                                                                           PD-0213-15
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                         Transmitted 7/28/2015 8:57:11 AM
July 28, 2015                                             Accepted 7/28/2015 10:09:55 AM
                                                                           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



                REPLY 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
                                            Table of Contents



Table of Contents ................................................................................................ 2

Index of Authorities ............................................................................................ 3

Issue Presented .................................................................................................... 4

Summary of the Argument ................................................................................ 4

Argument ............................................................................................................. 5

  Whether a trial court may order a sentence to run consecutively with a
  future parole revocation. ................................................................................. 5



Prayer ................................................................................................................... 8

Certificate of Compliance ................................................................................... 9

Certificate of Service ........................................................................................... 9




Appellant’s Reply Brief                                                                                           Page 2
                                         Index of Authorities



                                                  Texas Cases

Barela v. State, 180 S.W.3d 145 (Tex. Crim. App. 2005) .................................... 5

Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008) ..................................... 7

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) .......................................................................................................... 6

Sullivan v. State, 387 S.W.3d 649 (Tex. Crim. App. 2013) ................................. 7




Appellant’s Reply Brief                                                                                        Page 3
                              Issue Presented


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




                          Summary of the Argument

      In this Reply Brief, Appellant responds to the State’s assertion that

Appellant’s argument that a sentence may not be ordered to run

consecutively with a future (or unproved) parole revocation “is directly

contrary to this Court’s decision in Barela.” (State’s Brief at 5) The State is

incorrect.




Appellant’s Reply Brief                                                  Page 4
                                 Argument

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

      The State relies on Barela v. State, 180 S.W.3d 145 (Tex. Crim. App.

2005), to assert that only a prior conviction is required for cumulation of

sentences, even if the defendant has not yet been sentenced in the case giving

rise to the prior conviction. With all due respect to the State, this assertion

does not resolve the issue presented by Appellant. In equating this “prior

conviction” requirement to parole revocation proceedings, Appellant

contends that the State must prove that the defendant’s parole has been

revoked before the court can order a sentence to run consecutively with a

sentence for which the defendant was on parole at the time of the offense.

Here, the State did not even prove that revocation proceedings had been

instituted against Appellant.

The State Must Prove a “Conviction”

      In Barela, this Court held that the State “must” provide evidence of the

prior conviction to support a cumulation order. Barela, 180 S.W.3d at 148.

Appellant contends by analogy that, if the State seeks to obtain a cumulation

order for a prior conviction for which the defendant was on parole at the


Appellant’s Reply Brief                                                  Page 5
time of the offense, the State “must” prove: (1) parole revocation proceedings

were commenced against the defendant; and (2) his parole was revoked.

Otherwise, the defendant has not been “convicted” in his parole revocation

proceeding.

Absent Such Proof, Cumulation is Unauthorized

      If the State fails to establish these two facts with respect to a defendant

on parole, then a trial court’s cumulation order effectively orders the

sentence to run consecutively with some future sentence or, if parole is not

revoked, some non-existent 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 if convicted in some pending case. 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).

      By the same token, the statute does not authorize cumulative sentences

where there is a pending parole revocation proceeding because the

defendant’s parole has not been (and may not be) revoked.




Appellant’s Reply Brief                                                   Page 6
      Here, the State made no effort to prove whether parole revocation

proceedings were even instituted against Appellant, much less whether his

parole was revoked.

      For these reasons, Appellant continues to assert that the trial court

abused its discretion by ordering consecutive sentences that were not

authorized by law.

      Therefore, 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 v. State, 387 S.W.3d

649, 653 (Tex. Crim. App. 2013); Beedy v. State, 250 S.W.3d 107, 113 (Tex.

Crim. App. 2008).




Appellant’s Reply Brief                                                   Page 7
                                   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 Reply Brief                                                 Page 8
                          Certificate of Compliance


      The undersigned hereby certifies, pursuant to Rule of Appellate

Procedure 9.4(i)(3), that this computer-generated document contains 889

words.




                                             /s/ Alan Bennett
                                          E. Alan Bennett




                            Certificate of Service

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

reply brief was served by email on July 28, 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 Reply Brief                                                  Page 9
