Oscar Bonilla v. The State of Texas--Appeal from 114th District Court of Smith County

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State: Texas

Court: Texas Northern District Court

Docket No: 06-11-00018-CR

Case Date: 09/19/2011

Plaintiff: Charles Joseph Churan

Defendant: The State of Texas--Appeal from 252nd District Court of Jefferson County

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Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-10-00071-CR NO. 09-10-00072-CR

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CHARLES JOSEPH CHURAN, Appellant V. THE STATE OF TEXAS, Appellee _____________________________________________________________________ On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause Nos. 63095, 63096 _____________________________________________________________________ MEMORANDUM OPINION These are appeals of the trial court's judgments revoking deferred adjudication community supervision and imposing sentence. In three issues, Churan argues that the trial court was not authorized to order the sentences to run consecutively, the trial court was not authorized to order the two cases to run consecutively to another case, and he received ineffective assistance of counsel. We reverse the trial court's judgments and remand the causes for a new punishment hearing.

1

Pursuant to plea bargain agreements, appellant Charles Joseph Churan pled guilty to indecency with a child (trial cause number 63095) and inducing sexual performance by a child (trial cause number 63096). In each case, the trial court found the evidence sufficient to find Churan guilty, but deferred further proceedings, placed Churan on community supervision for ten years, and assessed a fine of $500. The State

subsequently filed a motion to revoke Churan's unadjudicated community supervision in each case. Churan pled "true" to two violations of the conditions of his community supervision in both cases. In each case, the trial court found that Churan had violated the conditions of his community supervision and found him guilty. During the punishment hearing, the State recommended that the Court "sentence him to the absolute maximum on both his cases, and I'd recommend that the Court then stack them on top of one another." Defense counsel did not respond to the State's recommendation or otherwise comment on the issue of stacking the cases, nor did he file a motion for new trial. In the indecency with a child case, the trial court assessed punishment at ten years of confinement, and in the inducing sexual performance by a child case, the trial court assessed punishment at twenty years of confinement. The trial court ordered that the sentences were to run consecutively.1

At the punishment hearing, the trial court orally pronounced that "[t]hese sentences will run consecutive." The trial court's judgments recite that the cases will run "consecutive to the case specified below," but nothing more is specified in either judgment. 2

1

Section 42.08 of the Code of Criminal Procedure grants the trial court authority to order sentences to run consecutively or concurrently. See TEX. CODE CRIM. PROC. ANN. art. 42.08 (Vernon Supp. 2010). However, the trial court's discretion to order sentences to run consecutively is limited by section 3.03(a) of the Penal Code, which provides as follows: "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. Subsection (b), the sentences shall run concurrently." 3.03(a) (Vernon Supp. 2010). Churan's offenses in cause numbers 63095 and 63096 involved the same victim and were committed on the same date, and the State concedes that the cases involved the same criminal episode and were tried in a single proceeding. However, as discussed above, when the trial court pronounced sentence and ordered that the cases would run consecutively, Churan did not object, and he did not timely raise the issue in a motion for new trial or otherwise. Therefore, issues one and two are not preserved for review. See TEX. R. APP. P. 33.1(a)(1)(A) (To preserve a complaint for appellate review, an appellant must present a timely request, or objection, or motion to the trial court.); Mendenhall v. The date of Churan's offenses was August 14, 1992. Therefore, although Churan was convicted of offenses under sections 21.11 and 43.25 of the Penal Code, section 3.03(b) of the Penal Code does not apply to the instant case. See TEX. PEN. CODE ANN.

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