TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-00-00789-CR
v.
The State of Texas, Appellee
NOS. 47,024 & 50,248, HONORABLE JOE CARROLL, JUDGE PRESIDING
The sole issue in each appeal is the propriety of the cumulation order. Appellant contends these causes are governed by penal code section 3.03(a), which provides (with exceptions not applicable here) that the sentences shall run concurrently when "the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action." Tex. Pen. Code Ann. § 3.03(a) (West Supp. 2001).
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. LaPorte v. State, 840 S.W.2d 412, 414 (Tex. Crim. App. 1992). If a defendant is tried, convicted, and placed on community supervision in separate proceedings, section 3.03(a) does not apply even if the causes are later consolidated for the purpose of revoking supervision. Duran v. State, 844 S.W.2d 745, 746 (Tex. Crim. App. 1992); Medina v. State, 7 S.W.3d 876, 879 (Tex. App.--Houston [1st Dist.] 1999, no pet.). "[T]o be entitled to concurrent sentences under § 3.03 [a defendant] must establish that the offenses were consolidated at the time of his pleas as well as the hearings on the motions to revoke his probation." Duran, 844 S.W.2d at 748 (Baird, J., concurring).
Appellant was convicted and placed on community supervision in cause number 47,024 in May 1997. The indictment in cause number 50,248 was filed in October 1999. Although the guilty plea proceeding in the second cause was consolidated with the hearing on the State's motion to revoke supervision in the first, the two causes were not "prosecuted in a single criminal action" because the guilty plea proceedings in the two causes were not consolidated.
Appellant refers us to the opinion in Vallez v. State, 21 S.W.3d 778, 783 (Tex. App.-- San Antonio 2000, pet. ref'd). Although a question in that case was whether three prosecutions had been consolidated, the appeal did not involve the application of section 3.03(a). Vallez is also factually distinguishable. In that case, the defendant pleaded guilty to three indictments at a single proceeding, and later had his probation revoked in each cause at a single proceeding.
The point of error is overruled. The order revoking community supervision is affirmed in cause number 03-00-00788-CR. The judgment of conviction is affirmed in cause number 03-00-00789-CR.
__________________________________________
Lee Yeakel, Justice
Before Chief Justice Aboussie, Justices Yeakel and Patterson
Affirmed
Filed: May 31, 2001
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