NUMBER 13-10-00556-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GEOFFREY TYLER WOOD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 359th District Court
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
Appellant Geoffrey Tyler Wood (“Wood”) appeals his conviction of two counts of
aggregate theft, both first-degree felonies. See TEX. PENAL CODE ANN. §§ 31.03, 31.09
(West 2011). For each respective count, the trial court sentenced Wood to twenty-five
years’ imprisonment with the Texas Department of Criminal Justice—Institutional
Division, assessed a fine of $10,000 for each count, and ordered that the sentences run
consecutively. By five issues, Wood asserts that: (1) the trial court erred when it
admitted certain evidence at trial in violation of the U.S. Constitution’s Confrontation
Clause; (2) the trial court abused its discretion by admitting other evidence over Wood’s
objections; (3) the prosecutor’s conduct during the guilt-innocence phase of his trial
deprived him of his right to a fair trial; (4) he was not given a fair punishment hearing; and
(5) the trial court improperly cumulated Wood’s sentences. We affirm as modified.
I. BACKGROUND1
A Montgomery County grand jury indicted Wood on two counts of aggregate theft.
See id. §§ 31.03, 31.09. On the first count, the State alleged that Wood unlawfully
appropriated U.S. currency; on the second count, the State alleged that Wood unlawfully
appropriated twelve motor vehicles. Because the aggregated values alleged for each
count were valued at $200,000 or more, each count constituted a first-degree felony.
See id. § 31.03(7) (West Supp. 2011). Wood pleaded not guilty to both counts, and the
following relevant evidence was presented at trial.
Wood and his father, Stephen “Craig” Wood (“Craig”), owned a car dealership in
Conroe, Texas called American Classic Cars, which specialized in the sale of antique,
collector’s-item cars. Part of the dealership’s business was to sell consigned vehicles
on behalf of the titled owners and take a commission from the sales. Another part of the
business was to repair and restore automobiles to vintage quality.
Detective Greg Grasshoff, of the Conroe Police Auto Theft Task Force, opened
an investigation on Wood and his father after he received several complaints from
1
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
73.001 (West 2005).
2
individuals around the world2 who felt that they were “getting a runaround” from Wood
and others at his dealership. The State’s seventeen complaining witnesses 3 who
testified at trial fell into three general categories of customers, or a combination of the
following:
(1) those who paid for vehicles at American Classic Cars and did not
receive possession or title to the automobile or both;
(2) those who brought a vehicle to American Classic Cars for repair or
restoration, paid the dealership, but never received the repairs or
restoration work that was bargained for; or
(3) those who consigned their vehicles with American Classic Cars but
either did not receive payment for their sold vehicle or received less
money than was contracted for under the consignment contract.
Each witness testified to varying amounts of money lost from each of their respective
transactions with Wood and American Classic Cars. The amounts lost ranged from a
few thousand dollars to $78,000. Additionally, thousands of pages of exhibits, including
emails, business records, and photographs, were admitted into evidence, despite
numerous objections by Wood’s attorneys at trial.
After two days of deliberation, the jury unanimously found Wood guilty on both
counts of aggregate theft and assessed punishment at twenty-five years’ imprisonment
for each count, including a $10,000 fine for each count. Over Wood’s objection, the trial
court ordered that his sentences run consecutively. This appeal followed.
II. CONFRONTATION CLAUSE
In his first issue, Wood argues that his federal constitutional rights under the Sixth
2
According to Detective Grasshoff, a total of fifty complaints were made about American Classic
Cars coming from individuals who resided in the United States, Sweden, Norway, Latvia, Australia, New
Zealand, and Saudi Arabia.
3
Some of the named complainants in Wood’s indictment did not testify at trial; however, some of
the State’s witnesses who testified at trial were not named complainants.
3
Amendment, see U.S. CONST. amend. VI, were violated when the trial court admitted
documents containing testimonial statements by individuals who did not appear to testify
and whom Wood had no opportunity to cross-examine.
A. Applicable Law and Standard of Review
The Confrontation Clause guarantees the right of an accused “to be confronted
with the witnesses against him.” Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App.
1991) (en banc). This right of confrontation is a fundamental right and is applicable to the
states by virtue of the Fourteenth Amendment. Id. (citing Pointer v. Texas, 380 U.S.
400, 403 (1965)). The primary interest protected under the Confrontation Clause is the
right of cross-examination. See Shelby, 819 S.W.2d at 546 (citing Douglas v. Alabama,
380 U.S. 415, 418 (1965)). Therefore, a testimonial hearsay statement may be
admitted by the trial court in evidence against a defendant—consistent with the
Confrontation Clause guarantee—“‘only where the declarant is unavailable, and only
where the defendant has had a prior opportunity to cross-examine.’” De La Paz v. State,
273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (quoting Crawford v. Washington, 541 U.S.
36, 59 (2004)).
Under this framework, the primary focus in determining whether a hearsay
statement is “testimonial” is based upon the objective purpose of the interview or
interrogation, not upon the declarant’s expectations. See De La Paz, 273 S.W.3d at
680. “Testimony” has been defined typically as a “solemn declaration or affirmation
made for the purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51
(noting the distinction that an accuser who makes a formal statement to government
officers bears testimony in a sense that a person who makes a casual remark to an
4
acquaintance does not.”). A variety of testimonial statements have been recognized by
the U.S. Supreme Court including: ex parte in-court testimony or functional equivalents
such as affidavits, custodial statements, prior examinations that the defendant was
unable to cross-examine, or similar pre-trial statements that declarants would reasonably
expect to be used prosecutorially. Id. Extrajudicial statements contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or confessions and
statements that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial have
also been recognized as “testimonial” statements for purposes of the Confrontation
Clause. Id. at 52. Furthermore, the U.S. Supreme Court noted in Davis v.
Washington, that most American cases that apply the Confrontation Clause involved
formal statements, such as sworn testimony in a prior judicial proceeding or formal
depositions under oath. 547 U.S. 813, 825 (2006). However, English cases “that
were the progenitors of the Confrontation Clause” did not limit exclusion to prior court
testimony or formal depositions.4 Id. The determination of whether a statement is
testimonial is a question of law that we review de novo. Wall v. State, 184 S.W.3d 730,
742–43 (Tex. Crim. App. 2006). If the trial court constitutionally erred, we must then
evaluate for harm under Texas Rule of Appellate Procedure 44.2(a).
B. Discussion
Wood first complains that State’s Exhibit 46G, a memorandum regarding a
conversation between Wood and customer Mike Turocy, and Exhibit 46H, a written
4
The U.S. Supreme Court noted that the American Confrontation-Clause case law “invites the
argument that the scope of the Clause is limited to that very formal category.” Davis v. Washington, 547
U.S. 813, 826 (2006).
5
response to the Better Business Bureau about Turocy’s complaints to the Better
Business Bureau, violated his Sixth Amendment right to confrontation. We disagree.
Exhibit 46G is non-testimonial because it is a document prepared by Wood himself.
The scope of the Confrontation Clause requires the ability to cross-examine a witness
against the accused who bears testimony. See Crawford, 541 U.S. at 51. Exhibit 46H
on the other hand, appears to be testimonial. The substance of Turocy’s complaints
made to the Better Business Bureau relate to a complaint filed with an organization that
serves as a liaison between consumers and businesses. These allegations do not rise
to the same type of formal-process out-of-court testimony recognized by Crawford and
Davis that fall under the scope of the Confrontation Clause. See id. at 51–52; Davis,
547 U.S. at 825.
Next, Wood argues that the trial court erred by admitting State’s Exhibits 27B
(emails from customer Goran Thorberg to American Classic Cars email address
concerning the sale of an automobile) and 27G (a faxed explanation to Thorberg
purportedly written and signed by Craig in Wood’s name explaining what happened to
the sale) because the documents violated his right to confrontation. We are not
persuaded. These email and fax exchanges were non-testimonial, and related to
business communications between Thorberg, a customer, and American Classic Cars.
See id.
Wood also contends that State’s Exhibit 2O, an email conversation between
Craig, as representative of American Classic Cars, and customer Gerard Camus,
violated his right to confrontation. Again, we disagree. This exhibit does not meet the
6
Davis testimonial standard because it involves an email communication about a
particular transaction and the details surrounding it, not an interview or interrogation.
Wood next objects to a series of demand letters 5 sent by various aggrieved
American Classic Cars customers, that were addressed to either Wood, his father Craig,
or both of them. All of the customers who sent these demand letters were named in the
State’s indictment against Wood, but did not testify at trial. Wood contends that these
letters were admitted in violation of the confrontation clause. The State introduced
Exhibit 12J, 5F, 14F, and 6M to establish that Wood was on notice of the customer
dissatisfaction from their dealings with American Classic Cars. Like Exhibit 2O, these
exhibits are pieces of correspondence exchanged by customers to Wood, his father, or
the business in general. We are not persuaded that these letters rise to the level of a
“solemn declaration or affirmation made for the purpose of establishing or proving some
fact” to make them testimonial and subject to the Confrontation Clause. See Crawford,
541 U.S. at 51
Wood also objects to a “packet of emails” between customer Patrick Eskew and
Craig, as representative of American Classic Cars, which was also admitted over
Wood’s Confrontation-Clause objection.6 Eskew was named in the State’s indictment
against Wood but did not testify at trial. These emails involved a conversation between
Eskew and Craig over the purchase of a Ferrari automobile. Wood argues that the trial
court erred by admitting these emails because Eskew threatened to bring criminal
charges against Craig. Instead, like the demand letters, Eskew’s emails certainly
5
Specifically, Wood objected to State’s Exhibits 12J, 5F, 14F and 6M.
6
Wood appears to have misidentified this exhibit as State’s Exhibit 8D in his brief. The actual
exhibit involved is State’s Exhibit 18D.
7
related to possible civil litigation exposure against American Classic Cars and merely
threatened filing criminal charges against Craig, not the type of “solemn declaration or
affirmation” to become testimonial and within the scope of the Confrontation Clause. Id.
Finally, Wood contends that emails between the attorney for American Classic
Cars customer, John Kloss, Lewis Jost, and Craig were admitted as State’s Exhibit 24K
over Wood’s confrontation objections. Kloss was not named in the State’s indictment
against Wood and was deceased at the time of trial. The emails, like the others, involve
a demand for payment by American Classic Cars to Kloss pursuant to Kloss’s
consignment agreement with the dealership. We conclude that the primary purpose
behind these emails was for Kloss to receive his payment under the consignment
agreement with American Classic Cars and not testimonial in nature. See id.
Wood’s first issue is overruled.
III. ADMISSION OF EVIDENCE
By his second issue, Wood complains that the trial court abused its discretion by
admitting certain evidence that was either irrelevant, or if relevant, more prejudicial than
probative, and this abuse of discretion deprived Wood of a fair trial.
A. Applicable Law and Standard of Review
Evidence is relevant if it has any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than
it would be without the evidence. TEX. R. EVID. 401. Generally, all relevant evidence is
admissible, but may nonetheless be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, or needless presentation of cumulative
8
evidence. TEX. R. EVID. 402, 403.
A trial judge has broad discretion in admitting or excluding evidence. Mozon v.
State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999). The admissibility of evidence is
within the discretion of the trial court and will not be overturned absent an abuse of
discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). So long as
the trial court’s ruling is within the zone of reasonable disagreement, we shall affirm.
See id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en
banc)).
However, the reviewing court cannot simply conclude that the trial court
conducted a balancing test and did not rule arbitrarily or capriciously. See Mozon, 991
at 847. Instead, we must look at the proponent's need for the evidence in addition to
determining the relevance of the evidence, and whether the prejudice of this evidence
outweighs its probative value. Id. (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex.
Crim. App. 1997) (en banc)).
B. Discussion
Wood argues that the trial court abused its discretion by admitting: (1) State’s
Exhibits 25F and 25G, his and Craig’s booking photos; (2) State’s Exhibit 25LLL, Wood’s
resume that included false assertions; (3) State’s Exhibits 45A, 59, and 61, documents
related to a company named American Coordinators, Inc.; and (4) State’s Exhibits 51–54
and 67–68, Wood’s recorded jail telephone conversations and corresponding transcripts.
We will address each argument in turn.
First, we disagree with Wood’s argument that the booking photos were irrelevant
and thus, the trial court abused its discretion by admitting them. The State had the
9
burden of identifying Wood and Craig as the actors to the transactions detailed in its
case-in-chief. These photos aided the prosecution in properly identifying and
distinguishing Wood from his father and are thus relevant under rule of evidence 401.
We are also not persuaded by Wood’s argument that showing the jury his booking photo
was “substantially equivalent” to having to stand trial in jail clothing. The photograph
only reveals that Wood was booked by police prior to his criminal trial. See Hajjar v.
State, 176 S.W.3d 554, 561–62 (Tex. App.—Houston [1st Dist.], pet. ref’d) (noting that
“as a juror in a criminal trial, one already knows that the defendant has gone through the
process of being booked and charged with a crime”).
Next, Wood argues that the trial court abused its discretion by admitting State’s
Exhibit 25LLL over his authentication and hearsay objections. We disagree. As a
general rule, authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims. See TEX. R. EVID. 901(a). Here, Detective Grasshoff testified that
Exhibit 25LLL was a document—specifically, a copy of Wood’s resume—that he
recovered at American Classic Cars dealership during his investigation. The trial court
was within its discretion and the zone of reasonable disagreement to admit this evidence
over Wood’s hearsay objection in favor of the State’s argument that the resume
consisted of an admission by a party opponent, i.e. that Wood prepared his own
resume.7 See TEX. R. EVID. 801(e)(2) (hearsay exception for admission by a party
opponent).
With regard to State’s Exhibits 45A, 59, and 61, Wood argues that they were
7
The veracity of certain portions of Wood’s resume was put into question at trial.
10
improperly admitted over his objections of relevance, hearsay, and confrontation. We
agree with Wood that these exhibits were irrelevant to the proceedings and should have
been excluded. The exhibits in question include a business plan (exhibit 61) and official
documents from the Texas Department of Transportation (exhibit 45A) and the Texas
Secretary of State’s office (exhibit 59) regarding a separate business entity named
American Coordinators, Inc., which lists Wood as an owner in the company. We fail to
see how these documents had any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence. See TEX. R. EVID. 401. The State’s charges against
Wood related to his actions as owner of American Classic Cars, not of American
Coordinators, Inc. Because the trial court’s ruling fell outside the zone of reasonable
disagreement, we conclude that it abused its discretion in admitting State’s Exhibits 45A,
59, and 61. See Moses, 105 S.W.3d at 627. However, despite the trial court’s abuse
of discretion, Wood fails to show how these admissions affected his substantial rights,
other than to argue that they linked him to his father’s “questionable business ventures”
and to further undermine his character before the jury. See TEX. R. APP. P. 44.2(b). A
substantial right is affected when the error had a substantial or injurious effect or
influence in determining the jury’s verdict. See King v. State, 953 S.W.2d 266, 271
(Tex. Crim. App. 1997). In light of our review of the record, we conclude that the trial
court’s error by admitting these exhibits was harmless. The documents involving
American Coordinators, Inc., while erroneously admitted, did not necessarily link Wood
to his father’s “questionable business ventures” as he contends. The evidence related
to American Classic Cars established Wood and his father’s business relationship.
11
Further, Wood failed to show how public-record documents that listed Wood as an owner
of an irrelevant company, and nothing more, undermined his character before the jury.
We conclude that the trial court’s error was harmless.
Finally, Wood argues that State’s Exhibits 51–54 and 67–68 were improperly
admitted by the trial court under rules of evidence 403 and 404(b).8 We disagree. The
trial court did not abuse its discretion in admitting this evidence as it aided the State in its
rebuttal of Wood’s defense that he had no involvement or knowledge of the dealership’s
transactions. See Mozon, 991 at 847. Wood’s only argument regarding this
evidence’s prejudicial effect was that the trial court allowed the jury to hear the
recordings of the calls. According to the summaries, Wood discusses a variety of topics
with his wife and mother from jail including: (1) how enlisting in the U.S. military would
help get his pending charges dismissed; (2) how he was forced to do what Craig told him
to do and was a victim; and (3) that his prosecution was politically-motivated. Our
review of the record shows that the trial court was within the zone of reasonable
disagreement to find that the probative value of Wood’s jail telephone call recordings and
summaries were not substantially outweighed by the danger of unfair prejudice, if any.
See Santellan, 939 S.W.2d at 169.
Next, under rule of evidence 404(b), evidence of other crimes, wrongs or acts is
not admissible to prove the character of a person in order to show action in conformity
therewith. TEX. R. EVID. 404(b). To constitute an extraneous offense under rule 404, the
evidence must show a crime or bad act, and that the defendant was connected to it.
8
Exhibits 51-54 and 68 are the compact disc recordings of Wood’s jail-telephone conversations.
The record before us did not contain the actual discs, but only photocopies of the discs. Exhibit 67 is
entitled “phone call summary,” which is a summarized transcript of Wood’s recorded jail-telephone
conversations from June, July, and August 2010.
12
See Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992) (en banc). Here,
Wood’s recorded jailhouse phone calls do not tend to connect him to any prior bad acts
or crimes that he may have committed. Instead, they were statements made by Wood
related to the present offense. See id. Accordingly, the trial court did not abuse its
discretion for admitting these exhibits.
We overrule Wood’s second issue.
IV. PROSECUTOR’S CONDUCT DURING GUILT-INNOCENCE PHASE
By his third issue, Wood argues that the cumulative effect of the prosecutor’s
“egregious conduct” during the guilt-innocence phase of his trial deprived him of his right
to a fair trial.
A. Applicable Law and Standard of Review
“Prosecutorial misconduct may ‘so infect the trial with unfairness as to make the
resulting conviction a denial of due process.’” Greer v. Miller, 483 U.S. 756, 766 (1987)
(citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see Clark v. State, 365
S.W.3d 333, 338 (Tex. Crim. App. 2012). To constitute a due-process violation, the
prosecutorial conduct must be of sufficient significance to result in the denial of the
defendant’s right to a fair trial. Greer, 483 U.S. at 766.
B. Discussion
Wood argues that the prosecutor improperly: (1) referred to Wood as a “piece of
crap” during closing arguments; (2) broached the subject of John Kloss’s suicide, after
both parties agreed not to mention it; and (3) “put on a show for the jury by prancing
around the courtroom while glaring at [Wood].” The State argues that Wood did not
13
properly preserve any of these arguments for appeal. We agree, in part, and disagree,
in part.
In order for a party to preserve error for review, the record must show that the
objection “stated the grounds for the ruling that the complaining party sought from the
trial court with sufficient specificity to make the trial court aware of the complaint, unless
the specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). If
an objection made at trial differs from a complaint made on appeal, a defendant has not
preserved any error for review. Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim.
App. 1986) (en banc). Even constitutional errors may be waived by failure to object at
trial. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (en banc). In
determining whether a complaint made on appeal comports with a complaint made at
trial, we look to the context of the objection and the shared understanding of the parties
at the time. Clark, 365 S.W.3d at 339.
Here, Wood’s counsel failed to object at trial to the prosecutor calling him a “piece
of crap” during closing arguments, as well as the mention of Kloss’s suicide during the
State’s questioning of Detective Grasshoff. Accordingly, those specific complaints are
waived. See id.
Wood objected twice to the prosecutor’s conduct during the State’s questioning of
two different witnesses. The first relevant exchange took place outside the presence of
the jury:
[DEFENSE COUNSEL]: Your honor, I would like the record to reflect
that [the State’s prosecutor] was questioning
the witness directly in front of the jury. And
while questioning the witness, he walked up to
Mr. Wood, gestured to Mr. Wood while still
questioning the witness, over objection.
14
It’s an inappropriate way to question a witness,
and it’s an inappropriate gesture towards the
Defendant in a courtroom. It’s inappropriate in
the state of Texas, and he knows better and
he’s doing it anyway.
THE COURT: What was the gesture?
[DEFENSE COUNSEL]: He stood here (indicating) facing Mr. Wood,
looking at the jury, with his hands out, while
questioning the witness. Judge, that’s not
appropriate. That is not an appropriate
posture in which to question a witness.
....
THE COURT: Your objection is overruled. I’ll note your
exception.
The next relevant exchange took place during the State’s re-examination of
Detective Grasshoff:
[STATE]: Does [sic] any of those people walk away from
this being satisfied or happy after dealing with
that guy (indicating Defendant)?
GRASSHOFF: No, sir.
[DEFENSE COUNSEL]: Objection, Your Honor. Let the record reflect
that once again, [the Prosecutor] is standing by
our client while he’s questioning the witness,
pointing his finger in our client’s face. Your
Honor, it’s completely inappropriate and he’s
done it about ten times now.
THE COURT: Thank you, [counsel]. I appreciate your help,
sir.
DEFENSE: We move for a mistrial, Judge.
....
THE COURT: Denied.
15
In both of these instances, Wood properly preserved error to assert a due process
violation. We do not agree, however, that the prosecutor’s conduct deprived him of a
fair trial. From our review, the prosecutor’s gestures appeared to be a demonstrative
action to identify the defendant during examination of witnesses. This conduct was not
the kind that so infected the trial with unfairness, or so significant that it deprived Wood of
a fair trial. See Greer, 483 U.S. at 766; Clark, 365 S.W.3d at 339.
Wood’s third issue is overruled.
V. PUNISHMENT PHASE
By his fourth issue, Wood argues that the prosecutor made improper jury
arguments during the punishment phase of his trial and that he was thereby deprived of
a fair punishment hearing.
A. Applicable Law and Standard of Review
Proper jury argument generally falls within one of four general areas: (1)
summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to
argument of opposing counsel; and (4) plea for law enforcement. See Brown v. State,
270 S.W.3d 564, 570 (Tex. Crim. App. 2008); Guidry v. State, 9 S.W.3d 133, 154 (Tex.
Crim. App. 1999); Young v. State, No. 09-10-00398-CR, 2012 WL 1664208, *4 (Tex.
App.—Beaumont May 9, 2012, no pet.).
It is well-settled that in order to preserve jury-argument error for appellate review,
the defendant must: (1) make an objection; (2) request an instruction to disregard; and
(3) make a motion for mistrial. See Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim.
App. 1993) (en banc) (citing Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984)).
Without exception, any failure to object to an improper jury argument or failure to pursue
16
an adverse ruling to an objection to a jury argument forfeits a defendant’s right to
complain about the argument on appeal. See Estrada v. State, 313 S.W.3d 274, 303
(Tex. Crim. App. 2010) (noting that a prior exception to this rule was overruled by
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)).
B. Discussion
Wood admits in his brief that his trial counsel “did not object to any of the
prosecutor’s closing arguments.” As a result, the issue has not been preserved for our
review. See TEX. R. APP. P. 33.1. Wood’s fourth issue is overruled.
VI. TRIAL COURT’S SENTENCE
By his final issue, Wood asserts that the trial court improperly cumulated his
sentences.
A. Applicable Law and Standard of Review
By statute, the trial court has the discretion to order sentences for a defendant
who has been convicted in two or more cases to: (1) run concurrently, or (2) cumulate, or
“stack,”9 the second and subsequent sentences—that is, begin when the judgment and
the sentence imposed or suspended in the preceding conviction has ceased to operate.
TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West Supp. 2011).
We review a trial court’s decision under article 42.08(a) for an abuse of discretion.
See Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—Houston [14th Dist.] 2001, pet.
ref’d). A trial court abuses its discretion when it imposes a sentence that is not in
compliance with the law. See id.; TEX. PENAL CODE ANN. § 3.03 (West Supp. 2011)
(requiring concurrent sentences when a defendant is found guilty of more than one
9
In this context, the legal term “cumulate” and the colloquial term “stack” are indistinguishable, and
we use the two terms interchangeably.
17
offense arising out of the same criminal episode prosecuted in a single criminal action);
id. § 42.08(b) (mandating consecutive sentences where an inmate is convicted of an
offense and has not completed the sentence he is serving); Nicholas, 56 S.W.3d at 765
(recognizing other cases in which the trial court fails to observe statutory requirements
pertaining to sentencing). In other words, so long as the law authorizes cumulative
sentences, the trial court acts within its discretion when it stacks sentences.
B. Discussion
Wood argues that his offenses were alleged to have been committed in a
“common scheme” and as part of the same criminal transaction. As a result, Wood
asserts that penal code section 3.03 required his sentences to run concurrently because
his offenses arose out of the same criminal episode and were prosecuted in a single
criminal action. See TEX. PENAL CODE ANN. § 3.03. 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 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.
id. § 3.01 (West 2011). A defendant is prosecuted in a “single criminal action” when
allegations and evidence of more than one offense arising out of the same criminal
episode are presented in a single trial or plea proceedings.” Ex parte Pharr, 897
S.W.2d 795, 796 (Tex. Crim. App. 1995) (en banc).
The State charged Wood with two counts of aggregate theft and each respective
count was alleged to have occurred “pursuant to one scheme or continuing course of
18
conduct which began on or about October 1, 2007 and continuing through on or about
August 31, 2008.” At Wood’s motion for new trial hearing, the trial court expressed the
difficulty it experienced in determining whether both counts in this case related to the
same criminal episode. In the end, the trial court concluded that the theft of money
(count one) and the theft of automobiles (count two) were not the same criminal episode
and that the State successfully kept both counts separate and distinct. We disagree.
The State’s case involved seventeen complaining witnesses and hefty volumes of
exhibits that implicated Wood, and the evidence shows that both counts grew out of the
same criminal episode. Put another way, the record does not show that each count
was dealt with separately. Instead, the record shows that two cases—aggregate theft of
currency and aggregate theft of automobiles—were considered together, and the
offenses were prosecuted in a single criminal action. See Green v. State, 242 S.W.3d
215, 220 (Tex. App.—Beaumont 2007, no pet.) (citing Polanco v. State, 914 S.W.2d 269,
271 (Tex. App.—Beaumont 1996, pet. ref’d). Therefore, because Wood’s convictions
met the requirements set forth in section 3.03, the trial court abused its discretion in
cumulating Wood’s sentences.
An unlawful cumulation order is remedied by reforming the judgment to set aside
the order. See Beedy v. State, 250 S.W.3d 107, 113 (Tex. Crim. App. 2008) (noting
that this remedy is “reinforced” by the Court’s interest in fostering judicial economy and
conserving scarce judicial resources). Accordingly, we modify the judgment to delete
the cumulation order. See id.; Robbins v. State, 914 S.W.2d 582, 584 (Tex. Crim. App.
1996).
Wood’s fifth issue is sustained.
19
VII. CONCLUSION
We modify the trial court’s judgment to delete the portion requiring count two of
Wood’s conviction to begin after the term of count one is completed, and decree that
count one and count two run concurrently. We affirm the trial court’s judgment as
modified.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
31st day of January, 2013.
20