                                    NO. 07-03-0226-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                  DECEMBER 2, 2004
                           ______________________________

                                    FREEMAN JONES,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

             FROM THE 356TH DISTRICT COURT OF HARDIN COUNTY;

                     NO. 15,558 ; HON. BRITT PLUNK, PRESIDING
                         _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

       Freeman Jones appeals his conviction for possessing a controlled substance. His

two issues involve the trial court’s decision to 1) stack his sentence on top of a sentence

arising from a federal conviction and 2) refuse to inform the jury, in response to a jury note,

that the trial court had discretion to stack or cumulate the sentences. We modify the

judgment and affirm it as modified.

                                        Background

       Appellant was convicted in federal court, in cause number 1:02CR51, for possessing

“with intent to distribute” crack cocaine. This federal conviction, according to the record,
was based upon the same facts underlying the trial and conviction from which this appeal

arose. And, it resulted in a sentence of 71 months in a federal penitentiary.

       Thereafter, appellant was tried and convicted, in the courts for the State of Texas,

of possessing cocaine. While the jury deliberated punishment, it sent the trial court a note

asking, among other things, if “the federal sentence [would] be served at the same time as

the state sentence or one after the other?” The trial court responded by directing the jury

to strictly follow the court’s charge on punishment. Appellant objected to this response.

He acknowledged that whether to cumulate sentences was not a topic “within the province

of the jury.” Nonetheless, he believed that the jurors had “the lawful right to know whether

this court does have the ability [to cumulate sentences] not whether they [sic] would but

whether the Court has the ability to cumulate a sentence.” The objection was overruled.

       Eventually, the jury returned a sentence of ten years imprisonment. Before that

sentence was pronounced by the judge in open court, the State re-urged a previous motion

wherein it sought to have appellant’s state sentence run consecutively to that arising from

the federal prosecution. The trial court granted the motion and ordered that “this 10-year

sentence . . . run as a cumulative sentence to the federal sentence that you’re currently

serving.” In making this pronouncement, the trial court did not mention the particular cause

number assigned to the federal prosecution, the particular federal court in which appellant

was tried, convicted and sentenced, the length of the sentence, or the date on which it was

imposed. Nor were these matters contained in the written judgment memorializing the trial

court’s oral pronouncement. Indeed, with regard to the cumulation of sentences, the

judgment simply read that “[t]his sentence shall run consecutive [sic] to the case specified

below” and “[t]he court orders that the sentence in this conviction shall run consecutively

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and shall begin only when the judgment and sentence in the following case has ceased to

operate.” No particular cause, conviction or sentence was either “specified below” or

referenced as the “following case” in the judgment.

                            Issue One - Accumulation Order

      Appellant initially contends that the trial court failed to provide a “description of prior

convictions which gives sufficient notice to the defendant or the Texas Department of

Corrections and fails to support the validity of the oral cumulation order made in open

court.” Because of this, he continues, the federal and state sentences should be made to

run concurrently. We sustain the issue.

      According to the Texas Court of Criminal Appeals, “if a judge wants to ‘stack’ a

defendant’s sentences so that they run consecutively . . . he must make such an order at

the time and place that sentence is orally pronounced.” Ex parte Madding, 70 S.W.3d 131,

136 (Tex. Crim. App. 2002). Furthermore, to be valid, the order “should be sufficiently

specific to allow the Texas Department of Criminal Justice-Institutional Division . . . 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). And, whether this standard is met can be

determined through the consideration of such things as 1) the cause number of the prior

conviction, 2) the correct name of the court from which the prior conviction emanated, 3)

the date of the prior conviction, and 4) whether the term of years assessed in the prior

conviction was mentioned by the trial court. Id. So too is it suggested that the order

include a description of the prior offense for which the accused was convicted. Hamm v.

State, 513 S.W.2d 85, 86 (Tex. Crim. App. 1974). These factors are guides used to reach



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the answer; the information to which they allude, however, need not be in the

pronouncement if the pronouncement nonetheless gives the Department of Criminal

Justice sufficient information to identify the prior conviction involved. Id.

       As previously mentioned the trial court pronounced, in open court, that the ten years

imposed would “run as a cumulative sentence to the federal sentence that you’re currently

serving.” Yet, it made no mention of the particular court from which the prior conviction

emanated, the length of that sentence, the cause number assigned to that prosecution, or

the term of years assessed. Nor was this information included in the written judgment

manifesting the oral pronouncement. See Ex parte Madding, 70 S.W.3d at 135 (stating

that a trial court’s pronouncement of sentence is oral while the judgment is merely the

written declaration of the oral pronouncement and when the oral pronouncement and

written judgment differ, the former controls). Nor was a copy of the judgment manifesting

the federal sentence admitted into evidence. And, while the prosecutor alluded to a

particular cause number and length of sentence in its oral motion during the punishment

stage of the trial, nothing was said about the specific federal court from which the

conviction emanated nor of the state, federal district or federal division in which that court

sat.

       Similarly missing is evidence illustrating that the assignment of a cause number to

one federal prosecution bars other federal courts in different states, districts, and divisions

from using the same number. So, it cannot be said, based on the record before us, that

simply mentioning a cause number allows one to identify the particular action or court in

which it pends or pended. Indeed, had the same trial court sentenced the appellant on

both occasions, then mention of the cause number alone may have sufficed. Hamm v.

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State, 513 S.W.2d at 86-87 (so holding). Yet, more certainty is required than that when,

as here, the convictions arise from different courts. Id., quoting Ex parte March, 423

S.W.2d 916 (Tex. Crim. App. 1968); see Ex parte Lewis, 414 S.W.2d 682, 683-84 (Tex.

Crim. App. 1967) (striking a cumulation order when it merely referred to the cause number

since the two convictions came from different courts).

         As said by our Court of Criminal Appeals in Stokes v. State, 688 S.W.2d 539 (Tex.

Crim. App. 1985), “‘[a] sentence is a final judgment and should be sufficient on its face to

effect its purpose without resort to evidence in aid thereof.’” Id. at 540, quoting Ex parte

Lewis, 441 S.W.2d 682 (Tex. Crim. App. 1967) (involving a prosecution wherein sentences

were to be stacked).1 Looking to the oral pronouncement and written judgment manifesting

it at bar, we conclude that neither provide information sufficiently specific to permit the

Texas Department of Criminal Justice–Institutional Division to identify the prior sentence

contemplated by the trial court. Accordingly, the judgment will be modified to redact

allusion to the cumulation of sentences.2 See Collifower v. State, No. 02-03-0366-CR,



         1
         It m akes s ens e for the judgm ent to disclose the pertinent information because the Department of
Criminal Justice will most likely not have the record of proceedings (i.e. clerk’s and reporter’s records) before
it.

         2
           W e note various opinions w herein two of our sister cou rts have required the app ellant to show harm
as a condition to succe eding in its argum ent. See Hoitt v. State, 30 S.W .3d 670, 675-76 (Tex.
App.–Texarkana 200 0, pet. ref’d.) and Saenz v . State, No. 12-00-0378-CR, 2002 Lexis 5162 (Tex. App.–Tyler
2002, no pet.) (not designated for publication). In so holding, each cites a statement in San Migel as supp ort
for its decision. The statement consisted of the Court of Criminal Appeals saying “the applicant must show
that the cum ulation ord er was not s ufficiently specific and he was harm ed by this lack of s pecificity,” and it
must be shown that the Texas Department of Criminal Justice “is not properly cumulating his sente nces in
order for a cum ulation order to be found void.” Ex parte San Migel, 973 S.W .2d 310, 311 (Tex. Crim. App.
1998). Yet, the San Migel court took caution to note that the matter before it came by way of habeas corpus,
not direct appeal. This is of import since one s eeking to affect a co nviction via habea s m ust show h arm . Ex
parte Millard, 48 S.W .3d 190, 192 (Tex. Crim. App. 2001). The sam e is not true on a direct appeal, however.
In the latter circ um sta nce, acc ording to the Co urt of Crim inal Appeals, it is not the obligation of the appellant
to illustrate harm . Joh nso n v. S tate, 43 S.W .3d 1, 4 (Tex. Crim . App. 2001). And , we have no autho rity to
ignore tha t rule or crea te excep tions to it without p rior directive fro m our C ourt o f Criminal Ap pea ls.

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2004 LEXIS 10467 (Tex. App.–Fort Worth November 18, 2004) (not designated for

publication) (wherein the trial court modified the judgment to exclude language referring

to the cumulation of sentences when the oral pronouncement failed to meet the standard

in San Migel).

                               Issue Two – Jury Question

       Through his last issue, appellant asserts that the trial court erred in refusing to tell

the jury that it (the trial court) had the authority to order appellant’s state sentence to not

begin to run until he completed the federal sentence. We overrule the issue.

       Whether to cumulate a sentence lies within the discretion of the trial court, not the

jury. TEX . CODE CRIM . PROC . ANN . art. 42.08(a) (Vernon Supp. 2004-2005); Stokes v.

State, 688 S.W.2d at 540. Because it does, it is not a matter of which the trial court must

inform the jury.    Peterson v. State, No. 01-02-00603-CR, 2003 LEXIS 9734 (Tex.

App.–Houston [1st Dist.] 2003, pet. ref’d) (not designated for publication) (holding that it

was not error for the trial court to refuse to instruct the jury on stacked sentences since

whether to cumulate sentences lies within the discretion of the trial court).

       Accordingly, we modify the judgment to remove all reference to appellant’s sentence

running consecutively to any other, order the sentences to run concurrently, and affirm the

judgment as modified.



                                                   Brian Quinn
                                                     Justice

Do not publish.




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