                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-244-CR
                               NO. 2-08-245-CR


TRACY LYNN MENELEY                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant Tracy Lynn Meneley pleaded guilty to two theft charges. In a

single point, Meneley claims that the trial court erred by imposing consecutive,

instead of concurrent, sentences following her convictions.        Specifically,

Meneley argues that both charges involved “the repeated commission of the




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          … See Tex. R. App. P. 47.4.
same or similar offenses” and therefore arose out of the “same criminal

episode” and that both of her charges were prosecuted in a “single criminal

action.” Tex. Penal Code Ann. §§ 3.01, 3.03(a) (Vernon 2003). Because of

this, Meneley claims that her sentences should be served consecutively. We

will affirm.

                         II. P ROCEDURAL B ACKGROUND

      On May 16, 2008, Meneley was charged in two separate indictments,

each for theft of property of a value less than $1,500. On June 5, 2008,

Meneley entered an open plea of guilty to each indictment. The trial court

sentenced Meneley to one year’s imprisonment in each case, to be served

consecutively. Our record does not contain a reporter’s record.

                         III. C ONSECUTIVE S ENTENCING

      A complaint about consecutive sentences is reviewed under an abuse of

discretion standard. Macri v. State, 12 S.W.3d 505, 511 (Tex. App.—San

Antonio 1999, pet. ref’d). The test for abuse of discretion is whether the trial

court’s action falls within the zone of reasonable disagreement. Manning v.

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

      When a defendant has been convicted in two or more cases, the trial

court has the discretion, in the second and subsequent case, to order that the

sentences imposed run consecutively or concurrently. Tex. Code Crim. Proc.

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Ann. art. 42.08(a) (Vernon 2006); see LaPorte v. State, 840 S.W.2d 412, 415

(Tex. Crim. App. 1992). However, section 3.03 of the Texas Penal Code limits

this discretion and mandates that sentences shall run concurrently when the

defendant is found guilty of more than one offense arising out of the “same

criminal episode” that is prosecuted in a “single criminal action.” Tex. Penal

Code Ann. § 3.03(a); Baker v. State, 107 S.W.3d 671, 672–73 (Tex.

App.—San Antonio 2003, no pet.).

      Furthermore, the penal code defines “criminal episode” as

      [t]he 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.

Tex. Penal Code Ann. § 3.01.

      A “single criminal action” occurs when allegations and evidence of more

than one offense arising out of the “same criminal episode” are presented in a

single trial or plea proceeding. See, e.g., Ex parte Pharr, 897 S.W.2d 795, 796

(Tex. Crim. App. 1995) (citing LaPorte, 840 S.W.2d at 414). To prove that

two or more offenses were charged in a “single criminal action,” the record


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must demonstrate that the trial court held one consolidated punishment hearing.

See Robbins v. State, 914 S.W.2d 582, 583 (Tex. Crim. App. 1996) (holding

that even though the court conducted two separate plea proceedings, there

was one consolidated punishment hearing so defendant was prosecuted in a

“single criminal action”). If the record demonstrates that the trial court fully

completed one plea proceeding, including the imposition of the sentence, before

starting another, then the plea proceedings would not be considered a “single

criminal action.” See, e.g., id. at 583–84; Pharr, 897 S.W.2d at 796 (finding

no “single criminal action” when defendant pleaded guilty and was sentenced

for the first count, then pleaded guilty and was sentenced for the second

count).

      In order to determine whether plea proceedings were consolidated, a

reporter’s record is necessary. See, e.g., Vallez v. State, 21 S.W.3d 778, 784

(Tex. App.—San Antonio 2000, pet. ref’d). Without a record of the original

plea proceedings, the court cannot determine whether the plea proceedings

were consolidated into a “single criminal action” for purposes of penal code

section 3.03. See, e.g., id.; see also Ponce v. State, Nos. 13-01-00274-CR,

13-01-00275-CR, 2002 WL 34230833, at *2 (Tex. App.—Corpus Christi Aug.

30, 2002, no pet.) (mem. op., not designated for publication) (“Although the

clerk’s record demonstrates that the causes were heard and sentence imposed

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on the same day, this does not mean that the causes were consolidated or

heard together that day, especially when the original judgments do not refer to

each other and each cause has separate paperwork.”).

      Here, Meneley argues that “[a]lthough no reporter’s record exists, the

clerk’s record clearly shows that the trial court handled [her] cases during the

same plea proceeding” because Meneley entered her guilty pleas on the same

date before the same judge, she—as well as the same defense attorney and

prosecutor—signed identical admonishment forms in each case, and the trial

court imposed sentences in each case on the same day.            But without a

reporter’s record, we cannot determine whether the trial court held separate or

consolidated plea proceedings that day. See Vallez, 21 S.W.3d at 779–80, 84

(holding that whether plea proceedings were consolidated could not be

determined without reporter’s record despite fact that plea papers were signed

on same date, State’s punishment recommendation and defendant’s requested

punishment were same in each cause, and trial court heard pleas and imposed

punishment on same day).

      Because we cannot determine, on the record before us, whether

Meneley’s causes were prosecuted in a single criminal action, we hold that the

trial court did not abuse its discretion in ordering Meneley’s sentences to run

consecutively. See Macri, 12 S.W.3d at 511.

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                            IV. C ONCLUSION

     Having overruled Meneley’s single point, we affirm the trial court’s

judgments.




                                              SUE WALKER
                                              JUSTICE

PANEL: CAYCE, C.J.; WALKER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 12, 2009




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