Most people charged with a crime are charged with more than one. Chapter 3 of the Texas Penal Code governs what happens next — whether the offenses are tried together, whether the sentences add up, and whether the defendant can force separate trials. Brian Foley walks through the chapter in this video.
§ 3.01 — What is a "criminal episode"?
A criminal episode is the commission of two or more offenses, regardless of whether the harm is directed at one or more persons, when either (1) the offenses are committed pursuant to the same transaction or a common scheme or plan, or (2) the offenses are the repeated commission of the same or similar offenses. A burglary spree over several weeks and a single night involving DWI, evading, and unlawful carrying can both be a single criminal episode. See § 3.01.
§ 3.02 — Consolidation and joinder
The State may prosecute all offenses arising out of one criminal episode in a single trial, so long as each offense is charged in a separate indictment or count and the defendant receives written notice at least 30 days before trial. Joinder lets the jury hear everything at once — which usually favors the State. See § 3.02.
§ 3.03 — Concurrent sentences (and the stacking exceptions)
The general rule when offenses from one episode are tried together is that sentences run concurrently — at the same time. But § 3.03(b) lists exceptions where the judge may order sentences to run consecutively ("stacked"): intoxication assault and intoxication manslaughter, certain sexual offenses against children, continuous family violence, and others. In a DWI crash with multiple victims, stacking can turn a survivable sentence into decades. See § 3.03.
§ 3.04 — Severance
The defendant has a right to sever — to have offenses joined under § 3.02 tried separately. The trade-off: when a defendant severs, the concurrent-sentence protection of § 3.03 no longer applies, and the court may stack the sentences. Deciding whether to sever is one of the most consequential strategic calls in a multi-count case. Severance is not available as of right for certain child sex offenses unless the court finds prejudice. See § 3.04.
How this plays into a plea
Because joinder and concurrency are linked, prosecutors and defense lawyers negotiate around Chapter 3 constantly: an agreement to run everything concurrent in exchange for a plea on multiple counts is common in Harris County. As former prosecutors, Brian Foley and Luis Baez know how the State values each count and where the leverage is.
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