Joey Sula v. State ( 2010 )

Opinion issued July 8, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00013-CR

NO. 01-09-00014-CR

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JOEY SULA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Case No. 48,258

MEMORANDUM OPINION

          A jury convicted appellant Joey Sula of theft (Count I; appellate case no. 01-09-00013-CR) and money laundering (Count II; appellate case no. 01-09-00014-CR) based on actions he committed “pursuant to one scheme and continuing course of conduct.”  The jury assessed punishment at ten years’ confinement and a $10,000 fine for each conviction, and the trial court ordered the sentences to run consecutively.  Sula contends that his sentences should run concurrently.  Because we find merit in Sula’s argument, we modify the judgment of the trial court to state that the sentences will run concurrently, and we affirm the trial court’s judgment as modified.

Background

          The State charged Sula by indictment with theft and money laundering.  See Tex. Penal Code Ann. § 31.03(a), (b), (e)(7) (Vernon Supp. 2009) (theft); id. § 34.02(a)(1) (money laundering).  The indictment read as follows:

Count I

On or about and between July 18, 2006 and March 1, 2007, the defendant, did pursuant to one scheme and continuing course of conduct, unlawfully appropriate property, to wit:  money, of the aggregate value of $200,000 or more . . . without the effective consent of the owner, and with the intent to deprive the owner of the property.

Count II

On or about and between July 18, 2006 and March 1, 2007, the defendant did pursuant to one scheme and continuing course of conduct, knowingly acquire or conceal or possess or transfer the proceeds of criminal activity, to wit: theft, of the value of $200,000 or more.

Sula pleaded not guilty to these charges, and the jury convicted him on both counts.  After the jury assessed punishment at ten years’ confinement and a fine of $10,000 on each count, the trial court entered judgment, which stated, “Sentences to run consecutively (stacked) . . . .  It is FURTHER ORDERED that the sentence in Count II is to run consecutive to the sentence in Count I.”  On December 30, 2008, Sula filed notice of appeal, and on March 3, 2009, this Court granted Sula’s motion to proceed without a reporter’s record.

Concurrent or Consecutive Sentencing

          In one issue, Sula argues that the trial court improperly imposed consecutive sentences.  We review a sentence imposed by the trial court for abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).  The Code of Criminal Procedure generally authorizes a trial court to order consecutive sentences when a defendant is convicted in two or more cases:

Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be accordingly . . . .

Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2009).[1]

However, “the trial court’s general authority under Article 42.08 to order consecutive sentences is statutorily limited by [Penal Code] Section 3.03.”  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.).  The Penal Code provides an exception to consecutive sentencing for offenses arising out of the same criminal episode:

(a) 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.

(b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:

(1) an offense:

(A) under Section 49.07 or 49.08 [intoxication assault and intoxication manslaughter], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections; or

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections;

(2) an offense:

(A) under 21.11 [indecency with a child], 22.011 [sexual assault], 22.021 [aggravated sexual assault], 25.02 [prohibited sexual conduct], or 43.25 [sexual performance by a child] committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section;

(3) an offense:

(A) under Section 21.15 [improper photography or video recording] or 43.26 [possession or promotion of child pornography], regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections; or

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A), regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of both sections.[2]

“[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, as that term is defined in Chapter 3, are presented in a single trial or plea proceeding, whether pursuant to one charging instrument or several . . . .”  LaPorte, 840 S.W.2d at 415.  Chapter 3 defines “criminal episode” as follows:

“[C]riminal episode” means 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.

Tex. Penal Code Ann. § 3.01 (Vernon 2003).  “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.  Because “[a]n improper cumulation order is, in essence, a void sentence,” it may be challenged for the first time on appeal, and the appellate court may reform a trial court’s judgment to correct an improper cumulation order.  Id.

Section 3.03 Applies to Sula’s Convictions

          In a single indictment, Sula was charged with theft and money laundering.  The indictment states that the actions were “pursuant to one scheme and continuing course of conduct” that occurred between July 18, 2006, and March 1, 2007.  Count I alleges that Sula unlawfully appropriated $200,000 from the complainant.  Count II, the money laundering allegation, implicitly refers to Count I, alleging that Sula “did pursuant to one scheme and continuing course of conduct, knowingly acquire or conceal or possess or transfer the proceeds of criminal activity, to wit: theft, of the value of $200,000.”  Both counts were tried together.  Thus, the appellate record shows that Sula was tried for a single criminal action based on charges arising out of the same criminal episode. Therefore, the trial court was not authorized to order consecutive sentences unless one of the exceptions to section 3.03 applied.  See id.

Statutory Exceptions to Section 3.03 Do Not Apply to Sula

          Sula was convicted of theft and money laundering. See Tex. Penal Code Ann. § 31.03(a), (b), (e)(7) (Vernon Supp. 2009) (theft); id. § 34.02(a)(1) (money laundering).  At the time of Sula’s commission of the charged offenses, section 3.03 precluded consecutive sentencing except when the accused was convicted of an offense against a minor arising under Penal Code sections 21.11 (indecency with a child), 22.011 (sexual assault), 22.021 (aggravated sexual assault), 25.02 (prohibited sexual conduct), or 43.25 (sexual performance by a child) or when the accused was convicted of an offense arising under Penal Code sections 21.15 (improper photography or visual recording) or 43.26 (possession or promotion of child pornography).  See Act of May 26, 1995, 74th Leg., R.S., ch. 596, 1995 Tex. Gen. Laws 3435, amended by Act of May 31, 1997, 75th Leg., R.S., ch. 667, 1997 Tex. Gen. Laws 2251, amended by Act of May 23, 2005, 79th Leg., R.S., ch. 527, 2005 Tex. Gen. Laws 1429.

Sula’s conviction did not implicate any of the exceptions to section 3.03’s bar on consecutive sentencing, and therefore the trial court had no discretion to order Sula’s sentences to run consecutively.  See id.

Lack of Reporter’s Record Not Fatal to Appeal

          The State argues that Sula waived error as to his sentencing by failing to procure a reporter’s record on appeal. Specifically, the State argues, “Without the record, we have no way of knowing what the trial court’s reasoning was with respect to ‘stacking’ Appellant’s sentences, any authority relied upon by the Court, or even whether Appellant objected to the trial court’s ruling.” 

The Court of Criminal Appeals has explained that the right to challenge the imposition of consecutive sentences may be affirmatively waived but cannot be forfeited by inaction.  Ex parte Minott, 972 S.W.2d 760, 761–62 (Tex. Crim. App. 1998).

This Court recently held that a defendant’s decision not to request a severance and to accept the imposition of consecutive sentences imposed in a single criminal action for two offenses arising out of the same criminal episode, were valid waivers of his right to concurrent sentences.  Ex parte McJunkins, 954 S.W.2d 39 (Tex. Crim. App. 1997).  In McJunkins, we employed a threepart test set out in Ex parte Sims, 868 S.W.2d 803 (Tex. Crim. App. 1993).  The Sims opinion properly noted the basic division of legal rules into (1) absolute requirements and prohibitions which cannot be waived or forfeited, (2) rights of litigants that must be implemented unless affirmatively waived, and (3) rights of litigants that are implemented on request but are forfeited by a failure to invoke them.  Using the aforementioned test, this Court found in McJunkins the requirement of Texas Penal Code Section 3.03, that multiple sentences run concurrently if they arise out of the same criminal episode and are imposed in a single criminal action, is one which must be implemented unless affirmatively waived.

Id.  A contemporaneous objection at trial was not necessary to preserve this error for review, and Sula was entitled to raise this issue for the first time on appeal. See LaPorte, 840 S.W.2d at 415; accord Allen v. State, 951 S.W.2d 925, 928 (Tex. App.—San Antonio 1997, pet. ref’d) (holding that defendant is under no duty to object to motion to cumulate).

          Here, the clerk’s record—the indictment, court’s charge, and judgment—adequately showed that, in a single criminal action, Sula was convicted of two offenses arising from the same criminal episode. While such a record may not always be sufficient, we conclude that it is sufficient in Sula’s case.  Cf. Roberts v. State, No. 01-03-00311-CR, 2004 WL 2612413, at *5 (Tex. App.—Houston [1st Dist.] Nov. 18, 2004, pet. ref’d) (not designated for publication) (holding record insufficient to show appellant had been prosecuted in single criminal action as required by statute).  Texas Rule of Appellate Procedure 37.3 authorizes us to consider and decide those issues that do not require a reporter’s record for a decision.  Tex. R. App. P. 37.3(c).  We conclude that Sula’s issue did not require a reporter’s record for decision.

          Accordingly, we hold that the trial court abused its discretion by ordering Sula’s sentences to run consecutively, and we sustain Sula’s sole issue.[3]

Conclusion

          We modify the trial court’s judgment to eliminate the trial court’s improper cumulation order, and, as modified, we affirm the judgment of the trial court.  See Tex. R. App. P. 43.2(b).

                                                                   Michael Massengale

                                                                   Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]        This statute was revised after Sula committed the charged offenses, however, the revision did not change the quoted language.

[2]        Act of May 26, 1995, 74th Leg., R.S., ch. 596, 1995 Tex. Gen. Laws 3435, amended by Act of May 31, 1997, 75th Leg., R.S., ch. 667, 1997 Tex. Gen. Laws 2251, amended by Act of May 23, 2005, 79th Leg., R.S., ch. 527, 2005 Tex. Gen. Laws 1429 (current version at Tex. Penal Code Ann. § 3.03 (Vernon Supp. 2009)).  The Legislature has amended the Penal Code twice since Sula’s commission of the charged offenses.  In 2007, the Legislature added the words “Section 21.02” (continuous sexual abuse of young child or children) and “Section 33.021 [online solicitation of a minor] or an offense under” to section 3.03(b)(2)(A).  See Act of May 18, 2007, R.S., 80th Leg., ch. 593, § 3.47, 2007 Tex. Gen. Laws 1120, 1147; Act of May 27, 2007, R.S., 80th Leg., ch. 1291, § 6, 2007 Tex. Gen. Laws 4344, 4349 (both provisions effective September 1, 2007).  In 2009, the Legislature added subsection (b)(4) to section 3.03. These changes apply only to offenses committed after their effective dates.  Sula committed his offenses before the effective dates of the revisions. In addition, because these changes refer to offenses unrelated to theft or money laundering, they do not affect the analysis or disposition of this appeal.

[3]        As to the State’s argument that the absence of a reporter’s record prevented us from discerning the trial court’s reasoning, we note that the trial court’s reasoning is not relevant to our disposition of this case, because the trial court’s action was prohibited by statute.  See LaPorte, 840 S.W.2d at 415 (“An improper cumulation order is, in essence, a void sentence . . . .”).