                                     The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                           ____________________

                            NO. 09-13-00368-CR
                            NO. 09-13-00369-CR
                            NO. 09-13-00370-CR
                            NO. 09-13-00371-CR
                            NO. 09-13-00372-CR
                           ____________________

                 CHRISTOPHER PAUL DAVIS, Appellant

                                      V.

                     THE STATE OF TEXAS, Appellee

________________________________________________________________ __

                 On Appeal from the 252nd District Court
                          Jefferson County, Texas
     Trial Cause Nos. 07-02148, 08-03290, 10-10714, 10-10715, 10-10716
_________________________________________________________________ _

                        MEMORANDUM OPINION

      Challenging his sentences in five cases, Christopher Paul Davis 1 appeals

from the trial court’s revocation of its respective orders that placed Davis on

community supervision. In all five cases, Davis contends that the sentences the

      1
      The record reflects that the defendant, Christopher Paul Davis, is also
known as Kermit Joseph Davis.
                                      1
trial court assessed are disproportionate and unreasonable; he concludes that the

sentences he received violate the Eighth Amendment of the United States

Constitution and article I, section 13 of the Texas Constitution. In two of his cases,

trial cause numbers 08-03290 and 10-10714, Davis also complains that the trial

court erred by entering judgments stacking his sentences. According to Davis,

because the trial court first placed him on shock community supervision2 in trial

cause numbers 08-03290 and 10-10714, and he had served a portion of those

sentences, his sentences in these cases could not be stacked. With respect to

Davis’s stacking complaints in trial cause numbers 08-03290 and 10-10714, the

State concedes error.

      We overrule Davis’s issues that assert Eighth Amendment and article I,

section 13 arguments. After reviewing the records in trial cause numbers 08-03290

and 10-10714, we agree with the State that the trial court rendered judgments that

improperly stacked Davis’s sentences. Based on our resolution of Davis’s issues,

we affirm the trial court’s judgments in trial cause numbers 07-02148, 10-10715,

and 10-10716. In trial cause numbers 08-03290 and 10-10714, we delete the trial

      2
       See Tex. Code Crim. Proc. Ann. art. 42.12, § 6 (West Supp. 2013). “Shock
community supervision” describes a trial court’s decision to place a defendant on
deferred adjudication community supervision within 180 days following the date
the defendant’s sentence was executed. See State v. Dunbar, 297 S.W.3d 777, 780-
81 (Tex. Crim. App. 2009).
                                          2
court’s cumulation orders, and we order that Davis serve his sentences in these two

cause numbers concurrently. As modified, we affirm the trial court’s judgments in

trial cause numbers 08-03290 and 10-10714.

                                   Background

      In cause numbers 07-021483 and 08-03290, 4 after Davis was given shock

probation and then placed on community supervision, the State filed motions that

asked the trial court to revoke its community supervision orders. Following a

hearing, the trial court found that Davis had violated the terms of its community

supervision orders; it then revoked these orders and assessed ten year sentences in

the two cases, trial cause numbers 07-02148 and 08-03290. The trial court stacked

Davis’s sentence in trial cause number 08-03290 onto the sentence that it imposed

in trial cause number 07-02148.

      The trial court also placed Davis on shock community supervision in trial

cause numbers 10-10714, 10-10715, and 10-10716, the three other cases that are

the subject of Davis’s appeal. After revoking the order that was used in placing

      3
       In cause number 07-02148, Davis pled guilty to taking a prohibited
substance into a correctional facility, a third degree felony. See Tex. Penal Code
Ann. § 38.11(b), (g) (West 2011). Although this section of the Penal Code was
amended after the date of Davis’s offense, the changes do not affect the outcome of
the appeal.
      4
       In cause number 08-03290, Davis pled guilty to forging money, a third
degree felony. See Tex. Penal Code Ann. § 32.21(a), (e)(1) (West 2011).4
                                        3
Davis on community supervision in trial cause number 10-10714 (attempted

possession of a controlled substance by fraud, a third degree felony), trial cause

number 10-10715 (fabricating physical evidence, a third degree felony), and trial

cause number 10-10716 (fabricating physical evidence, a third degree felony), the

trial court sentenced Davis to serve ten years in prison in each of these cases. See

Tex. Health & Safety Code Ann. § 481.129(a)(3), (d)(2) (West Supp. 2013), 5 Tex.

Penal Code Ann. § 37.09(a)(2), (c) (West Supp. 2013). 6 The trial court’s judgment

in cause number 10-10714 requires Davis to serve his sentence in trial cause

number 10-10714 after completing his sentence in trial cause number 08-03290.

                             Discretion in Sentencing

      The record reflects that Davis failed to challenge his sentences based on

claims that the length of his sentences, ten years in each case, violated the Eighth

Amendment of the United States Constitution or violated article I, section 13 of the

Texas Constitution. Because Davis failed to bring his constitutional claims to the

trial court’s attention, we cannot consider them in his appeals. See Tex. R. App. P.

33.1(a).


      5
        We cite to the current version of the statute, as any amendments after the
date of Davis’s offense do not impact the issues Davis raises in his appeal.
      6
        We cite to the current version of the statute, as any amendments after the
date of Davis’s offense do not impact the issues Davis raises in his appeal.
                                         4
      Nevertheless, even if Davis had preserved these issues for review, the

challenges he raises regarding the length of his sentences would fail. The sentences

the trial court assessed, all based on convictions for third-degree felonies, are

within the statutorily-authorized range of punishment for the respective convictions

at issue. See Tex. Penal Code Ann. § 12.34 (West 2011) (providing that third

degree felony punishment is confinement of not more than ten years or less than

two years in prison), § 32.21(e)(1) (West 2011) (providing that forgery of money is

a third degree felony), § 37.09(c) (providing that fabricating physical evidence is a

third degree felony), 38.11(g) (West 2011) (providing that possession of a

prohibited substance in a correctional facility is a third degree felony); 7 Tex.

Health & Safety Code Ann. § 481.129(d)(2) (providing that the attempt to possess

a controlled substance, hydrocodone, by presenting a forged prescription to a

pharmacist is a third degree felony).

      Generally, if a trial court sentences a defendant within the range of

punishment established by the legislature for the crime at issue, an appellate court

will not disturb the sentence on appeal. Jackson v. State, 680 S.W.2d 809, 814

(Tex. Crim. App. 1984). Usually, a trial court’s decision to assess a sentence that is

      7
       We cite to the current version of these provisions of the Penal Code, as any
amendments since the date Davis committed the offenses do not impact the issues
Davis raises in his appeals.
                                          5
within the statutory range for the offense at issue is not excessive under the United

States Constitution or the Texas Constitution. Kirk v. State, 949 S.W.2d 769, 772

(Tex. App.—Dallas 1997, pet. ref’d); see also Jackson v. State, 989 S.W.2d 842,

846 (Tex. App.—Texarkana 1999, no pet.). If Davis’s complaints that his

sentences were too harsh had been preserved, we would nevertheless conclude that

these complaints are without merit.

                                Cumulation Orders

      Davis also argues that the cumulation orders in the judgments rendered in

trial cause numbers 08-03290 and 10-10714 are void. According to Davis, he

served part of the sentences imposed on him in these two cases before the trial

court placed him on community supervision. Because portions of Davis’s

sentences in trial cause numbers 08-03290 and 10-10714 were served before he

was finally sentenced, Davis contends that the sentences he received in these cases

could not be stacked. See Tex. Code Crim. Proc. Ann. art. 42.12, § 6(a) (West

Supp. 2013).8 The State agrees that under the circumstances, the trial court could

not stack Davis’s sentences in these two cause numbers.

      We agree the trial court erred when it stacked Davis’s sentences in trial

cause numbers 08-03290 and 10-10714. If a defendant has not yet served a portion
      8
       We cite to the current version of the statute, as any amendments since the
dates of Davis’s offenses do not impact the issues Davis raises in his appeals.
                                         6
of his sentence, the conviction on that case may be stacked. See Pettigrew v. State,

48 S.W.3d 769, 772-73 (Tex. Crim. App. 2001). However, “if the [defendant] has

already served a portion of his sentence before the sentence is suspended or

probated, then a cumulation order may not be entered[;]” the decision to stack in

that circumstance is improper. Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim.

App. 2004); see also Ex parte Barley, 842 S.W.2d 694, 695 (Tex. Crim. App.

1992). This prohibition against stacking applies to defendants placed on shock

probation—in that circumstance, the defendant served a portion of his sentence

before the trial court placed him on community supervision. See O’Hara v. State,

626 S.W.2d 32, 35 (Tex. Crim. App. 1981). In such a case, the trial court’s

cumulation “is null and void and of no legal effect.” Id.

      We hold the trial court erred in rendering a judgment that stacked the

sentences Davis received in trial cause numbers 08-03290 and 10-10714 onto two

of his other sentences. See id. We sustain Davis’s complaints regarding the

cumulation of his sentences in trial cause numbers 08-03290 and 10-10714.

      We order the language cumulating Davis’s sentences in trial cause numbers

08-03290 and 10-10714 be deleted, and we order that Davis serve his sentences in

trial cause numbers 08-03290 and 10-10714 concurrently. See Moore v. State, 371




                                          7
S.W.3d 221, 229 (Tex. Crim. App. 2012). As modified, the judgments the trial

court rendered in trial cause numbers 08-03290 and 10-10714 are affirmed.

      In conclusion, as modified, we affirm the district court judgments in trial

cause numbers 08-03290 and 10-10714. We affirm the trial court judgments as

written in trial cause numbers 07-02148, 10-10715, and 10-10716.

      TRIAL CAUSE NUMBERS 07-02148, 10-10715, and 10-10716 ARE

AFFIRMED; TRIAL CAUSE NUMBERS 08-03290 AND 10-10714 ARE

AFFIRMED AS MODIFIED.




                                           ___________________________
                                                  HOLLIS HORTON
                                                       Justice

Submitted on April 21, 2014
Opinion Delivered June 25, 2014
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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