                                                                        PD-0213-15
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                      Transmitted 6/19/2015 3:10:07 PM
June 19, 2015                                           Accepted 6/19/2015 3:16:24 PM
                                                                        ABEL ACOSTA
                       NO. PD-0213-15                                           CLERK




      IN THE COURT OF CRIMINAL APPEALS OF TEXAS



                 THOMAS LEON BYRD,

                          Appellant
                              v.
                 THE STATE OF TEXAS,

                          Appellee



                  BRIEF FOR APPELLANT
                On Discretionary Review From the
                     Waco Court of Appeals
                   Cause No. 10-13-00381-CR

                                   E. Alan Bennett
                                   State Bar #02140700
                                   Counsel for Appellant
                                   Sheehy, Lovelace & Mayfield, P.C.
                                   510 N. Valley Mills Dr., Ste. 500
                                   Waco, Texas 76710
                                   Telephone: (254) 772-8022
                                   Telecopier: (254) 772-9297
                                   Email:      abennett@slmpc.com
                    Identity of Judge, Parties and Counsel

      Appellant, pursuant to Rules of Appellate Procedure 38.1(a) and 70.3,

provides the following list of the trial court judge, all parties to the trial

court’s judgment, and the names and addresses of all trial and appellate

counsel.


THE TRIAL COURT:

Hon. Matt Johnson                                          Trial Court Judge
54th District Court, McLennan County
501 Washington Avenue, Suite 305
Waco, Texas 76701

THE DEFENSE:

Thomas Leon Byrd                                                   Appellant

Thomas Clayton West                                             Trial Counsel
4125 West Waco Drive
Waco, Texas 76710

Danny Leon Stokes, Jr.
801 Washington Avenue, Suite 600
Waco, Texas 76701

E. Alan Bennett                                           Appellate Counsel
510 North Valley Mills Drive, Suite 500
Waco, Texas 76710




Appellant’s Brief                                                       Page 2
THE STATE:

Landon Wade Ramsay                               Trial Counsel
Evan Miles O’Donnell
Assistant Criminal District Attorneys

Sterling Alan Harmon                         Appellate Counsel
Assistant Criminal District Attorney


Abelino Reyna
Criminal District Attorney
McLennan County District Attorney’s Office
219 North 6th Street, Suite 200
Waco, Texas 76701




Appellant’s Brief                                        Page 3
                                             Table of Contents

Identity of Judge, Parties and Counsel ................................................................2

Table of Contents ....................................................................................................4

Index of Authorities ................................................................................................5

Issue Presented ........................................................................................................7

Summary of the Argument ....................................................................................7

Argument .................................................................................................................8

  Whether a trial court may order a sentence to run consecutively with a
  future parole revocation......................................................................................8
      A. This Court Reviews for an Abuse of Discretion. ....................................9
      B. The State Must Offer Proof of a Prior Sentence. .....................................9
      C. The State Must Also Prove Parole Status...............................................11
      D. A Present Sentence Cannot Be Stacked on a Future Sentence. ..........12
      E. Jimenez And Its Progeny Are Inconsistent With Applicable Law. .....13
      F. The Remedy Is to Reform the Judgment by Deleting the Stacking
      Order. ...............................................................................................................17
      G. This Court Should Delete the Stacking Order in Appellant’s Case. .17


Prayer ......................................................................................................................19

Certificate of Compliance ....................................................................................20

Certificate of Service .............................................................................................20




Appellant’s Brief                                                                                                      Page 4
                                             Index of Authorities



                                                       Texas Cases

Banks v. State, 708 S.W.2d 460 (Tex. Crim. App. 1986).....................................11

Barela v. State, 180 S.W.3d 145 (Tex. Crim. App. 2005) ............................. 10, 11

Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008) .......................... 9, 17, 18

Bell v. State, No. 13-01-00570-CR, 2003 WL 1893266 (Tex. App.—Corpus
Christi Apr. 17, 2003, pet. ref’d) (mem. op., not designated for publication)
..................................................................................................................................16

Bollman v. State, No. 02-08-00061-CR, 2009 WL 161032 (Tex. App.—Fort
Worth Jan. 22, 2009, no pet.) (per curiam) (mem. op., not designated for
publication) ..................................................................................................... 12, 15

Bullard v. State, 40 Tex. Crim. 270, 50 S.W. 348 (1899)......................................10

Carpenter v. State, 828 S.W.2d 441 (Tex. App.—Austin 1992, no pet.) ...........16

De La Paz v. State, 05-06-00963-CR, 2009 WL 3087253 (Tex. App.—Dallas Sept.
29, 2009, no pet.) (mem. op., not designated for publication) ........................16

Ex parte Kuester, 21 S.W.3d 264 (Tex. Crim. App. 2000) ..................................14

Ex parte San Migel, 973 S.W.2d 310 (Tex. Crim. App. 1998) ............................11

Hamm v. State, 513 S.W.2d 85 (Tex. Crim. App. 1974) .............................. 15, 16

Jimenez v. State, 634 S.W.2d 879 (Tex. App.—San Antonio 1982, pet. ref’d)13,
15

McGown v. State, No. 10-12-00092-CR, 2013 WL 5494676 (Tex. App.—Waco
Sept. 26, 2013, pet. ref’d) (mem. op., not designated for publication) ..........16

Nicholas v. State, 56 S.W.3d 760 (Tex. App.—Houston [14th Dist.] 2001, pet.
ref’d) ..........................................................................................................................9


Appellant’s Brief                                                                                                           Page 5
Strahan v. State, 306 S.W.3d 342 (Tex. App.—Fort Worth 2010, pet. ref’d) .....9

Sullivan v. State, 387 S.W.3d 649 (Tex. Crim. App. 2013).......................... 17, 18

Turner v. State, 733 S.W.2d 218 (Tex. Crim. App. 1987) ...................................10

Wilson v. State, 854 S.W.2d 270 (Tex. App.—Amarillo 1993, pet. ref’d) ........16




                                              Texas Statutes

TEX. CODE CRIM. PROC. art. 42.08(a) ............................................................. 10, 14

TEX. CODE CRIM. PROC. art. 42.08(b) ....................................................................14




                                                     Rules

TEX. R. APP. P. 43.2(b) ..................................................................................... 18, 19




Appellant’s Brief                                                                                            Page 6
                               Issue Presented


      Whether a trial court may order a sentence to run consecutively with
a future parole revocation.




                        Summary of the Argument

        The State must prove that the defendant is serving a prior sentence

with which his current sentence may be ordered to run consecutively. A trial

court cannot order a defendant’s sentence to run consecutively with some

unspecified future sentence. For the same reason, a trial court cannot order

a defendant’s sentence to run consecutively with a sentence from which the

defendant has been paroled absent evidence that the defendant’s parole has

been revoked. Otherwise, the trial court is ordering the defendant’s sentence

to run consecutively with some future parole-revocation sentence that may

or may not be imposed.

        Here, the trial court ordered Appellant’s sentence to run consecutively

with a sentence for which he was on parole. Because the State failed to prove

that his parole had been revoked, the cumulation order is improper. This

Court should reform the judgment to delete the cumulation order.



Appellant’s Brief                                                         Page 7
                                Argument

Whether a trial court may order a sentence to run consecutively with a
future parole revocation.

        Texas trial courts unquestionably have discretion to order a

defendant’s sentence to run consecutively with a prior sentence when

otherwise authorized by law. The State must prove up the details of the prior

sentence to support such an order. As a matter of law, logic and common

sense, however, a trial court cannot order a sentence to run consecutively

with a sentence that the defendant is not serving at the time of sentencing.

Nor can the trial court order a sentence to run consecutively with a sentence

that the State has failed to prove the defendant is serving at the time of

sentencing. Therefore, when the State seeks to obtain consecutive sentencing

with a parole-revocation sentence, the State must offer evidence that the

defendant’s parole has been revoked. Here, the State failed to do so.

Accordingly, the trial court’s cumulation order essentially ordered

Appellant’s sentence to run consecutively with some future (or non-existent)

parole revocation. This was improper.




Appellant’s Brief                                                       Page 8
A. This Court Reviews for an Abuse of Discretion.

        The appellate court reviews a cumulation order rendered under

Article 42.08(a) of the Code of Criminal Procedure under an abuse-of-

discretion standard. Strahan v. State, 306 S.W.3d 342, 351 (Tex. App.—Fort

Worth 2010, pet. ref’d); Nicholas v. State, 56 S.W.3d 760, 764-65 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d); see Beedy v. State, 250 S.W.3d 107, 110

(Tex. Crim. App. 2008). A trial court abuses its discretion if it orders

consecutive sentences when consecutive sentences are not authorized by

law. Nicholas, 56 S.W.3d at 765.


B. The State Must Offer Proof of a Prior Sentence.

        Article 42.08 governs consecutive sentences. Subsection (a) provides in

relevant part:

        When the same defendant has been convicted in two or more
        cases, judgment and sentence shall be pronounced in each case
        in the same manner as if there had been but one conviction.
        Except as provided by Sections (b) and (c) of this article, in the
        discretion of the court, the judgment in the second and
        subsequent convictions may either be that the sentence imposed
        or suspended shall begin when the judgment and the sentence
        imposed or suspended in the preceding conviction has ceased to
        operate, or that the sentence imposed or suspended shall run
        concurrently with the other case or cases, and sentence and
        execution shall be accordingly.



Appellant’s Brief                                                            Page 9
        TEX. CODE CRIM. PROC. art. 42.08(a).

         The State must prove the particulars of a prior sentence to support a

cumulation order under article 42.08.

        We hold that, unless record evidence of former convictions of the
        defendant is introduced, together with oral evidence of his
        identity unless the convictions occurred at the same term that the
        appellant is tried, the court will not be authorized to make the
        sentence cumulative.

Turner v. State, 733 S.W.2d 218, 221 (Tex. Crim. App. 1987) (quoting Bullard

v. State, 40 Tex. Crim. 270, 50 S.W. 348, 349 (1899)).

        As this Court has expressed more recently, “there must be before the

court both evidence of the former conviction and evidence that the

defendant was the same person previously convicted.” Barela v. State, 180

S.W.3d 145, 148 (Tex. Crim. App. 2005). Such evidence should include the

details of the prior conviction so the trial court may render a proper

cumulation order (and one that is supported by the evidence).

        A proper cumulation order should contain:

        1. The cause number of the prior conviction;

        2. The correct name of the court in which the prior conviction occurred;

        3. The date of the prior conviction;

        4. The term of years assessed for the prior conviction; and

Appellant’s Brief                                                            Page 10
        5. The nature of the prior conviction.

Id. at 148 n.6 (citing Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim. App.

1986)).1

        This Court’s decision in Barela essentially identifies the type of

evidence the State must offer under Turner to support a cumulation order by

correlating this evidentiary requirement with the Banks requirements for the

content of such an order.


C. The State Must Also Prove Parole Status.

        When the State requests that a sentence begin to run after a sentence

for which parole has been revoked, the State should be required to offer

evidence of the particulars of the revocation. Cf. id. at 148. Thus, Appellant

contends that the State should be required to prove the particulars of the

original conviction as set out in Banks as well as evidence that the

defendant’s parole has been revoked and the date of revocation. Such a

requirement accomplishes two purposes: (1) it establishes that, at the time of




1
       While these requirements are not “absolutes,” the trial court’s cumulation order
“should be sufficiently specific to allow the Texas Department of Criminal Justice—
Institutional Division (TDCJ—ID), to identify the prior with which the newer conviction
is cumulated.” Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998).


Appellant’s Brief                                                               Page 11
sentencing, the defendant is actually serving a prison sentence with which

the new sentence can be ordered to run consecutively; and (2) it provides the

information necessary for the trial court to render a proper cumulation

order.

        Here, the State made no effort to offer evidence regarding Appellant’s

parole status.


D. A Present Sentence Cannot Be Stacked on a Future Sentence.

        Article 42.08 does not authorize a trial court to order a sentence to run

consecutively with a sentence that the defendant may begin serving at some

unknown point in the future. Bollman v. State, No. 02-08-00061-CR, 2009 WL

161032, at *5 (Tex. App.—Fort Worth Jan. 22, 2009, no pet.) (per curiam)

(mem. op., not designated for publication).

        In Bollman, the trial court ordered the defendant’s sentence to run

“consecutive to any other sentence [appellant] may receive” in three other

pending cases. Id. at *2. The Fort Worth Court held that this was improper

because the State had not met its burden of proof to support a cumulation

order. Id. at *5.




Appellant’s Brief                                                          Page 12
        For the same reason, when the State fails to prove that a defendant’s

parole has been revoked, a defendant’s sentence cannot be ordered to run

consecutively with a parole-revocation sentence that may (or may not) occur

in the future.


E. Jimenez And Its Progeny Are Inconsistent With Applicable Law.

        There are a series of intermediate appellate court decisions holding

that a trial court may stack a defendant’s sentence on one for which the

defendant is on parole. These cases all find their genesis in the decision of

the San Antonio court in Jimenez. For the reasons that follow, Jimenez was

wrongly decided.

        In Jimenez, the trial court ordered the defendant’s sentence to run

consecutively with a sentence for which he was on parole at the time of

sentencing. The San Antonio court held that the cumulation order was

proper because “[p]arole is essentially a constructive confinement. Release

from prison for rehabilitation purposes does not mean release from the

operation of the judgment and sentence in that cause.” Jimenez v. State, 634

S.W.2d 879, 881 (Tex. App.—San Antonio 1982, pet. ref’d). However, this is

inconsistent with how this Court has construed Article 42.08.



Appellant’s Brief                                                      Page 13
        Article 42.08(a) provides that the second in a series of consecutive

sentences begins to run when the prior sentence “has ceased to operate.” TEX.

CODE CRIM. PROC. art. 42.08(a). Article 42.08(b), which applies when a

prisoner commits an offense, requires that the sentence for the offense

committed while incarcerated will begin to run “immediately on completion

of the sentence for the original offense.” Id. art. 42.08(b).

        This Court has construed the phrases in Subsection (a) (“ceased to

operate”) and Subsection (b) (“completion of the sentence”) to mean the

same thing when considering the intersection between parole law and

cumulative sentencing. Ex parte Kuester, 21 S.W.3d 264, 271 (Tex. Crim. App.

2000).

        Considering the consequences of varying constructions, the
        legislative history, the meaning of “completion of the sentence”
        in other statutes, the meaning of “cease to operate” in Art.
        42.08(a), the language of Art. 42.08(b), and its placement in the
        Code, we conclude that the phrase “completion of the sentence”
        means serving the sentence in full, day-for-day, until discharge,
        or receiving a vote of approval for parole by a parole panel.
        Granted, this results in “completion of the sentence” having the
        same meaning as “cease to operate.” But we are persuaded that
        the use of different phrases in subsections (a) and (b) of Art. 42.08
        is insignificant compared to the other considerations in this
        opinion.

Id.



Appellant’s Brief                                                               Page 14
         A sentence for which a defendant is on parole “ceased to operate” for

purposes of article 42.08(a) when he was released on parole. Therefore, if he

commits an offense while on parole and if his parole has not been revoked

at the time of sentencing for the subsequent offense, the sentence for the

subsequent offense cannot be “stacked” on the sentence for which he has

been released on parole because the prior sentence has already “ceased to

operate.”

         And even assuming parole revocation proceedings are pending, his

sentence for the subsequent offense cannot be “stacked” on some future

parole revocation that may or may not occur. See Bollman, 2009 WL 161032,

at *5.

         For these reasons, the San Antonio Court’s reliance on a theory of

“constructive confinement” does not withstand scrutiny because it is

contrary to the language of article 42.08(a) as construed by this Court

         The San Antonio Court also drew an analogy to this Court’s decisions

approving the order of consecutive sentences where the prior conviction was

being appealed at the time of the subsequent sentencing proceeding. See

Jiminez, 634 S.W.2d at 882 (citing Hamm v. State, 513 S.W.2d 85, 86 (Tex. Crim.

App. 1974)). However, Hamm and similar decisions represent a different


Appellant’s Brief                                                         Page 15
issue. In those cases, the complaint has been that the prior conviction and

sentence were not “final.” See, e.g., Hamm, 513 S.W.2d at 86; De la Paz v. State,

05-06-00963-CR, 2009 WL 3087253, at *5 (Tex. App.—Dallas Sept. 29, 2009,

no pet.) (mem. op., not designated for publication). Article 42.08 has no

“finality” requirement for consecutive sentences. Bell v. State, No. 13-01-

00570-CR, 2003 WL 1893266, at *3 (Tex. App.—Corpus Christi Apr. 17, 2003,

pet. ref’d) (mem. op., not designated for publication). Thus, Hamm and

similar decisions have no bearing on the issue presented.

        Several other courts have cited Jimenez for the proposition that a trial

court may stack a sentence on another for which the defendant was on

parole. E.g., McGown v. State, No. 10-12-00092-CR, 2013 WL 5494676, at *9

(Tex. App.—Waco Sept. 26, 2013, pet. ref’d) (mem. op., not designated for

publication); Wilson v. State, 854 S.W.2d 270, 273 (Tex. App.—Amarillo 1993,

pet. ref’d); Carpenter v. State, 828 S.W.2d 441, 442 (Tex. App.—Austin 1992,

no pet.). However, none of these courts purported to conduct an

independent analysis on this issue. And because Jimenez was wrongly

decided as explained, these decisions likewise lose their persuasive weight.




Appellant’s Brief                                                          Page 16
F. The Remedy Is to Reform the Judgment by Deleting the Stacking Order.

        When a trial court renders an erroneous cumulation order, the

appropriate remedy is to modify the judgment by deleting the cumulation

provision(s). Beedy, 250 S.W.3d at 113; see TEX. R. APP. P. 43.2(b). This Court

has done so quite recently. Sullivan v. State, 387 S.W.3d 649, 653 (Tex. Crim.

App. 2013).


G. This Court Should Delete the Stacking Order in Appellant’s Case.

        The State must prove that the defendant is serving a prior sentence

with which his current sentence may be ordered to run consecutively. A trial

court cannot order a defendant’s sentence to run consecutively with some

unspecified future sentence. For the same reason, a trial court cannot order

a defendant’s sentence to run consecutively with a sentence from which the

defendant has been paroled absent evidence that the defendant’s parole has

been revoked. Otherwise, the trial court is ordering the defendant’s sentence

to run consecutively with some future parole-revocation sentence that may

or may not be imposed.

        Here, the State offered no evidence regarding the status of Appellant’s

parole—not          even   evidence   regarding   whether   parole   revocation



Appellant’s Brief                                                        Page 17
proceedings had been commenced. Regardless, the trial court ordered

Appellant’s sentence in this case to run consecutively with his prior

sentence.

        For these reasons, the trial court abused its discretion by ordering

consecutive sentences that were not authorized by law.

        Accordingly, Appellant asks that the Court reform the judgment of the

trial court by deleting the unauthorized cumulation order and affirm the

judgment as modified. See TEX. R. APP. P. 43.2(b); Sullivan, 387 S.W.3d at 653;

Beedy, 250 S.W.3d at 113.




Appellant’s Brief                                                        Page 18
                                   Prayer

        WHEREFORE, PREMISES CONSIDERED, Appellant Thomas Leon

Byrd asks the Court to: (1) reform the judgment of the trial court by deleting

the cumulation order and affirm the judgment as modified; and (2) grant

such other and further relief to which Appellant may show himself justly

entitled.

                                         Respectfully submitted,



                                            /s/ Alan Bennett
                                         E. Alan Bennett
                                         SBOT #02140700
                                         Counsel for Appellant

                                         Sheehy, Lovelace & Mayfield, P.C.
                                         510 N. Valley Mills Dr., Ste. 500
                                         Waco, Texas 76710
                                         Telephone:        (254) 772-8022
                                         Fax:        (254) 772-9297
                                         Email:      abennett@slmpc.com




Appellant’s Brief                                                       Page 19
                        Certificate of Compliance


        The undersigned hereby certifies, pursuant to Rule of Appellate

Procedure 9.4(i)(3), that this computer-generated document contains 3,065

words.



                                             /s/ Alan Bennett
                                          E. Alan Bennett




                           Certificate of Service

        The undersigned hereby certifies that a true and correct copy of this

brief was served by email on June 19, 2015 to: (1) counsel for the State,

Sterling Harmon, sterling.harmon@co.mclennan.tx.us; and (2) the State

Prosecuting Attorney, Lisa McMinn, Lisa.McMinn@SPA.texas.gov.



                                             /s/ Alan Bennett
                                          E. Alan Bennett




Appellant’s Brief                                                      Page 20
