State v. James Crook

COURT OF APPEALS COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS THE STATE OF TEXAS,                                     ) ) No. 08-02-00383-CR Appellant, ) ) Appeal from the v. ) ) 383rd District Court JAMES CROOK,                                                 ) ) of El Paso County, Texas Appellee. ) ) (TC# 20010D03480) ) O P I N I O N Appellee was convicted of the offense of barratry and was assessed punishment at 10 years= confinement, probated for 7 years=, and a $10,000 fine. On appeal, the State raises a single issue in which it argues that the trial court entered an illegal sentence as a result of its failure to cumulate Appellee=s fines. We affirm. PROCEDURAL BACKGROUND After a jury trial, Appellee was found guilty on thirteen counts of barratry. Prior to signing the judgment, the trial court held a hearing to determine whether to cumulate the fines. On August 23, 2002, the trial court held a hearing, the State presented the trial judge with the following cases: Mills v. State, 848 S.W.2d 878 (Tex.App.--Houston [1st Dist.] 1993, no pet.); Rocky Mountain v. State, 789 S.W.2d 663 (Tex.App.--Houston [1st Dist.] 1990, pet. ref=d); and Veteto v. State, 8 S.W.3d 805 (Tex.App.--Waco 2000, no pet.). The trial court believing it was within its discretion to cumulate the fines, refused to do so. Instead, the trial court ordered the fines to run concurrently. DISCUSSION In its single issue, the State argues that the trial court=s order making the Appellee=s fines consecutive was without authority and therefore, the sentence entered was illegal. The State begins its argument by citing to Rocky Mountain v. State, to support its contentions that pecuniary fines in misdemeanor cases are cumulated and to extend that reasoning to felony cases where prison sentences are required to run concurrently. We note however that Rocky Mountain does not specifically state that cumulative fines apply to felony cases. See Rocky Mountain, 789 S.W.2d at 665. The State cites to another case, Mills v. State, involving a misdemeanor conviction in which the Court held that Section 3.03 of the Texas Penal Code does not apply to fines. Mills, 848 S.W.2d at 880. Texas Penal Code Section 3.03(a) states: When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal actions, a sentence for each offense for which he has been found guilty shall be pronounced. Tex.Pen.Code Ann. ' 3.03(a)(Vernon 2003). Finally, the State cites to Veteto v. State. In Veteto, the defendant was convicted of three counts of the felony offense of aggravated sexual assault of a child and was assessed a fine of $5,000 for each count. The Court of Appeals in that case, upheld the imposition of the cumulated fines. The Court in Veteto cited to Rocky Mountain v. State and stated the following: The Texas Penal Code requires sentences to run concurrently where an accused is found guilty of more than one offense arising out of the same criminal episode. See Tex.Pen.Code Ann. ' 3.03(a)(Vernon Supp.2000). The Court of Criminal Appeals has not interpreted the meaning of the term >sentence=; however, the long standing rule has been that fines are cumulated and the Penal Code does not alter that rule. Mountain v. State, 789 S.W.2d 663, 665 (Tex.App.--Houston [1st Dist.] 1990, pet. ref=d); Mills v. State, 848 S.W.2d 878, 880 (Tex.App.--Houston [1st Dist.] 1993, no pet.). The Court has not taken issue with this interpretation, and neither will we. We find no error with the trial court=s correction of its pronouncement of sentence which contravened this long standing rule. Veteto, 8 S.W.3d at 818. We agree with the State=s contention that Section 3.03 of the Texas Penal Code does not apply to fines. However, we do not find that case law without exception calls for all fines to be cumulated. The State has not pointed to any authority mandating the trial judge to cumulated sentences in felony cases[1]. The case law relied on by the State in its appellate brief concerns misdemeanor offenses, and we do not find that such case law makes cumulated sentences a requirement in felony cases. The case law cited simply states that Texas Penal Code Section 3.03 does not apply to fines. We find no abuse of discretion on the part of the trial judge in deciding not to cumulate the fines. Accordingly, we find that the sentence imposed by the trial court was not illegal. We therefore overrule Issue One. Accordingly, the judgment of the trial court is affirmed. June 30, 2005 DAVID WELLINGTON CHEW, Justice Before Panel No. 1 Larsen, McClure, and Chew, JJ. Larsen, J. (Not Participating) (Do Not Publish) [1] Instead, the State argues that there is no authority that fines be consecutive and that therefore, fines must be cumulated; that there is no authority to the contrary.