                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00018-CR


JOSE SANCHEZ JR.                                                 APPELLANT

                                          V.

THE STATE OF TEXAS                                                     STATE


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           FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION1
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                                     Introduction

     Appellant Jose Sanchez, Jr. appeals his conviction for possession of

methamphetamine.2 In a single point, he contends that the trial court erred by




     1
         See Tex. R. App. P. 47.4.
     2
         See Tex. Health & Safety Code Ann. §§ 481.102(6), 481.115(c) (West
2010).
ordering his sentence to run consecutively with another sentence for which he

was currently on parole. We affirm.

                       Factual and Procedural Background

      Appellant was on parole for a felony drug offense committed in 1989 when

he was arrested for another one in 2010.         The parole board issued a ―blue

warrant,‖ and Appellant remained in jail pending trial.3

      The indictment charged Appellant with possessing methamphetamine, an

offense which was enhanced to a second-degree felony by the earlier conviction.

      A jury found Appellant guilty, he pleaded true to the enhancement

allegation, and the jury assessed his punishment at ten years’ confinement and a

$10,000 fine. The trial court sentenced Appellant accordingly and ordered him to

commence serving this sentence after he completed the sentence imposed for

the 1989 offense.

                                    Discussion

      In a single point, Appellant argues that the trial court abused its discretion

by cumulating his ten-year sentence with his fifty-year sentence imposed for the

offense he committed and was convicted for in 1989, and for which he was

currently on parole.

      3
        The Texas Board of Pardons and Paroles issues what is commonly
known as a ―blue warrant‖ to indicate the board’s intent to revoke a person’s
parole. Here, Appellant was paroled from a fifty-year prison sentence that was
imposed after his conviction in McLennan County’s 54th District Court on August
4, 1989, cause number 89-299-C, for aggravated possession with intent to
deliver a controlled substance.


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      Appellant testified that at the time of trial he was still on parole for his 1989

case. Although the parole division had sent him paperwork indicating its intent to

revoke parole, no hearing had yet taken place.         Appellant contends that his

parole status deprived the trial court of authority to cumulate his sentences.

Specifically, he asserts that consecutive sentences were not permitted under the

statute because the sentence in his 1989 case had ―ceased to operate‖ by the

time the trial court signed the stacking order in the instant case.

      Article 42.08 of the code of criminal procedure governs the manner in

which trial courts are to order consecutive sentences. Subsection (a) addresses

cases in which the trial court, in its discretion, may stack sentences. Subsection

(b) addresses cases in which the trial court is required to stack sentences,

specifically, cases in which the defendant commits an offense while already an

inmate in the institutional division of the Texas Department of Criminal Justice.

      Appellant heavily relies on two cases in which the court of criminal appeals

interpreted article 42.08(b) in the context of habeas corpus, Ex parte Kuester, 21

S.W.3d 264 (Tex. Crim. App. 2000), and Ex parte Wrigley, 178 S.W.3d 828 (Tex.

Crim. App. 2005), cert. denied, 547 U.S. 1044 (2006).

      Greg Kuester was serving a ten-year prison sentence when he struck a

correctional officer. Kuester, 21 S.W.3d at 265. He was convicted of aggravated

assault and sentenced to four years, which the trial court ordered to begin when

the ten-year sentence Kuester had been serving when he attacked the officer

―ceased to operate.‖ Id. The language ―ceased to operate,‖ however, appears


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only in subsection (a)—not in subsection (b). Subsection (a) provides that a

sentence stacked under its provisions begins ―when the judgment and the

sentence imposed or suspended in the preceding conviction has ceased to

operate.‖   Subsection (b) provides that a stacked sentence commences ―on

completion of‖ the sentence for the original offense.

      In Kuester, the court of criminal appeals construed the phrase ―ceased to

operate,‖ but limited its analysis to the question posed in that case—how to

compute time credit on stacked sentences when a prisoner is paroled on both

cases and later has both paroles revoked. But Kuester does not lead us to

conclude that a trial court has no discretion under subsection (a) to cumulate a

new sentence on a prior one for which the defendant is currently on parole.

      Similarly, Wrigley is a writ case in which the applicant committed an

offense while a prison inmate. There, the issue decided by the court of criminal

appeals was ―whether an original sentence is completed and a stacked sentence

begins to run at the time the defendant makes parole on the original offense, if

his parole is revoked before the trial court sentences the defendant for the

stacked offense.‖ Wrigley, 178 S.W.3d at 829. As with Kuester, and unlike the

case now before us, the applicable stacking authority was subsection (b)—not

subsection (a). Wrigley further differs from our case today because Wrigley’s

parole had been revoked before he was sentenced in the stacked case. The

court of criminal appeals in Wrigley did not exceed the scope of the complex

analysis it performed given the specific facts of that case.


                                          4
      In both Kuester and Wrigley, the court discussed section 508.150(b) of the

government code, which defines the phrase ―cease to operate‖ for purposes of

code of criminal procedure article 42.08, as the date on which the original

sentence is served out in actual calendar time or the date the parole panel

approves the inmate for release from parole.

      The court of criminal appeals analyzed this definition in Kuester and

Wrigley for the limited purpose of resolving issues relating to time-credit

computation on consecutive sentences. That is not the issue here.

      The issue here is whether the trial court abused its discretion by stacking a

new sentence onto a prior sentence for which Appellant was on parole. That

issue has been consistently resolved contrary to Appellant’s position.

      A trial court abuses its discretion if it imposes consecutive sentences in

cases where the law requires concurrent ones, if it imposes concurrent

sentences where the law requires consecutive ones, or if it otherwise fails to

observe statutory requirements germane to sentencing. See Nicholas v. State,

56 S.W.3d 760, 760–65 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d.); see

also Smith v. State, 575 S.W.2d 41, 41 (Tex. Crim. App. 1979) (―Normally, the

trial judge has absolute discretion to cumulate sentences.‖).

      Section 508.150(b) of the government code and the cases Appellant relies

upon that interpret that statute do not limit the trial court’s discretion to stack a

new sentence onto a prior one for which the defendant is on parole. See Hill v.

State, 213 S.W.3d 533, 538 (Tex. App.—Texarkana 2007, no pet.) (―A trial court


                                         5
has the authority to stack a new sentence onto a prior sentence for which the

defendant is then on parole.‖); Wilson v. State, 854 S.W.2d 270, 273 (Tex.

App.—Amarillo 1993, pet. ref’d.); Jimenez v. State, 634 S.W.2d 879, 881 (Tex.

App.—San Antonio 1982, pet. ref’d.) (holding that article 42.08 authorizes

stacked sentences for defendants on parole and that parole is ―essentially a

constructive confinement‖ and not a release from the operation of the judgment).

       Accordingly, we hold that the trial court did not abuse its discretion by

cumulating Appellant’s sentences and that the cumulation order in this case is

therefore valid.

                                  Conclusion

       Having overruled Appellant’s sole point on appeal, we affirm the judgment

of the trial court.




                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: GARDNER, McCOY, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 19, 2012




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