Summary
rejecting contention that trial court abused discretion by not articulating reasons for cumulating sentences
Summary of this case from Garcia v. StateOpinion
No. 05-10-00574-CR
Opinion Filed January 25, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-34281-N.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
Joaquin Castro Gomez was convicted of aggravated sexual assault and sentenced to life imprisonment and a $10,000 fine. In a single issue, appellant contends the trial court abused its discretion by ordering the sentence to run consecutively to another sentence. We affirm. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. Appellant was indicted for the crime of aggravated sexual assault with a deadly weapon-a knife. Appellant pleaded not guilty before a jury. After the jury found appellant guilty, the trial court released the jury and proceeded with the punishment phase of trial. The State presented evidence that appellant had felony convictions from the State of Tennessee, and that he was currently serving a twenty-one-year sentence in Davidson County, Tennessee for aggravated rape. After the trial court assessed the sentence of life imprisonment and a $10,000 fine, the prosecutor reminded the court that the State had previously requested a cumulative sentence "or to stack his sentence on top of Tennessee." The trial court granted the motion to cumulate. The judgment in this case recites: "The Court ORDERS that the sentence in this conviction shall run consecutively and shall begin only when the judgment and sentence in the following case has ceased to operate: No. 2003-B-1303, Davidson Co., Tennessee." In his sole issue, appellant contends the trial court abused its discretion because it failed to articulate any reasons for its order that the sentence imposed would run consecutively to the Tennessee sentence. Appellant asserts the trial court failed to "weigh and assess the evidence, the circumstances, and the nature of the crime," and argues there is no reasonable purpose to be served by the order. The State responds that appellant's argument is inadequately briefed and, alternatively, the trial court did not abuse its discretion in stacking the sentence onto a prior sentence. When a defendant has been convicted in two or more cases, a trial court may order the judgment and sentence imposed in the second conviction either (1) to begin to run after the judgment and sentence imposed in the previous conviction has ceased to operate or (2) to run concurrently with the previous judgment and sentence. Tex. Code Crim. Proc. Ann. Art. 42.08(a) (West Supp. 2010). We review a trial court's decision to stack or cumulate sentences for an abuse of discretion. Malone v. State, 163 S.W.3d 785, 803 (Tex. App.-Texarkana 2005, pet. ref'd). A trial court abuses its discretion if it imposes consecutive sentences where the law requires concurrent sentences, where the court imposes concurrent sentences where the law requires consecutive ones, or where the court otherwise fails to observe the statutory requirements pertaining to sentencing. See Nicholas v. State, 56 S.W.3d 760, 760-65, Tex. App.-Houston [14th] 2001, pet. ref'd.); see also Smith v. State, 575 S.W.2d 41, 41 (Tex. Crim. App. 1979) ("Normally, the trial judge has absolute discretion to cumulate sentences."). There is no statutory requirement that a trial judge articulate reasons for granting a cumulation order. See Tex. Code Crim. Proc. Ann. Art. 42.08(a). Moreover, as noted above, a trial judge has "absolute discretion" to cumulate sentences. See Smith, 575 S.W.2d at 41. Here, penitentiary packets showing appellant's prior convictions were admitted into evidence. The packets show appellant was convicted in Davidson County, Tennessee in February 2005 of aggravated robbery and aggravated rape, and he was sentenced to nine and twenty-one years in prison, respectively. The packets also show appellant was convicted in August 2007 in Dallas County, Texas of aggravated sexual assault of a child younger than fourteen years of age and aggravated robbery, with fifteen-year prison terms assessed in each case. There is nothing in the record that shows the trial court abused its discretion in ordering appellant's life sentence to run consecutively with the twenty-one-year sentence imposed by the State of Tennessee. See Malone, 163 S.W.3d at 803. We resolve appellant's sole issue against him. We affirm the trial court's judgment.