Opinion
No. 06-05-00177-CR
Submitted: November 8, 2005.
Decided: November 10, 2005. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 32319-B.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Without the benefit of any plea agreement, Horace Earl Jones threw himself on the mercy of the trial court and pled guilty to two charges of delivery of a controlled substance, dihydrocodeinone, which offenses occurred on two dates separated by almost a month. After administering the necessary admonishments, the trial court accepted Jones' pleas and found him guilty in both cases. The trial court sentenced Jones to eight years' confinement on the first case and ten years' confinement on the second. The trial court then ordered Jones' sentences to run consecutively. Jones asserts the trial court erred in cumulating, or "stacking," his two sentences, even though he had not been given notice that the State would ask for sentence stacking. Jones concedes the decision to cumulate or run sentences concurrently is within the trial court's discretion. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2005); Smith v. State, 575 S.W.2d 41 (Tex.Crim.App. [Panel Op.] 1979), overruled in part on other grounds, LaPorte v. State, 840 S.W.2d 412 (Tex.Crim.App. 1992). But he complains the State failed to provide him with notice that it would ask the trial court to stack the sentences for the two charges. At Jones' plea hearing, along with other basic admonishments, the trial court advised Jones it could stack the sentences it imposed. "And I've been known to do it," continued the trial court, making sure there was no doubt in Jones' mind about the sentencing possibilities. The trial court made clear, by questioning the State, as well as Jones and his attorney, that this was "truly [an] open plea" before the trial court, and no plea agreement had been reached by the parties. Jones does not provide this Court with any authority for his claim he was entitled to notice the State would ask the trial court to stack his sentences. He claims that the failure of the State to so notify him deprived him of his due process rights. There is no due process deprivation in a trial court's exercise of its discretion in cumulating sentences under Article 42.08 of the Texas Code of Criminal Procedure. Johnson v. State, 492 S.W.2d 505, 506 (Tex.Crim.App. 1973); Hammond v. State, 465 S.W.2d 748, 752 (Tex.Crim.App. 1971). We find there is no requirement of prior notice before a trial court exercises its discretionary power to cumulate sentences. See Tyson v. State, Nos. 2-03-375-CR, 2-03-376-CR, 2005 Tex. App. LEXIS 6424, at *6-7 (Tex.App.-Fort Worth Aug. 11, 2005, no pet. h.); Millslagle v. State, 150 S.W.3d 781, 784-85 (Tex.App.-Austin 2004, pet. dism'd). Jones has directed us to no authority to support his contention he was entitled to notice that the State would ask the trial court to cumulate, or stack, the sentences. Nor have we found any such authority. Accordingly, we overrule Jones' point of error and affirm the trial court's judgment.
Jones has appealed both convictions, raising the same issue in each and briefing them together. Our opinion in the companion case is released this date under Jones v. State, cause number 06-05-00178-CR.
See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2005).
Tyson and Millslagle both involve discretionary cumulation of sentences for enumerated offenses arising out of the same criminal episode. See Tex. Pen. Code Ann. § 3.03 (Vernon Supp. 2005). That situation contrasts with Jones' appeals, which involves the discretionary cumulation of convictions in two or more "cases." See Tex. Code Crim. Proc. Ann. art. 42.08. The principle, however, is the same.
Even if the State were required to provide notice that it would ask the trial court to stack the sentences, Jones' open plea would have waived that complaint. See Johnson v. State, 988 S.W.2d 958, 959-60 (Tex.App.-Beaumont 1999, no pet.) (guilty plea without plea agreement waives all nonjurisdictional defects occurring before entry of plea).