Can a judge stack my sentence?

Our firm regularly helps clients facing multiple charges. Sometimes these cases stem from a single incident, like a person who allegedly drives while intoxicated and evades the police all in the same night. Sometimes a person may get arrested for several unrelated charges. One example of this would be a person whose ex-wife presses charges for an assault. The husband then gets arrested a few months later for possession of  a controlled substance. Although the cases are completely unrelated, he will have to make legal decisions about both cases at the same time.

For people who don’t have a long history with the criminal justice system, a prison sentence can usually be avoided (depending on the severity of the accusations), and a person can usually expect to get the “extra” or less-serious charge dropped when facing multiple charges arising from the same incident.

But those with a substantial criminal history or facing extremely serious charges may have to deal with a prosecutor who threatens to “stack” an accused person’s sentences for prison time.

In order to make an informed decision about accepting a plea under such circumstances, and to understand such a threat, a person in this situation must be familiar with the power the trial court has when sentencing a person who has multiple convictions.

Understanding the statutory authority to “stack” sentences can be a chore, and the rules can get complicated. For that reason I’ve reduced the rest of this blog entry into a question-and-answer structure. I’ve also kept the explanations simple. As always, please consult your attorney if you are facing multiple charges, since the legal rules on stacking can change depending on the specific facts and pleadings of your case.

With that being said, here are some sentencing “stacking” basics:

What does “stacking” a sentence even mean?

It’s best explained by an example. If you accept a three-year sentence for a felony assault and an unrelated eight-year sentence for a felony possession charge, a court has two options. First, the court can allow you to serve both sentences at the same time — what we call “running the sentences concurrently.” Under this scenario it would feel like you were only serving one eight-year sentence, because each day you served in prison counted for both sentences. On the other hand, if the prosecutor filed what is called a “motion to cumulate,” the trial court could instead “stack” your sentences, or render an order where the time you serve on the second sentence doesn’t begin until your first sentence “ceases to operate.” So, in the example above, you wouldn’t starting serving the eight-year sentence until you serve your time on the first sentence.

When can a judge stack sentences?

A Texas Judge’s authority to “stack” sentences derives primarily from section 42.08 of the Texas Code of Criminal Procedure. Under this provision, when a defendant with multiple convictions is sentenced, the court must include in subsequent judgment or judgments whether the sentences will run concurrently or cumulatively (i.e., a stacked sentence). So that judge has broad discretion when pronouncing sentence as to whether your sentences will run together or separately.

However, there are occasions when the judge cannot stack a defendant’s sentence.  Section 3.03 of the Penal Code limits the Court’s ability to stack multiple sentences arising out of the same episode when the multiple cases are prosecuted in a single criminal action (like if a person is tried in one proceeding for a felony-level DWI and evading arrest).

Should I talk to my attorney about whether the judge can stack multiple sentences?

Yes! The prospect of a judge’s ability to stack multiple sentences can have a profound effect on plea negotiations.

Can you stack a probation sentence on top of a prison sentence?

No – a judge cannot order a probation sentence to start after you’ve served the first sentence. However, if you are on community supervision, commit a subsequent offense, and then get revoked, the judge can stack the prison or jail sentence for the original and subsequent offenses. This can be confusing – if your situation involves a revoked or potentially-revoked probation due to a new offense, please discuss the stacking ramifications with your lawyer!

When can a judge stack sentences for crimes all committed in a single criminal episode?

A judge has the power to stack intoxicated assault and manslaughter cases and a variety of sex assault cases involving children that arise out of the same incident AND are tried together in one criminal action. Whether your particular case involves stackable offenses requires direct consultation with your attorney. Make sure to get proper legal advice before accepting any plea to multiple offenses.

Does a prosecutor have to try all my cases in one criminal action?

No. The prosecutor may try the cases sequentially. Additionally, your attorney may move to have a single criminal action involving multiple criminal cases severed. There are many tactical reasons to severe a multi-case criminal action. Fully discuss this scenario with your attorney!