D had a jury trial on two counts of agg sex assault of a child where the offense dates were Dec 1997. Jury sentenced to 5 years probated on each count. The revocation is tomorrow. May the Judge stack the counts at revocation to a total of ten TDC (the probations were not stacked at sentence pronouncement)? I haven't found the cases. Thanks for any help.

[This message was edited by BLeonard on 06-16-04 at .]

Probably not. But why not revoke on only one case and leave the defendant on probation on the other case, extending the probation for another five years. Then, when defendant gets out of prison, extend probation for another 10 years.

I doubt my judge will do it but I may try. She generally wants them off the probation rolls once and for all. John, do you think that the probations must have been stacked at the time sentence was pronounced? Remember, the counts are contained in the same indictment. I don't think I can revoke him on one count and not the other....they are the same cause number.

In Burns v. State, 835 S.W.2d 733 (Tex.App.-Corpus Christi 1992), the Court of Appeals clearly addressed the issue of stacking sentences imposed when multiple terms of probation are revoked. The Court wrote, �When a court suspends a sentence and places a defendant on probation, later revoking that probation, no sentence has been imposed. The question of whether multiple sentences are to be served consecutively or concurrently is not addressed by the trial court because the issue is not ripe. If probation is later revoked, a sentence is imposed for the first time. When multiple offenses are at issue, the court may, at its discretion, order the original sentences-rendered in separate criminal actions- to run consecutively. The court may cumulate these sentences even though the judgments suspending the imposition of the original sentences and ordering probation do not provide for the cumulation of the sentences.� The court clearly ruled that when multiple terms of probation, ordered for separate offenses, are revoked, the court has discretion to order that the sentences imposed be cumulated.

In McCullar v. State, 676 S.W.2d 587 (Tex.Cr.App. 1984), the Court of Criminal Appeals also addressed the issue of cumulating sentences when multiple terms of probation are revoked. In that decision, the Court held; even if the Court stated, while placing the defendant on multiple probations, that if the probations were revoked the sentences would run concurrently; sentence was not imposed until the sentence was revoked and the trial court was authorized to impose the sentences consecutively. The Court also ruled that even though the judgments suspending the imposition of the original sentences and ordering probation did not provide for the cumulation of the sentences, the trial court had the power to cumulate the sentences after revoking the probations.

In Gordon v. State, 575 S.W.2d 529, the Court of Criminal Appeals addressed the issue, �Does a trial judge have the power to cumulate sentences after revoking probation in a felony case?� The Court noted that it had approved the cumulation of sentences for eighty-two years. The Court then approved the cumulation of two sentences when two different probations, granted on the same day for different offenses, were revoked.

Stacking laws are complicated. With some exceptions, you can only stack sentences that came from different "criminal episodes" if both convictions were obtained in the same "criminal action." The PC defines "criminal episode", but it doesn't define criminal action.

The Court of Criminal Appeals has never given a definitive definition of criminal action, but the court seems to look at whether the plea proceedings were simultaneous.

For the purpose of your question, I am assuming the convictions were obtained at one time. [Given Shannon's posting above, that may not be a problem.] So, the only question is whether the offenses came from different criminal episodes.

But, two offenses, even if they occurred years apart, can be the same criminal episode if they involve the same or similar crimes within the PC. Otherwise, you look at the more typical understanding of different episodes.

And, finally, you can ignore all of this if the crimes involved certain sex offenses, intoxication manslaughter or a drug delivery in a drug-free zone.

Now, does all of that make sense? No, it doesn't.

The legislature should simply give judges the discretion to stack sentences, regardless of all this mumbo jumbo. In addition, the legislature should permit severance of joined crimes for a single trial only if there would be substantial unfair prejudice to the defendant. They did that with sex crimes and it has worked very well.

Of course, as we learned from the court of criminal appeals in a case released today, you can ignore all of this if the defendant fails to object.

3.03(b) TPC makes an exception to the "same criminal episode" construct and specifically allows stacking in the case of agg sex assault of a child, among others. I think the salient question is answered in the cases Mr. McCrary gives us above: whether the stack order must be entered at the time the judge pronounces the probated sentences or may be entered at the time of revocation. Thanks and many thanks to Sammy McCrary for timely assistance. I got brain lock yesterday...the revocation resumes at 3:30 tomorrow, not today. I will have to plow through an entire congregation from the D's church before I know what the judge will do.

Thanks, Shannon and especially Sammy McCrary! Amid much wailing and gnashing of teeth, the Judge stacked the counts Friday at 6:45 (after the congregation finished testifying). The Judge had done her own research and had mostly the same cases. Once again, it takes a villiage to make me look competent.

[This message was edited by BLeonard on 06-21-04 at .]

[This message was edited by BLeonard on 06-21-04 at .]