What is a stacked sentence?
Good question. A stacked sentence is one in which two sentences are to be served consecutively or one after another. So if Bob has two cases for possession, and gets 5 years TDC in each case, then a stacked sentence would require him to serve these sentences back to back.
Contrast that with a concurrent sentence, which lawyers call “CC”. If Bob has two charges for possession and gets the same 5 years in each case, then both sentences run at the same time. So Bob does one 5 year sentence.
When can a judge order a stacked sentence?
When a defendant has been convicted in two or more cases, the trial court can stack the sentence, or order the sentence to run concurrently. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a).
Limitation on Stacking- Same Criminal Episode
However, if the convictions arise out of the “same criminal episode” and the cases are tried together, the sentences must run concurrently unless the convictions are for certain specific crimes (sexual offenses). See TEX. PENAL CODE § 3.03 (a)-(b).
How can you challenge a stacked conviction?
The standard on appeal is called abuse of discretion. That is, the trial judge abused her discretion in stacking the sentence. One area to challenge a stacked sentence is to say that the offenses are part of the same criminal episode, and can’t be stacked if tried together (or if you plead guilty on two or more offenses).
What does “same criminal episode” mean?
Texas Penal Code § 3.01 defines “criminal episode” as-
Two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances: (1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or (2) the offenses are the repeated commission of the same or similar offenses.
What happens if you win a stacked sentence challenge on appeal?
The appellate court can just change the sentence to cumulative. They do not have to reverse the conviction etc. Here is some law on that point-
The appropriate remedy in this situation is for this court to modify the trial court’s judgment to delete the cumulation order. LaPorte, 840 S.W.2d at 415; see also TEX. R. APP. P. 43.2.
If you have a question about stacked sentences or are being charged with two or more separate criminal offenses call Guest and Gray today. We have a team of criminal defense lawyers ready to help.