Starling Leon Patrick v. State ( 2013 )

NUMBER 13-12-00492-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
STARLING LEON PATRICK, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Rodriguez
A jury convicted appellant Starling Leon Patrick for indecency with a child as a
repeat felony offender, and the trial court sentenced him to twenty years' imprisonment in
the Institutional Division of the Texas Department of Criminal Justice, his sentence to be
served consecutively with his parole case. See TEX. PENAL CODE ANN. § 21.11 (West
2011). By two issues, Patrick contends that: (1) the trial court erred in granting the
State's challenge of venire member No. 40 for cause, over Patrick's objection; and (2) the
trial court abused its discretion when it cumulated the new sentence with a prior one for
which he was on parole. We affirm.
I. CHALLENGE FOR CAUSE1
By his first issue, Patrick contends that the trial court committed reversible error
when it granted, over objection, the State’s challenge of venire member No. 40 for cause
and violated his right to due process. We are not persuaded by Patrick’s argument
because it is clear from the record that the State did not challenge venire member No. 40
for cause. Instead, the State used a peremptory challenge on this venire member.
Patrick elected to have a jury trial. After Patrick’s counsel concluded his voir dire,
the trial court called two venire members, No. 16 and No. 40, to the bench for a
conference. Among other things, venire member No. 16 stated that he had trouble with a
one-witness case and that he could not be fair to the State. The State challenged venire
member No. 16 for cause, and the trial court granted the challenge, over Patrick’s
objection. See TEX. CODE CRIM. PROC. ANN. art. 35.16(a) (West 2006) (“A challenge for
cause is an objection made to a particular juror, alleging some fact which renders the juror
incapable or unfit to serve on the jury.”).
At the same bench conference, venire member No. 40 explained that she would
like to have more than one witness but that she could find someone guilty if she believed
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Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
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the witness beyond a reasonable doubt. The State did not move to challenge venire
member No. 40 for cause. Instead, the State used a permissible peremptory challenge
on venire member No. 40, as shown on the State’s strike sheet that appears in the clerk’s
record on appeal. See id. art. 35.14 (West 2006) (“A peremptory challenge is made to a
juror without assigning any reason therefor.”). We overrule Patrick’s first issue.
II. CUMULATION ORDER
Patrick contends by his second issue that the trial court improperly issued a
cumulation order. The question here is whether the trial court abused its discretion by
stacking a new sentence onto a prior sentence for which Patrick was on parole. See
Nicholas v. State, 56 S.W.3d 760, 760–65 (Tex. App.—Houston [14th Dist.] 2001, pet.
ref'd) (explaining that a trial court abuses its discretion if it imposes consecutive
sentences in cases where the law requires concurrent ones, if it imposes concurrent
sentences where the law requires consecutive ones, or if it otherwise fails to observe
statutory requirements germane to sentencing).
We resolve this issue against Patrick because courts have consistently held that
“[a] trial court has the authority to stack a new sentence onto a prior sentence for which
the defendant is then on parole." Hill v. State, 213 S.W.3d 533, 538 (Tex.
App.—Texarkana 2007, no pet.); see Wilson v. State, 854 S.W.2d 270, 273 (Tex.
App.—Amarillo 1993, pet. ref'd); Jimenez v. State, 634 S.W.2d 879, 881 (Tex. App.—San
Antonio 1982, pet. ref'd) (holding that article 42.08 authorizes stacked sentences for
defendants on parole and that parole is "essentially a constructive confinement" and not a
release from the operation of the judgment). So we conclude that the trial court did not
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abuse its discretion by cumulating Patrick’s sentences and that the cumulation order in
this case is therefore valid. We overrule Patrick’s second issue.
III. CONCLUSION
We affirm.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
20th day of June, 2013.
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