Tumar Yising Williams v. State ( 2006 )

NUMBERS 13-05-194-CR, 13-05-195-CR, 13-05-196-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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TUMAR YISING WILLIAMS

, Appellant,

v.

STATE OF TEXAS, Appellee.

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  On appeal from the 377th District Court of Victoria County, Texas.

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DISSENTING MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, Castillo Dissenting Memorandum Opinion by Justice Castillo

On the State's motion, the three cases were consolidated for trial. ⁽¹⁾ Because mandatory concurrent sentencing is implicated, I disagree with the majority's analysis and judgment and, thus, respectfully dissent.

The State's choice to consolidate the cases invoked mandatory sentencing under section 3.03(a) of the penal code. See Tex. Pen. Code Ann. § 3.03(a) (Vernon Supp. 2006). Subject to narrow exceptions inapplicable in these cases, section 3.03(a) mandates concurrent sentences for multiple offenses arising out of the same criminal episode that are prosecuted in a single criminal action. See id.

The mandatory concurrent-sentence provision of section 3.03 is altogether dependent on the choice of the parties. Ex parte McJunkins, 954 S.W.2d 39, 40-41 (Tex. Crim. App. 1997). The State has the choice to lay the predicate for mandatory concurrent sentencing by choosing whether to join (or consolidate) them in a criminal action. Id. at 41 (citing Tex. Code Crim. Proc. Ann. art. 21.24 (Vernon 1989)). If, and only if, the State chooses joinder or consolidation, the defendant has the choice whether to demand a severance. Id. If, and only if, the defendant chooses not to demand a severance will section 3.03 come into effect through the trial in a single criminal action of multiple offenses arising from a single criminal episode. Id.

In these cases, the State invoked mandatory sentencing under section 3.03 by its election to consolidate multiple offenses arising out of the same criminal episode. See Tex. Pen. Code Ann. § 3.03(a). Tumar Yising Williams did not request a severance. Thus, the mandate under section 3.03 governs sentencing. See Tex. Pen. Code Ann. § 3.03(a); Ex parte McJunkins, 954 S.W.2d at 40-41. The trial court stacked the sentencing in appeal number 13-05-196-CR to the two remaining cases in appeal numbers 13-05-194-CR and 13-05-195-CR.

A trial court abuses its discretion when it applies an erroneous legal standard or when no reasonable view of the record supports the trial court's conclusion under the correct law and facts viewed in the light most favorable to its legal conclusion. DuBose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim. App. 1996), overruled on other grounds, Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997). An abuse of discretion generally will be found only if the trial court imposes consecutive sentences where the law requires concurrent sentences, concurrent sentences but the law requires consecutive ones, or otherwise fails to observe the statutory requirements pertaining to sentencing. Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd).

Section 3.03 of the penal code required the trial court to impose concurrent sentences in this case, given that the State elected to proceed in a single trial of multiple offenses arising out of the same criminal episode. See Tex. Pen. Code Ann. § 3.03(a); Ex parte McJunkins, 954 S.W.2d at 40-41. Because the trial court imposed consecutive sentences when the law requires concurrent sentences, I would hold that the trial court abused its discretion in cumulating the sentence imposed in appeal number 13-05-196-CR with the concurrent sentences imposed in appeal numbers 13-05-194-CR and 13-05-195-CR. See Tex. Pen. Code Ann. § 3.03(a); Ex parte McJunkins, 954 S.W.2d at 40-41; Nicholas, 56 S.W.3d at 764. I would further hold that ordering a stacked sentence when concurrent sentences are mandated demonstrates harm and, thus, reversible error, because, among other things, the sentence is unauthorized. See Tex. R. App. P. 44.2(b); Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (construing predecessor harmless error rule and holding that, except for certain federal constitutional errors labeled by the United States Supreme Court as structural, no error is categorically immune to a harmless error analysis); see also Mizell v. State, 119 S.W.3d 804, 806 n. 7 (Tex. Crim. App. 2003) (holding that "[a] 'void' or 'illegal' sentence is one that is not authorized by law"); Ex parte Seidel, 39 S.W.3d 221, 225 n.4 (Tex. Crim. App. 2001) ("this Court has long held that a sentence is void when the punishment is unauthorized"); Ex parte Rich,194 S.W.3d 508, 511 (Tex. Crim. App. 2006) ("a defect which renders a sentence void may be raised at any time"). Accordingly, on these well-settled authorities, I would reverse and render the sentencing judgment in appeal number 13-05-196-CR. See Tex. R. App. P. 43.2( c). Because Williams does not raises issues with respect to appeal numbers 13-05-194-CR and 13-05-195-CR, I would affirm the judgments in the two cases. See Tex. R. App. P. 47.1.

   ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Dissenting Memorandum Opinion delivered and filed

this 31st day of August, 2006.

1.

Alleging in its motion for consolidation and joinder that the offenses arose out of a single criminal episode, the State relied on sections 3.01(1) and 3.02 of the penal code and article 21.24 of the code of criminal procedure. See Tex. Pen. Code Ann. § 3.01(1), 3.02 (Vernon 2003 & Supp. 2006); Tex. Code Crim. Proc. Ann. art. 21.24 (Vernon 1989).