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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Tracy Lynn Meneley v. State
Combined Opinion