Opinion
No. 14-15-00174-CR No. 14-15-00175-CR
01-07-2016
WILLIAM CODY THOMPSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court Galveston County, Texas
Trial Court Cause No. 13CR2837 & 13CR2838
MEMORANDUM OPINION
Appellant William Cody Thompson challenges the trial court's stacking of his sentences for two counts of possession of child pornography. As resolution of the issue raised is well-settled in Texas law, we summarily affirm.
A jury convicted appellant on both counts of possession of child pornography. As to one count, the jury assessed his punishment at 10 years' imprisonment. As to the other count, the jury again assessed punishment at 10 years' imprisonment, but recommended that this sentence be probated. Over appellant's objection, the trial court ordered that these sentences run consecutively rather than concurrently such that when appellant completes his sentence for the first count, he will then be placed on community supervision for the other count.
In his sole issue, appellant contends that the trial court erred in stacking a prison sentence with a probated sentence, based on the Texas Court of Criminal Appeals opinion in Green v. State, 706 S.W.2d 653 (Tex. Crim. App. 1986). We review a trial court's decision to cumulate, or "stack," sentences for abuse of discretion. Mireles v. State, 444 S.W.3d 679, 680 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). When the law authorizes the imposition of cumulative sentences, the trial court has absolute discretion to cumulate the sentences. Miles v. State, 468 S.W.3d 719, 731 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). The authority to stack sentences is provided by statute. Mireles, 444 S.W.3d at 680. When interpreting a statute, we apply a de novo standard of review, mindful that our primary objective is to ascertain and give effect to the intent of the legislature. Id. (citing Nguyen v. State, 359 S.W.3d 636, 641-42 (Tex. Crim. App. 2012)).
In Green, the Court determined that stacking a prison sentence with a probated sentence violated the version of article 42.08 of the Code of Criminal Procedure that was then in force. 706 S.W.2d at 657-58. At the time, article 42.08 only gave the trial court the discretion to stack a defendant's "punishment." See Green, 706 S.W.2d at 655-56; Mireles, 444 S.W.3d at 681. The Court construed this language narrowly in Green by holding that "punishment" did not include community supervision and that a trial court did not have the authority to stack a probated sentence under the statute. 706 S.W.2d 657-58; Mireles, 444 S.W.3d at 681. However, in the wake of Green, the Texas Legislature amended Article 42.08 by deleting all references to "punishment" and replacing them with "sentence imposed or suspended." See Act effective Aug. 31, 1987, 70th Leg., R.S., ch. 513, § 1, 1987 Tex. Gen. Laws 2125; Mireles, 444 S.W.3d at 681-82. As amended, the current version of article 42.08 plainly permits the stacking of community supervision. See Tex. Code. Crim. Proc. art 42.08; Pettigrew v. State, 48 S.W.3d 769, 772 (Tex. Crim. App. 2001); Mireles, 444 S.W.3d at 682; Medina v. State, 7 S.W.3d 876, 878-79 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
Because the sole case on which appellant bases his entire argument has been superseded by changes to the statute it addresses, we find no merit in appellant's contentions. Accordingly, we overrule his sole issue.
We affirm the trial court's judgment.
/s/Martha Hill Jamison
Justice Panel consists of Justices Jamison, McCally, and Wise. Do not publish — TEX. R. APP. P. 47.2(b).