Jesus Valenzuela Amaro v. State

Opinion filed August 23, 2018
In The
Eleventh Court of Appeals
__________
No. 11-16-00246-CR
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JESUS VALENZUELA AMARO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CR46174
MEMORANDUM OPINION
The jury convicted Jesus Valenzuela Amaro of the offenses of criminal
solicitation of a minor (Count I) and indecency with a child by exposure (Count II). 1
The jury assessed punishment in Count I at confinement for five years and a fine of
$5,000. In Count II, the jury assessed punishment at confinement for ten years and
a fine of $5,000, but it recommended that the imposition of the sentence in this count
1
TEX. PENAL CODE ANN. §§ 15.03, 21.11(a)(2)(A) (West 2011 & Supp. 2017).
be suspended and that Appellant be placed on community supervision. The trial
court sentenced Appellant accordingly and ordered that Appellant serve the
community supervision term in Count II consecutively to the sentence in Count I.
Appellant asserts on appeal that the trial court improperly cumulated his sentences.
The State agrees. Because we also agree, we modify and affirm.
In his only issue on appeal, Appellant contends that his sentence for the
conviction of criminal solicitation of a minor is not subject to cumulation under the
applicable statutes. A trial court’s decision as to whether to order concurrent or
cumulative sentences is discretionary in some situations and is mandated by statute
in other situations. See Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008);
see also TEX. CODE CRIM. PROC. ANN. art. 42.08 (West 2018). Here, the relevant
statutory provision contains mandatory language. See TEX. PENAL CODE ANN.
§ 3.03(a) (West Supp. 2017). When a defendant is prosecuted in a single criminal
action for more than one offense stemming from the same criminal episode, the
sentences “shall run concurrently” unless “each sentence is for a conviction of” an
offense specified in Section 3.03(b). Id. § 3.03(a), (b). Although indecency with a
child is an offense specified in Section 3.03(b), criminal solicitation of a minor is
not one of the enumerated offenses. See id. § 3.03(b). Section 3.03(b) requires that
“each sentence” be for an enumerated offense. Because the sentence for criminal
solicitation of a minor was not for an enumerated offense, the trial court had no
discretion to stack the sentences and was required by Section 3.03 to order
concurrent sentences. We sustain Appellant’s sole issue on appeal.
The appropriate remedy for an unlawful cumulation order is reformation of
the judgment to delete the cumulation order. Morris v. State, 301 S.W.3d 281, 295–
96 (Tex. Crim. App. 2009); Beedy, 250 S.W.3d at 114. Accordingly, the following
language must be deleted from the judgment in Count II: “The community
2
supervision term assessed in Count II shall not begin until the sentence in Count I
has ceased to operate.”
We modify the judgment of the trial court in Count II to delete the cumulation
order and to reflect that the sentences in Counts I and II are to be served concurrently.
As modified, we affirm the judgments of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
August 23, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, J.;
Gray, C.J., 10th Court of Appeals 2;
and Wright, S.C.J.3
Willson, J., not participating.
2
Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3