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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00147-CR
______________________________
WILLIE KELTON TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 217th Judicial District Court
Angelina County, Texas
Trial Court No. CR-28819
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Following a major vehicle collision, Willie Kelton Taylor was charged in the same indictment for aggravated assault with a deadly weapon and intoxication assault. Taylor was found guilty of both offenses in the 217th Judicial District Court of Angelina County.[1] After pleading “true” to an enhancement paragraph, Taylor was sentenced to fifteen years’ imprisonment for aggravated assault with a deadly weapon. As to intoxication assault, the trial court imposed the following sentence:
UPON COMPLETION OF THE SENTENCE IN COUNT I, THEN DEFENDANT IS SENTENCED AS FOLLOWS FOR COUNT II AND THE SENTENCE BEGINS UPON DEFENDANT’S RELEASE ON PAROLE OR OTHERWISE, FROM TDCJ-INSTITUTIONAL DIVISION IN COUNT I: TEN (10) YEARS INSTITUTIONAL DIVISION, TDCJ, PROBATED FOR TEN (10) YEARS.
Taylor contends the consecutive sentence is void. The State, with professional candor, concedes that the trial court erred in “stacking” the sentences.[2] We modify the judgment, and we affirm the modified judgment.
Generally, a trial court has authority to order sentences to run concurrently or consecutively. Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2010). However, a trial court’s discretion is limited by Section 3.03 of the Texas Penal Code, which reads:
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.[3]
Tex. Penal Code Ann. § 3.03 (Vernon Supp. 2010); LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992); see Jackson v. State, 157 S.W.3d 514, 516 (Tex. App.—Texarkana 2005, no pet.). “If the facts show the proceeding is a single criminal action based on charges arising out of the same criminal episode, the trial court may not order consecutive sentences.” LaPorte, 840 S.W.2d at 415. In this case, there is no question that both offenses arose from the same criminal episode, culminating in the vehicle collision. The consecutive sentence was unlawful. Id.; see Robbins v. State, 914 S.W.2d 582, 584 (Tex. Crim. App. 1996). The proper remedy for an improper cumulation order is to delete the cumulation order. Beedy, 250 S.W.3d at 113.
The State suggests that we consider whether Taylor was required to object at trial to the consecutive sentence in order to preserve error. The Texas Court of Criminal Appeals and this Court have held that a contemporaneous objection is not required to preserve a claim of error for an improper cumulation order. LaPorte, 840 S.W.2d at 415; Jackson, 157 S.W.3d at 517.
Accordingly, we modify the judgment to delete the language cumulating the sentences. As modified, we affirm the trial court’s judgment.
Jack Carter
Justice
Date Submitted: December 6, 2010
Date Decided: December 7, 2010
Do Not Publish
[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[2]This was not a plea bargain case, and the State does not otherwise contend there was a voluntary waiver of the right to concurrent sentences. See Ex parte McJunkins, 954 S.W.2d 39 (Tex. Crim. App. 1997) (holding that a defendant may waive a claim of error regarding a cumulation order by entering a binding negotiated plea agreement). Here, the cumulative sentence is not classified as a reversible error, but is an unlawful order. Beedy v. State, 250 S.W.3d 107, 115 (Tex. Crim. App. 2008).
[3]Subsection (b) allows consecutive sentences if “each” of the convictions is for intoxication manslaughter or intoxication assault. Tex. Penal Code Ann. § 3.03(b)(1)(A). Here, one of the convictions was for aggravated assault, and subsection (b) does not apply to Taylor’s case.
There were no other vehicles encountered in the area when Moore was traveling at extremely high rates of speed during the chase.
In a similar case, the Tyler Court of Appeals found the evidence sufficient to sustain a deadly weapon finding where the appellant fled from the police at speeds that reached 100 miles per hour. In that case, even though the driver crossed into the oncoming lanes of traffic around blind curves and paid no heed to traffic control measures, there were no cars in his path at the time. Thus, the danger was merely hypothetical. Jones v. State, No. 12-07-00308-CR, 2008 WL 2814877 (Tex. App.—Tyler July 23, 2008, pet. ref’d) (mem. op., not designated for publication).[6] In addition to hypothetical dangers, Jones involved actual danger illustrated by the fact that Jones narrowly missed a motorcycle, almost lost control of his own vehicle, another car had to move into a driveway to avoid Jones, and Jones encountered several oncoming vehicles while traveling at a high rate of speed and not keeping solely to his own lane. Id. at *3. The evidence was, therefore, sufficient to sustain the deadly weapon finding.
The State argues that Moore posed actual danger in the way he operated his vehicle. It is apparent that Moore caused actual injury to Barnes, who was struck by the rear quarter panel of Moore’s truck as he turned his truck and sped off in order to elude capture. As a result of this contact, Barnes was taken to the hospital for an injury to his knee and was required to wear a knee brace for two weeks. As a result, Barnes was off duty for a period of time. To be sure, the injury sustained by Barnes could have been much more severe. The video recording viewed by the jury reveals that Barnes, as well as the other officers, were standing within inches of Moore’s truck when he suddenly sped off into a U-turn. While it is questionable whether Barnes’ injury meets the statutory definition of “severe bodily injury,” it is not required that an actual severe bodily injury be sustained, only that Barnes had been “placed in danger of serious bodily injury or death” in order to show the vehicle was capable of causing death or serious bodily injury. Williams, 946 S.W.2d at 435. As this Court stated in Drichas v. State, 219 S.W.3d 471, 476 n.5 (Tex. App.—Texarkana 2007, pet. ref’d), police officers should not be excluded from the class of persons capable of being endangered by the driver of a fleeing vehicle.
All that is required for a motor vehicle to be considered a deadly weapon is that it be used in a manner capable of causing death or serious bodily injury and that it pose an actual risk. The evidence in the present case met that burden. The manner in which Moore operated his truck posed actual danger to Barnes as well as to the other officers in proximity to his truck at the time he rapidly accelerated the truck, a course of action which dangerously swung it out in the path of the officers, who were forced to move quickly back from the truck in order to avoid being struck. The danger to the deputies was not theoretical, it was real. The evidence here, when viewed in a light most favorable to the jury’s verdict, supports the conclusion that a rational fact-finder could have found, beyond a reasonable doubt, that Moore used his truck as a deadly weapon during the commission of the offense of evading arrest or detention, or immediate flight from said offense.
IV. Conclusion
We affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: July 29, 2011
Date Decided: August 2, 2011
Do Not Publish
[1]Tex. Penal Code Ann. § 38.04 (West 2011).
[2]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (West 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
[3]The chase was captured on three separate video recordings from the responding officers’ patrol vehicles.
[4]The jury was asked, during the punishment phase of the trial, whether Moore used a deadly weapon and answered in the affirmative. See Lafleur v. State, 106 S.W.3d 91, 94–96 (Tex. Crim. App. 2003) (jury may make affirmative finding through deadly weapon special issue included in jury charge). Such finding was recorded in the judgment. A deadly weapon finding limits a defendant’s eligibility for community supervision and parole. Tex. Code Crim. Proc. Ann. art. 42.12, §3g(a)(2) (West Supp. 2011); Tex. Gov’t Code Ann. §§ 508.145, 508.149, 508.151 (West Supp. 2011).
An affirmative deadly weapon finding has a negative impact on a defendant’s eligibility for community supervision, parole, and mandatory supervision. Mann v. State, 58 S.W.3d 132, 133 (Tex. Crim. App. 2001).
[5]The applicable sentencing range was enhanced based on Moore’s plea of true to a prior felony conviction. Tex. Penal Code Ann. § 12.42 (West 2011).
[6]Unpublished opinions may be cited to illustrate the reasoning employed when faced with similar facts “rather than simply arguing without reference, that same reasoning.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.––Amarillo 2003, pet. ref’d).