Larry Harlan Boyd v. State ( 2019 )

NUMBER 13-18-00342-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
LARRY HARLAN BOYD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Larry Harlan Boyd pleaded guilty to two counts of possession with intent
to promote child pornography and twenty-three counts of possession of child
pornography, all second-degree felonies. See TEX. PENAL CODE ANN. § 43.26(e), (a). The
jury sentenced him to prison terms of twenty years on each of the possession with intent
to promote counts, and ten years on each of the possession counts. The trial court
entered judgments in conformity with the jury’s verdict and ordered the sentences to run
consecutively. By one issue, Boyd argues the trial court erred in ordering these sentences
to run consecutively. We affirm.
I. CONSECUTIVE SENTENCES
Boyd contends that pursuant to § 3.03 of the Texas Penal Code, the trial court
should have ordered concurrent sentences. See id. § 3.03 (providing for cumulation of
sentences for certain offenses).
A. Standard of Review
We review a trial court’s decision to “stack” or cumulate sentences for an abuse of
discretion. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a); Waddell v. State, 456 S.W.3d
366, 369 (Tex. App.—Corpus Christi–Edinburg 2015, no pet.). The trial court has
discretion to cumulate sentences for two or more convictions. TEX. CODE CRIM. PROC.
ANN. art. 42.08(a); Waddell, 456 S.W.3d at 369. A trial court abuses its discretion only if
it: (1) “imposes consecutive sentences when the law requires concurrent sentences,” (2)
“imposes concurrent sentences when the law requires consecutive ones,” or (3)
“otherwise fails to observe the statutory requirements pertaining to sentencing.” Waddell,
456 S.W.3d at 369.
B. Discussion
Under the Texas Penal Code, a defendant may be prosecuted in a single criminal
action for all offenses arising out of the same criminal episode. TEX. PENAL CODE ANN.
§ 3.02(a). When multiple offenses arising out of the same criminal episode are
consolidated in a single trial and the defendant is found guilty of more than one offense,
the trial court may not cumulate sentences in most circumstances. Id. § 3.03(a).
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However, the trial court has discretion to cumulate sentences for convictions of
possession or promotion of child pornography if there is “some evidence” that the
offenses occurred after September 1, 2005. Id. § 3.03(b)(3)(A); see Bonilla v. State, 452
S.W.3d 811, 817 (Tex. Crim. App. 2014) (setting forth “some evidence” standard under
§ 3.03(b)(2)(A)).
Here, Boyd pleaded guilty and was convicted of multiple possession of child
pornography offenses alleged to have occurred on or about May 10, 2017 and on or about
May 31, 2017. Thus, there was “some evidence” that the offense occurred after
September 1, 2005. See Bonilla, 452 S.W.3d at 817; Gerron v. State, 524 S.W.3d 308,
329 (Tex. App.—Waco 2016, pet. ref’d.). Accordingly, we conclude that the trial court did
not err or abuse its discretion in cumulating the sentences. See Bonilla, 452 S.W.3d at
817; Gerron, 524 S.W.3d at 329. We overrule Boyd’s sole issue.
II. CONCLUSION
Having overruled Boyd’s sole issue, we affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
22nd day of August, 2019.
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