I am trying a pedophile on 5 counts of indecency with a child. We are in punishment. We are going to ask the judge to stack the sentences. The defense wants a charge to the jury on stacking and basically wants to argue to the jury to lessen their sentence on each count in anticipation of the judge stacking the sentences. I think it's pretty clear from the penal code that the prerogative of cumulating the sentences is exclusively the judge's and the jury should sentence without regard to what the judge may or may not do. Not much case law out there as far as I can see. Anyone have any ideas or knows of a case I have missed? I would appreciate the help. We finish tomorrow and will likely charge the jury just after lunch. Thanks.

I am not aware of any instruction because the decision to stack or not is completely within the sound discretion of the Trial Judge. We just tell the jury not to count on anything regarding whether the Judge will or will not stack and to give the Defendant every thing they think he deserves.

Mark Parker

I recommend the approach taken with parole. Instruct them that the judge may stack the sentences. Then instruct them that they are not to speculate on whether that will happen; they should only assess the punishment that fits each crime.

Sometimes, though, the defense gets hurt by bringing out stacking and talking all about it. Usually, the defense is asking for probation. So, more and more, juries are giving pen time and probation, knowing the judge can stack the probation.

Mr. Phelps,

Manzano & Donnell out of Waco should be helpful according to one of your co-workers.

Best,


361st Trial Team