State v. Crook

• Decision Date: 06 February 2008
• Docket Number: No. PD-0001-07.,PD-0001-07.
• Citation: 248 S.W.3d 172
• Parties: The STATE of Texas v. James CROOK, Appellee.
• Court: Texas Court of Criminal Appeals

248 S.W.3d 172

The STATE of Texas v. James CROOK, Appellee.

No. PD-0001-07.

Court of Criminal Appeals of Texas.

February 6, 2008.

Rehearing Denied March 19, 2008.

David L. Botsford, Austin, TX, for Appellant.

John L. Davis, Asst. District Atty., El Paso, Jeffrey L. Van Horn, State's Atty., Austin, TX, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which MEYERS, PRICE, and KEASLER, JJ., joined.

In this case, we decide that the trial court was required to order appellee's thirteen fines (of $10,000 each) to run concurrently.

A jury convicted appellee in a single criminal action of thirteen counts of barratry,¹ which arose out of the same criminal episode.² The jury assessed punishment on each count at 10 years confinement with a recommendation of community supervision (probation) for this portion of appellee's sentence. The jury also assessed a $10,000 fine on each count with no recommendation of probation for this portion of appellee's sentence. The trial court placed appellee on probation for seven years on each count and ordered these periods of probation to run concurrently. Over the state's objection, the trial court also ordered the $10,000 fines to run concurrently. The state appealed, claiming that this portion of appellee's sentence is illegal,³ because the trial court was required to order the fines to run consecutively instead of concurrently. The court of appeals rejected this claim,⁴ and we granted review.⁵

With exceptions not applicable here, the general rule in cases like this is set out in Section 3.03(a), TEX. PEN.CODE, which, in relevant part, provides that "sentences shall run concurrently" when "the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action."⁶ It is undisputed in this case that appellee was "found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action." We do not understand the State to claim otherwise or to dispute that appellee's probationary terms should run concurrently. We understand the State to claim only that appellee's fines should run consecutively (and not concurrently).

This Court has decided, however, that a fine is part of a sentence. See State v. Ross, 953 S.W.2d 748, 750 (Tex.Cr.App. 1997) ("[A] sentence is nothing more than the portion of the judgment setting out the terms of punishment. For example, the sentence in this case would include the facts that appellant is to serve sixteen years in the penitentiary beginning July 28, 1995, that his term is concurrent and that he must pay a $500 fine.") (emphasis in original); see also State v. Kersh, 127 S.W.3d 775, 777 (Tex.Cr.App.2004) (sentence includes a fine).⁷ The concurrent sentences provision of Section 3.03(a) would, therefore, seem to plainly require that the fines in this case run concurrently.

The state argues, however, that this would be inconsistent with over 100 years of case law, which the state claims requires a holding in this case that fines run consecutively even though the terms of confinement (in this case, the probationary terms) run concurrently.⁸ These cases, however, either pre-date Section 3.03(a)⁹ or rely on these pre-section 3.03(a) cases in holding that the concurrent sentences provision of Section 3.03(a) does not apply to fines.¹⁰ These cases, therefore, provide little, if any, guidance on whether this Court should construe the concurrent sentences provision of Section 3.03(a) to apply to fines. In addition, we have not found, and the state does not cite to, any decision from this Court addressing the issue of whether the concurrent sentences provision of Section 3.03(a) should be construed to apply to fines. We, therefore, conclude that this is an issue of first impression before this Court.

The argument has been made that the Legislature could not have intended the concurrent sentences provision of Section 3.03(a) to apply to fines, because a fine does not "run" like a term of confinement (or probation), which, unlike a fine, involves the passage of time. See Mountain v. State, 789 S.W.2d at 664-65 (setting out, but not necessarily adopting, the argument that "as a matter of common sense, only that portion of a sentence involving the passage of time can `run'"); see also Juarez, 796 S.W.2d at 526 (relying on the Practice Commentary to Section 3.03 to decide that its concurrent sentences provision does not apply to fines).¹¹ It is, however, not apparent to us that the Legislature's use of the term "run" in Section 3.03(a) was meant to make a distinction between a term of confinement (or probation) and a fine for concurrent sentencing purposes.¹² The Practice Commentary is not definitive either, since its first sentence would seem to support construing the concurrent sentences provision of Section 3.03(a) to apply to the entire sentence, including fines. See Practice Commentary to Section 3.03 ("In effect this section treats multiple convictions resulting from prosecution of joined offenses as a single conviction for sentencing purposes.").

The legislative history of Section 3.03(a) also does not support the claim that the Legislature's use of the term "run" in Section 3.03(a) was intended to make a distinction between terms of imprisonment and fines for concurrent sentencing purposes. What is presently Section 3.03(a) was enacted by the 63rd Legislature in 1973 as part of the complete revision of the Texas Penal Code.¹³ Prior to the enactment of Section 3.03(a) in 1973, the state could not obtain multiple convictions in the same criminal proceeding when a person committed multiple crimes during the same criminal episode. Section 3.03(a) changed prior law by providing for multiple convictions in one criminal proceeding under these circumstances with the defendant having the right to "concurrent sentences."¹⁴

Testifying on behalf of the Criminal Defense Lawyers Association at a Senate Sub-Committee on Criminal Matters hearing on March 27, 1973, Frank Maloney described the structure of Chapter 3. He testified that Chapter 3 was intended to permit the state to obtain multiple convictions and sentences in one criminal proceeding for multiple offenses committed during the same "criminal episode." He testified that all sentences in convictions obtained under Section 3.03(a) would run concurrently with the defendant being required to serve the harshest one imposed. He further described the defendant's right to sever,¹⁵ which, if exercised, would expose the defendant to the possibility of consecutive sentences in the trial court's discretion.¹⁶

Testifying on behalf of the Texas County and District Attorneys Association at a House Criminal Jurisprudence Sub-Committee hearing on February 26, 1973, Tom Hanna, who was the Jefferson County District Attorney, agreed with Frank Maloney's description of Chapter 3. Mr. Hanna also testified that one of the purposes of Chapter 3 was to provide prosecutors with the ability to clear crowded dockets and to save tax-payer money by disposing of multiple crimes in one trial. He further testified that sentences under Section 3.03(a) must "run concurrently" unless the defendant exercised the right to sever, in which case the trial court would have the discretion to stack the sentences. Mr. Hanna testified that Chapter 3 was a "finely worked out balance" with prosecutors receiving the ability to clear crowded dockets and defendants receiving the right to concurrent sentences.¹⁷

There is nothing in the legislative history of Section 3.03(a) or any other provision of the 1974 Penal Code to indicate that anyone at any time ever took the position or even suggested that the concurrent sentences provision of Section 3.03(a) should not apply to fines.¹⁸ The main dispute or point of debate among the interested parties centered on the definition of "criminal episode" in Section 3.01 and not on whether some distinction should be made between terms of imprisonment and fines for concurrent sentencing purposes under Section 3.03(a).¹⁹ Nothing in the legislative history of Section 3.03(a) indicates that the Legislature intended for the concurrent sentences provision of Section 3.03(a) to apply to anything but the entire sentence, including fines. This would be consistent with the language that the Legislature used in Section 3.03(a) that "the sentences shall run concurrently." We decide that the concurrent sentences provision of Section 3.03(a) applies to the entire sentence, including fines.²⁰

The judgment of the court of appeals is affirmed.

KELLER, P.J., concurred.

HOLCOMB, J. filed a dissenting opinion in which JOHNSON and COCHRAN, JJ., joined.

COCHRAN, J. filed a dissenting opinion in which WOMACK, J., joined.

HOLCOMB, J., filed a dissenting opinion, in which JOHNSON and COCHRAN, JJ., joined.

I respectfully dissent from the majority's holding that the concurrent provision of the Texas Penal Code Section 3.03(a) applies to the entire sentence, including fines.

Since 1899, this Court has held that pecuniary fines imposed in separate cases should be cumulated. See Ex Parte Banks, 41 Tex.Crim. 201, 53 S.W. 688 (1899). Accord Ex Parte Williams, 133 Tex.Crim. 116, 109 S.W.2d 171 (1937); Ex Parte Hall, 158 Tex.Crim. 646, 258 S.W.2d 806 (1953); Bristow v. State, 160 Tex. Crim. 111, 267 S.W.2d 415 (1954); McCurdy v. State, 159 Tex.Crim. 477, 265 S.W.2d 600 (1954); Evans v. State, 169 Tex.Crim. 295, 333 S.W.2d 387 (1960); Ex parte Minjares, 582 S.W.2d 105 (Tex.Crim.App. 1978). We reasoned that such cases were "independent of each other, and that the applicant owe[d] the distinct amounts of fine and costs adjudged against him." Banks, 53 S.W. at 689. We, therefore, concluded that the fines were also "independent of each other, and the payment of one was not a satisfaction of the other." Id.

We have maintained this position to the present day. As we explained in Minjares, "[w]ere we to hold that the fines...