Regina Carrier v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00128-CR
NO. 09-19-00129-CR
NO. 09-19-00130-CR
NO. 09-19-00131-CR
__________________
REGINA CARRIER, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause Nos. 17-28407, 18-28994, 18-30153, 18-30154
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ORDER
Appellant Regina Carrier pleaded guilty in an open plea to four theft charges.
In each case, the trial court found Carrier guilty, imposed a sentence of two years of
confinement in a state jail facility, and ordered that the sentences would run
consecutively.
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Carrier’s appellate counsel filed a brief that presents counsel’s professional
evaluation of the record and concludes the appeals are frivolous. See Anders v.
California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App.
1978). On May 13, 2019, we granted an extension of time in each case for Carrier
to file a pro se brief. We received no response from Carrier.
Our review of the record reveals arguable error regarding the trial court’s
cumulation order. A trial court has the authority to order sentences to run
consecutively or concurrently. See Tex. Code Crim. Proc. Ann. art. 42.08 (West
2018). However, the trial court’s discretion is limited by section 3.03 of the Penal
Code, which provides: “When the accused is found guilty of more than one offense
arising out of the same criminal episode prosecuted in a single criminal action, a
sentence for each offense for which he has been found guilty shall be pronounced.
Except as provided by Subsection (b), the sentences shall run concurrently.” Tex.
Penal Code Ann. § 3.03(a) (West Supp. 2018). A defendant is prosecuted in a single
criminal action whenever the allegations and evidence of more than one offense
arising out of the same criminal episode are presented in a single trial or plea
proceeding, and the provisions of section 3.03 of the Texas Penal Code apply.
LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992). Because Carrier’s
cases involved repeated commission of the same offense, they arise out of the same
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criminal episode. See Tex. Penal Code Ann. § 3.01 (West 2011) (defining repeated
commission of the same or similar offenses as a criminal episode). We therefore
conclude that arguable error exists with respect to the trial court’s order that Carrier’s
sentences would run consecutively. Having found arguable error, we must remand
the case to the trial court for appointment of new counsel. See Stafford v. State, 813
S.W.2d 503, 511 (Tex. Crim. App. 1991).
It is, therefore, ORDERED that the appeal is ABATED and the cause is
REMANDED to the trial court for appointment of new counsel for the appellant,
Regina Carrier. A supplemental clerk’s record containing the order appointing new
counsel shall be filed with the trial court by September 13, 2019. The brief of the
appellant shall be due thirty days after the appeal is reinstated. The State’s brief shall
be due thirty days after the appellant’s brief is filed. We remove the case from the
submitted docket. The appeal will be re-submitted after the briefs on the merits have
been filed.
ORDER ENTERED August 15, 2019.
PER CURIAM
Before McKeithen, C.J., Horton and Johnson, JJ.
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