Montgomery Ward & Co., Inc. v. Brazos County Appraisal District and Brazos County Appraisal Review Board

Montgomery Ward & Co., Inc. v. Brazos County Appraisal District and Brazos Coounty Appraisal Review Board IN THE TENTH COURT OF APPEALS No. 10-98-369-CV MONTGOMERY WARD & CO., INC., Appellant v. BRAZOS COUNTY APPRAISAL DISTRICT AND BRAZOS COUNTY APPRAISAL REVIEW BOARD, Appellees From the 85th District Court Brazos County, Texas Trial Court # 43,977-85 MEMORANDUM OPINION On March 8, 1999, Appellant filed a motion to dismiss this appeal because a motion for new trial had been granted by the trial court. In relevant portion, Rule 42.1(a) of the Texas Rules of Appellate Procedure provides: (a) The appellate court may dispose of an appeal as follows: (2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no other party may be prevented from seeking any relief to which it would otherwise be entitled. Tex. R. App. P. 42.1(a)(2). The Appellees have not filed a response to the motion. Accordingly, this cause is dismissed with costs to be taxed against the Appellant. PER CURIAM Before Chief Justice Davis, Justice Vance, and Justice Gray Dismissed Opinion delivered and filed March 24, 1999 Do not publish -align: justify; margin-left: 0.3in; margin-right: 0.3in">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