NO. 07-12-00205-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
NOVEMBER 30, 2012
STEVE ANTHONY ARAGON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 426TH DISTRICT COURT OF BELL COUNTY;
NO. 69021; HONORABLE FANCY H. JEZEK, JUDGE
Before CAMPBELL and HANDOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Steve Anthony Aragon appeals from his guilty pleas to two offenses of
indecency with a child by contact and the resulting consecutive sentences of twenty
years of imprisonment. Through one issue, appellant challenges the orders cumulating
the sentences. We will modify the judgments and affirm them as modified.
Background
Appellant was charged by indictment with two counts of indecency with a child by
contact, alleging contact in two manners with the same victim on the same occasion. 1
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Tex. Penal Code Ann. § 21.11 (West 2012).
The State filed a motion seeking cumulation of the sentences for the two counts, stating
consecutive sentences were authorized under Penal Code section 3.03(b)(2)(A). 2
Appellant plead guilty to both counts. On March 20, 2012, the trial court heard
evidence, found appellant guilty of each count, and sentenced appellant to twenty years
of imprisonment for each count. The court granted the State’s motion to cumulate the
sentences, and pronounced sentence, stating, “it’s the sentence of the court, sir, that in
each of these cases you serve 20 years in the Institutional Division of the Texas
Department of Criminal Justice. And these counts are accumulated.” Appellant did not
object to the pronounced sentences.
A written judgment for each conviction was entered on April 2, 2012, some two
weeks after appellant was orally sentenced and began serving his sentence. Each
judgment contains a cumulation order. The judgment of the count I conviction states
that the twenty-year sentence of confinement “shall run consecutively with count II in
this cause number.” The judgment of the count II conviction contains the same
statement, substituting “count I” in place of “count II.”
Analysis
Through his sole issue on appeal, appellant contends the written judgments
impose unauthorized cumulative sentences.
A trial court has authority to cumulate the sentences from two or more
convictions pursuant to Texas Code of Criminal Procedure article 42.08. Tex. Code
2
Tex. Penal Code Ann. § 3.03(b)(2)(A) (West 2011).
2
Crim. Proc. Ann. art. 42.08(a) (West 2006); Ex Parte Madding, 70 S.W.3d 131, 136
(Tex.Crim.App. 2002); cf. Tex. Penal Code Ann. § 3.03(b)(2)(A) (West 2011) (offenses
arising from same criminal episode). A trial court's decision to cumulate sentences is
reviewed for abuse of discretion. Tex. Code Crim. Proc. Ann. art. 42.08(a); Ex Parte
Madding, 70 S.W.3d at 136. A defendant's sentence commences on the day it is
pronounced by the trial court. Tex. Code Crim. Proc. Ann. art. 42.09, § 1 (West 2008).
A trial court cumulating sentences must so order at the time and place that
sentence is orally pronounced. Ex Parte Madding, 70 S.W.3d at 136 (holding that “once
[the defendant] was removed from the courtroom and began serving his sentence, it
was too late to cumulate the sentence just imposed with an earlier one”). A trial court
does not have the statutory authority to orally pronounce one sentence in the
defendant's presence, but enter a different sentence in its written judgment outside the
defendant's presence. Id. The rationale for this rule is that the imposition of sentence is
the crucial moment when all parties are physically present and able to hear and respond
to the sentence. Id. at 135.
Appellant argues on appeal that the trial court did not pronounce a sentence
cumulating the two terms of imprisonment. He cites two cases, O’Hara v. State, 626
S.W.2d 32 (Tex.Crim.App. 1982) and Ex parte Reynolds, 462 S.W.2d 605
(Tex.Crim.App. 1971). We agree with the State that neither case supports appellant’s
position. Both cases involve attempts by a trial court to add an unpronounced
cumulation order after the defendant began serving his punishment. See O’Hara, 626
S.W.2d at 34-35 (trial court attempted to add a cumulation order onto a sentence
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imposed after the defendant began serving probation); Ex parte Reynolds, 462 S.W.2d
at 607-08 (trial court’s attempt to add a cumulation order to sentence after telling the
defendant his sentences would run concurrently and after he began serving his
sentence was null). Here, the parties discussed the State’s motion to cumulate
sentences prior to the hearing. After hearing testimony, the court granted the State’s
motion and orally pronounced that appellant’s sentences for each count of indecency
with a child by contact were “accumulated.” Unlike the cases appellant cites, the trial
court here did not orally pronounce one sentence or pronounce that the sentences
would run concurrently, and then attempt to cumulate sentences in the written
judgments. Rather, the written judgments are consistent with the oral pronouncement.
See Ex parte Madding, 70 S.W.3d at 135 (written judgment simply memorialization of
pronounced sentence).
Appellant is correct the written judgments are unclear as to which sentence is to
be served first. If a trial court orders a sentence to run consecutive to another, the
written cumulation order must contain sufficient information identifying the "base"
sentence to permit prison and parole officials to determine when service of the second
sentence is to begin. See George E. Dix & John M. Schmolesky, Texas Practice Series:
Criminal Practice and Procedure, § 46:152 (3d ed. 2011) (citing cases). The cumulation
orders in these judgments are inadequate because they do not identify which of the two
judgments contains the "base" sentence. However, the information necessary for an
adequate cumulation order is clear on this record. See Banks v. State, 708 S.W.2d
460, 461 (Tex.Crim.App. 1986) (reiterating requirements for cumulation orders). We
have the authority to modify the trial court's written cumulation orders to reflect the
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sentence actually imposed by the trial court and to make the written orders adequate.
Banks, 708 S.W.2d at 462 (reforming cumulation order); Tex. R. App. P. 43.2(b).
Accordingly, we modify the judgment of conviction for count I in trial court case
no. 69,021 to delete the cumulation order, and modify the judgment of conviction for
count II in the same cause so that the cumulation order states, “the sentence in Count II
of this cause does not begin until the judgment and sentence in Count I has ceased to
operate.” Tex. R. App. P. 43.2(b). As so modified, we affirm the judgments of the trial
court.
James T. Campbell
Justice
Do not publish.
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