Rocky Mountain v. State, 789 S.W.2d 663 (Tex. App. 1990). · Go Syfert
Rocky Mountain v. State, 789 S.W.2d 663 (Tex. App. 1990). Cases Citing This Book View Copy Cite
“our research of the law controlling the cumulation of sentences' reveals that fines have been cumulated in those same cases where prison sentences are required to run concurrently.”
25 citation events (21 in the last 25 years) across 3 distinct courts.
Strongest positive: Opinion No. (texag, 2001-07-10)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Opinion No.
Tex. Att'y Gen. · 2001 · signal: see also · quote attribution · 1 verbatim quote · confidence high
our research of the law controlling the cumulation of sentences' reveals that fines have been cumulated in those same cases where prison sentences are required to run concurrently.
examined Cited as authority (rule) State v. Crook (4×) also: Cited "see, e.g."
Tex. Crim. App. · 2008 · confidence medium
Except as provided by Subsection (b), the sentences shall run concurrently. [7] We further note that, if a "sentence" did not include a fine, then the state's appeal could not be based on Article 44.01(b) as an "appeal [of] a sentence in a case on the ground that the sentence is illegal." [8] See, e.g., Ex parte Banks, 41 Tex.Crim. 201 , 53 S.W. 688, 689 (1899); Veteto v. State, 8 S.W.3d 805, 818 (Tex.App.-Waco 2000, pet. ref'd); Mills v. State, 848 S.W.2d 879 , 880 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd); Juarez v. State, 796 S.W.2d 523, 526 (Tex. App.-San Antonio 1990, pet. ref'd); R…
discussed Cited as authority (rule) State of Texas v. Crook, James (2×) also: Cited "see"
Tex. Crim. App. · 2008 · confidence medium
The argument has been made that the Legislature could not have intended the concurrent sentences provision of Section 3.03(a) to apply to fines, because a fine does not “run” like a term of 8 See, e.g., Ex parte Banks, 53 S.W. 688, 689 (Tex.Cr.App. 1899); Veteto v. State, 8 S.W.3d 806 , 818 (Tex.App.–Waco 2000, pet. ref’d); Mills v. State, 848 S.W.2d 879 , 880 (Tex.App.–Houston [1st Dist.] 1993, pet. ref’d); Juarez v. State, 796 S.W.2d 523, 526 (Tex.App.–San Antonio 1990, pet. ref’d); Rocky Mountain v. State, 789 S.W.2d 663, 664-65 (Tex.App.–Houston [1st Dist.] 1990, pet. ref…
discussed Cited as authority (rule) State of Texas v. Crook, James
Tex. Crim. App. · 2008 · confidence medium
See, e.g., Ex parte Banks , 53 S.W. 688, 689 (Tex.Cr.App. 1899); Veteto v. State , 8 S.W.3d 806 , 818 (Tex.App.-Waco 2000, pet. ref'd); Mills v. State , 848 S.W.2d 879 , 880 (Tex.App.-Houston [1 st Dist.] 1993, pet. ref'd); Juarez v. State , 796 S.W.2d 523, 526 (Tex.App.-San Antonio 1990, pet. ref'd); Rocky Mountain v. State , 789 S.W.2d 663, 664-65 (Tex.App.-Houston [1 st Dist.] 1990, pet. ref'd) and cited cases decided between 1899 and 1937. 9.
cited Cited as authority (rule) Dave Donica v. State of Texas
Tex. App. · 2001 · confidence medium
Mountain v. State , 789 S.W.2d 663, 665 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd).
discussed Cited as authority (rule) Untitled Texas Attorney General Opinion (2×) also: Cited "see, e.g."
Tex. Att'y Gen. · 2001 · confidence medium
App. 1899); Veteto v. State, 8 S.W.3d 805, 817 (Tex. App.-Waco 2000, pet. ref d) (construing section 3.03 of Penal Code); Rocky Mountain v. State, 789 S.W.2d 663,664-65 (Tex. App.-Houston [ 1st Dist.] 1990, pet. ref d) (same).
cited Cited as authority (rule) Veteto v. State
Tex. App. · 2000 · confidence medium
Mountain v. State, 789 S.W.2d 663, 665 (Tex.App.— Houston [1st Dist.] 1990, pet. ref'd); Mills v. State, 848 S.W.2d 878, 880 (Tex.App.— Houston [1st Dist.] 1993, no pet.).
cited Cited as authority (rule) Mills v. State
Tex. App. · 1993 · confidence medium
Mountain v. State, 789 S.W.2d 663, 665 (Tex.App.—Houston [1st Dist.] 1990, pet. ref’d).
cited Cited "see" Rodarte v. State
Tex. App. · 1992 · signal: see · confidence high
See Rocky Mountain v. State, 789 S.W.2d 663 (Tex.App.—Houston [1st Dist.] 1990, pet. ref'd).
discussed Cited "see, e.g." State of Texas v. Crook, James
Tex. Crim. App. · 2008 · signal: see, e.g. · confidence low
See, e.g., Rocky Mountain v. State , 789 S.W.2d 663 (Tex. App.-- Houston [1 st Dist.] 1990, pet. ref'd)(misdemeanor); Juarez v. State , 796 S.W.2d 523 (Tex. App.-- San Antonio 1990, pet. ref'd)(felony); Mills v. State , 848 S.W.2d 878 (Tex. App.-- Houston [1 st Dist.] 1993, no pet.)(misdemeanor); Veteto v. State , 8 S.W.3d 805 (Tex. App.-- Waco 2000, pet. ref'd)(felony).
Retrieving the full opinion text from the archive…
ROCKY MOUNTAIN, Appellant,
v.
the STATE of Texas, Appellee
01-89-00296-CR.
Court of Appeals of Texas.
Apr 26, 1990.
789 S.W.2d 663
1990 Tex. App. LEXIS 982
1990 WL 57372
Joe W. Bailey, Hinton, Sussamn & Bailey, Houston, for appellant., John B. Holmes, Dist. Atty., John M. Bradley, Asst. Dist. Atty., Casey O’Brien, Brian Benken, for appellee.
Warren, Cohen, Dunn.
Cited by 13 opinions  |  Published
Pinpoint authority: bottom 49%

OPINION

WARREN, Justice.

Appellant was indicted, in a single charging instrument, for 64 counts of the class A misdemeanor offense of forgery. The trial was transferred to Hays County on a change of venue. A jury found appellant guilty on 38 counts of forgery, and assessed punishment on each count at one year in jail, probated, and a $200 fine. On October 24, 1988, the trial court signed the judgments pronouncing the punishment, as assessed by the jury, but did not specify the terms of probation or state whether the fines assessed would be cumulative. At the sentencing hearing on December 7, 1988, sentence was imposed, the order setting out the probationary terms and conditions was signed, and the court ruled that each fine assessed must be paid.

On January 6, 1989, appellant filed a motion for new trial. On March 14, 1989, appellant filed his notice of appeal with the district clerk. On March 22, 1989, appellant filed a motion for extension to file a notice of appeal, as of March 14, 1989. On April 6, 1989, this Court granted appellant’s motion for extension to file a notice of appeal.

The State argues that appellant did not file a timely notice of appeal, and, therefore, this Court lacks jurisdiction to hear this appeal. We do not agree.

Rule 41(b) of the Texas Rules of Appellate Procedure sets out the time limit for perfecting appeals in criminal cases as follows:

(1) Time to Perfect Appeal. Appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court or[*664] the day an appealable order is signed by the trial judge, except, if a motion for new trial is timely filed, notice of appeal shall be filed within ninety days after the day sentence is imposed or suspended in open court.
(2) Extension of Time. An extension of time for filing notice of appeal may be granted by the court of appeals if such notice is filed within fifteen days after the last day allowed and within the same period a motion is filed in the court of appeals reasonably explaining the need for such extension.

Tex.R.App.P. 41(b)(1), (2).

Here, it is clear that the sentence was not imposed until the December 7, 1988 hearing, when appellant was specifically informed of the terms and conditions of his probation. Arguijo v. State, 738 S.W.2d 367, 369 (Tex.App. — Corpus Christi 1987, no pet.). Additionally, the sentence did not become an appealable order until the December 7, 1988 hearing, because it was at that hearing that the trial judge ruled that the probated jail sentences would run concurrently, but that the fines would be assessed cumulatively. Until that date, appellant did not know that it would be necessary for him to appeal on the only point of error before us, that the court erred in cumulating the fines assessed for each of the 38 counts of forgery.

Because December 7, 1988 was the day sentence was imposed in open court, or the day an appealable order was signed by the trial court, and because appellant timely filed a motion for new trial on January 6, 1989, the last day for filing a notice of appeal was March 7, 1989. Tex.R.App.P. 41(b)(1). Appellant did not meet this deadline, but filed his notice of appeal on March 14, 1989, and filed his motion for extension to file the notice of appeal on March 22, 1989, both within the 15 day extension period allowed by rule 41(b)(2). Our order granting the extension on April 6, 1989 properly disposed of this matter, and we find the State’s argument regarding lack of jurisdiction in this case to be without merit.

Appellant’s sole point of error complains that the trial court erred in cumulat-ing the fines imposed in each of 38 counts of forgery for which he was convicted. He argues that, rather than assessing a cumulative fine totaling $7,600, the court should have allowed the thirty-eight $200 fines to run concurrently, amounting to a total fine of $200. The court ruled that the probated jail sentence of one year for each of the 38 counts was to run concurrently.

Section 3.03 of the Texas Penal Code provides:

When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which he has been found guilty shall be pronounced. Such sentences shall run concurrently.

Tex.Penal Code Ann. § 3.03 (Vernon 1974) (emphasis added).

Appellant argues that Gordon v. State, 633 S.W.2d 872, 877 (Tex.Crim.App.1982), and Smith v. State, 753 S.W.2d 456, 457 (Tex.App. — Houston [14th Dist.] 1988, no pet.), conclusively hold that where the defendant is charged with two or more counts arising from the same criminal episode, and is tried in one proceeding, the court is bound to allow the resulting sentences to run concurrently. We agree. Gordon and Smith, however, do not reach the issue in this case. The issue here is whether the legislature, in section 3.03, intended all punishment, i.e., prison sentences and fines, to run concurrently, or whether the rule applies only to prison sentences. Gordon and Srnith both involve only the cumu-lation of prison sentences, and are, therefore, not dispositive of the issue before us.

The State argues that, as a matter of common sense, only that portion of a sentence involving the passage of time can “run.” See BLACK’S LAW DICTIONARY 1197 (5th ed. 1979) (defining “run” as having “applicability or legal effect during a prescribed period of time”). Thus, according to the State, the legislature could not have intended the term “sentences” in section 3.03 to include fines, because fines do not involve the passage of time; therefore, fines cannot “run.”

[*665] We have not found any cases that interpret the meaning of the term “sentence” in section 3.03. However, our research of the law controlling the cumulation of “sentences” reveals that fines have been cumu-lated in those same cases where prison sentences are required to run concurrently.

As far back as 1899, the Court of Criminal Appeals recognized that judgments in misdemeanor cases imposing pecuniary fines are cumulative. Ex parte Banks, 41 Tex.Crim. 201, 53 S.W. 688, 689 (1899). Texas courts have consistently followed that holding. See Ex parte Minjares, 582 S.W.2d 105, 106 (Tex.Crim.App. [Panel Op.] 1978) (“judgments in misdemeanor convictions imposing pecuniary fines as punishment have been held not concurrent but cumulative”); Evans v. State, 169 Tex.Crim. 295, 333 S.W.2d 387, 388 (1960) (fines cumulated, jail terms concurrent — trial court made no effort to cumulate jail sentences); McCurdy v. State, 159 Tex.Crim. 477, 265 S.W.2d 600, 601 (1954) (fines cu-mulated, jail terms concurrent — trial court made no effort to cumulate jail sentences); Bristow v. State, 160 Tex.Crim. 111, 267 S.W.2d 415, 416 (1954) (fines cumulated, jail terms concurrent — trial court made no effort to cumulate jail sentences); Ex parte Hall, 158 Tex.Crim. 646, 258 S.W.2d 806, 807 (1953), cert. denied 351 U.S. 955, 76 S.Ct. 852, 100 L.Ed. 1478 (1956) (multiple fines must be satisfied separately); Ex parte Williams, 133 Tex.Crim. 116, 109 S.W.2d 171, 172 (1937) (“where the judgment assessed is a pecuniary fine,” sentences do not run concurrently).

While most of the cases referenced were decided prior to the enactment of section 3.03 in 1973, [1] we find no rationale for assuming that the legislature meant to alter the long-standing rule that pecuniary fines are cumulated for different counts in the same criminal episode. We overrule appellant’s point of error, and affirm the judgment of the trial court.

1

. See ch. 399, § 3.03, 1973 Tex.Gen.Laws 883, 891, effective January 1, 1974.