                        no. Pl>-MZ5-H


                              IN THE
                COURT OF CRIMINAL APPEALS
                            OF TEXAS




                     RYAN KEITH MASON,
March 2, 2015                      Appellant/Petitioner

                               VS.


                    THE STATE OF TEXAS,
                                    Appellee/Respondent




      APPELLANT'S PETITION FOR DISCRETIONARY REVIEW




                 In Appeal No. 10-13-00368-CR
                            from the
                       Court of Appeals
                 for the Tenth Judicial District
                          Waco, Texas




                                                     Ryan Keith Mason
                                                      TDCJ #01880542
                                                   James V. Allred Unit
                                                    2101 Fm 369 North
                                                   Iowa Park, TX 76367
                           TABLE OF CONTENTS

 INDEX OF AUTHORITIES                                              tv
 STATEMENT REGARDING ORAL ARGUMENT                                 \
 STATEMENT OF THE CASE                                             %
 STATEMENT OF PROCEDURAL HISTORY                                   Q_
 GROUNDS FOR REVIEW                                                2

      GROUND FOR REVIEW NO. ONE
      [Set out the Ground orQuestion Presented for Review]
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     GROUND FOR REVIEW NO. TWO
     [Set out the Ground orQuestion Presented for Review]




ARGUMENT NUMBER ONE

ARGUMENT NUMDER TWO

PRAYER FOR RELIEF

CERTIFICATE OF SERVICE ..
                                                              6

                                     n
APPENDIX [Opinion]                                                 -j
 j [A copy ofthe Court Opinion must be attached to the Petition]
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                                   in
                         INDEX OF AUTHORITIES

     CASES:




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                                 IV
                                no. PD-/V75-)^
                                        INTHE
                         COURT OF CRIMINAL APPEALS
                                      OF TEXAS



                               RYAN KEITH MASON,
                                                Appellant/Petitioner

                                          VS.


                              THE STATE OF TEXAS,
                                        Appellee/Respondent


        APPELLANT'S PETITION FOR DISCRETIONARY REVIEW



 TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

       Appellant/Petitioner respectfully submits this Petition for Discretionary
Review and moves that this Honorable Court grant review ofthis cause and offers
the following in supportthereof:

              STATEMENT REGARDING ORAL ARGUMENT

      The Appellant/Petitioner requests oral argument in this case because such

argument may assist the Court in applying the facts to the issues raised. It is

suggested that oral argument may help simplify the facts and clarify the issues.
                            STATEMENT OF THE CASE

  [Briefly state the nature of the case. This statement shouldseldom exceed half a

  page. See Rule 68.4(d), Texas Rules ofAppellate Procedure.]




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                  STATEMENT OF PROCEDURAL HISTORY

       [Statement of the history of the case. See Rule 68.4(e), Texas Rules of

 Appellate Procedure, for the dates that must be included in this portion of the
 Petition, including the filing and overruling ofany motion for rehearing, ifany.]
       In Cause No. 36,947 the Appellant/Petitioner was charged with the offense

 of Possession of Controlled Substance (4-200) grams with Intent to Deliver. The

Appellant/Petitioner was convicted of such offense on August 16, 2013 and

appealed the conviction. On October 9, 2014 the Waco Court of Appeals affirmed

the conviction. No motion for rehearing was filed. On \7s*\["~Vi                 this
Petition for Discretionary Review was timely forwarded to the Court of Appeals
for filing pursuant to Rule 9.2(b), Texas Rules of Appellate Procedure.
                            GROUNDS FOR REVIEW

                                          I.


 [State briefly, without argument, the grounds or questions on which thePetition are

 based. See Rule 68.4(f), Texas Rules of Appellate Procedure.]

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                                        -ft


                              [Same format as above]




[More thantwoGrounds for Review, along with accompanying Arguments, canbe
raised in a Petition, butthe Petition cannot exceed 15 pages, exclusive of certain
pages. See Rule 68.5, Texas Rules of AppellateProcedure.]
                                   ARGUMENT NUMBER ONE

          [Rule 68.4(g), Texas Rules ofAppellate Procedure, states: "Thepetition must

          contain a direct and concise argument, with supporting authorities, amplifying the

          reasons for granting review. See Rule 66.3."

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                                     [Same format as above.]



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                             PRAYER FOR RELIEF


       For the reasons stated above, it is respectfully submittedthat the Court of

 Criminal Appeals ofTexas should grant this Petition for Discretionary Review.

                                       Respectfully submitted,



                                                     &\ . I * k^co^
                                       RYAN KEITH MASON
                                       TDCi#-01880542
                                       James V. Allred Unit
                                       2101 FM 369 North
                                       Iowa Park, TX 76367




                         CERTIFICATE OF SERVICE

      The undersigned Appellant/Petitioner hereby certifies that a true and correct

copy of the foregoing Petition for Discretionary Review has been mailed, U.S.

mail, postage prepaid, to the District Attorney, Appellate Division, Elhs County

Courthouse, 109 S. Jackson Street, Waxahachie, Texas 75165, and to the State

Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711, on this the        iT*
day of bcCenfreL, 2015.


                                      RYAN KEITH MASON
I\?? EkIChx
                                                                                                                          26




.10:23:56        1   first rodeo.       You've heard that.                 He's         told you that.

 10:24:00    2       -He's been to prison twice before.                       And I want you to pay

 10:24:04    3       close   attention     to    the   dates    on      those.             His    last      one     was


 10:24:10    4       in March 31st,       2006 where his           sentence was                  15 years.

 10:24:20    5       That means   supposed to end in 2000 and --

 10:24:24    6                      MR.    GRIFFITH:          Your Honor,               I'm going to

10:24:26     7       object with regards to any argument regarding parole in

10:24:28     8       this case.     This charge particularly says she cannot do

10:24:32     9       that.


10:24:32    10                      THE COURT:          I'm going to overrule your

10:24:34    11       objection at this point.             Renew if appropriate.

10:24:38    12                      MS.    NGUYEN:       Just      look at the dates.                       You go

10:24:40    13       in in 2006 for 15 years --

10:24:44    14                      MR.    GRIFFITH:          Same objection,                   Your Honor.

10:24:46    15       She is talking about how parole applies to this

10:24:50    16       particular defendant.

10:24:50    17                      MS.    NGUYEN:       Judge,         it's on the evidence.

10:24:52    18                      THE    COURT:       Overruled.


10:24:56    19                      MS.    NGUYEN:       Y'all can recall.                       I'll let you

10:24:58    20       look at   that.      Now,   what    do   we       know    about           this

10:25:06    21       defendant?    We     know   that    he's      a   career          criminal.            It      has


10:25:10    22       been ongoing.        Lots of drug charges.                     Delivery of a

10:25:16    23       controlled substance.             Multi-pie cases.                  Possession of

10:25:22    24       controlled   substance       with    intent        to     deliver.               The   exact


0:25:24     25       same charge as he has here.



                                                                         ^^as\ **"^«>. «w*»v                £***\

                                                                         PBk extov ci
                                       IN THE
                         TENTH COURT OF APPEALS


                                No. 10-13-00368-CR


RYAN K. MASON,
                                                          Appellant
v.




THE STATE OF TEXAS,
                                                          Appellee



                          From the 40th District Court
                                Ellis County, Texas
                             Trial Court No. 36947CR


                         MEMORANDUM OPINION


      A jury found Appellant Ryan Keith Mason guilty of possession of a controlled

substance, namely methamphetamine,in an amount of four grams or more but less than

200 grams, with intent to deliver, and assessed his punishment, enhanced by prior

felony convictions, at sixty-eight years' imprisonment, "'to be served consecutive with

any other sentences and parole revocations, beginning after the other sentences are

completed." This appeal ensued.
                                   Challenge for Cause

        In his first issue, Mason contends that he was denied his constitutional right to

an impartial jury because the trial court denied his request to strike a juror for cause.

        The trial court's ruling on a challenge for cause is reviewed for abuse of

discretion. Russeau v. State, 171 S.W.3d 871,879 (Tex. Crim. App. 2005). "We afford the

trial court considerable deference, because it is in the best position to evaluate a

prospective juror's demeanor and responses." Id. "This is especially true when this

Court is faced with a vacillating or equivocating venireperson." Banda v. State, 890

S.W.2d 42,54 (Tex. Crim. App. 1994); see Russeau, 171 S.W.3d at 879. "The trial court is

able to consider important factors such as demeanor and tone of voice that do not come

through when reviewing a cold record." Banda, 890S.W.2d at 54.

        The court of criminal appeals has held that a prospective juror may be properly

challenged for cause and removed "if he cannot impartially judge the credibility of a

witness." Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999); see Tex. Code Crim.

Proc. Ann. art. 35.16(a)(9) (West 2006). Potential jurors "must be open-minded and

persuadable, with no extreme or absolute positions regarding the credibility of any

witness." Ladd, 3 S.W.3d at 560. The fact that a prospective juror is more or less

skeptical of a certain category of witness, however, does not make him subject to

challenge for cause. Id. (stating that prospective jurors are not challengeable for cause

"simply because they would give certain classes of witnesses a slight edge in terms of

credibility"); Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998) (holding that



Mason v. State                                                                        Page 2
 prospective juror was not challengeable for cause simplybecause she stated she would

 bemore skeptical ofaccomplice witnesses than ofwitnesses generally).
         During voir dire, after both parties had addressed the panel ofprospective jurors
 as a whole, several prospective jurors were called individually to the bench to speak
 with the attorneys and the trial court in private. The following exchange occurred
 when the trial court calledProspective Juror No. 9:

                 THE COURT: To get the ball rolling, I'm going to ask you a
         question verbatim.

                 PROSPECTIVE JUROR: Yes, sir.

             THE COURT: Prior to hearing the witness testify, would you
        automatically disbelieve somebody simply because they are a convicted
        felon?


                 PROSPECTIVE JUROR: I would not automatically.

                 THE COURT: Thank you. Any questions on the part of the
        defense?


                 [DEFENSE COUNSEL]: Yes. What do youmean by automatically?
                 PROSPECTIVE JUROR: Can I speak freely?

                 [DEFENSE COUNSEL]: Okay.

                PROSPECTIVE JUROR: Back to the conversation we were having
        at the time. I wouldn't automatically discredit that person, but do I have
        less trust or faith in that person as opposed to a police officer like we're
        bringing up? Yes.
                 I'm not going to tell you he's lying automatically. I'm going to
        listen to his testimony and make my best judgment. But from him going
        to the stand, he's a convicted felon. I feel he's less trustworthy than a
       police officer, and that's how I'm going to look at it.

                 [PROSECUTOR]: CanI aska few questions, Judge?


Mason v. State                                                                         Page 3
                 THE COURT: Sure.


                 [PROSECUTOR]: So you're using the conviction as - - to judge his
        credibility?

                 PROSPECTIVE JUROR: lam

                 [PROSECUTOR]: Okay.

                 PROSPECTIVE JUROR: In a sense.

                 [PROSECUTOR]:        But you don't - - wouldn't automatically
        disbelieve anything that he says just because he's a convicted felon?

              PROSPECTIVE JUROR: No. It's going to take his - - the way he
        presents himself, the way he handles himself, how convincing he is as a
        witness. But I would have less faith in that person or trust in that person
        than an officer of the law.


                 THE COURT:       Of course, you understand someone's felony
        conviction may have been 27 years ago?

               PROSPECTIVE JUROR: And that's why I felt it was a very hard
        question to answer because - - and the circumstances can be very different
        and it's hard to give that exact answer.

              THE COURT: Both sides just want to make sure that you don't
        prejudge somebody. You got to wait until they take the witness stand - -

                 PROSPECTIVEJUROR: Agreed.

                 THE COURT: - - and then assess credibility?

                 PROSPECTIVE JUROR: I understand.

                 THE COURT: Is that true?


                 PROSPECTIVE JUROR: That is true, yes, sir.

             [DEFENSE COUNSEL]: But, again, 27 years ago, ten years ago, 30
       years ago, he's a convicted felon. He's not going [to] receive the same
       amount of credibilitybefore he even takes the stand as a police officer, is
       he?


Mason v. State                                                                        Page 4
                PROSPECTIVE JUROR: It's hard to say again without knowing
        what the circumstances are, but going onto it, is that person, in my eyes,
        less trustworthy than a police officer automatically? Yes. After his
        testimony would I think differently? Again, possibly. I can't be certain
        without being in the situation, but I stand by the fact that a police officer is
        a little more trustworthy from the start given his testimony than a
        convicted felon is.


                [DEFENSE COUNSEL]: All right. So but automatically they would
        start low and they'd have to build themselves up?

                 PROSPECTIVE JUROR: I guess you could say that, yes?

                 [DEFENSE COUNSEL]: And a police officerwould start up?

             PROSPECTIVE JUROR: Start medium right where anybody else
        would that wasn't a police officer.

                 [DEFENSE COUNSEL]: But a convicted felon would not start at
        that point?

                 PROSPECTIVE        JUROR:      Possibly, depending        upon     the
        circumstances, yes.

                 [DEFENSE COUNSEL]: Well, you've gone both ways. You've said
        no-



               PROSPECTIVE JUROR: Because I don't want to lie to you, and I
        don't want to give you a dishonest answer. And I can't tell you for
        certainty without the situation being there. I would love to tell you I think
        I would question more the testimony of a convicted felon over that of a
        police officer or somebody that was just a witness. I mean, that's just the
        way I feel about it.

                 [DEFENSE COUNSEL]: And there was another issue that I asked
        you at one point where I said if you had 99 reasons, reasonable reasons to
        convict the defendant - -


                 PROSPECTIVE JUROR: Okay.

                 [DEFENSE COUNSEL]: - - and one reasonable doubt, what would
       your verdict be, and I think you said guilty?

Mason v. State                                                                             Page 5
                 PROSPECTIVE JUROR: Well, I was confused on the situation. I
        apologize. If I had 99 reasons to convict and one not to convict?

                 THE COURT:     And I want to be clear that the reasonable doubt
        goes to an element of the offense to which the State is required to prove.
        So if you had a reasonable doubt as to one of the essential elements of the
        crime.


                 PROSPECTIVE JUROR: Then I would have to go with not guilty in
        that situation.


                 THE COURT: In conclusion, I want to read the two statements
        again.

                 PROSPECTIVE JUROR: Yes, sir.

                 THE COURT: And I just need your candid yes or no answer.

                 PROSPECTIVE JUROR: Yes, sir.

              THE COURT: Prior to an individual taking the witness stand,
        would you automatically disbelieve somebody simply because they are a
        convicted felony [sic]?

                 PROSPECTIVE JUROR: No, sir.

                 THE COURT: Do you feel as though you could evaluate a witness
        and his testimony and decide if he's being truthful without automatically
        dismissing his testimony because of some criminal history?

                 PROSPECTIVE JUROR: Yes, sir.

                 THE COURT: Thank you, sir. You may step outside.

       Mason argues that Prospective Juror No. 9 vacillated regarding the issue of

credibility because although he answered the trial court's "magic questions" correctly,

his other responses showed that he considered a police officer to be more trustworthy

from the start than a convicted felon. We disagree. Furthermore, ProspectiveJuror No.


Mason v. State                                                                        Page 6
 9 did not exhibit an automatic predisposition to disbelieve a witness solely because he

 had a prior felony conviction. Nor did Prospective Juror No. 9 exhibit an automatic

predisposition to believe a witness solely because he was a police officer. Rather,

ProspectiveJuror No. 9 stated that a police officer's credibility would start out the same

as that of any other witness that did not have a felony conviction. And Prospective

Juror No. 9 indicated that police officers and other witnesses not having a felony

conviction would have a slight edge in terms of credibility. See Tex. R. Evtd. 609

(providing for impeachment of a witness's credibility under certain circumstances by

prior felony conviction).

       Prospective jurors are not challengeable for cause simply because they would

give certain classes of witnesses a slight edge in terms of credibility. Ladd, 3 S.W.3d at

560. The trial court did not, therefore, abuse its discretion in denying Mason's request

to strike Prospective Juror No. 9 for cause. We overrule Mason's first issue.

                            Punishment-Phase Jury Argument

       In his second issue, Mason contends that the trial court erred in overruling his

objection to the State's punishment-phase closing argument because the State argued

how parole applied to him in violation of statutory law.

       Tobe permissible, the State's jury argument must fallwithin one of the following

four general areas: (1) summation of the evidence; (2) reasonable deduction from the

evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement.

Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992). An argument that exceeds

these bounds is error. Id. at 95. It only becomes subject to reversal if, in light of the

Masonv. State                                                                      Page 7
record as a whole, the argument is extreme or manifestly improper, violative of a

mandatory statute, or injectsnew facts, harmful to the accused, into the trial. Id.

          Article 37.07, section 4(b) of the Code of Criminal Procedure expressly prohibits a

jury from considering parole eligibility for the defendant on trial. Specifically, the jury

is charged:

          You may consider the existence of the parole law and good conduct time.
          However, you are not to consider the extent to which good conduct time
          may be awarded to or forfeited by this particular defendant. You are not
          to consider the manner in which the parole law may be applied to this
          particular defendant.

Tex.Code Crim. Proc. Ann. art. 37.07, § 4(b) (West Supp. 2013). Consequently, while it

is not improper for the State to explain how parole eligibility rules apply to certain

sentences, the State may not ask a jury to consider how good-conduct time may be

awarded to a particular defendant or how parole law will particularly affect the

defendant's sentence.       See Waters v. State, 330 S.W.3d 368, 371-74 (Tex. App.—Fort

Worth 2010, pet. ref'd) (citing Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App.

2007)).

          In this case, the following exchange occurred during the State's punishment-

phase closing argument:

                 [Prosecutor]: ....
                 And, you know, I'll agree with [Defense Counsel] on one thing. I
          am going to tell you that 25 years is not enough for this defendant. It's
          not. That's why the law gives you this range of punishment. You get to
          consider all of those things. Well, this ain't his first rodeo. You've heard
          that. He's told you that. He's been to prison twice before. And I want
          you to pay close attentionto the dates on those. Hislast onewas in March
          31st, 2006 where his sentence was 15 years. That means supposed to end
          in2000and--


Masonv. State                                                                            Page 8
              [Defense Counsel]: Your Honor, I'm going to object with regards to
        any argument regarding parole in this case. This chargeparticularly says
        she cannot do that.


                 THE COURT: I'm going to overrule your objection at this point.
        Renew if appropriate.

                 [Prosecutor]: Just look at the dates. You go in in 2006 for 15 years


                 [Defense Counsel]: Same objection, Your Honor. She is talking
        about how parole applies to this particular defendant.

                 [Prosecutor]: Judge, it's on the evidence.

                 THE COURT: Overruled.


                 [Prosecutor]: Y'all can recall. I'll let you look at that. Now, what
        do we know about this defendant? We know that he's a career criminal.
        It has been ongoing. Lots of drug charges. Delivery of a controlled
        substance. Multiple cases. Possession of controlled substance with intent
        to deliver. The exact same charge as he has here.



                 And sure I'm going to talk about his prior convictions. I should.
        It's important. How many chances does he get? How many chances does
        it take? You were here as I read out each conviction. How many does it
        take for a person to change? This many? What do you think the
       likelihood of him changing? That's a lot of chances. Lots of chances. If
       you haven't learned by now, when will you learn?



                 Now, we're going to ask that you go back and take all of these
       convictions back there with you, look at the dates, look at the charges,
       look at when these were committed, and ask yourself what is the
       appropriate punishment for him. Are you going to protect the
       community? Sometimesenough is enough. Some people will never learri.
       You can't help everybody.

       Mason argues that in the foregoing closing argument,

Mason v. State                                                                          Page9
        the prosecutor made a plea to the jurors to "pay close attention to his
        dates of incarceration" in an effort to encourage them to "look at the
        dates" as they consider Appellant's potential eligibility for parole.... [The
        prosecutor] asked them to look at the dates of conviction, the term of
        sentence, and to finally calculate his release date based on those dates.

 The State responds that, contrary to Mason's contention, the prosecutor did not tell the

jury to calculate Mason's release date based on the prior time that he served. The State

argues that the prosecutor's argument was instead merely a summation of the evidence

as the prosecutor asked the jury to look at all of Mason's prior criminal history and past

sentences in determining his appropriate sentence in this case.

       We agree with the State. The prosecutor made no express reference to the parole

laws. Instead, she appears to be pointing out Mason's continued criminal activity and

lack of rehabilitation despite his prior recent confinement. See, e.g., Bowman v. State, 782

S.W.2d933,936-37 (Tex. App.—Houston [14thDist.] 1989, pet. ref'd).

       Furthermore, even if we assume that the prosecutor was impliedly asking the

jury to consider how parole law would affect his sentence, such error was harmless.

Because the error is non-constitutional, it must be disregarded unless it affects

substantial rights. Tex. R. App. P. 44.2(b). In detenrtining whether Mason's substantial

rights were affected, we consider: (1) the severity of the misconduct (prejudicial effect),

(2) curative measures, and (3) the certainty of the punishment assessed absent the

misconduct (likelihood of the same punishment being assessed). Hawkins v. State, 135

S.W.3d 72,78 (Tex. Crim. App. 2004).

       Mason argues that the severity of the prosecutor's conduct in this case is clear.

Mason states that the prosecutor pleaded with the jury to assess a heavy sentence based

Masonv. State                                                                       Page 10
 not on the evidence but on his potentialeligibility for parole, which resulted in a heavy

 sixty-eight-year sentence. We disagree. Any error was not egregious. As stated above,

 the prosecutor did not even make an express reference to the parole laws. As for

 curative measures, while the trial judge did not give an instruction to disregard the

 prosecutor's statements, the jury charge did properly instruct the jury on parole

eligibility times and properly instructed the jury not to consider how good time and

parole law would be applied to Mason. Finally, given the evidence of Mason's criminal

history and his lack of rehabilitation, it is unlikely that the jury would have assessed a

less lengthy sentence if the prosecutor had not made the comments of which Mason

complains. We overrule Mason's second issue.

                                 Motion for New Trial


        In his third issue,Masoncontends that the trial court erred in denyinghis motion

for new trial, thereby denying him a fair and impartial trial. We review the trial court's

denial for abuse of discretion. See Salazar v. State, 38S.W.3d 141,148 (Tex. Crim. App.

2001). Mason specifically argues that the prosecutor's improper parole argument

allowed jurorsto focus on the lengthof timehe would actually servein detemuninghis

sixty-eight-year sentence. Masonstates that he was prepared to present testimony as to

whether the improper argument influenced the jury's decision at the motion-for-new-

trial hearingbut that the trial court erred and denied the motionwithout a hearing.

       The relevant facts are as follows: Mason timely filed a motion for new trial and

requested a hearing on the motion. The motion alleged that (1) "[j]urors engaged in

misconduct thereby depriving the Defendant of a fair and impartial trial" and (2) "[t]he

Mason v. State                                                                     Page11
 verdict was contrary to the law and evidence which was undertaken to prejudice

 Defendant to the point of the denial of a fair trial." The motion was unsworn, and no

 affidavits were attached. The State filed written objections to the motion. The trial

court denied the motion for new trial without a hearing.

        The purposes of a new-trial hearing are (1) to determine whether the case should

be retried or (2) to complete the record for presenting issues on appeal. Hobbs v. State,

298 S.W.3d 193,199 (Tex. Crim. App. 2009). Such a hearing is not an absolute right. Id.

But a trial judge abuses his discretion in failing to hold a hearing if the motion and

accompanying affidavits (1) raise matters that are not determinable from the record and

(2) establish reasonable grounds showing that the defendant could potentially be

entitled to relief.    Id.   This second requirement limits and prevents "fishing

expeditions." Id. A new-trial motion must be supported by an affidavit specifically

setting out the factual basis for the claim.     Id.   If the affidavit is conclusory, is

unsupported by facts, or fails to provide requisite notice of the basis for the relief

claimed, no hearing is required. Id.

        Here, Mason's motion for new trial was not supported by an affidavit; therefore,

the trial court did not abuse its discretionin denying the motion without a hearing. We

overrule Mason's third issue.


                             Cruel and Unusual Punishment


       In his fourth and fifth issues, Mason contends that the sentence imposed

constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth



Mason v. State                                                                   Page 12
 Amendments to the United States Constitution and Article I, section 19 of the Texas

 Constitution because sixty-eight years' imprisonment is not an appropriate sentence.

         Generally, a sentence within the statutory range of punishment for an offense is

not excessive, cruel, or unusual punishment.1 Winchester v. State, 246 S.W.3d 386, 389

 (Tex. App.—Amarillo 2008, pet. ref'd); Alvarez v. State, 63 S.W.3d 578,580 (Tex. App.—

Fort Worth 2001, no pet.). A narrow exception to this rule is recognized where the

sentence is grossly disproportionate to the offense. See Moore v. State, 54 S.W.3d529,542

(Tex. App.—Fort Worth 2001, pet. ref'd); see also Harmelin v. Michigan, 501 U.S. 957,

1004-05, 111 S.Ct. 2680, 2707,115 L.Ed.2d 836 (1991) (Kennedy. J., concurring); Solem v.

Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 3010-11, 77 L.Ed.2d 637 (1983); McGruder v.

Puckett, 954 F.2d 313,316 (5th Cir. 1992). But a defendant must complain or object in the

trial court about an allegedly disproportionate sentence to preserve his complaint for

appeal. Ham v. State, 355 S.W.3d 819,825 (Tex. App.—Amarillo 2011, pet. ref'd); Gertz v.

State, No. 10-11-00008-CR, 2012 WL 3799146, at *2 (Tex. App.—Waco Aug. 30, 2012, no

pet.) (mem. op., not designated for publication) (citing Wynn v. State, 219 S.W.3d 54,61

(Tex. App.—Houston [1st Dist] 2006, no pet.); and Solis v. State, 945 S.W.2d 300, 301

(Tex. App.—Houston [1st Dist.] 1997,pet. ref'd)).

        Mason argues that he raised his complaint in his motion for new trial that was

denied without a hearing. As shown above, however, Mason's motion for new trial

1In this case, the charged offense of possession of a controlled substance, namely methamphetamine, in
an amount of four grains or more but less than 200 grams,with intent to deliver, is a first-degree felony.
Tex. Health & Safety Code Ann. § 481.112(a), (d) (West 2010). Because the jury found the enhancement
paragraphs to be true, Mason faced punishment of a term of imprisonment between twenty-five and
ninety-nine years or life and a fine up to $10,000. TEX. PENAL CODE ANN. § 12.42(d) {West Supp. 2013).
Mason's sentence of sixty-eight years' confinement is within this statutory range.

Mason v. State                                                                                    Page 13
 alleged only that (1) "[jjurors engaged in misconduct thereby depriving the Defendant

 of a fair and impartial trial" and (2) "[t]he verdict was contrary to the law and evidence

 whichwas undertaken to prejudice Defendant to the point of the denial of a fair trial."

        Mason argues alternatively that no objection was required because the error was

 apparent and an objection "would have served no useful purpose." Citing Ray v. State,

 119 S.W.3d 454,459 (Tex. App.—Fort Worth 2003, pet. ref'd), Mason further states that

most courts agree that a complaint of cruel and unusual punishment may be addressed

for the first time on appeal if it rises to the level of constitutional error. The Fort Worth

Court of Appeals, however, has since declined to follow Ray. See Crawford v. State, No.

2-04-299-CR, 2005 WL 1477958, at *4 & n.3 (Tex. App.—Fort Worth Jun. 23, 2005, pet.

ref'd) (mem. op., not designated for publication).

        Because Mason did not raise his complaint about his sentence in the trial court,

his fourth and fifth issues are not preserved and are thus overruled. See Tex. R. App. P.

33.1.


                                  Consecutive Sentences


        Before the sentence was pronounced, the State asked that the sentence in this

case run consecutively to Mason's prior sentence of fifteen years. Mason argued that it

should run concurrently. During sentencing, the trial court stated:

              And further, this sentence is to run consecutively with any other
        sentences previously imposed, as well as any other parole revocations, if
        any, that may occur. So once all prior sentences are satisfied and once all
        prior sentencesare served, then this one would begin and go forward.




Masonv. State                                                                         Page14
Accordingly, the judgment states: "This sentence is to be served consecutive with any

other sentences and parole revocations, beginning after the other sentences are

completed."

        In his sixth issue, Mason contends that the trial court abused its discretion by

ordering that his sentence in this case run consecutively to that of any parole

revocations.     Mason argues that while the trial court has discretion to cumulate

sentences, its discretion is not without limitations. Mason states that the trial court's

decision to order consecutive sentences "should be firmly grounded in the facts and

evidence of the case, the circumstances of the case, the personal circumstances of the

defendant, and the nature of the crime" and that the trial court is not authorized to

cumulate a sentence with a parole revocation.

        We disagree with Mason that the trial court abused its discretion in its decision

to cumulate.     Under article 42.08(a) of the Code of Criminal Procedure, when a

defendant has two or more convictions,

       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.

Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2013). A trial court has the

authority under this article to stack a new sentence onto a prior sentence for which the

defendant is then on parole. Hill v. State, 213 S.W.3d 533, 538 (Tex. App.—Texarkana

2007, no pet); Wilson v. State, 854 S.W.2d 270,273 (Tex. App.—Amarillo 1993, pet. ref'd);

Jimenez v. State, 634 S.W.2d 879,881-82 (Tex. App.—San Antonio 1982, pet. ref'd).

Mason v. State                                                                      Page 15
        The State acknowledges, however, and we agree, that the judgment, as entered,

does not contain sufficient information to allow the Texas Department of Criminal

Justice (TDCJ) to cumulate the sentences.      A cumulation order should contain five

elements describing the prior convictions: (1) the trial court number, (2) the trial court

name, (3) the date of conviction, (4) the term of years, and (5) the offense of conviction.

Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim. App. 1986). The inclusion of all of the

elements is not mandatory, but there must be enough information included in the

judgment from which corrections officials may know precisely when the defendant's

sentence is to begin. Id. As stated above, the judgment in this case merely provides:

"This sentence is to be served consecutive with any other sentences and parole

revocations, beginning after the other sentences are completed."

        The State requests that we reform the judgment and sentence to include the

proper language of the prior conviction. If we have the necessary data and evidence

before us for reformation, we may reform the judgment and sentence on appeal. Id. at

462.


        During the punishment phase of the trial, Mason entered a plea of true to the

enhancement paragraphs that were alleged in the indictment. The judgments for each

of those prior convictions were admitted into evidence without objection. One was a

2006 judgment against Mason in Cause No. 00-00-30241-CR in the 13th District Court of

Navarro County for possession of a penalty-group 1 controlled substance, in an amount

of over four grams but under 200 grams, with intent to deliver, for which Mason

received fifteen years' imprisonment. The other involved a delivery-of-a-controlled-

Mason v. State                                                                     Page 16
substance case for which Mason had received six years' imprisonment in 1993;

therefore, the judgment and sentence imposed in that case has "ceased to operate."

Additionally, during the punishment phase, the judgments from several other prior

convictions were also admitted into evidence, but the judgments and sentences

imposed in thosecases have also "ceased to operate."

        Based on the foregoing, we therefore modify the judgment and sentence so that

the punishment of sixty-eight years' confinement in this case shall begin when the

judgment and sentence from the 13th District Court in Navarro County in Cause No.

00-00-30241-CR for possession of a penalty-group 1 controlled substance, in an amount

of over four grams but under 200 grams, with intent to deliver, whose sentence is fifteen

years' imprisonment, shall have ceased to operate.

                                   Cumulative Error


       In his seventh issue, Mason contends that the cumulative effect of the foregoing

errors warrants a reversal. We disagree. The Court of Criminal Appeals has stated, "It

is conceivable that a number of errors may be found harmful in their cumulative effect."

Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim App. 1999). But the Chamberlain

court continued that non-errors may not in their cumulative effect cause error.        Id.

Because we have not concluded that the trial court erred in this case, other than that the

judgment did not contain sufficient information to allow the TDCJ to cumulate the

sentences, which we have reformed, we overrule Mason's seventh issue.




Mason v. State                                                                     Page 17
                                     Conclusion


       We modify the trial court's judgment such that the following statement, "This

sentence shall begin when the judgment and sentence from the 13th District Court in

Navarro County in Cause No. 00-00-30241-CR for possession of a penalty-group 1

controlled substance, in an amount of over four grams but under 200 grams, with intent

to deliver,whose sentence is fifteen years' imprisonment, shallhave ceased to operate,"

is substituted for the statement, "This sentence is to be served consecutive with any

other sentences and parole revocations, beginning after the other sentences are

completed." Weaffirm the trial court's judgmentas modified.




                                              REX D.DAVIS
                                              Justice

Before Chief Justice Gray,
      Justice Davis, and
      Justice Scoggins
Affirmed as modified
Opinion delivered and filed October 9,2014
Do not publish
[CRPM]




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Mason v. State                                                                  Page 18
OrM Al-lred on i t


Iowa P/vrk.Tx 76367
                                                                 02 1P
                                                                 00019186^* O02.O3<


                                           RECEIVED
                                            JAN 0 5 2015
                                          COURT OF APPEALS
                                            WACO, TEXAS




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