Opinion
NO. 09-12-00018-CR
01-25-2012
IN RE MICHAEL CEPHUS SANNA
Original Proceeding
MEMORANDUM OPINION
Michael Cephus Sanna filed a petition for writ of mandamus in which he asks this Court to delete a cumulation order. The relator fails to show that he has an indisputable right to the relief sought. Accordingly, we deny the petition for writ of mandamus.
Sanna alleges that in 1995 he was placed on deferred adjudication community supervision for aggravated assault and that in 1997 he was convicted of arson following a jury trial. Sanna claims the 1995 and 1997 offenses arose out of the same criminal episode because the offenses occurred at the same location and concern the same complainant. See generally Tex. Penal Code Ann. § 3.01 (West 2011). Sanna argues the cases were prosecuted in the same criminal action because the trial court combined the punishment hearing before the bench on the arson case with the motion to revoke deferred adjudication community supervision on the aggravated assault case. Seegenerally id. § 3.03(a) (West Supp. 2011); but see Pettigrew v. State, 48 S.W.3d 769, 773 (Tex. Crim. App. 2001) ("[T]he Legislature intended both suspended and imposed sentences to be treated as 'convictions' for the purpose of stacking in order to give the trial court the maximum flexibility possible in stacking sentences.").
"[A] defendant is prosecuted in 'a single criminal action' whenever allegations and evidence of more than one offense arising out of the same criminal episode . . . are presented in a single trial or plea proceeding[.]" LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992); see also Dach v. State, 49 S.W.3d 490, 491 (Tex. App.—Austin 2001, no pet.) (Because the court considered the guilty plea proceedings in separate hearings, a motion to revoke regular community supervision consolidated with a guilty plea proceeding on a new charge was not a single criminal action for purposes of Section 3.03.). Sanna has not demonstrated that evidence of more than one offense was presented in a single proceeding.
Sanna alleges that "Applicant and the state agreed that Relator's punishment would be set at 15 years and that the Court would determine whether or not cumulation was applicable and from there determine whether sentences would be run consecutively or concurrently." "Because the operation of Section 3.03 requires the consent of both litigants, it is properly characterized as a right of a litigant rather than as an absolute requirement or prohibition which cannot be waived or forfeited." Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997). Sanna concedes that he made an agreement with the State for a mid-trial waiver of the jury trial on the punishment for the arson case and to allow the trial court to decide whether to cumulate the sentences for the two offenses. He has failed to show that he did not waive his right to concurrent sentences.
According to Sanna, the trial court included cumulation language in a judgment nunc pro tunc that evidently was signed in 2000, and subsequent post-conviction habeas relief was denied. Sanna does not allege, and has not shown, that he has requested that the trial court correct its judgment by deleting the cumulation order in a judgment nunc pro tunc. In a mandamus proceeding, the role of the appellate court is to compel the trial court to perform a ministerial act that she has been requested to perform but which she has either refused to perform or has failed to perform within a reasonable time. See In re Molina, 94 S.W.3d 885, 886 (Tex. App.—San Antonio 2003, orig. proceeding) (To establish a right to mandamus relief, the complaining party "must establish that the trial court: (1) had a legal duty to perform a nondiscretionary act, (2) was asked to perform the act, and (3) failed or refused to do so."). Sanna has made no showing that he has ever presented a motion for judgment nunc pro tunc to the judge who currently presides in the trial court.
PETITION DENIED.
PER CURIAM Do Not Publish Before McKeithen, C.J., Gaultney and Kreger, JJ.