Nos. 10-03-00227-CR, 10-03-00228-CR
Opinion delivered and filed September 15, 2004. DO NOT PUBLISH.
Appeal from the 265th District Court Dallas County, Texas, Trial Court Nos. F02-35836-R and F02-35837-C. Affirmed.
Celia Sams, Attorneys at Law, Rowlett, TX, for appellant/relator. Bill Hill, Dallas County Asst. District Attorney, Dallas, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
TOM GRAY, Chief Justice.
This appeal concerns convictions for intoxication manslaughter. See TEX. PENAL CODE ANN. § 49.08(a) (Vernon 2003). Appellant contends that the trial court erred in ordering Appellant's sentences to run consecutively, and that the cumulation order is illegible in part. See id. § 3.03(b)(1)(A) (Vernon 2003). We will affirm.
CAUSE NO. 10-03-00227-CR
Appellant's issues do not pertain to the judgment in Cause No. 10-03-00227-CR. The judgment in that cause does not contain a cumulation order. We overrule Appellant's issues in that cause. We affirm the judgment in that cause. CAUSE NO. 10-03-00228-CR
1. Cumulation Order. In Appellant's first issue, he contends that the trial court erred in granting the State's motion to cumulate Appellant's sentences after orally pronouncing sentence. Before imposing the cumulative sentence, the trial court asked Appellant, "Having considered the State's request [to cumulate], is there any legal reason why your client should not be sentenced in each case at this time?" and Appellant's counsel answered, "No, Your Honor." Appellant thus waived his complaint. See TEX. R. APP. P. 33.1(a); Ex parte Madding, 70 S.W.3d 131, 136 (Tex.Crim.App. 2002); Gonzalez v. State, 8 S.W.3d 640, 645 (Tex.Crim.App. 2000); Ponce v. State, 89 S.W.3d 110, 114 (Tex. App.-Corpus Christi 2002, no pet.). We overrule Appellant's first issue. 2. Judgment. In Appellant's second issue, he contends that the judgment is illegible in part. If there is any error, and we do not hold that there is, the proper vehicle for challenging it is a motion for judgment nunc pro tunc. See Madding, 70 S.W.3d at 136 n. 8; Jones v. State, 795 S.W.2d 199, 202 (Tex.Crim.App. 1990). We overrule Appellant's second issue. Having overruled Appellant's issues in cause No. 10-03-00228-CR, we affirm the judgment in that cause. (Justice Vance concurs with a note: We should address the cumulation issue rather than holding Briones waived the complaint. An improper cumulation order is a due-process error, and the complaint about such an error cannot be waived. Ex parte Madding, 70 S.W.3d 131, 136 (Tex.Crim.App. 2002); LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App. 1992); Hurley v. State, 130 S.W.3d 501, 503 (Tex. App.-Dallas 2004); Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App.-Houston [14th Dist.] 2001). Although the Madding court rejected the characterization of "void," it clearly found a due-process violation. I would review the issue and find that the trial judge did not abuse his discretion. Thus, I concur in affirming the judgment.)