Full Opinion

In The Court of Appeals Seventh District of Texas at Amarillo No. 07-26-00243-CR MICHAEL ANDREW WALLS, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 432nd District Court Tarrant County, Texas1 Trial Court No. 1875921, Honorable Ruben Gonzalez, Presiding October 9, 2026 MEMORANDUM OPINION Before PARKER, C.J., and DOSS and PRATT, JJ. Appellant, Michael Andrew Walls, appeals from a judgment adjudicating him guilty of the following ten counts: Count One—continuous sexual abuse of a young child,2 1 This cause was originally filed in the Second Court of Appeals and was transferred to this Court by a docket-equalization order of the Supreme Court of Texas. TEX. GOV’T CODE § 73.001. Where there is a conflict with the precedent of this Court, this appeal has been decided in accordance with the precedent of the Second Court of Appeals. TEX. R. APP. P. 41.3; Mitschke v. Borromeo, 645 S.W.3d 251 (Tex. 2022). 2 TEX. PENAL CODE § 21.02(b). Counts Two through Six—aggravated sexual assault of a child,3 and Counts Seven through Ten—indecency with a child by contact.4 After Appellant’s open guilty plea, the trial court assessed punishment. The trial court found Appellant guilty on all counts and assessed punishment at sixty years’ confinement for continuous sexual abuse of a young child, sixty years’ confinement for each count of aggravated sexual assault of a child, and twenty years’ confinement for each indecency count. The trial court ordered that the sentences run concurrently but also ordered that the sentences run consecutively with any sentence handed down in a yet-to-happen revocation and a yet-to-happen parole revocation in other causes. By his two issues, Appellant asks us to reform the trial court’s judgment. Appellant first complains that the trial court reversibly erred by convicting him and punishing him for continuous sexual abuse of a child and the predicate acts listed in Penal Code section 21.02(c). Appellant also complains that the trial court erred by ordering his sentences to run consecutively with whatever sentence he might get when his parole in a different case is revoked. The State concedes both issues. We agree with Appellant and the State and modify the judgment accordingly. ANALYSIS Issue One – Dual Convictions To begin, a defendant may still raise a double-jeopardy issue for the first time on appeal when the undisputed facts show the violation is clearly apparent on the face of the 3 TEX. PENAL CODE §§ 22.021(a)(1)(B), (a)(2)(B). 4 TEX. PENAL CODE § 21.11(a)(1). 2 record and when enforcement of usual rules of procedural default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000) (en banc). As explained by the Court of Criminal Appeals, “we perceive no legitimate interest in maintaining a conviction when it is clear on the face of the record that the conviction was obtained in contravention of constitutional double-jeopardy protections.” Ex parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013). Here, the trial court convicted and punished Appellant for continuous sexual abuse of a young child (Count One) and seven predicate offenses listed in section 21.02(c) (Counts Two through Eight and Count Ten).5 Texas Penal Code section 21.02 explicitly prohibits a defendant from being convicted in the same criminal action of both continuous sexual abuse and any predicate offense listed in section 21.02(c) unless the predicate offense occurred outside the period in which the continuous sexual abuse was committed. See TEX. PENAL CODE § 21.02(e)(2). In Price v. State, the Court of Criminal Appeals made it clear that the Legislature did not intend to allow dual convictions for continuous sexual abuse and for offenses enumerated as acts of sexual abuse when based on conduct against the same child during the same period of time. 434 S.W.3d 601, 606 (Tex. Crim. App. 2014). Thus, we sustain Appellant’s first issue. Having determined that a double-jeopardy violation occurred, we must now consider what is the appropriate remedy. Both Appellant and the State urge that the appropriate remedy in this case is for this Court to affirm Appellant’s conviction for the 5 Count Nine was indecency with a child by touching a child’s breast, which is not a predicate offense of continuous sexual assault of a young child. See TEX. PENAL CODE § 21.02(c)(2); see also State v. Payne, 735 S.W.3d 83, 87 (Tex. App.—Houston [14th Dist.] 2025, pet. ref’d). 3 continuous sexual abuse of a young child (Count One) and vacate the convictions for the seven predicate offenses listed in section 21.02(c) (Counts Two through Eight and Count Ten), and we agree. Generally, “[w]hen a defendant is subjected to multiple punishments for the same conduct, the remedy is to affirm the conviction for the most serious offense and vacate the other convictions.” Bigon v. State, 252 S.W.3d 360, 372 (Tex. Crim. App. 2008). The “most serious offense” is the offense of conviction for which the “greatest sentence was assessed.” See id. at 373; see also Boswell v. State, No. 02-25-00205- CR, 2026 Tex. App. LEXIS 4127, at *9 (Tex. App.—Fort Worth Apr. 30, 2026, pet. ref’d) (mem. op., not designated for publication). In the present situation, the trial court assessed the same punishment for the convictions at issue. Therefore, we cannot look to only the sentences imposed to determine which of these offenses is the most serious. To resolve this tie, we must look to the statutory relationship between the offenses. Texas Penal Code section 21.02 expressly defines “act of sexual abuse” to include aggravated sexual assault. Price v. State, 413 S.W.3d 158, 161 (Tex. App.—Beaumont 2013), aff’d, Price, 434 S.W.3d at 611. Consequently, the individual acts of abuse— including indecency with a child and aggravated sexual assault of a child—are treated as lesser-included predicate offenses of the greater offense of continuous sexual abuse. See generally TEX. PENAL CODE § 21.02(b), (c)(2), and (4); see also Price, 434 S.W.3d at 606. Because indecency with a child and aggravated sexual assault of a child stand as lesser-included predicate offenses of continuous sexual abuse when committed against the same victim during the same timeframe, the continuous sexual abuse conviction is characterized as the more serious, overarching offense. See, e.g., Weber v. State, 536 S.W.3d 31, 37–38 (Tex. App.—Austin 2017, pet. ref’d); see also Price, 434 S.W.3d at 4 606. This determination is further supported by the statutory rules governing parole. Under Texas law, a conviction for continuous sexual abuse of a child is entirely ineligible for parole. Weber, 536 S.W.3d at 38. Because the continuous sexual abuse conviction carries stricter parole limitations, it is generally treated as the more serious conviction for double jeopardy retention purposes. Id. Accordingly, the continuous sexual abuse conviction (Count 1) should be retained, and we vacate Appellant’s convictions in Counts Two through Eight and Count Ten. Issue Two – Cumulated Sentences By his second issue, Appellant complains that the trial court erred by ordering his sentences to run consecutively with whatever sentence he might get when his parole in a different case is revoked. We review a trial court’s decision to order consecutive sentences for an abuse of discretion. Byrd v. State, 499 S.W.3d 443, 446 (Tex. Crim. App. 2016). A trial court abuses its discretion if it imposes consecutive sentences where the law requires concurrent sentences. Id. at 446–47. A sentence for a second offense cannot run consecutively to a prior sentence for which a defendant has been given parole if the parole has not been revoked at the time of the second sentence. Id. at 451. Here, the record reflected that Appellant was still on parole for his prior offense, and no parole revocation had occurred. Consequently, his new sentences cannot run consecutively to his prior sentence for which he was on parole. See id. We sustain Appellant’s second issue. The remedy for an unauthorized order cumulating sentences is to reform the judgment and delete the cumulation order. Id. Therefore, we modify the Judgment of 5 Conviction by Court – Waiver of Jury Trial to remove the trial court’s cumulation orders on Appellant’s remaining Counts One and Nine. We affirm, as modified, these remaining counts against Appellant. CONCLUSION Having sustained Appellant’s issues, we vacate the trial court’s judgment on Counts Two through Eight and Count Ten, and we reform and modify the judgment on Counts One and Nine to delete the cumulation orders that each be served consecutively with any sentence imposed in a parole revocation. As modified, the trial court’s judgment on Count One and Count Nine is affirmed. Laura A. W. Pratt Justice Do not publish. 6