“If a case at the petition-to-adjudicate stage and a defendant’s subsequent similar crime at the guilt phase are heard simultaneously, are they ‘prosecuted in a single criminal action’ such that any imposed sentences must run concurrently?”
Middleton was already on deferred on three theft cases when he picked up two new theft charges. The State petitioned to adjudicate on the three original cases and filed cases on the two new ones. At a combined hearing, Middleton did not contest the revocations or his guilt for the new cases. The trial court revoked his probation and found him guilty. It stacked all the cases.
On appeal, Middleton argued that no stacking was permitted by Tex. Penal Code § 3.03(a) because, as repeated theft offenses, the cases were part of the same “criminal episode” and prosecuted in a “single criminal action.” No one disputed that the cases fit the definition of same “criminal episode” under Tex. Penal Code § 3.01(2). The court of appeals agreed with Middleton that the combined sentencing hearing justified holding that all the cases had been “prosecuted in a single criminal action.” It deleted the cumulation orders.
The State concedes that, taken separately, the two new theft cases had to be served concurrently to each other, and the three revocations likewise should be served concurrently as to each other. The State argues, however, that new cases should be permitted to be stacked on revocations because they do not meet the statutory requirement of having been “prosecuted in a single criminal action.” It contends that having a joint proceeding at some point in the history of two cases is not sufficient; the statute requires there to be a unitary action, which generally means a “lawsuit,” not just a single hearing. It argues that it was too late in the prosecution of the revocations for them to have been timely consolidated with the new theft cases, and that “a single criminal action” should mean that the cases are the same kind of action. Not only are a revocation and a new criminal offense at different stages of prosecution, they have different burdens of proof and often won’t share the same factfinder. The State also contends that caselaw on jointly conducted guilty-plea proceedings should not control the situation here.