             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. PD-0965-11



                              JAMMIE LEE MOORE, Appellant

                                                   v.

                                    THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE SEVENTH COURT OF APPEALS
                             POTTER COUNTY

                 K ELLER, P.J., filed a dissenting opinion.


        Appellant failed to object to the trial court’s decision to cumulate sentences. As the court

of appeals explained: “[T]here has been a complete procedural default on any issue related to the trial

court’s cumulative sentence order.”1 In an attempt to get around this obvious procedural default,

appellant framed his claim as one of evidentiary insufficiency.2



        1
            Moore v. State, 339 S.W.3d 365, 368 (Tex. App.–Amarillo 2011).
        2
          See id. (“[U]pon closer reading, it becomes apparent that appellant has taken that approach
for one reason only . . . to circumvent the consequences of failing to object to the trial court’s action
in cumulating the sentences.”).
                                                                                         MOORE — 2

        The Court errs to accept appellant’s characterization of the claim as one of evidentiary

insufficiency. Evidence to support a cumulation order might be legally insufficient when the State

fails to provide evidence of a prior conviction or of a fact necessary to authorize cumulative

sentences.3

        But in the present case, there was sufficient evidence from which the trial judge could order

cumulative sentences. There is no dispute that there was evidence of the prior conviction, and the

trial judge had the authority to cumulate sentences in his discretion under Article 42.08(a).4 If the

trial judge believed that he was required to cumulate, then he was in error in so believing, and to the

extent the trial judge committed an error of law, appellant was required to object.5

        I respectfully dissent.

Filed: June 20, 2012
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        3
          See TEX . PENAL CODE § 3.03(b)(2)(exception to mandatory concurrent sentencing for
certain types of offenses if committed against a victim younger than seventeen years of age).
        4
            See TEX . CODE CRIM . PROC. art. 42.08(a).
        5
           See TEX . R. APP . P. 33.1. The issue appellant raises now would be better raised as an
ineffective assistance of counsel claim in a habeas proceeding regarding his attorney’s failure to
object to the cumulation of sentences. In such a proceeding, the record could be expanded to include
the attorney’s reasons (if any) for failing to object, the trial judge’s reason for cumulating sentences,
and whether or not the trial judge would have cumulated sentences if he had realized that he was not
required to do so.
