             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                           NOS. PD-1224-06 AND PD-1225-06



                           ARNOLD RAY BEEDY, Appellant

                                            v.

                                THE STATE OF TEXAS

             ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW
                    FROM THE FIRST COURT OF APPEALS
                            BRAZORIA COUNTY

       K EASLER, J., delivered the opinion of the Court in which M EYERS, P RICE,
H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined. K ELLER, P.J., W OMACK, and J OHNSON,
JJ., concurred.

                                      OPINION

       The court of appeals held that the trial judge erred in ordering Arnold Ray Beedy’s

deferred adjudication community supervision term to begin after his prison sentence ended.1

The court deleted the cumulation order.2 We hold that the court of appeals did not err in



      1
           Beedy v. State, 194 S.W.3d 595, 602 (Tex. App.—Houston [1st Dist.] 2006).
       2
           Id. at 603.
                                                                                 BEEDY—2

rejecting the State’s proposal to remand for resentencing because an unlawful cumulation

order does not constitute “reversible error” under Article 44.29, Texas Code of Criminal

Procedure.

                                 Procedural Background

       In a single proceeding, Beedy entered two open guilty pleas to two counts of

indecency with a child by exposure. He also pled true to an enhancement paragraph alleging

a prior conviction for sexual assault of a child. The trial judge sentenced Beedy to twelve

years’ imprisonment on Count One, deferred adjudication of guilt on Count Two, and

ordered Beedy to serve ten years of community supervision. As to Count Two, the trial judge

entered a cumulation order stacking Beedy’s deferred adjudication community supervision

term onto Beedy’s prison sentence for Count One.3

                                       Court of Appeals

       Beedy appealed, arguing that the trial judge abused his discretion by stacking his ten-

year deferred adjudication community supervision term onto his twelve-year prison

sentence.4 The court of appeals agreed and held that the cumulation order was improper

because deferred adjudication community supervision is not a “conviction” for purposes of

the statutes authorizing cumulation, Texas Penal Code Section 3.03(c) and Texas Code of




       3
         See T EX. C ODE C RIM. P ROC. A NN. art. 42.08(a) (Vernon 2006); T EX. P ENAL
C ODE A NN. § 3.03(c) (Vernon 2003).
       4
           Beedy, 194 S.W.3d at 596.
                                                                                   BEEDY—3

Criminal Procedure Article 42.08(a).5 The court then considered the appropriate remedy.6

In doing so, the court rejected the State’s argument that the case should be remanded for a

new punishment hearing on Count Two.7 Relying on our precedent, the court held: “The

proper remedy for a void cumulation order is to reform the judgment to delete the cumulation

order.” 8 In deleting the cumulation order, the court ordered Beedy’s prison sentence and

term of community supervision to run concurrently.9 The court reasoned, “This disposition

is appropriate because the decision to stack comes after the decision . . . to adjudicate or not

to adjudicate guilt and to assess punishment if guilt is decreed.” 10

                               State’s Petition for Discretionary Review

         The State petitioned us for review, and we granted review to resolve the following

issue:

         If the trial court assesses punishment and imposes a cumulation order that an
         appellate court later determines is improper, should the order be deleted or is
         the correct remedy to remand the cause to the trial court for resentencing in
         order to ensure that the trial court is able to assess the level of punishment
         originally intended?



         5
              Id. at 602.
         6
              Id. at 602-03.
         7
              Id. at 602-03.
         8
        Id. at 603 (citing Robbins v. State, 914 S.W.2d 582, 584 (Tex. Crim. App. 1996);
LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992)).
         9
              Id.
         10
              Id.
                                                                                  BEEDY—4


       The State claims that when a trial judge assesses punishment and enters an improper

cumulation order, the error should be remedied by remanding the case to the trial judge for

resentencing. The State maintains that the deletion of an improper cumulation order

penalizes the trial judge for making a mistake and that it strips the trial judge of his or her

discretion to fashion a punishment that approximates, as closely as possible, the punishment

that was originally intended.

       The State contends that by deleting the improper cumulation order in this case, the

court of appeals decreased the trial judge’s oversight of Beedy by ten years. According to

the State, the trial judge may have chosen a different punishment if he had known that

cumulation was improper. And proceeding under the assumption that the trial judge would

want to cumulate, the State contends that, if Count Two were remanded for the reassessment

of punishment, the trial judge will have to find Beedy guilty before assessing punishment.

Continuing, the State suggests that the trial judge may decide to place Beedy on community

supervision after adjudicating him guilty and probating his sentence.

       Beedy argues that the State’s position conflicts with our precedent and submits that

there is no good reason to overrule it. Beedy further contends that the State’s assertion that

the trial judge may have chosen a different punishment had he known cumulation was

improper invites speculation.

                                          Analysis

       The Legislature has assigned the task of cumulating sentences exclusively to the trial
                                                                                  BEEDY—5

judge.11 In some cases, the trial judge is required to cumulate individual punishment, while

in other cases, the trial judge’s decision to cumulate is discretionary.12 Like the assessment

of individual punishment, a trial judge’s decision to cumulate under Texas Code of Criminal

Procedure, Article 42.08(a), is “a normative, discretionary function that does not turn on

discrete findings of fact.” 13 As a result, when a trial judge lawfully exercises the option to

cumulate, that decision is unassailable on appeal.14 But when a trial judge unlawfully enters

a cumulation order in a case that did not involve a negotiated plea agreement, the appellate

court, according to our precedent, will reform the judgment by deleting the order.15

       By questioning this well-established remedy, the State’s ground for review requires

us to decide whether an unlawful cumulation order can be remedied by a reversal. To resolve

this question, we turn to Article 44.29 of the Texas Code of Criminal Procedure. Although

we have never discussed the role of Article 44.29 when setting aside an unlawful cumulation

order, our precedent applying this remedy makes clear that we have never interpreted



       11
       T EX. C ODE C RIM. P ROC. A NN. art. 42.08; T EX. P ENAL C ODE A NN. § 3.03;
Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006).
       12
         T EX. C ODE C RIM. P ROC. A NN. art. 42.08; T EX. P ENAL C ODE A NN. § 3.03;
Barrow, 207 S.W.3d at 380.
       13
            Barrow, 207 S.W.3d at 380.
       14
            Id. at 381.
       15
         Ex parte Madding, 70 S.W.3d 131, 137 (Tex. Crim. App. 2002); Robbins, 914
S.W.2d at 584; LaPorte, 840 S.W.2d at 415; Ex parte Vasquez, 712 S.W.2d 754, 755
(Tex. Crim. App. 1986). But see Ex parte Sims, 868 S.W.2d 803, 804-05 (Tex. Crim.
App. 1993); Ex parte Guerrero, 521 S.W.2d 613, 613-15 (Tex. Crim. App. 1975).
                                                                                    BEEDY—6

“reversible error” under Article 44.29 to encompass an unlawful cumulation order.

       Article 44.29 is titled “Effect of reversal.” 16 As enacted by the Fifty-Ninth Legislature

in 1965, Article 44.29 stated: “Where the Court of Criminal Appeals awards a new trial to

the defendant, the cause shall stand as it would have stood in case the new trial had been

granted by the court below.” 17 In 1981, after the courts of civil appeals became courts of

appeals and were given jurisdiction over criminal law matters, the Legislature amended 44.29

to include courts of appeals.18 As amended, Article 44.29 provided: “Where the court of

appeals or the Court of Criminal Appeals awards a new trial to the defendant, the cause shall

stand as it would have stood in case the new trial had been granted by the court below.” 19

We interpreted Article 44.29 to mean that when an appellate court concluded that reversible

error occurred during either phase of a trial and the jury had assessed punishment, the

defendant was entitled to a complete new trial on remand.20 We rendered this interpretation

because, under Article 37.07, Texas Code of Criminal Procedure, a defendant was required




       16
       T EX. C ODE C RIM. P ROC. A NN. art. 44.29 (Vernon 2006); see also Acts 1965,
59th Leg., ch.722, eff. Jan. 1, 1966.
       17
            Acts 1965, 59th Leg., ch.722, eff. Jan. 1, 1966.
       18
            Acts 1981, 67th Leg., ch. 291, § 137, eff. Sept. 1, 1981.
       19
            Id.
       20
          Carson v. State, 6 S.W.3d 536, 538 (Tex. Crim. App. 1999) (citing Bullard v.
State, 548 S.W.2d 13, 18 (Tex. Crim. App. 1977)).
                                                                                  BEEDY—7
to have the same jury determine guilt and assess punishment.21        Article 44.29, therefore,

permitted a remand limited to the reassessment of punishment only where the trial judge

assessed punishment.22

       In 1987, the Legislature made significant changes to Article 44.29 by creating

subsections (a) and (b).23 The text of subsection (a), which has remained unchanged since

1987, describes the effect of a reversal by an appellate court based on an error made during

the guilt phase only or errors made at both the guilt and punishment phases.24 Under

subsection (a), when a new trial is granted “the cause shall stand as it would have stood in

case the new trial had been granted by the court below.” 25 Subsection (b) permitted, for the

first time, a remand for the limited purpose of reassessment of punishment when an appellate

court determined that there was reversible error at the punishment phase and the jury assessed

punishment.26 When a new trial was granted under subsection (b), the trial court was directed

to “commence the new trial as if a finding of guilt had been returned and proceed to the




       21
            Id. at 539 (citing Ellison v. State, 432 S.W.2d 955, 957 (Tex. Crim. App.
1968)).
       22
         Saldana v. State, 826 S.W.2d 948, 949-50 (citing Bullard v. State, 548 S.W.2d
13, 18 (Tex. Crim. App. 1977)).
       23
            Acts 1987, 70th Leg., ch. 179, § 1, eff. Aug. 31, 1987.
       24
            Id.
       25
            Id.
       26
         Saldana, 826 S.W.2d at 950 (citing Acts 1987, 70th Leg., Ch. 179, § 1, eff.
Aug. 31, 1987).
                                                                                 BEEDY—8
punishment stage of the trial under Subsection (b), Section 2, Article 37.07, of this code.” 27

At that time, the court was required to empanel a jury to assess punishment if the defendant

so elected.28 Except for the addition of a clause that makes subsection (b) inapplicable to

death sentences, the text of subsection (b) has remained unchanged since 1987.29

       We considered the applicability of Article 44.29(b) to remedy a lawful but insufficient

restitution order entered as a condition of community supervision in Barton v. State.30 There,

we granted review to determine whether the Fourteenth Court of Appeals erred in holding

that Article 44.29(b) superceded the remedy we announced in Cartwright v. State in 1980.31

In Cartwright, we held that when the record is insufficient to support the amount of

restitution ordered as a condition of probation, the proper remedy is to remand the cause to

the trial judge for a new restitution hearing.32 The court of appeals in Barton concluded that

the amount of restitution ordered by the trial judge as a condition of community supervision

was not supported by the record.33 The court then rejected Cartwright’s remedy and held that



       27
            Acts 1987, 70th Leg., ch. 179, § 1, eff. Aug. 31, 1987.
       28
            Id.
       29
          Acts 72nd Leg., ch. 838, § 2, eff. Sept. 1, 1991; T EX. C ODE C RIM. P ROC. A NN.
art. 44.29(b) (Vernon 2006).
       30
            21 S.W.3d 287 (Tex. Crim. App. 2000).
       31
            Id. at 288.
       32
         Id. at 288-89 (citing Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App.
1980) (panel op.)).
       33
            Id. at 288.
                                                                              BEEDY—9
the appellant, Barton, was entitled to an entirely new punishment hearing under 44.29(b).34

       We disagreed and held that Article 44.29(b) did not supercede the remedy announced

in Cartwright.35 We determined that the Cartwright Court, without specifically mentioning

the version of Article 44.29 in effect before 1987, “implied that the lack of a sufficient record

to sustain a restitution award did not amount to ‘reversible error’ so as to trigger the

procedure outlined in the article” 36 We reached this conclusion based on the Cartwright

Court’s decision “to remand the case for a new restitution hearing rather than a new trial” and

“its emphasis on the fact that the error involved a condition of probation over which the trial

court had continuing jurisdiction.” 37 Finally, while observing that the Legislature has never

defined what constitutes “reversible error” under Article 44.29, we noted that the Legislature

did not change Article 44.29(b) “to suggest that error regarding a condition of community

supervision was to be considered reversible error requiring a new punishment hearing.” 38

From this, we “assume[d] that the Legislature was aware of the remedy crafted by this Court

in Cartwright when it amended the statute and chose not to alter that procedure.” 39

       In concluding that Article 44.29(b) did not supercede the remedy in Cartwright, we


       34
            Id.
       35
            Id. at 290.
       36
            Id. at 289.
       37
            Id.
       38
            Id. at 290.
       39
            Id. (citing Moore v. State, 868 S.W.2d 787, 790 (Tex. Crim. App. 1993)).
                                                                              BEEDY—10
also rejected the appellant’s claim that the restitution order should be deleted under our

decision in Ex parte Pena.40 In Ex parte Pena, we held that “where a trial judge imposes an

‘invalid’ condition, ‘the proper remedy is to reform the judgment of conviction by deleting

the condition.’” 41 In contrast, we recognized that our decision to remand for a new restitution

hearing in Cartwright turned on the fact that the imposition of restitution as a condition of

probation was lawful, even though the amount of restitution was unsupported by the record.42

Shifting to Barton’s case, we determined that the trial judge was within his lawful authority

to order restitution as a condition of Barton’s community supervision, and therefore, the

deletion of the restitution condition under Ex parte Pena would be improper.43 We then set

aside the amount of restitution and remanded Barton’s case to the trial court to hold a

restitution hearing.44

       Our consideration of Ex parte Pena in Barton reveals that we have implicitly

recognized that an invalid condition of community supervision, like an insufficiently

supported but otherwise lawful restitution order, does not constitute “reversible error” under

Article 44.29 on appeal. However, Ex parte Pena and Barton differ in the remedy applied.



       40
            Id. at 289, 289 n.3.
       41
         Id. at 289 (citing Ex parte Pena, 739 S.W.2d 50, 51 (Tex. Crim. App. 1987); Ex
parte Gingell, 842 S.W.2d 284, 285 (Tex. Crim. App. 1992)).
       42
            Id. at 289.
       43
            Id. at 289 n.3.
       44
            Id. at 290.
                                                                          BEEDY—11
The remedy applied depends on whether the trial judge acted lawfully. The trial judge in

Barton was authorized to order restitution; the only defect present was that the amount of

restitution was unsupported by the record. A remand for the purpose of a restitution hearing

was therefore appropriate. Ex parte Pena, in contrast, involved a condition of community

supervision that was not authorized. It was therefore proper to delete the invalid condition

without remanding for additional proceedings, including a remand so that the trial judge

could consider the imposition of an alternative, lawful condition.

       An inquiry into the applicability of Article 44.29 applies with equal force in this case.

Significantly, we have always remedied an unlawful cumulation order by reforming the trial

court’s judgment to delete the unlawful order.45 In cases decided before the 1987 version of

Article 44.29 was in effect, we set aside the unlawful cumulation order where the trial judge

assessed punishment,46 even though, at that time, Article 44.29 permitted a remand for a new

punishment hearing.47 And where the jury assessed punishment, under the version of Article

44.29 in effect before 1987, we deleted the unlawful cumulation entered by the trial judge

instead of remanding the case for a new trial.48 Finally, in cases decided after the 1987


       45
         Ex parte Madding, 70 S.W.3d at 137; Robbins, 914 S.W.2d at 584; La Porte,
840 S.W.2d at 415; Ex parte Vasquez, 712 S.W.2d at 755; Ex parte Voelkel, 517 S.W.2d
291, 293 (Tex. Crim. App. 1975).
       46
        Ex parte Vasquez, 712 S.W.2d at 755; O'Hara v. State, 626 S.W.2d 32, 35 (Tex.
Crim. App. 1981).
       47
            Saldana, 826 S.W.2d at 949-50.
       48
         Blackwell v. State, 510 S.W.2d 952, 956 (Tex. Crim. App. 1974); Ex parte
Reynolds, 462 S.W.2d 605, 608 (Tex. Crim. App. 1970).
                                                                                BEEDY—12
version of Article 44.29 was in effect, even though subsection (b) permitted a remand for the

purpose of a new punishment hearing, we deleted the unlawful cumulation order when the

trial judge assessed punishment.49

       Implicit in our continued practice of setting aside an unlawful cumulation order is the

notion that an unlawful cumulation order does not constitute “reversible error” as provided

in Article 44.29. Further, we presume that the Legislature was aware of this remedy when

it amended Article 44.29 and that, in amending Article 44.29, the Legislature has approved

of this interpretation as well as our remedy.50 We therefore reaffirm our cases holding that

an unlawful cumulation order is remedied by reforming the judgment to set aside the order.

Because the trial judge in this case did not have the authority to stack Beedy’s deferred

adjudication community supervision term onto his prison sentence, the court of appeals was

correct when it deleted the cumulation order.51

       Our decision is supported by the fact that a defendant is permitted, on remand for

resentencing under Article 44.29(b), to elect to have a jury assess punishment.52 Thus,

contrary to the State’s contention, there is no foregone conclusion that a remand for

resentencing would give the trial judge an opportunity to correct the mistake and fashion a



       49
        Robbins, 914 S.W.2d at 584; Johnson v. State, 930 S.W.2d 589, 593 (Tex. Crim.
App. 1996) (per curiam).
       50
            State v. Colyandro, 233 S.W.3d 870, 878 (Tex. Crim. App. 2007).
       51
            Cf. Ex parte Pena, 739 S.W.2d at 51.
       52
            Saldana, 826 S.W.2d at 950-51.
                                                                             BEEDY—13
punishment for the defendant that approximates, as closely as possible, what was originally

intended.

       Additionally, our determination is reinforced by our interest in fostering judicial

economy and conserving scarce judicial resources. An individual sentence assessed by a trial

judge within the applicable range of punishment is not rendered illegal by the entry of an

unlawful cumulation order.53 A trial judge’s ability to consider cumulation in conjunction

with the entire range of punishment applicable to a particular offense when assessing a

defendant’s sentence does not change this fact. The deletion of an unlawful cumulation order

is an efficient corrective action that removes the illegality from the judgment while leaving

the remaining, lawful portions of the judgment intact.

       In upholding the court of appeals’s decision to delete the cumulation order in this

case, we do not mean to suggest that we would reach the same conclusion in a case where

the trial judge had the authority to cumulate but entered, at his discretion under Article

42.08(a), Texas Code of Criminal Procedure, a cumulation order that lacked the requisite

specificity.54 In Bell v. State, for instance, we questioned, in dicta, our cases deleting a




       53
         See Levy v. State, 818 S.W.2d 801, 802 (Tex. Crim. App. 1991) (holding that
where the trial judge assesses a punishment that is not authorized by law after the
defendant enters a guilty plea or plea of nolo contendere without a plea-bargain
agreement, the proper remedy is to remand the case to the trial judge for a new
punishment hearing).
       54
           See Turner v. State, 733 S.W.2d 218, 220-23 (Tex. Crim. App. 1987); Williams
v. State, 675 S.W.2d 754, 764 (Tex. Crim. App. 1984) (op. on reh’g) (quoting Ward v.
State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975)).
                                                                             BEEDY—14
cumulation order where the trial judge had the authority to cumulate under Article 42.08(a)

but entered an order that was unsupported by evidence in the record.55 We indicated that, in

such a case, it may be appropriate to remand the case to the trial judge so that the judge could

obtain the information required to support the cumulation order.56 However, we do not need

to reach this issue today because, in this case, the cumulation order was unlawful.

       Finally, before we conclude, we address how the State’s proposed remedy is

incompatible with the procedural posture of this case. As recognized by the court of appeals

in holding that the cumulation order was improper, Beedy has not been adjudicated guilty and

therefore has not been convicted.57 Having been placed on deferred adjudication community

supervision, Beedy’s punishment has not been assessed and Beedy has not been sentenced

as defined in Article 42.02 of the Texas Code of Criminal Procedure.58 Even if we were to

assume that an unlawful cumulation order constitutes “reversible error” under Article 44.29,

a remand for the purpose of resentencing would not be an available remedy in this situation.59



       55
            Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999).
       56
            Id.
       57
         T EX. C ODE C RIM. P ROC. A NN. art. 42.12 § 5; Taylor v. State, 131 S.W.3d 497,
500 (Tex. Crim. App. 2004) (citing Ex parte Hernandez, 705 S.W.2d 700, 702 (Tex.
Crim. App. 1986); Donovan v. State, 68 S.W.3d 633, 636 (Tex. Crim. App. 2002); Jordan
v. State, 36 S.W.3d 871, 876 (Tex. Crim. App. 2001); McNew v. State, 608 S.W.2d 166,
172 (Tex. Crim. App. 1978)).
       58
        Donovan, 68 S.W.3d at 636; McIntyre v. State, 587 S.W.2d 413, 417-18 (Tex.
Crim App. 1979); see also T EX. C ODE C RIM. P ROC. A NN. art. 37.07 § 2(c).
       59
            See T EX. C ODE C RIM. P ROC. A NN. art. 44.29(b).
                                                                           BEEDY—15
       The State appears to acknowledge the obvious conflict between the remedy it seeks

and the procedural posture of this case. In both its petition and accompanying briefs, the

State recognizes that if this case were remanded, Beedy would be returned to a point in which

the trial judge could adjudicate guilt on Count Two. Nevertheless, the State adheres to the

view that resentencing is the only proper remedy and advances no other remedy. The actual

remedy pursued by the State, as defined by the procedural posture of this case, surpasses the

State’s request and may have consequences that the State never anticipated: because Beedy’s

guilt has not yet been determined, Beedy would be entitled to an entirely new trial and

therefore would be in a position to change his plea and exercise his right to a jury trial.60

                                         Conclusion

       We hold that an unlawful cumulation order does not amount to “reversible error” under

Article 44.29; therefore, we conclude that the court of appeals did not err in deleting the

cumulation order. The judgment of the court of appeals is affirmed.




DATE DELIVERED: April 2, 2008
PUBLISH




       60
         See T EX. C ODE C RIM. P ROC. A NN. art. 44.29(a); T EX. R. A PP. P. 21.9; see also
Walker v. State, 557 S.W.2d 785, 786 (Tex. Crim. App. 1977) (holding that the Supreme
Court’s decision in North Carolina v. Pearce is not implicated where the prison sentence
imposed by the trial judge after the defendant was adjudicated guilty exceeded the
defendant’s deferred adjudication community supervision term).
