Albert Jason Robles v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00131-CR
No. 02-21-00132-CR
___________________________
ALBERT JASON ROBLES, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court Nos. 1618334D, 1618523D
Before Kerr, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Albert Jason Robles appeals from his convictions for sexual assault of a child
under 17 years of age and for indecency with a child by sexual contact. See Tex. Penal
Code Ann. §§ 21.11(a)(1), 22.011(a)(2). After a jury assessed his punishment, the trial
court sentenced Robles to 15 years’ confinement for the former offense and 5 years’
confinement for the latter and ordered that the sentences run consecutively. In two
issues, Robles complains (1) that the trial court’s cumulation orders were void for lack
of specificity and (2) that the trial court improperly denied Robles’s request to instruct
the jury not to consider whether his sentences would run concurrently or
consecutively. We hold that although the trial court did not err by denying Robles’s
requested instruction, the written judgments require modification to conform the trial
court’s oral pronouncement regarding cumulation. As modified, we will affirm both
judgments.
I. Background
The indictment in trial-court cause number 1618334D charged Robles with one
count of sexual assault of a child under 17 years of age. The indictment in trial-court
cause number 1618523D charged Robles with three counts: two counts of indecency
with a child by sexual contact and one count of improper relationship between
educator and student. Robles pleaded guilty to the sole count in cause number
1618334D and to one count of indecency with a child in cause number 1618523D in
exchange for the State’s agreement to waive the remaining counts in cause number
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1618523D and to dismiss two other cases pending against Robles for child-
pornography possession and online solicitation of a minor.
The case proceeded to a jury trial on punishment on the sexual-assault and
indecency-with-a-child offenses. During deliberations, the jury sent out two notes.
The first asked, “Is the imposition of jail time separate or served concurrently (two
charges), or are they additive? Please explain.” The trial court informed Robles and
the State that because sentence cumulation is within the trial court’s discretion, it
planned to tell the jury that the trial court was not allowed to answer the question.
The State had no objection, but Robles asked the trial court to also include “language
that [the jurors] not consider whether or not the sentences would be run concurrent
or consecutive in their deliberations since they do not know.” The trial court refused,
fearing that such a statement would be a comment on the weight of the evidence. The
trial court responded to the first jury note as follows: “Members of the jury, the
Court’s not allowed to answer your question. Please continue deliberating.” The State
had no objection to the trial court’s response, and Robles responded, “Nothing
further, Your Honor.”
The second jury note asked, “Is it the judge’s purview to use the jury’s
sentencing to be served as concurrent or separate, meaning additive, if we give prison
time?” The trial court responded, “Members of the jury, in response to your question
contained in Jury Note Number 1 and Jury Note Number 2, the law does not allow
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the Court to answer your question. Please continue your deliberations.” Neither the
State nor Robles objected to this response.
The jury assessed Robles’s punishment at 15 years in prison for sexual assault
and 5 years in prison for indecency with a child. The trial court sentenced Robles
accordingly. The State then asked the trial court to “stack” the sentences. The trial
court orally ordered the sentences to run consecutively and stated that Robles would
serve the 15-year sentence first and the 5-year sentence would “begin to run after
that.” Each of the trial court’s judgments state that “THIS SENTENCE SHALL
RUN CONSECUTIVELY.”
Robles has appealed,1 and in two issues, challenges the trial court’s cumulation
orders and its refusal to instruct the jury on cumulation. We address these issues in
reverse order because doing so aids in our disposition of this appeal.
1
The trial court’s certification of Robles’s right of appeal in each case stated that
this “is not a plea-bargain case, and the defendant has the right of appeal.” But the
State’s agreement to waive two counts in cause number 1618523D and to dismiss two
other cases pending against Robles in exchange for Robles’s guilty pleas appeared to
be a charge bargain, which qualifies as a plea bargain subject to Rule 25.2(a)(2) of the
Texas Rules of Appellate Procedure. See Shankle v. State, 119 S.W.3d 808, 813 (Tex.
Crim. App. 2003); see also Barnard v. State, No. 02-19-00184-CR, 2021 WL 832650, at
*1 (Tex. App.—Fort Worth Mar. 4, 2021, no pet.) (mem. op., not designated for
publication) (“[T]he record shows a charge bargain with Barnard going ‘open’ to the
court for punishment. The guilty plea itself was not open (it was settled); rather, it was
the punishment to be imposed based on the guilty plea that was open (it was not
settled).”). We were thus concerned that the certifications were defective because they
did not accurately reflect the record. See Tex. R. App. P. 25.2(d). We notified the
parties of our concern, and the trial court signed two amended certifications, each
stating that this “is a plea-bargain case, but the trial court has given permission to
appeal, and the defendant has the right of appeal.”
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II. The Jury Instructions
We must review “all alleged jury-charge error . . . regardless of preservation in
the trial court.”2 Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In
reviewing a jury charge, we first determine whether error occurred; if not, our analysis
ends. Id. In Robles’s second issue, he complains that the trial court erred by denying
his requested jury instruction in response to the jury’s first note asking whether
Robles’s sentences would run concurrently or consecutively. See Tex. Penal Code
Ann. § 3.03(b)(2)(A); Tex. Code Crim. Proc. Ann. art. 42.08(a). Robles contends that
the trial court should have instructed the jury that it should not consider whether the
sentences would run concurrently or consecutively.
When, as here, sentence cumulation is permissible, the decision to impose
cumulative or concurrent sentencing is within the trial court’s exclusive discretion.3 See
2
This is not the typical jury-charge case. It is a response-to-a-jury-note case. See
Tex. Code Crim. Proc. Ann. art. 36.16 (providing that trial court may give “further
charge” to jury upon jury’s request after closing arguments have begun), art.
36.27 (stating that jury may communicate with trial court in writing and that court
“shall answer any such communication in writing”). “Article 36.27 . . . requires the
court to answer communications of the jury and give additional instructions upon
questions of law when the request is proper. If not, the court should inform the jury
that their request is not proper by referring to the court’s charge.” Gamblin v. State,
476 S.W.2d 18, 20 (Tex. Crim. App. 1972); cf. Lucio v. State, 353 S.W.3d 873, 875 (Tex.
Crim. App. 2011) (explaining that trial court’s substantive response to jury note
“essentially amounts to a supplemental jury instruction” and must “comply with the
same rules that govern charges”).
Robles does not dispute that the trial court could cumulate his sentences. See
3
Tex. Penal Code Ann. §§ 3.02(a), 3.03(b)(2)(A). Nor does he argue that the trial court
abused its discretion by doing so.
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Tex. Penal Code Ann. § 3.03(b)(2)(A); Tex. Code Crim. Proc. Ann. art. 42.08(a); Beedy
v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008); Barrow v. State, 207 S.W.3d 377,
380 (Tex. Crim. App. 2006). It is “improper for a trial court to instruct a jury on the
consecutive sentencing law or to inform it of the effect such law might have on how
long a defendant might serve.” Stewart v. State, 221 S.W.3d 306, 316 (Tex. App.—Fort
Worth 2007, no pet.) (citing Clay v. State, 102 S.W.3d 794, 798 (Tex. App.—Texarkana
2003, no pet.)); see, e.g., Tellez v. State, No. 08-13-00141-CR, 2015 WL 5449728, at *7–
8 (Tex. App.—El Paso Sept. 16, 2015, pet. ref’d) (not designated for publication)
(concluding that defendant was not entitled to jury instruction regarding trial court’s
authority to order sentences to be served concurrently or consecutively after jury note
asking whether the sentences would be served concurrently or consecutively);
Villarreal v. State, No. 13-08-00601-CR, 2010 WL 2638486, at *2 (Tex. App.—Corpus
Christi–Edinburg June 29, 2010, no pet.) (mem. op., not designated for publication)
(stating that because trial court’s instructing jury regarding its discretion to run
sentences concurrently or consecutively would have been improper, trial court did not
err by failing to do so); Peterson v. State, Nos. 01-02-00603-CR, 01-02-00604-CR,
2003 WL 22681607, at *5 (Tex. App.—Houston [1st Dist.] Nov. 13, 2003, pet. ref’d)
(mem. op., not designated for publication) (finding no error when trial court did not
provide instruction on cumulation after jury asked whether sentences would run
consecutively). Because sentence cumulation here was within the trial court’s exclusive
discretion and because a jury instruction about cumulation would have been
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improper, we conclude and hold that the trial court did not err by refusing to instruct
the jury that it should not consider whether Robles’s sentences would run
concurrently or consecutively. We thus overrule Robles’s second issue.
III. The Cumulation Orders
Robles’s first issue challenges the trial court’s cumulation orders, arguing that
neither the cumulation portion of each written judgment nor the trial court’s oral
sentence pronouncement was sufficiently specific.
A trial court may order sentences to run consecutively by using language that is
sufficiently specific to enable prison authorities to know how long to detain the
prisoner under the sentences. Stokes v. State, 688 S.W.2d 539, 540 (Tex. Crim. App.
1985); see Tex. Code Crim. Proc. Ann. art. 42.08(a). The Texas Court of Criminal
Appeals recommends that cumulation orders contain five elements: (1) the trial-court
cause number of the prior conviction; (2) the correct name of the court where the
prior conviction was taken; (3) the date of the prior conviction; (4) the term of years
of the prior conviction; and (5) the nature of the prior conviction. Stokes, 688 S.W.2d
at 540; Ward v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975). Inclusion of all five
recommended elements is not mandatory. Stokes, 688 S.W.2d at 540. But the order
should be sufficiently clear so that it may be understood without having to refer to
other evidence. See id. (citing Ex parte Lewis, 414 S.W.2d 682, 683 (Tex. Crim. App.
1967)). When a cumulation order is not sufficiently clear, an appellate court may
reform the order and affirm as modified if the necessary information is in the record.
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See Banks v. State, 708 S.W.2d 460, 461–62 (Tex. Crim. App. 1986) (concluding that
appellate court can modify deficient cumulation order if trial court’s oral
pronouncement of sentence contains sufficient information); see also Tex. R. App. P.
43.2(b).
Here, the jury assessed a 15-year sentence on the sexual-assault charge (cause
number 1618334D) and a 5-year sentence on the indecency-with-a-child charge (cause
number 1618523D). Each of the trial court’s written conviction judgments state that
“THIS SENTENCE SHALL RUN CONSECUTIVELY.” Robles argues this
language is insufficient and does not amount to a proper written cumulation order
because it does not state which sentence will be served first, does not state that one
sentence will begin when the other ceases to operate, and does not state “if the
sentence will even run consecutively with the other sentence handed down the same
day or a matter within the same criminal transaction.” 4 See Stokes, 688 S.W.2d at 540;
Ward, 523 S.W.2d at 682.
We agree that the written cumulation orders lack specificity, but the trial court’s
oral sentence pronouncement made clear the court’s intent:
THE COURT: All right.
4
Robles claims that “[t]hroughout the punishment trial, several potential crimes
were alleged[,] and there is nothing in the record precluding the prosecution from
going forward on those potential criminal cases.” But the State agreed to waive the
other counts in cause number 1618523D and to dismiss two other cases pending
against Robles in exchange for his pleading guilty. And according to the record,
Robles had no other convictions at the time he was sentenced.
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Mr. Robles, the jury, having found you guilty and set your
sentences at fifteen and five years respectively in Cause Numbers
1618334 and 1618523, I’ll order these sentences to run consecutively.
They will be stacked. You will serve 1618334, the 15-year sentence first,
1618523 will be consecutive and begin to run after that.
Contrary to Robles’s assertion that the trial court did not state what “after that”
meant, the trial court’s oral pronouncement contains sufficient information for us to
reform the cumulation portions of the written judgments. See Banks, 708 S.W.2d at461–62; see also Sanders v. State, No. 2-08-058-CR, 2008 WL 4445644, at *9–11 (Tex.
App.—Fort Worth Oct. 2, 2008, no pet.) (per curiam) (mem. op., not designated for
publication) (modifying cumulation order based on information from oral
pronouncement).
Accordingly, we modify the judgment in each cause by adding the following
language after “THIS SENTENCE SHALL RUN CONSECUTIVELY”:
The sentence imposed by the 297th District Court on September 15,
2021, in cause number 1618334D for sexual assault of a child under
17 years of age (15 years) shall begin to run immediately. The sentence
imposed by the 297th District Court on September 15, 2021, in cause
number 1618523D for indecency with a child by sexual contact (5 years)
shall commence when the sentence imposed in cause number 1618334D
has ceased to operate.
See, e.g., Mason v. State, No. 03-14-00562-CR, 2016 WL 3582571, at *2 (Tex. App.—
Austin June 21, 2016, pet. ref’d) (mem. op., not designated for publication); Sanders,
2008 WL 4445644, at *11.
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IV. Conclusion
Having overruled Robles’s two issues, we affirm the judgments as modified. See
Tex. R. App. P. 43.2(b).
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 4, 2022
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