Nos. 12-01-00356-CR, 12-02-00011-CR, 12-02-00012-CR
Opinion delivered February 12, 2003. DO NOT PUBLISH.
Appeal from the Eighth Judicial District Court of Hopkins County, Texas.
Panel consisted of Worthen, C.J., and Griffith, J.
SAM GRIFFITH, Justice.
Charles Ray Hill ("Appellant") appeals the cumulation of his sentences imposed by the trial court following his three convictions for sexual assault of a child. Appellant raises one issue on appeal. We affirm.
See Tex. Pen. Code Ann. § 22.011(a)(2)(A) and (c) (Vernon Supp. 2003).
Background
Appellant was charged by separate indictments with three offenses of sexually assaulting a child. Appellant pleaded "not guilty" to each charge. At a pretrial hearing on August 30, 2001, the prosecuting attorney for the State of Texas (the "State") notified Appellant's counsel that the aggravated sexual assault cases would be consolidated. The State's notification was neither written nor recorded by the court reporter. At the time of such oral notification, the court reporter was present and subsequently testified that the prosecuting attorney did make such a statement to Appellant's counsel. Moreover, the presiding judge also recalled discussing the joinder at the August 30 hearing and further recalled Appellant's counsel being given such notice orally. The State later sent a letter to Appellant's counsel memorializing such notice along with a motion to consolidate, which was filed on September 17, 2001. The State's motion was granted on September 18, 2001. On October 2, 2001, the first day of trial, Appellant objected to the State's motion and moved for continuance. Appellant's objection was overruled. Following a trial on the merits, a jury found Appellant guilty as charged. The trial court assessed Appellant's punishment in each cause at imprisonment for life. The State moved to cumulate Appellant's sentences. The trial court granted the State's motion and Appellant brought this appeal. Notice of Consolidation
In his sole issue, Appellant argues that the trial court lacked the authority to cumulate Appellant's sentences. Appellant's argument is based on the requirement that when a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, "the state shall file written notice of the action not less than thirty days prior to the trial." Tex. Pen. Code Ann. § 3.02(b) (Vernon 1994). Initially, we disagree with Appellant's contention that the trial court did not have the authority to cumulate his sentences. As Appellant was charged under Texas Penal Code section 22.011, the trial court had the authority to order that Appellant's sentences run concurrently or consecutively. See Tex. Pen. Code Ann. § 3.03(b)(2)(A) (Vernon Supp. 2003). Under section 3.03(b)(2)(A), that Appellant be prosecuted in a single criminal action was not a prerequisite for the trial court's authority to cumulate sentences. Id. As such, the State's alleged failure to timely move to consolidate its actions against Appellant had no bearing on the trial court's authority to cumulate Appellant's sentences. Further still, even if we were to determine that the trial court committed error, harm analysis would be required. SeeLlamas v. State, 12 S.W.3d 469, 471 (Tex.Crim.App. 2000). In order to properly conduct a harm analysis, we must determine whether or not the error affected a substantial right. Id. at 471 n. 2. To make this determination, we must decide whether the error had a substantial or injurious affect on the jury verdict. Id. In the instant case, our review of the record as a whole does not reveal any substantial or injurious affect on the jury verdict. Had Appellant been granted a continuance he would have undoubtedly had additional time to prepare his defense. However, there is no indication from the record that the absence of such additional preparation time substantially or injuriously affected the presentation of Appellant's defense or the outcome of the case. Therefore, we hold that even if the trial court committed error, our review of the record as a whole indicates that such error, if any, was harmless. Appellant's sole issue is overruled. Accordingly, the trial court's order cumulating Appellant's sentences is affirmed.