Jason Lee Dickinson v. State of Texas

  IN THE

TENTH COURT OF APPEALS

No. 10-00-010-CR

No. 10-00-410-CR

No. 10-00-411-CR

No. 10-00-412-CR

No. 10-00-413-CR

No. 10-00-414-CR

No. 10-00-415-CR

     JASON LEE DICKINSON,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 66th District Court

Hill County, Texas

Trial Court Nos. 30,285; 30,286;

30,287; 30,291; 30,332; 30,333; 30,334

                                                                                                                                                                                                                         

O P I N I O N

                                                                                                               Â

      Jason Lee Dickinson was charged with seven offenses, three offenses of deadly conduct and four offenses of aggravated assault. He pled guilty and received deferred adjudication for six of the offenses and was sentenced to boot camp for one offense. No appeal was taken from those decisions by the trial court. Later, Dickinson was placed on community supervision for the boot camp offense. Four years after his initial plea, Dickinson pled true to violations of his community supervision. He was adjudicated and sentenced in the six deferred offenses and revoked and sentenced in the one boot camp/community supervision offense. He received a total of 60 years in prison. Dickinson now appeals each of those seven sentences. We affirm.

Consecutive Sentences

      On appeal, Dickinson’s only issue is that the trial court improperly ordered his sentences to run consecutively or “stacked.” He contends that the offenses arose out of the same criminal episode and were prosecuted in a single criminal action. Thus, he contends section 3.03 of the Texas Penal Code controls, and the sentences should run concurrently.

      Section 3.03(a) 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. . . . [T]he sentences shall run concurrently.

Tex. Pen. Code Ann. § 3.03(a) (Vernon Supp. 2001).

      The crux of the dispute is whether the seven offenses were prosecuted in a single criminal action. A defendant is prosecuted in a “single criminal action” when allegations and evidence of more than one offense arising out of the same criminal episode are presented in a single trial or plea proceeding. Ex parte Pharr, 897 S.W.2d 795, 796 (Tex. Crim. App. 1995); La Porte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992). When deciding what constitutes a single criminal action, we look to the trial itself or to the proceeding where the defendant’s guilt is adjudicated and sentence is pronounced. Rollins v. State, 994 S.W.2d 429, 433 (Tex. App.—Beaumont 1999, no pet.).

      The State relies on McJunkins v. State to argue that Dickinson waived his right to concurrent sentences because he pled guilty and was sentenced in accordance with a plea agreement. See McJunkins v. State, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997). However, the record before us does not indicate the parties ever agreed to a plea bargain. McJunkins does not apply.

      Dickinson argues that in 1995 when he was initially given deferred adjudication and boot camp, all seven causes were called and heard together in an intertwined manner. However, the trial court found guilt and pronounced sentence in only one cause. In that cause, Dickinson was sentenced to ten years in prison and given boot camp. His guilt was not determined at that time on any of the six other offenses. Thus, the prison sentence could not have been stacked with any other sentence at that time. In 1999, when the State requested adjudication on six offenses and revocation on the seventh, it is clear from the record that each cause was pled and heard separately. While each cause was dealt with on the same date, the trial court heard one case at a time. When necessary, the court recessed a case before proceeding with the next case.

Conclusion

      We hold the seven causes were not prosecuted in a single criminal action, and section 3.03 does not apply. The sentences were correctly stacked. Dickinson’s issue is overruled, and the trial court’s judgments are affirmed.

 

                                                             TOM GRAY

                                                             Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed July 18, 2001

Do not publish

for rehearing was timely filed to which a response was not requested until five months after the disposition of the case.  I am extraordinarily reluctant to withdraw an opinion and judgment of this Court when I have been provided nothing upon which to base that decision.  By this, I do not mean that we have not received argument in a motion for rehearing, but rather that we normally do not withdraw an opinion without simultaneously substituting another opinion in its place.

          I see no reason to withdraw an opinion unless and until we have decided, drafted, and are ready to issue such an opinion, I believe it is ill-advised to withdraw a previously issued opinion which garnered support from a majority of the justices on the court.

          Accordingly, I dissent from the Order Granting Rehearing which results in the withdrawal of the opinion and judgment of this Court dated October 13, 2004.

 

 

                                                          TOM GRAY

                                                          Chief Justice

 

Dissenting opinion delivered and filed April 27, 2005