and

affirm the judgments as modified.
                                         BACKGROUND

               The parties are familiar with the underlying facts of this case—we repeat only those

facts that are relevant to our disposition of the issues in this appeal. The theft charges in this case

stem from Miranda’s repeated conduct of entering into home-improvement contracts, accepting up-

front payment for some or all of the value of those contracts, and then abandoning the projects after

the work was only partially completed. Miranda entered into these construction contracts between

December 24, 2007 and May 1, 2009, and each project dragged on for months or years before it was

abandoned. Each of these five offenses involved a different victim and different amount of up-front

payment stolen. Miranda was indicted for five counts of theft—one for each of the victims.

               Before the conclusion of the guilt/innocence phase of trial, Miranda’s trial counsel

informed the trial court that Miranda wanted to plead guilty to all five thefts. After the proper

admonishments, the trial court accepted Miranda’s guilty pleas and proceeded to a single punishment

hearing for all five charges. See Tex. Code Crim. Proc. art. 26.13(a) (listing admonishments that

trial court must give before accepting guilty plea). The trial court sentenced Miranda as outlined

above. This appeal followed.


                                           DISCUSSION

               In his sole issue on appeal, Miranda asserts that the trial court erred in stacking his

sentences for the separate thefts. “The trial court’s general authority under Article 42.08 [of the

Code of Criminal Procedure] to order consecutive sentences is statutorily limited by Section 3.03

[of the Penal Code] . . . .” LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992). Section

3.03(a) of the Penal Code states that if an accused is convicted of multiple offenses that “arise out

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of the same criminal episode prosecuted in a single criminal action,” then the sentences for each

conviction “shall run concurrently” unless one of the exceptions in section 3.03(b) applies. See Tex.

Penal Code § 3.03(a)–(b). None of the exceptions in section 3.03(b) applies in this case. Thus, the

only issue is whether Miranda’s multiple convictions (1) arise from the same criminal episode and

(2) were prosecuted in a single criminal action. See id. § 3.03(a).

               A “criminal episode” is defined as “the commission of two or more offenses,

regardless of whether the harm is directed toward or inflicted upon more than one person,” where

the multiple offenses are (1) committed pursuant to the same transaction or are connected by

common scheme or (2) “repeated commission of the same or similar offenses.” Id. § 3.01. In this

case, all of Miranda’s thefts involved the same basic conduct—contracting to perform residential

construction projects, receiving up-front payment for the some or all of the value of those projects,

and then abandoning the projects before the work was complete. Although each theft began at

different times over the course of a two-year period, the thefts were still repeated commissions of

the same or similar offenses. See Tex. Penal Code § 3.01(2); Guidry v. State, 909 S.W.2d 584, 585

(Tex. App.—Corpus Christi 1995, pet. ref’d) (“Section 3.01(2) does not impose a time differential

between the commission of the same or similar offenses.”). Therefore, we conclude that the thefts

in this case “aris[e] out of the same criminal episode” within the meaning of section 3.03 of the

Penal Code.

               Similarly, the fact that all five offenses were considered in a single punishment

hearing means that the multiple offenses were prosecuted in a single criminal action. See Robbins

v. State, 914 S.W.2d 582, 583–84 (Tex. Crim. App. 1996). When, as in this case, the defendant



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enters separate guilty pleas to multiple offenses but the court conducts a single punishment hearing

before pronouncing the sentences, the offenses have been prosecuted in a single criminal action as

a matter of law. See id. (concluding that “consolidated punishment hearing defeated the State’s

and trial court’s attempt” to prosecute multiple offenses in separate criminal actions, and thus

cumulative-sentence order was void). Therefore, as the State concedes, Miranda’s five theft

convictions were prosecuted in a single criminal action.

               Having already concluded that the five thefts arise out of the same criminal episode,

we conclude that section 3.03(a) requires that all five sentences run concurrently. See Tex. Penal

Code § 3.03(a). The trial court’s order cumulating the sentences is an illegal and void sentence.

See Robbins, 914 S.W.2d at 583–84. We sustain appellant’s sole issue on appeal.

               When the trial court issues a void cumulation order, the proper remedy is to reform

the judgments to set aside the trial court’s cumulation order. See id.; see also Beedy v. State, 250

S.W.3d 107, 113 (Tex. Crim. App. 2008) (reaffirming that unlawful cumulation order is remedied

by reforming judgment to set aside cumulation order). We therefore reform the five judgments of

conviction to reflect that the sentences shall run concurrently.


                                         CONCLUSION

               Having sustained Miranda’s sole issue on appeal, we modify the judgments of

conviction in each cause number to delete the word “CONSECUTIVELY” and instead reflect that

the sentences shall run “CONCURRENTLY.” We affirm the trial court’s judgments of conviction

as modified.




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                                              __________________________________________

                                              Scott K. Field, Justice

Before Justices Puryear, Goodwin, and Field

Modified and, as Modified, Affirmed

Filed: June 24, 2014

Do Not Publish




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