Opinion issued March 26, 2015




                                 In The

                          Court of Appeals
                                For The

                       First District of Texas
                        ————————————
                          NO. 01-13-00990-CR
                          NO. 01-13-00991-CR
                        ———————————
                JOSE FRANCO CAMPUZANO, Appellant

                                   V.

                    THE STATE OF TEXAS, Appellee



                 On Appeal from the 176th District Court
                          Harris County, Texas
                Trial Court Case Nos. 1315239 and 1315240
                          MEMORANDUM OPINION

      A jury found appellant, Jose Franco Campuzano, guilty of the offenses of

intoxication manslaughter1 and intoxication assault,2 and it found that he used a

deadly weapon, namely, a motor vehicle, in the commission of each offense. For

the offense of intoxication manslaughter, the jury assessed appellant’s punishment

at confinement for fifteen years. For the offense of intoxication assault, the jury

assessed his punishment at confinement for five years, suspended the sentence, and

placed him on community supervision for five years. And the trial court ordered

that the sentences run consecutively. In three issues, appellant contends that his

trial counsel provided him with ineffective assistance and the trial court erred in

denying his motion to suppress his blood-alcohol test results and in cumulating his

sentences.

      We affirm.

                                   Background

      Javier Macias, the complainant in the intoxication-assault case, testified that

at approximately 3:00 p.m. on August 1, 2011, he went to visit appellant at his

house, and they shared a “12-pack” of beer. Later that evening, appellant drove

them to a nightclub in his father’s red Ford F-150 pickup truck, stopping along the
1
      See TEX. PENAL CODE ANN. § 49.08 (Vernon 2011); trial court case number
      1315239; appellate cause number 01-13-00990-CR.
2
      See TEX. PENAL CODE ANN. § 49.07; trial court case number 1315240; appellate
      cause number 01-13-00991-CR.

                                         2
way to purchase a second case of beer.         Macias, wearing a gray shirt, and

appellant, wearing a “striped” shirt, arrived at the nightclub at around 9:00 p.m.

and stayed until midnight. During that time, they each drank half of the second

case of beer. At around midnight, appellant drove them to a second nightclub,

where together they consumed “about 7” more beers. Over the course of the

evening, Macias and appellant each consumed a total of “15 or 16 beers.” When

they left the second club at around 1:00 a.m., appellant drove, and Macias sat in the

passenger seat, where he “passed out.” The next thing that Macias remembered

was “waking up in a hospital” with both of his legs broken.

      Cesar Alamilla testified that on the night of August 1, 2011, he was at work

at a business on Chrisman Road in Houston when a co-worker, Alejandro Perez,

came in looking for a fire extinguisher and reported that there had been a traffic

collision. Alamilla followed Perez outside, where he saw an F-150 truck and a

white Ford Thunderbird “in the road crushed into each other.” Alamilla tried to

look inside the truck, but could not see because it was dark, the windows were

rolled up, and there was “smoke inside.” He noted that the truck was on fire and

flames were spreading. While Perez tried to extinguish the fire, Alamilla called for

emergency assistance. He then saw someone inside the truck, knocking on the

passenger-side window and trying to “push out.” Because the passenger door

would not open, Perez broke the window with the fire extinguisher and helped the



                                         3
man, whom Alamilla described as wearing a white shirt, out of the truck and

“dragged him . . . off to the side” because the truck was still on fire. Another man

was still in the truck, “a little bit farther in,” “kind of laying in the back seat,” and

“passed out.” Jordan Jimenez, another co-worker of Alamilla, reached in and

“grabbed” the man, but “he was hanging on something.” Alamilla then reached in

with Jimenez, and, together, they extracted the second man, whom Alamilla

described as wearing a “striped” shirt.

      Harris County Sheriff’s Office (“HCSO”) Deputy J. Craig testified that after

midnight on August 2, 2011, he was dispatched to a “major” collision on Chrisman

Road. At the scene, Craig checked on the driver of the Thunderbird, Daniel

Padilla, and found that he “had no pulse.” Craig spoke with witnesses who said

that they had pulled from the truck the two men, appellant and Macias, lying on the

ground. When Craig bent down to determine whether appellant and Macias, both

unconscious, were still breathing, he smelled alcohol on their breath. He noted that

appellant was wearing a “plaid” shirt and missing a shoe.

        HCSO Deputy M. Smith testified that he was dispatched to investigate the

collision, which had occurred at around 2:00 a.m. on August 2, 2011.                 He

explained that Chrisman Road is “an extremely dark,” two-lane, rural road, with

ditches on both sides and a 35 mile-per-hour speed limit. Smith noted that the last

name of the registered owner of the red F-150 truck that had been involved in the



                                           4
collision matched that of appellant, neither appellant nor Macias had been wearing

a seatbeat, the firewall and floorboard of the truck were folded up into the

passenger compartment, and a “green and white and black” left shoe with a “big

number 24” on the side was embedded in the driver’s-side floorboard. He also

found a beer bottle in the truck and smelled the odor of alcohol emanating from

appellant and Macias.

      From his investigation and review of videotapes recorded by surveillance

cameras in the area, and which were published to the jury, Smith opined that

Padilla, the driver of the Thunderbird, had been traveling northbound on Chrisman

Road and appellant, the driver of the truck, had been traveling southbound in the

northbound lane. Appellant’s truck collided with Padilla’s Thunderbird almost

“head on,” the car and truck crushed and “[e]mbedded into each other,” and they

traveled “as one vehicle,” spinning counterclockwise, for “approximately 50 feet,”

before coming to a stop and catching fire.

      HCSO Deputy B.G. Wilbanks, an accident reconstruction specialist, opined,

based on his investigation, that just before impact, Padilla’s Thunderbird had been

traveling at a speed of 43 miles per hour and appellant’s truck had been traveling at

94 miles per hour.

      HCSO Deputy P. Begley testified that Deputy Smith sent him to the separate

hospitals to which appellant and Macias had been taken to further investigate. At



                                         5
Memorial Hermann Hospital, he found appellant, lying unconscious and intubated,

in the emergency room. He noted that appellant was wearing a plaid shirt, and in a

bag at the foot of his bed was a “black, green, and white tennis shoe with the

number 24 on the side of it.” Because the shoe in the bag matched that shoe

embedded in the driver’s-side floorboard of the truck that had been involved in the

collision, Begley contacted Smith, notified him of appellant’s condition, and

suggested that, “due to the circumstances of the wreck and all the totality of it, a

blood draw was warranted.” Begley explained that he did not obtain a search

warrant for appellant’s blood seizure because he obtained the blood specimen

pursuant to the “implied consent” statute. 3

      Laura Neal, a charge nurse at Memorial Hermann Hospital, testified that

while she was on duty on August 2, 2011, emergency personnel brought appellant

in for treatment. At 3:05 a.m., she drew blood from appellant to assess his medical

status, including any intoxication. Karen James, Director of Laboratory Services at

the hospital, testified that a serum test revealed that appellant’s blood-alcohol

concentration was 0.285 milligrams per deciliter.      A Memorial nurse, Ashley

McVeigh, testified that at approximately 4:06 a.m., at Deputy Begley’s request,

she performed a “legal blood draw” on appellant. Dr. A. Kelly, a toxicologist at

the Harris County Institute of Forensic Sciences (“HCIFS”), testified that a whole-


3
      See TEX. TRANSP. CODE ANN. §§ 724.011, .014 (Vernon 2011).

                                          6
blood test revealed that appellant’s blood-alcohol concentration was 0.21. And Dr.

J. Waltershed of HCIFS opined, based on these results and on retrograde

extrapolation, that appellant’s blood alcohol concentration at the time of the

collision was between 0.21 and 0.25, and “about 10 to 15 drinks were required for

[appellant] to get to that level.”

      Appellant testified that earlier in the evening on the night of the collision,

Macias had come to his house and offered him a single beer. Appellant drove

them in his father’s red truck to a nightclub, and they stopped along the way and

purchased a “20-pack” of beer. Appellant admitted that during the course of the

evening he had consumed half of “the 20 and a 12-pack more,” which was “enough

to be intoxicated,” and he was driving the truck when he and Macias left the

nightclub at around 1:00 a.m. He asserted, however, that they had stopped at a

convenience store and switched seats. Appellant explained that because he felt

intoxicated and needed to “sleep [it] off,” he got into the passenger seat and

“nodded off” while Macias was inside the convenience store, and Macias was

driving the truck at the time of the collision.

                                     Motion to Suppress

      In his first issue, appellant argues that the trial court erred in denying his

motions to suppress “the blood draw taken by law enforcement” because “the State

failed to carry its burden in proving the warrantless seizure of blood was



                                             7
reasonable under the United States and Texas Constitutions.” See U.S. CONST.

amend. IV; TEX. CONST. art. I, § 9. He asserts that the State failed to establish the

existence of exigent circumstances and “[could] not rely on the implied consent

statutes” because he “was not under arrest.”

      We review a trial court’s denial of a motion to suppress evidence under a

bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.

Crim. App. 2013). We give almost total deference to a trial court’s determination

of historical facts, especially if those determinations turn on witness credibility or

demeanor, and we review de novo the trial court’s application of the law to facts

not based on an evaluation of credibility and demeanor. Gonzales v. State, 369

S.W.3d 851, 854 (Tex. Crim. App. 2012); Neal v. State, 256 S.W.3d 264, 281

(Tex. Crim. App. 2008). At a suppression hearing, the trial court is the sole and

exclusive trier of fact and judge of the witnesses’ credibility, and it may choose to

believe or disbelieve all or any part of the witnesses’ testimony. Maxwell v. State,

73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855

(Tex. Crim. App. 2000). We generally consider only the evidence adduced at the

suppression hearing unless the parties consensually re-litigate the issue at trial, in

which case we also consider relevant trial testimony. Rachal v. State, 917 S.W.2d

799, 809 (Tex. Crim. App. 1996).




                                          8
      When, as here, the trial court does not make findings of fact, we view the

evidence in the light most favorable to the trial court’s ruling and assume that the

trial court made implicit findings of fact that support its ruling, as long as those

findings are supported by the record. Ross, 32 S.W.3d at 855. We will affirm the

trial court’s decision if it is correct under any theory of law applicable to the case.

Id. at 855–56.

      A blood draw conducted at the direction of a law enforcement officer is a

search subject to the reasonableness requirement of the Fourth Amendment.

Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1834 (1966). A warrantless

search of a person is unreasonable unless it falls within a recognized exception to

the warrant requirement. Missouri v. McNeely, —U.S.—, 133 S. Ct. 1552, 1558

(2013).   A warrantless seizure of a blood specimen may be constitutionally

permissible if a law enforcement officer has probable cause to arrest, exigent

circumstances exist, and a reasonable method of extraction is available.

Schmerber, 384 U.S. at 767–68, 86 S. Ct. at 1834. Further, voluntary consent to

search is among the recognized exceptions. Schneckloth v. Bustamonte, 412 U.S.

218, 219, 93 S. Ct. 2041, 2043–44 (1973); McGee v. State, 105 S.W.3d 609, 615

(Tex. Crim. App. 2003).

      In Schmerber, the United States Supreme Court upheld a warrantless blood

draw for the offense of driving while intoxicated (“DWI”). 384 U.S. at 772, 86 S.



                                          9
Ct. at 1836. The Court concluded that exigent circumstances were present because

the defendant-driver and his companion had each sustained injuries, law

enforcement officers had to use time to take the defendant to a hospital and to

investigate the scene of the collision, and the delay necessary to obtain a warrant

threatened the destruction of evidence because “the percentage of alcohol in the

blood begins to diminish shortly after drinking stops, as the body functions to

eliminate it from the system.” Id. at 770–71, 86 S. Ct. at 1836.

      In McNeely, the Court clarified that Schmerber did not create a per se

exigency exempting blood-alcohol tests from the warrant requirement. 133 S. Ct.

at 1556. Rather, the Court recognized that exigent circumstances, based in part on

the rapid dissipation of alcohol in the body, may allow law enforcement to obtain a

blood sample without a warrant. Id. at 1561. However, courts must determine on

a case-by-case basis whether exigent circumstances exist, considering the totality

of the circumstances. Id.       The Court held that “[i]n those drunk-driving

investigations where police officers can reasonably obtain a warrant before a blood

sample can be drawn without significantly undermining the efficacy of the search,

the Fourth Amendment mandates that they do so.” Id.

      In Texas, our “implied consent statute” provides in pertinent part that,

      [i]f a person is arrested for an offense arising out of acts alleged to
      have been committed while the person was operating a motor vehicle
      in a public place, . . . while intoxicated, . . . the person is deemed to
      have consented, subject to this chapter, to submit to the taking of one

                                         10
      or more specimens of the person’s breath or blood for analysis to
      determine the alcohol concentration or the presence in the person’s
      body of a controlled substance, drug, dangerous drug, or other
      substance.

TEX. TRANSP. CODE ANN. § 724.011 (Vernon 2011). Such a person retains the

right, subject to automatic suspension of his or her license, to refuse to provide a

specimen. Id. § 724.013, .035. “A person who is dead, unconscious, or otherwise

incapable of refusal is considered not to have withdrawn consent provided by

section 724.011.” Id. § 724.014(a).     If, however, a person under arrest for DWI

refuses to voluntarily submit to the taking of a specimen, and the person was the

operator of a vehicle involved in an accident involving serious bodily injury or

death as a result of the offense, or the officer has credible evidence that the person

has been at least twice previously convicted of DWI, the officer “shall require the

taking of a specimen of the person’s breath or blood.” Id. § 724.012(b) (the

“mandatory statute”).

      The Texas Court of Criminal Appeals has recently held that the “provisions

of the Transportation Code, do not, taken by themselves, form a constitutionally

valid alternative to the Fourth Amendment warrant requirement.”              State v.

Villarreal, —S.W.3d—, No. PD–0306–14, 2014 WL 6734178, at *20 (Tex. Crim.

App. Nov. 26, 2014) (noting dispute before it “center[ed] on whether a warrantless,

nonconsensual search of a DWI suspect’s blood conducted pursuant to Section

724.012(b) complies with the Constitution”); see Gore v. State, 451 S.W.3d 182,

                                         11
193 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) (holding “implied consent

that cannot be withdrawn does not meet the requirements for voluntary consent

under the Fourth Amendment”).

         Here, in his supplemental motions to suppress his blood-alcohol test result,

appellant asserted that his blood specimen was obtained pursuant to the

“mandatory statute,” in violation of his constitutional and statutory rights, as

follows:

                At the hospital, an order was issued by deputies of the Harris
         County Sheriff’s Department to hospital personnel, requiring that
         blood samples be drawn from [appellant], pursuant to Section 724.012
         of the Texas Transportation Code.
               The blood samples, obtained in response to police instructions,
         were not drawn pursuant to a search warrant. No exigent or
         emergency conditions existed to excuse the need for obtaining a
         search warrant for the blood evidence. No known attempt was made
         by law enforcement personnel to obtain a search warrant.
               The United States Supreme Court, in Missouri v. McNeely, 569
         U.S.____ (2013), has recently addressed warrantless drawing of blood
         in a DWI context, and its proscription thereof by the Fourth
         Amendment of the U.S. Constitution.
                The McNeely opinion holds that, absent exigent circumstances,
         a police officer must obtain a search warrant or [a defendant’s]
         consent to obtain blood evidence. The opinion states that mere
         dissipation of alcohol from a defendant’s bloodstream does not
         inherently constitute exigent circumstances. Id. . . . By implication,
         the provisions of the above Section 724.012 would constitute a per se
         procedure, and are unconstitutional.

         During the hearing on appellant’s motions, the following discussion took

place:


                                          12
[Appellant]:     While we’re here, can we address th[e] motion[s] to
                 suppress on the warrantless blood draw?
[Trial court]:   Yes.
[Appellant]:     What I was suggesting to the [State] as far as to
                 abbreviate this as much as possible, I think that if
                 they—if we collectively can stipulate to the fact that
                 blood was drawn without a warrant. We can stipulate
                 to the contention that the policeman drawing the
                 blood without a warrant based on the death pursuant
                 to that implied consent statute.
[Trial court]:   Sure.
[Appellant]:     Which I think was 724 out of the Transp[ortation]
                 Code, and then I think that he was also angling it to
                 the fact that we had an unconscious defendant at that
                 point. I think we could all stipulate to the existence of
                 those facts. What we bring up then is that 724.012
                 was challenged and arguably stricken by [Missouri v.
                 McNeely] . . . .
....
[Trial court]:   You think [McNeely] undoes the statutory basis for an
                 automatic blood draw?
....

[Appellant]:     Arguably yes.
....
[Trial court]:   For a DWI.
[Appellant]:     For a DWI, and taking them directly to a hospital and
                 drawing the blood. It didn’t appear to be any exigent
                 circumstances. . . .
[Trial court]:   Other than the dissipating blood pressure.
[Appellant]:     Right, that was the only circumstances they were
                 arguing was the exigent circumstance. The Supreme
                 Court said, simply enough, that was not enough, but
                 they said we are not going to—we do not want any
                 bright line rules, and the State was seeking that to be a


                                   13
                 per se standard. The Supreme Court rejects it, says . . .
                 we’re going to do this on a case by case review basis.
                 It would be our contention that 724.012 becomes
                 Texas’ version of what a—what Texas thinks is a
                 bright line rule, but there are portions of 724.012 that
                 really are no different than what was going on in
                 [McNeely]. . . .
[Trial court]:   Right. But in this situation we have a person deceased
                 and then as a result the police do a mandatory blood
                 draw; is that right?
[State]:         No. Technically we do not—we believe we could
                 have done a mandatory blood draw, but the way that
                 we’re arguing it is as an implied consent blood draw,
                 that he wasn’t able to give or revoke consent—
                 technically he wasn’t able to revoke consent because
                 he’d already given it as a part of the driving on the
                 roads in Texas. So we took the draw based on implied
                 consent purposes and for exigency circumstances. So
                 not technically as a mandatory draw would have been
                 done because we couldn’t even get DIC’s and all the
                 refusals and the THP 51 and everything that is
                 required for a mandatory sample.
[Trial court]:   All right. Well—
[Appellant]:     Absent a showing of some reason, I think [McNeely]
                 says they still have to have a—
[State]:         Well, let me—[McNeely] very clearly says, look,
                 exigency has to be reviewed on a totality of the
                 circumstances. . . . [McNeely] does not speak to
                 mandatories. It does not speak to implied consent. It
                 doesn’t speak to anything that we’ve got here, other
                 than exigency factors . . . .
[Trial court]:   Okay. I’m not going to have this discussion before we
                 get this jury, because I’m not going to make a quick
                 decision. I may side with you, but based on what I
                 have before me now I can’t make this decision now.
                 My guess is that both of you want to talk to ‘em about
                 blood draws?


                                    14
      [Appellant]:     Well, I’m assuming at some point when she[] makes
                       an opening statement she’s going to want to get right
                       into it.
      [Trial court]:   Right. So I guess we cut the jury loose right after we
                       pick ‘em and we argue it.

(Emphasis added.) The record does not reveal, however, that further discussion

took place on this point.

      Instead, after Dr. Kelly, the HCIFS toxicologist, testified in front of the jury

that appellant’s blood-alcohol concentration, at the time of the collision, was 0.21,

the trial court admitted into evidence the toxicology report, stating the same, and

published it to the jury. And after the trial court had released the jury for the day,

it denied appellant’s motions to suppress, as follows:

      [Trial court]:   Okay. I have reviewed the Defense’s motion[s] to
                       suppress, and their first supplement[s] to the
                       motion[s] to suppress. [Defense counsel], do you
                       have anything additional that you’d like to add?
      [Appellant]:     No, your Honor. I think we basically have covered it
                       in the evidence. I don’t have anything significant to
                       add.
      [Trial court]:   All right. Then based on my listening to the evidence
                       and reviewing your motion, your motion to suppress
                       is denied on that basis, of [McNeely] and the implied
                       consent section.
      [Appellant]:     I understand. Note our exception.

      To preserve a complaint for appellate review, a party must present to the

trial court a timely request, objection, or motion stating the specific grounds for the

ruling desired. TEX. R. APP. P. 33.1(a). Further, the trial court must have ruled on


                                          15
the request, objection, or motion, either expressly or implicitly, or refused to rule

and the complaining party must have objected to the refusal. Id. “A ruling made

on a motion to suppress after an officer has testified about the facts sought to be

suppressed in front of a jury does not preserve error since the ruling is untimely

obtained.” Sanders v. State, 387 S.W.3d 680, 686 (Tex. App.—Texarkana 2012,

pet. struck).

       Because appellant did not obtain a ruling on his motions to suppress his

blood-alcohol test result until after Dr. Kelly had already testified to that result and

the trial court had already admitted into evidence the toxicology report reflecting

the result and published it to the jury, appellant did not preserve error. See Trung

The Luu v. State, 440 S.W.3d 123, 128 (Tex. App.—Houston [14th Dist.] 2013, no

pet.) (holding error not preserved when trial court did not rule on motion to

suppress until after evidence admitted without objection); Thomas v. State, 884

S.W.3d 215, 216–17 (Tex. App.—El Paso 1994, pet. ref’d). Further, appellant did

not object to Kelly’s testimony regarding his blood-alcohol test result or the

admission into evidence of the toxicology report and its publication to the jury.

See Ratliff v. State, 320 S.W.3d 857, 861–62 (Tex. App.—Fort Worth 2010, pet

ref’d) (holding error not preserved where defendant did not obtain ruling on

motion to suppress or object when testimony regarding evidence at issue presented

to jury). Even if we were to assume that the trial court actually refused to rule on



                                          16
his motions to suppress, appellant did not object to any such refusal, and, thus, no

error is preserved. See TEX. R. APP. P. 33.1(a) (requiring objection to refusal to

rule). Accordingly, we hold that appellant has not preserved his first issue for our

review.

      We overrule appellant’s first issue.

                        Ineffective Assistance of Counsel

      In his second issue, appellant argues that his trial counsel provided

ineffective assistance because counsel “failed to challenge the constitutionality” of

Transportation Code sections 724.011 and 724.014 in light of McNeely. See —

U.S.—, 133 S. Ct. 1552.

      To prove a claim of ineffective assistance of counsel, appellant must show

that (1) his trial counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068

(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).               “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s

performance, we look to the totality of the representation to determine the

effectiveness of counsel, indulging a strong presumption that counsel’s



                                         17
performance falls within the wide range of reasonable professional assistance or

trial strategy. See Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App.

2006). Appellant has the burden to establish both prongs by a preponderance of

the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “An

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need

to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009).

      Generally, a silent record that provides no explanation for counsel’s actions

will not overcome the strong presumption of reasonable assistance. Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). However, if “no reasonable

trial strategy could justify the trial counsel’s conduct, counsel’s performance falls

below an objective standard of reasonableness as a matter of law.” Andrews v.

State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

      Here, there is no evidence in the record before us concerning whether

appellant’s trial counsel considered challenging the constitutionality of sections

724.011 and 724.014 and, if so, the reasons counsel chose not to do so. Appellant

asserts that, although the record is silent regarding his counsels’ reasoning for not

challenging the constitutionality of these statutes, “there is no reasonable trial

strategy for failing to do so, especially considering that counsel was relying on

McNeely in an attempt to suppress the blood draw.”



                                         18
      In his brief, appellant concedes that “McNeely may not have specifically

addressed whether implied consent survives its decision.” He asserts, however,

that two post-McNeely cases “evidence that the issue is ripe for review.” In Reeder

v. State, the Texarkana Court of Appeals noted that McNeely “casts grave doubt

on” whether the validity of a warrantless blood draw can be upheld on implied

consent law. 428 S.W.3d 924, 929 (Tex. App.—Texarkana 2014, pet. granted).

And, in its original opinion in Aviles v. State, the San Antonio Court of Appeals

concluded that the warrantless seizure of the defendant’s blood under the

“mandatory statute,” section 724.012, did not violate his Fourth Amendment

rights, and the Texas Court of Criminal Appeals refused his petition for review.

385 S.W.3d 110, 116 (Tex. App.—San Antonio 2012, pet. ref’d), cert. granted,

134 S. Ct. 902 (2014).      The United States Supreme Court, however, granted

certiorari, vacating the appellate court’s judgment and remanding the matter for

further consideration in light of McNeely. Aviles v. Texas, —U.S.—, 134 S. Ct.

902, 902 (2014); see Aviles v. State, 443 S.W.3d 291 (Tex. App.—San Antonio

2014, pet. filed) (op. on remand).

      The instant record shows, however, that appellant was sentenced on October

15, 2013, and it was not until three months later, in January 2014, that Reeder was

decided and the Supreme Court granted certiorari in Aviles.              Counsel’s

performance must be “measured against the state of the law in effect during the



                                        19
time of trial and we will not find counsel ineffective where the claimed error is

based upon unsettled law.” Ex parte Chandler, 182 S.W.3d 350, 359 (Tex. Crim.

App. 2005). Appellant has not provided any authority existing at the time of trial

in this case demonstrating that his trial counsels’ representation of him was

deficient based on settled legal principles. See id. Accordingly, we hold that

appellant has not demonstrated that his trial counsels’ performance fell below an

objective standard of reasonableness. Strickland, 466 U.S. at 687–88, 104 S. Ct. at

2064; Lopez, 343 S.W.3d at 143–44.

      We overrule appellant’s second issue.

                                    Sentencing

      In his third issue, appellant argues that the trial court erred in “ordering that

[his] sentences run consecutively because a probated sentence cannot run

consecutively with a term of prison.” Appellant asks that “the order cumulating

his sentences be stricken and the judgments be reformed to set aside the order.”

      We review a trial court’s cumulation order for an abuse of discretion.

Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). 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 ones, or (3) the trial court

otherwise fails to observe the statutory requirements pertaining to sentencing. See



                                         20
Nicholas v. State, 56 S.W.3d 760, 764–65 (Tex. App.—Houston [14th Dist.] 2001,

pet. ref’d). An improper cumulation order is void, and the remedy is to reform the

trial court’s written judgment to delete the cumulation order. Robbins v. State, 914

S.W.2d 582, 584 (Tex. Crim. App. 1996); LaPorte v. State, 840 S.W.2d 412, 415

(Tex. Crim. App. 1992).

      A trial court may order that sentences for two or more convictions be

cumulated only as provided by statute. Beedy v. State, 194 S.W.3d 595, 597 (Tex.

App.—Houston [1st Dist.] 2006), aff’d, 250 S.W.3d 107 (Tex. Crim. App. 2008).

The Texas Code of Criminal Procedure generally authorizes a trial court to order

consecutive sentences when a defendant is convicted in two or more cases, as

follows:

      (a) When the same defendant has been convicted in two or more
      cases, judgment and sentence shall be pronounced in each case in the
      same manner as if there had been but one conviction. Except as
      provided by Sections (b) and (c) of this article, in the discretion of the
      court, the judgment in the second and subsequent convictions may
      either be that the sentence imposed or suspended shall begin when the
      judgment and the sentence imposed or suspended in the preceding
      conviction has ceased to operate, or that the sentence imposed or
      suspended shall run concurrently with the other case or cases, and
      sentence and execution shall be accordingly . . . .
      ....
      (c) If a defendant has been convicted in two or more cases and the
      court suspends the imposition of the sentence in one of the cases, the
      court may not order a sentence of confinement to commence on the
      completion of a suspended sentence for an offense.




                                         21
TEX. CODE CRIM. PROC. ANN. art. 42.08 (Vernon Supp. 2014). “[T]he trial court’s

general authority under Article 42.08 to order consecutive sentences is statutorily

limited by [Penal Code] Section 3.03.” LaPorte, 840 S.W.2d at 415.

      Section 3.03 provides in pertinent part as follows:

      (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), the
      sentences shall run concurrently.
      (b) If the accused is found guilty of more than one offense arising out
      of the same criminal episode, the sentences may run concurrently or
      consecutively if each sentence is for a conviction of:
            (1) an offense:
            (A) under Section 49.07 [intoxication assault] or 49.08
            [intoxication manslaughter], regardless of whether the accused
            is convicted of violations of the same section more than once or
            is convicted of violations of both sections . . . .

TEX. PENAL CODE ANN. § 3.03 (Vernon Supp. 2014). Thus, when a defendant has

been convicted of more than one offense arising out of the same criminal episode

prosecuted in a consolidated trial, a trial court must order that the sentences run

concurrently, unless the convictions involve certain offenses. See id. § 3.03(a).

When, as here, a defendant is convicted of intoxication assault or intoxication

manslaughter, the sentences may run concurrently or consecutively.         See id.

§ 3.03(b)(1)(A).

      Here, the jury assessed appellant’s punishment at confinement for fifteen

years for the offense of intoxication manslaughter. For the offense of intoxication

                                        22
assault, the jury assessed his punishment at confinement for five years, suspended

the sentence, and placed him on community supervision for five years. The trial

court then ordered that the sentences run consecutively, with appellant serving his

sentence of confinement first, followed by his period of community supervision.

      Appellant concedes that the “charges of intoxication manslaughter and

intoxication assault, although presented in two charging instruments, arose from

the same criminal episode” and “[t]herefore, the cumulation of the punishments

rendered is controlled by” section 3.03. He argues, however, that the trial court

could not legally stack his community supervision on top of his sentence of

confinement under section 3.03(b) because it only authorizes the cumulation of

“sentences”; “community supervision is an arrangement in lieu of the sentence, not

. . . part of the sentence”; and “community supervision is not governed by the rules

of sentencing.” See Ex parte Williams, 65 S.W.3d 656, 657 (Tex. Crim. App.

2001); Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). Appellant

further argues that “because a term of community supervision is not a sentence

unless the supervision is revoked and a term of prison or jail is assessed, it cannot

be stacked on top of a prison term.” See McCullar v. State, 676 S.W.2d 587, 588

(Tex. Crim. App. 1984). And he compares the use of the term “sentence” in

section 3.03 with the terms “sentence imposed or suspended” in article 42.08.




                                         23
       In Mireles v. State, the Fourteenth Court of Appeals considered similar

arguments. 444 S.W.3d 679 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The

court concluded that article 42.08 and section 3.03 are in pari materia, do not

irreconcilably conflict, and may be harmonized. Id. at 682. It noted that it was

“not aware of any cases since 1973, when Section 3.03 was first enacted, to . . .

expressly hold that the statute does not apply to community supervision.” Id. at

683.    It reasoned that if section 3.03(b) does not encompass community

supervision, then section 3.03(a) likewise would not, because both provisions refer

to “sentences,” without mentioning community supervision or sentences that are

“suspended.” Id. And if section 3.03 did not apply, then the trial court would be

governed by the more general article 42.08, which grants it the discretion to order

consecutive sentences. Id. at 684. The court concluded that, either under the plain

terms of section 3.03(b) or article 42.08, the outcome was the same in that the trial

court had the discretion to stack the sentences. See id.

       Similarly, we hold here that the trial court did not err in ordering that

appellant’s sentences run consecutively, with appellant first serving his fifteen-year

sentence of confinement, followed by his five-year period of community

supervision.

       We overrule appellant’s third issue.




                                         24
                                   Conclusion

      We affirm the judgments of the trial court.




                                             Terry Jennings
                                             Justice

Panel consists of Chief Justice Radack and Justices Jennings and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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