Barry Chad Beal v. State

Opinion filed August 21, 2014
In The
Eleventh Court of Appeals
____________________
Nos. 11-13-00258-CR, 11-13-00259-CR, 11-13-00260-CR,
11-13-00261-CR, 11-13-00262-CR, 11-13-00263-CR,
11-13-00264-CR, & 11-13-00265-CR
____________________
BARRY CHAD BEAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Coleman County, Texas
Trial Court Cause Nos. 2564, 2565, 2566, 2567, 2568, 2569, 2570, & 2571
MEMORANDUM OPINION
The State charged Appellant by information with eight separate cases of
burglary of a habitation. Appellant waived indictment, and in a single proceeding,
he pleaded guilty to each one of the charges. The trial court found Appellant guilty
of each offense and assessed his punishment at confinement for fifteen years in
Cause Nos. 2564 and 2565. It assessed Appellant’s punishment at confinement for
ten years in Cause Nos. 2566 through 2571. The trial court also ordered that the
sentence in Cause No. 2565 was to run consecutively to the sentence in Cause No.
2564. We modify the trial court’s judgment in Cause No. 2565 to delete the
cumulation order, and as modified, we affirm. We also affirm the remaining
judgments.
Appellant presents us with one common issue in each appeal, and in Cause
No. 2565 (our Cause No. 11-13-00259-CR), he adds an additional issue. The issue
common to all eight appeals is that “the trial court erred in admitting testimony
regarding extraneous acts prior to appellant having been found guilty.” We will
address the common issue first.
The essence of Appellant’s argument is that Appellant’s prior criminal
record was admissible only after a finding of guilt and that the trial court did not
find Appellant guilty at the initial plea hearing. It was not until the conclusion of a
subsequent punishment hearing—held following the preparation of a presentence
investigation report—that the trial court found Appellant guilty. It was at this
hearing, prior to the formal entry of a finding of guilt, that testimony was admitted
regarding Appellant’s prior criminal record. Therefore, argues Appellant, the trial
court erred when it admitted evidence of Appellant’s criminal record prior to the
time that it found Appellant guilty.
The evidence to which Appellant refers concerns a prior assault as well as a
case in which Appellant allegedly was placed on probation for “trafficking
steroids.” The State argues that these offenses had nothing to do with Appellant’s
guilt and that all of the evidence regarding his guilt had already been presented in
the earlier plea hearing. It maintains that the evidence presented at the plea hearing
was sufficient to support a finding of guilt as of the conclusion of that hearing and
that, at that point, the guilt/innocence phase of the proceedings effectively was
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over. Moreover, the State argues that Appellant has waived the admissibility issue
by failing to object at the time that the evidence was offered in the trial court.
We agree that Appellant has waived the issue. The record shows that no
objection was made to the admission of the testimony. Consequently, the
complaint has not been preserved for appellate review. See TEX. R. APP. P. 33.1;
Freeman v. State, 230 S.W.3d 392, 407–08 (Tex. App.—Eastland 2007, pet. ref’d).
Appellant’s issues in all appeals other than Cause No. 11-13-00259-CR are
overruled, as is Appellant’s first issue on appeal in Cause No. 11-13-00259-CR.
In Appellant’s second issue in our Cause No. 11-13-00259-CR, he
complains that “the trial court erred in ordering appellant’s sentence to run
consecutively, rather than concurrently, with another case arising out of the same
criminal episode.” See TEX. PENAL CODE ANN. § 3.01(2) (West 2011), § 3.03
(West Supp. 2013). “Criminal episode” is the statutory term that relates, among
other things, to the commission of two or more offenses when “the offenses are the
repeated commission of the same or similar offenses.” Id. § 3.01(2). The State
concedes in its briefing that, under the holdings in Robbins v. State, 914 S.W.2d
582 (Tex. Crim. App. 1996); Duran v. State, 844 S.W.2d 745 (Tex. Crim. App.
1992); and LaPorte v. State, 840 S.W.2d 412 (Tex. Crim. App. 1992), “the trial
court’s handling of Appellant’s cases would be considered a ‘single criminal
action.’” We agree. Here, the offenses constituted a criminal episode, and they
were tried in a single proceeding. When a defendant is prosecuted in a single
criminal action, whether pursuant to one or several charging instruments, that is
based on charges arising out of the same criminal episode, it is improper for the
trial court to cumulate sentences. PENAL § 3.03; Jackson v. State, 157 S.W.3d 514,
516 (Tex. App.—Texarkana 2005, no pet.).
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The trial court improperly cumulated the sentence in Cause No. 2565 so that
it was to run consecutively to the sentence in Cause No. 2564. We sustain
Appellant’s second issue on appeal in our Cause No. 11-13-00259-CR
The appropriate remedy in this situation is for this court to modify the
judgment of the trial court to delete the cumulation order. LaPorte, 840 S.W.2d at
415; see TEX. R. APP. P. 43.2. Accordingly, we modify the judgment of the trial
court in Cause No. 2565 to delete the complained-of cumulation order; as
modified, we affirm that judgment. We affirm the judgments of the trial court in
Cause Nos. 2564, 2566, 2567, 2568, 2569, 2570, and 2571.
JOHN M. BAILEY
JUSTICE
August 21, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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