Caraway v. State
| Decision Date | 03 March 2022 |
| Docket Number | 13-21-00087-CR,13-21-00086-CR |
| Court | Texas Court of Appeals |
| Parties | BRITTNY SHAY CARAWAY A/K/A BRITNY CARAWAY, Appellant, v. THE STATE OF TEXAS, Appellee. |
Do not publish. Tex.R.App.P. 47.2 (b).
On appeal from the 24th District Court of DeWitt County, Texas.
Before Justices Hinojosa, Tijerina, and Silva
In a consolidated hearing, the trial court adjudicated appellant Brittny Shay Caraway a/k/a Britny Caraway's guilt and revoked her community supervision for two third-degree offenses of possession of a controlled substance (POCS) and sentenced her to ten years' imprisonment on each offense.[1] See Tex Health & Safety Code Ann. §§ 481.115(c), 481.134(d). The trial court ordered the sentences to run consecutively. By one issue, Caraway argues the trial court abused its discretion in doing so. We affirm.
On April 15, 2015, Caraway was indicted in trial court cause number 15-04-12, 222 for the offense of POCS in penalty group one, namely, methamphetamine in the amount of less than one gram in a drug-free zone, a state jail felony enhanced to a third-degree felony. See id. § 481.134(d). Caraway pleaded guilty pursuant to a plea bargain agreement on August 13, 2015. As part of the agreement, the State dismissed a POCS charge stemming from an unrelated May 2015 arrest. The trial court deferred adjudication of guilt and placed Caraway on community supervision for a period of four years.
On February 9, 2016, Caraway was subsequently arrested for POCS in penalty group one, namely, methamphetamine in the amount greater than one gram but less than four grams, a third-degree felony. See id. § 481.115(c). Caraway was indicted in trial court cause number 16-07-12, 474, and the State filed a motion to adjudicate guilt in trial court cause number 15-04-12, 222, alleging Caraway's February 9, 2016 arrest was a violation of her existing community supervision conditions.
On September 20, 2016, Caraway and the State entered into a plea bargain agreement, wherein Caraway pleaded guilty in trial court cause number 16-07-12, 474 in exchange for four years' deferred adjudication community supervision. On the same day, the trial court signed the State's motion to dismiss its pending adjudication motion in trial court cause number 15-04-12, 222 and modified Caraway's community supervision conditions, ordering her to attend outpatient treatment. Caraway's conditions were modified once more in January 2017 in both cause numbers, and Caraway was ordered to attend treatment at an inpatient Substance Abuse Felony Punishment Facility (SAFPF).
Caraway was unsuccessfully discharged from SAFPF in 2017. In lieu of the State pursuing its motions to adjudicate, Caraway agreed to the trial court's imposition of jail sanctions, and Caraway was ordered to attend a SAFPF relapse treatment program. In 2018, Caraway was unsuccessfully discharged from SAFPF and ordered to repeat the SAFPF relapse treatment program. In 2019, the trial court extended Caraway's community supervision term for two years in each case. Caraway was unsuccessfully discharged from SAFPF again in 2020 following an arrest for POCS.
In April 2020, the State moved to adjudicate guilt in both cases, alleging, in relevant part, that Caraway committed the offense of POCS on or about April 13, 2020; tested positive for methamphetamine on various dates; and had been unsuccessfully discharged from SAFPF in 2017, 2018, and 2020. The trial court held a hearing on March 17, 2021, wherein Caraway's defense counsel informed the trial court that she wished to have both cases heard "together." After the trial court accepted Caraway's mixed pleas of true and not true, the State called several witnesses, including the community supervision unit supervisor, a counselor from the outpatient facility Caraway attended, and the arresting officer from Caraway's April 13, 2020 arrest. Caraway also testified, as did her sister, stepmother, and father.
During closing argument, the State requested that the trial court "adjudicate both cause numbers to find her guilty in each case and to sentence her to 10 years['] confinement in each case and to stack those two sentences." Caraway asked for her community supervision to be reinstated, and alternatively, she requested that the trial court order "a minimum sentence, not to be stacked in each case." Caraway objected to the State's request for the imposition of a consecutive sentence, arguing that she did not believe that the "Code permits stacking when we have one consolidated hearing." The trial court found all the allegations true in the State's motions to adjudicate, sentenced Caraway to ten years' imprisonment in each cause, and stated: "It's the order of the Court that these sentences are to run consecutive and the language that needs to be in the orders is that [']Cause No. 12-474 does not begin until 12, 222, ['] the actual language [sic] [']ceases to operate.[']"
Caraway objected to the trial court's cumulation of her sentence in a motion for new trial, which was overruled by operation of law. This appeal followed.
By a single issue in each appeal, Caraway argues the trial court abused its discretion by ordering her sentences to run consecutively because she was not convicted of an offense for which Texas Penal Code § 3.03 authorizes consecutive sentencing. See Tex. Penal Code Ann. § 3.03. The State counters that Caraway "specifically waived the right to have the cases heard separately, wanting them tried together in the adjudication hearing"-thereby "subject[ing] [Caraway] to consecutive sentences." Alternatively, the State observes that although the trial court orally imposed a consecutive sentence, neither of the two judgments on appeal "reflect that the cases are to run consecutive"; thus, "the trial court should be in all things affirmed."
We review a trial court's decision to cumulate sentences for an abuse of discretion. See Byrd v. State, 499 S.W.3d 443, 446 (Tex. Crim. App. 2016); Waddell v. State, 456 S.W.3d 366, 369 (Tex. App.-Corpus Christi-Edinburg 2015, no pet.). “That discretion to cumulate or not is largely-but not entirely-unfettered.” Ex parte Carter, 521 S.W.3d 344, 351-52 (Tex. Crim. App. 2017) (Yeary, J., concurring) (). A reviewing court will generally only find an abuse of discretion if “(1) the trial court imposes consecutive sentences when the law requires concurrent sentences, (2) the trial court imposes concurrent sentences when the law requires consecutive ones, or (3) the trial court otherwise fails to observe the statutory requirements pertaining to sentencing.” Ex parte Scott, 541 S.W.3d 104, 118 n.16 (Tex. Crim. App. 2017) (quoting Beedy v. State, 194 S.W.3d 595, 597 (Tex. App.-Houston [1st Dist.] 2006)). We review de novo whether cumulative sentencing is statutorily permissible in a given case. Ex parte Vela, 460 S.W.3d 610, 612 (Tex. Crim. App. 2015); Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008). “The overarching rule of statutory construction is that we construe a statute in accordance with the plain meaning of its text unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not possibly have intended." Ex parte Vela, 460 S.W.3d at 612; see Tex. Gov't Code Ann. § 311.011(a).
Article 42.08 of the code of criminal procedure generally affords a trial court the discretion to cumulate the sentences for two or more convictions. Tex. Code Crim. Proc. Ann. art. 42.08(a); see Cisneros v. State, 622 S.W.3d 511, 522 (Tex. App.-Corpus Christi-Edinburg 2021, no pet.). However, § 3.03(a) of the penal code provides that "sentences shall run concurrently '[w]hen the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action'"- absent the applicability of exceptions specified in § 3.03(b). Middleton v. State, 634 S.W.3d 46, 49 (Tex. Crim. App. 2021) (emphasis added) (quoting Tex. Penal Code Ann. § 3.03(a)); see also Miles v. State, 506 S.W.3d 485, 486 (Tex. Crim. App. 2016) ().
Under § 3.03(a), "offenses committed during 'the same criminal episode' include offenses that 'are the repeated commission of the same or similar offenses.'" Middleton, 634 S.W.3d at 49 (); see Waddell, 456 S.W.3d at 369 (). The phrase "a single criminal action" in § 3.03(a) "refers to a single trial or plea proceeding." Middleton, 634 S.W.3d at 50. Multiple indictments can be considered to have been "prosecuted in a single criminal action" when disposed of in a consolidated punishment hearing. Id. at 50-52 (); see also Ex parte Carter, 521 S.W.3d at 352 (...
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