Affirmed as Reformed and Opinion Filed August 7, 2013




                                        S  In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                     No. 05-12-01205-CR
                                     No. 05-12-01307-CR

                      CORNELIUS OYEDAPO COLLIER, Appellant
                                      V.
                          THE STATE OF TEXAS, Appellee

                     On Appeal from the 291st Judicial District Court
                                  Dallas County, Texas
                   Trial Court Cause Nos. F11-54230-U and F12-50565-U

                               MEMORANDUM OPINION
                       Before Justices Moseley, Bridges, and Lang-Miers
                                   Opinion by Justice Bridges
       In two issues, appellant Cornelius Oyedapo Collier seeks: (1) to receive back-time credit

for his previous time served on his sentence in cause number F11-54230-U (prostitution with

three or more priors) and (2) to remand cause number F12-50565-U (unauthorized absence from

community correction) to address the lack of specificity in the trial court’s order for his

sentences to run consecutively. As modified, we affirm the judgments of the trial court.

                                          Background

       Appellant was charged by indictment for prostitution with three or more prior

convictions. He entered a plea of guilty. In accordance with the plea agreement, the trial court

sentenced appellant to state jail for two years, probated for five years, and assessed a fine of
$1,500. As a condition to his community supervision, appellant was required to obtain treatment

at the Dallas County Judicial Treatment Center (“Treatment Center”).

        Appellant subsequently absconded from the Treatment Center and was arrested.

Appellant was later indicted for the offense of unauthorized absence from a community

correctional facility. Based on appellant’s unauthorized absence and failure to participate in

treatment at the Treatment Center, the State filed a motion to revoke community supervision on

appellant’s prostitution case. Appellant entered a plea of true to the State’s motion to revoke and

entered an open plea of guilty to the charge of unauthorized absence from a community

correctional facility.

        At the conclusion of the hearing on the State’s motion to revoke, the trial court revoked

appellant’s community supervision. In each case (prostitution and unauthorized absence), the

trial court sentenced appellant to state jail for a period of two years. The trial court further

ordered appellant serve these sentences consecutively, stating the unauthorized absence

conviction “shall run consecutively and shall begin only when the judgment and sentence in the

following case has ceased to operate: F11-54230-U.” Appellant filed a motion for new trial in

each case, both of which were overruled.

                                              Analysis

Issue One–Back-time Credit (Trial Court Cause No. F11-54230-U)

        Appellant argues the trial court erred by not crediting back-time for previous time served

on his sentence in cause number F11-54230-U (prostitution with three prior convictions). The

record before us shows the trial court made a notation on its docket sheet, noting that appellant

was to receive “No Backtime.”

        In his initial brief, appellant asserts he is entitled to 414 days of back-time credit against

the 2-year state jail sentence assessed by the trial court, which includes both his time in jail and

                                                 –2–
his time at the Treatment Center. However, in his reply brief, appellant correctly concedes he is

not entitled to his time spent in the Treatment Center (203 days) when he failed to successfully

complete the treatment program. See TEX. CODE CRIM. PROC. ANN. art. 42.12, §23(b); Stevenson

v. State, No. 05-11-00295, 2012 WL 1606625, at *2-3 (Tex. App.—Dallas May 9, 2012, pet.

ref’d) (not designated for publication). In addition, the State correctly concedes appellant is

entitled to 211 days of back-credit for the time he spent in jail. See Ex parte Harris, 946 S.W.2d

79, 80 (Tex. Crim. App. 1997).

       This Court has the power to modify an incorrect judgment to make the record speak the

truth when we have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v.

State, 865 S.W.2d 26, 27-8 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30

(Tex. App.—Dallas 1991, pet. ref’d). Therefore, we modify the trial court’s judgment in cause

number F11-54230-U to reflect appellant receives 211 days of back-time credit.

Issue Two–Consecutive Sentences (Trial Court Cause No. F12-50565-U)

       Appellant contends “the trial court’s discretionary cumulation order stacking the sentence

in Cause No. F12-50565-U is insufficient regarding specificity of previous conviction.” As

already noted, the trial court stated the unauthorized absence conviction “shall run consecutively

and shall begin only when the judgment and sentence in the following case has ceased to operate:

F11-54230-U.” In particular, appellant argues that because the judgment of the trial court only

contains the cause number of the prostitution case, “the cumulation here is insufficiently specific

to give Appellant and the Department of Criminal Justice notice of the manner in which

Appellant’s sentences should be stacked.”

       Under article 42.08 of the Texas Code of Criminal Procedure, a trial judge has the

discretion to cumulate a defendant’s sentences for two or more convictions. TEX. CODE CRIM.

PROC. ANN. art. 42.08. The Texas Court of Criminal Appeals has recommended five

                                               –3–
requirements for cumulation orders: (1) the trial court number of the prior conviction, (2) the

correct name of the court where the prior conviction was taken, (3) the date of the prior

conviction, (4) the term of years of the prior conviction, and (5) the nature of the prior

conviction. Revels v. State, 334 S.W.3d 46, 54 (Tex. App.—Dallas 2008, no pet.) (citing Ward

v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975)). It is well settled that inclusion of all of

the recommended elements is not mandatory. See Banks v. State, 708 S.W.2d 460, 461 (Tex.

Crim. App. 1986); Williams v. State, 675 S.W.2d 754, 764 (Tex.Crim.App.1984) (op. on reh’g).

However, the court of criminal appeals has “generally held that cumulation orders which recite

only one of the above elements (the trial court cause number) are insufficient.” Williams, 675

S.W.2d at 764. But cf. Hamm v. State, 513 S.W.2d 85, 86 (Tex. Crim. App. 1974) (cumulation

order that refers only to a prior cause number is sufficient if order is entered in same court as

sentence to which it is made cumulative); Gaston v. State, 63 S.W.3d 893, 900 (Tex. App.—

Dallas 2001, no pet.) (cumulation order that specified cause number and county of prior Dallas

County conviction was sufficient, where court took judicial notice that Dallas County court

system assigns unique numbers to all causes within system).

        To be valid, a cumulation order “should be sufficiently specific to allow the Texas

Department of Criminal Justice—Institutional Division. . .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). The courts of appeals “have the authority to reform and correct cumulation orders when

the necessary data is contained in the record.” Madrigal Rodriguez v. State, 749 S.W.2d 576,

580 (Tex. App.—Corpus Christi 1988, pet. ref’d) (citing Banks, 708 S.W.2d at 462).

       Because the judgment at issue only recites the trial court cause number, we agree with

appellant that the cumulative order is insufficient. See Revels v. State, 334 S.W.3d at 56 (citing

Williams, 675 S.W.2d at 764). However, we disagree with appellant’s argument that because the

                                               –4–
judgment lacks the required specificity on cumulation, cause number F12-50565-U must be

reversed and remanded to the trial court for a new hearing on punishment. The courts of appeals

“have the authority to reform and correct cumulation orders when the necessary data is contained

in the record.” Madrigal Rodriguez, 749 S.W.2d at 580 (citing Banks, 708 S.W.2d at 462).

Here, the intent of the trial court as to sentencing is ascertainable from the record before us. See

Revels, 334 S.W.3d at 56, Baltimore v. State, 757 S.W.2d 80, 82 (Tex. App.—Houston [14th

Dist.] 1988, pet. ref’d); see also Banks, 708 S.W.2d at 462; Madrigal Rodriguez, 749 S.W.2d at

580.

       In assessing punishment, the trial court stated the unauthorized absence conviction “shall

run consecutively and shall begin only when the judgment and sentence in the following case has

ceased to operate: F11-54230-U.” From the record before us, we can ascertain the following

about cause number F11-54230-U: (1) it resulted in a conviction against appellant in the 291st

Judicial District Court of Dallas County, Texas; (2) the date of the original community

supervision order was July 6, 2011; (3) the judgment revoking community supervision was

entered on May 30, 2012; (4) punishment was set at two years in the state jail division; and (5)

appellant was convicted for prostitution with three or more priors. See Revels v. State, 334

S.W.3d at 54. Thus, it is apparent from the record that it was the intent of the trial court that

appellant’s sentence in cause number F12-50565-U should run consecutively with the two-year

sentence appellant received in cause number F11-54230-U in the 291st Judicial District Court of

Dallas County, Texas for prostitution with three or more priors. Accordingly, we modify the

judgment to reflect the sentence actually imposed by the trial court. See Banks, 708 S.W.2d at

462. The portion of the trial court’s cumulation order that reads, “this conviction shall run

consecutively and shall begin only when the judgment and sentence in the following case has

ceased to operate: F11-54230-U,” is modified to read as follows:

                                                –5–
       The Court ORDERS that the sentence in this conviction shall run consecutively
       and shall begin only when the May 30, 2012 judgment revoking community
       supervision and two-year sentence in the following case has ceased to operate:
       F11-54230-U in the 291st Judicial District Court of Dallas County, Texas
       involving prostitution with three or more priors.

                                           Conclusion

       With the judgments modified in cause numbers F11-54230-U and F12-50565-U, we

affirm the judgments of the trial court. See TEX. R. APP. P. 43.2.




                                                     /David L. Bridges/
Do Not Publish                                       DAVID L. BRIDGES
TEX. R. APP. P. 47                                   JUSTICE
121205F.U05




                                               –6–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CORNELIUS OYEDAPO COLLIER,                          On Appeal from the 291st Judicial District
Appellant                                           Court, Dallas County, Texas
                                                    Trial Court Cause No. F11-54230-U.
No. 05-12-01205-CR         V.                       Opinion delivered by Justice Bridges.
                                                    Justices Moseley and Lang-Miers
THE STATE OF TEXAS, Appellee                        participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       We ORDER the trial court to amend the judgment to reflect Collier receives 211
       days of back-time credit.

As REFORMED, the judgment is AFFIRMED.


Judgment entered August 7, 2013




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE




                                              –7–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CORNELIUS OYEDAPO COLLIER,                          On Appeal from the 291st Judicial District
Appellant                                           Court, Dallas County, Texas
                                                    Trial Court Cause No. F12-50565-U.
No. 05-12-01307-CR         V.                       Opinion delivered by Justice Bridges.
                                                    Justices Moseley and Lang-Miers
THE STATE OF TEXAS, Appellee                        participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       We DELETE that portion of the trial court's judgment which reads, "this
       conviction shall run consecutively and shall begin only when the judgment and
       sentence in the following case has ceased to operate: F11-54230-U." We
       ORDER the trial court to replace the deleted language with the following: “The
       Court ORDERS that the sentence in this conviction shall run consecutively and
       shall begin only when the May 30, 2012 judgment revoking community
       supervision and two-year sentence in the following case has ceased to operate:
       F11-54230-U in the 291st Judicial District Court of Dallas County, Texas
       involving prostitution with three or more priors.

As REFORMED, the judgment is AFFIRMED.


Judgment entered August 7, 2013




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE




                                              –8–
