               NUMBERS 13-11-00628-CR & 13-11-00629-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

EDWARD ERIC WEEKS,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                  On appeal from the 252nd District Court
                       of Jefferson County, Texas.


         MEMORANDUM OPINION ON REHEARING
            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Benavides
      We grant the appellant’s and appellee’s motions for rehearing, withdraw our

opinion and judgment dated July 26, 2012, and issue this opinion on rehearing.

      In this consolidated appeal, appellant Edward Eric Weeks raises six issues.   In
Cause Number 13-11-00629-CR, Weeks argues (1) the trial court had no jurisdiction to

revoke his community supervision in a felony theft case when it failed to timely issue a

capias for him.1 In Cause Number 13-11-00628-CR, Weeks contends that:                                   (2) the

trial court abused its discretion in cumulating his sentences arising out of the same

criminal episode; (3) the trial court’s cumulation order was not sufficient to cumulate his

sentence upon another sentence from another county; (4) the trial court erred in failing to

follow a plea bargain agreement or to allow Weeks to withdraw his plea; (5) his sentence

constituted cruel and unusual punishment; and (6) the trial court erred in assessing

attorney’s fees against him because he was declared indigent.

        We modify the judgments and, as modified, affirm.

                                               I. BACKGROUND

        A grand jury in Jefferson County, Texas2 indicted Weeks on a charge of burglary

of a habitation, a second-degree felony.              See TEX. PEN. CODE ANN. § 30.02(a)(3), (c)(2)

(West 2011). The indictment charged that, on November 4, 2007, Weeks intentionally

entered the home of Mickie Crawford without consent and with the intent to commit theft.

One month later, the grand jury also indicted Weeks for the offense of felony theft, a

state-jail felony.     See id. § 31.03 (West 2011). In this indictment, Weeks was accused

        1
          We note that Weeks’s prior counsel filed an Anders brief in this case. See Anders v. California,
386 U.S. 738, 741–42 (1967) (holding that “if counsel appointed to represent one seeking leave to appeal in
forma pauperis . . . is convinced, after conscientious investigation, that the appeal is frivolous, he may ask to
withdraw on that account, and if the court is satisfied that counsel has diligently investigated the possible
ground of appeal, and agrees with counsel's evaluation of the case, then it may allow leave to withdraw and
deny leave to appeal.”). Weeks’s new counsel requested that the Anders brief be stricken and that we
substitute his appellate brief in its place. We granted this motion on March 30, 2012. We therefore do not
address the Anders brief on appeal.
        2
          This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).




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of stealing insulated and non-insulated copper wire and cable on December 21, 2007.

      On February 25, 2008, Weeks entered a plea of guilty for both offenses in

exchange for a plea-bargain agreement where the trial court deferred the adjudication of

guilt, placed him on community supervision for three years, and assessed various fines.

      A year later, on January 8, 2009, Weeks’s community supervision terms were

amended because he moved to San Patricio County.          His community supervision term

was extended until April 30, 2011 on the burglary of a habitation case.   For unexplained

reasons, his community supervision term was not extended in the felony theft case.

      On May 27, 2009, the State filed a Motion to Revoke Unadjudicated Probation in

both underlying cases, alleging Weeks violated five separate provisions of the terms of

his community supervision.      These violations included:     (1) committing an offense

against the laws of Texas (Weeks committed an aggravated robbery in San Patricio

County, Texas); (2) failing to perform 800 hours of community service restitution; (3)

failing to participate in a G.E.D. program; (4) not paying restitution; and (5) not paying

assessed fines.     The trial court issued two separate capiases for Weeks’s arrest:   one

for Weeks’s arrest in the burglary of a habitation case and another for the felony theft of

copper wire case.

      Weeks pleaded true to the first violation, admitting that he committed an

aggravated robbery in San Patricio County.       See id. § 29.03 (West 2011). The plea of

true was taken on August 29, 2011. The trial court adjudicated Weeks guilty of the

underlying felony theft charge and sentenced him to jail for two years.            It also

adjudicated Weeks guilty in the underlying burglary of a habitation offense and




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sentenced him to twenty years. The trial court ordered that these sentences run

consecutively.      It further ordered that these sentences run consecutively to his sentence

in the San Patricio County robbery case. These appeals ensued.

                                           II.     DISCUSSION

A.     Revocation of Community Supervision for Theft

       Texas Code of Criminal Procedure article 42.12, section 5 establishes the

procedures regarding deferred adjudication community supervision.

       A court retains jurisdiction to hold a hearing under Subsection (b) and to
       proceed with an adjudication of guilt, regardless of whether the period of
       community supervision imposed on the defendant has expired, if before
       the expiration the attorney representing the state files a motion to proceed
       with the adjudication and a capias is issued for the arrest of the defendant.

See TEX. CODE CRIM. PROC. ANN. art. 42.12(h) (West 2006).

       Weeks asserts that the trial court did not have jurisdiction to revoke his community

supervision in the felony theft case.            He contends that he was placed on community

supervision on February 25, 2008 for three years, so the court’s jurisdiction over him

expired on February 24, 2011, when his community supervision period terminated.

Thus, Weeks claims, his adjudication for felony theft on August 29, 2011 took place

outside the three-year period of the court’s jurisdiction.3

       However, we note that the State filed a motion to revoke his community

supervision on May 27, 2009 and also issued a capias on this matter the same day.

Because he was sentenced to three years of community supervision on February 28,

2008, and the capias was issued only a year and a half later, the capias was issued

       3
           Weeks does not challenge the sentence for offense of burglary of a habitation on appeal.




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before the expiration of his community supervision.     See id. The court thus retained

jurisdiction to hear the underlying felony theft case, despite the fact that his community

supervision term expired.   Id. We overrule this issue.

B.    The Cumulation of Sentences

      By his second issue, Weeks argues that the trial court abused its discretion in

cumulating his sentences because they were offenses arising from the same criminal

episode. We review a trial court's decision to “stack,” or cumulate, sentences for an

abuse of discretion.    See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West 2010);

Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd).

So long as the law allows the imposition of cumulative sentences, the trial judge has

absolute discretion to stack sentences.     Nicholas, 56 S.W.3d at 765.      Under article

42.08 of the code of criminal procedure, the trial judge has the discretion to cumulate the

sentences for two or more convictions.    TEX. CODE CRIM. PROC. ANN. art. 42.08(a).

      Article 42.08 provides that when a defendant has been convicted in two or more

cases, the trial court has discretion to order the judgment and sentence in the second

conviction to either (1) begin to run after the judgment and sentence imposed in the

preceding conviction ceased to operate, or (2) run concurrently with the judgment and

sentence imposed in the preceding conviction.      Id. A trial court’s ability to cumulate

sentences, however, is limited by the Texas Penal Code.      Section 3.03(a) of the Texas

Penal Code provides as follows:

      When the accused is found guilty of more than one offense arising out of
      the same criminal episode prosecuted in a single criminal action, a
      sentence for each offense for which he has been found guilty shall be
      pronounced. Except as provided by Subsection (b), the sentences shall



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       run concurrently.

TEX. PEN. CODE ANN. § 3.03(a) (West Supp. 2011). A “criminal episode” is defined as:

       the commission of two or more offenses, regardless of whether the harm is
       directed toward or inflicted upon more than one person or item of property,
       under the following circumstances:

       (1)       The offenses are committed pursuant to the same transaction or
                 pursuant to two or more transactions that are connected or
                 constitute a common scheme or plan; or

       (2)       The offenses are the repeated commission of the same or similar
                 offenses.

Id. § 3.01 (West 2011).

       Weeks argues that his two crimes, burglary of a habitation, id. § 30.02(a)(3),

(c)(2), and felony theft, id. § 31.03, are from the same “criminal episode” because they

occurred in “close temporal proximity.” He also argues that the crimes are from the

same criminal episode because theft “can be a lesser-included offense of burglary.”

Thus, Weeks believes his sentences should run concurrently. We disagree on both

counts.      First, the burglary of a habitation occurred on November 4, 2007, while the theft

occurred on December 21, 2007.            Although we have previously held that section

3.01(2) does not impose a time differential between the commission of the same or

similar offenses, these two crimes were not the same or similar.        See Guidry v. State,

909 S.W.2d 584, 585 (Tex. App.—Corpus Christi 1995, pet. ref’d). Here, the indictment

for felony theft stated that Weeks unlawfully appropriated “insulated and non-insulated

wire and cable that consists of at least 50 percent copper” from a man named Thomas

Ray.   The burglary of the habitation indictment provided that Weeks intentionally, and

without the consent of Mickie Crawford, entered Crawford’s habitation to commit a theft.



                                               6
Other than the fact that these crimes involved taking property, the record does not

support any “common scheme or plan” between the two offenses. Further, the record

does not support that these offenses were repeated in a similar fashion.          See id.

(holding that two aggravated robberies were similar because the perpetrator branded a

knife during both offenses, so their sentences should run concurrently); Baker v. State,

107 S.W.3d 671, 673 (Tex. App.—San Antonio 2003, no pet.) (holding that three sexual

assault sentences should run concurrently because each offense was against “a woman

living on or near Hope's Ferry, occurred in or near her home while she was alone, and

took place in the early morning hours,” even though they occurred months apart).        In

short, although the trial court took Weeks’s pleas for both crimes at the same time, there

is no evidence to substantiate that they arose from the same “criminal episode.”     TEX.

PEN. CODE ANN. § 3.01(1).     Accordingly, Texas Penal Code section 3.03(a) does not

apply here.

      Because nothing in the record indicates that these two “transactions” were

“connected or constitute[d] a common scheme or plan,” id., the trial court was within its

discretion to stack the sentences.    See TEX. CODE CRIM. PROC. ANN. art. 42.08(a);

Nicholas, 56 S.W.3d at 765. We overrule Weeks’s second issue.

C.    Sufficiency of Cumulation Sentence

      By his third issue, Weeks argues that the trial court’s cumulation order is not

sufficient to cumulate his sentence to the aggravated robbery from San Patricio County.

      The Texas Court of Criminal Appeals has set forth recommended elements for

cumulation orders.   See Ward v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975).




                                            7
These elements include:        (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.    Id.   However, it is well-settled law that not all of these elements have to be

present for a cumulation order to be valid.            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); Ex parte March, 423 S.W.2d 916, 918 (Tex. Crim. App. 1968) (“this Court

has held cumulation orders valid when such orders contained two, rather than three or

more, details of the prior conviction”).        “A valid cumulation order should be sufficiently

specific to allow the Texas Department of Criminal Justice–Institutional Division

[TDCJ-ID], 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) (citing Ward, 523 S.W.2d at

681).   “The courts of appeals and the Court of Criminal 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).

        At the hearing on the motion to revoke on August 29, 2011, the trial court made

the following order on the record:

        Cause No. 2434[4] will run consecutive to Cause No. 2608[5]. It will also
        run consecutive to your case in San Patricio County, whatever that cause
        number may be.
        4
          This was the trial court cause number from the 252nd District Court of Jefferson County for the
burglary of a habitation crime.
        5
          This was the trial court cause number from the 252nd District Court of Jefferson County for the
felony theft offense.




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       Here, the trial court’s oral cumulation order failed to include several elements

recommended by the court of criminal appeals.          Weeks contends that this lack of

specificity makes the cumulation order vague and insufficient. However, the written

orders that were issued that same day by the trial court clarify this issue.       The first

order, regarding Weeks’s two-year sentence for felony theft, provides that the sentence

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

following case has ceased to operate:      S-09-3300-2CR from San Patricio County for

Aggravated Robbery.”      This written order included the trial court number of the prior

conviction, the correct name of the court where the prior conviction was taken, and the

nature of the prior conviction.    See Ward, 523 S.W.2d at 682.         The second order,

concerning Weeks’s twenty-year sentence for burglary of a habitation, stipulated that

“this conviction shall run consecutively and shall begin only when the judgment and

sentence in the following case has ceased to operate:     08-02608.” Although this order

does not include several recommended elements, it is clear from the record that

“08-02608” refers to Weeks’s felony theft offense arising from the 252nd Judicial District

Court of Jefferson County.    See Madrigal Rodriguez, 749 S.W.2d at 580.

       Because we hold that the record has sufficient information to allow the TDCJ–ID

to identify which sentences are cumulated, see Ex Parte San Migel, 973 S.W.2d at 311,

we overrule this issue.

D.     Plea Bargain Agreement

       Weeks, in his fourth issue, asserts that he entered into a plea bargain agreement

with the State for the felony theft and burglary of a habitation offenses.   Part of his plea



                                             9
bargain, he argues, was that he “would be placed on community supervision, and,

should a sentence be imposed, the sentence would be served concurrently with cause

number 08-02608.” To support this contention, he refers us to the “Agreed Punishment

Recommendation” form in the reporter’s record for the burglary of a habitation offense.

This form, signed on January 24, 2008, demonstrates that Weeks was awarded deferred

adjudication, fined $1,000, sentenced to five years of community supervision, and that

“this sentence will run concurrently with 08-02608” (the felony theft offense). Weeks

claims that he should be able to withdraw his plea of guilty now because the trial court

judge ordered his sentences to be stacked after the hearing on his motion to revoke.

See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2) (West Supp. 2011) (“should the court

reject any such [plea] agreement, the defendant shall be permitted to withdraw his plea

of guilty or nolo contendere.”).

       We disagree with Weeks’s interpretation of this form.    It is clear from the “Agreed

Punishment Recommendation” that the trial court intended for the community

supervision terms to run concurrently, not any possible sentences that might arise from

Weeks’s    community     supervision   revocation.     And     even      assuming   Weeks’s

interpretation was correct, “the statutes governing probation do not make reference to

article 26.13 or to any right of a plea-bargainer to withdraw a plea.”    Gutierrez v. State,

108 S.W.3d 304, 309–10 (Tex. Crim. App. 2003) (citing TEX. CODE CRIM. PROC. art.

42.12 (West Supp. 2011)).      “In the context of revocation proceedings, the legislature

has not authorized binding plea agreements, has not required the court to inquire as to

the existence of a plea agreement or admonish the defendant pursuant to 26.13, and




                                            10
has not provided for withdrawal of a plea after sentencing.”            Id.   “Unlike regular

community supervision, ‘upon violation of the deferred adjudication probations, the

judges have no further obligation to comply with the plea bargains since the bargains

had already been satisfied by the judges' initial sentencing.’”   Ditto v. State, 988 S.W.2d

236, 239 (Tex. Crim. App. 1999).

       We overrule Weeks’s fourth issue.

E.     Cruel and Unusual Punishment

       In his fifth issue, Weeks argues that his twenty-year prison sentence for the

burglary of a habitation offense is disproportionate and constitutes cruel and unusual

punishment under the Eighth Amendment of the U.S. Constitution and article 1.09 of the

Texas Code of Criminal Procedure.          See U.S. CONST., amend. VIII; TEX. CODE CRIM.

PROC. ANN. art. 1.09 (West 2011). Weeks contends that his youth (he was twenty-two

years old) and mental health condition should be considered in this disproportionate

analysis.

       The Eighth Amendment, which forbids cruel and unusual punishment, contains a

narrow      proportionality   principle   prohibiting   a   sentence   from   being   greatly

disproportionate to the crime it punishes.        See Ewing v. California, 538 U.S. 11, 20

(2003) (citing Harmelin v. Michigan, 501 U.S. 957, 996–97 (1991) (Kennedy, J.,

concurring in part and concurring in judgment)).                Embodied within the U.S.

Constitution's ban on cruel and unusual punishment is the "precept of justice that

punishment for crime should be graduated and proportioned to [the] offense."          Weems

v. United States, 217 U.S. 349, 367 (1910).




                                               11
          In Texas, courts have traditionally held that, as long as the punishment assessed

falls within the punishment range prescribed by the Legislature in a valid statute, the

punishment is not excessive.       See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim.

App. 1973); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet.

ref'd). Here, under the Texas Penal Code, burglary of a habitation is a second-degree

felony.     See TEX. PEN. CODE ANN. § 30.02(a)(3) (explaining that a person commits this

crime if they “enter[] a building or habitation and commit[] or attempt[] to commit a felony,

theft, or an assault); id. § 30.02 (c)(2) (averring that this crime is “a felony of the second

degree if committed in a habitation”).    Section 12.33 of the penal code provides that “an

individual adjudged guilty of a felony of the second degree shall be punished by

imprisonment in the Texas Department of Criminal Justice for any term of not more than

20 years or less than 2 years.”    Id. § 12.33 (West 2011).

          Because Weeks was sentenced within the range of punishment allowed for a

second-degree felony, we hold that the punishment was not excessive or

disproportionate under federal or Texas law.       See Jordan, 495 S.W.2d at 952. We

overrule Weeks’s fifth issue.

F.        Attorney’s Fees

          In his sixth and final issue, Weeks argues that attorney’s fees should be deleted

from his judgment in 13-11-00628-CR because he was declared indigent by the trial

court.

          We agree. Weeks was declared indigent and appointed counsel in his initial plea

proceedings.      “A defendant who is determined by the court to be indigent is presumed




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to remain indigent for the remainder of the proceeding in the case unless a material

change in the defendant’s financial circumstances occurs.”    See TEX. CODE CRIM. PROC.

ANN. art. 26.04(p) (West Supp. 2011); Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim.

App. 2010). There is no evidence in the record that Weeks’s financial circumstances

materially changed, however, the court included $1,200 of attorney’s fees when

assessing “Administrative Fees” of $4,662 against Weeks. Therefore, we sustain this

issue.

                                     III.   CONCLUSION

         We modify the judgment’s cumulation order in cause number 07-02434 to include

the trial court number, court name, date of conviction, term of conviction, and nature of

conviction in cause number 08-02608. We further modify the judgment in 07-0234 to

delete $1,200 in attorney’s fees from the $4,662 in administrative fees.

         As modified, we affirm the trial court judgments.




                                                         __________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
7th day of February, 2013.




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