           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
             .

        A LCALA, J., delivered the opinion of the Court in which M EYERS, P RICE,
J OHNSON, and C OCHRAN, JJ., joined. K ELLER, P.J., filed a dissenting opinion. H ERVEY,
J., filed a dissenting opinion in which K EASLER, J., joined and W OMACK, J., joined in
Part II only. W OMACK, J., dissented.

                                     OPINION

      Appellant, Jammie Lee Moore, challenges the court of appeals’s decision to affirm

the trial court’s judgment that included an order cumulating his sentence in this case for

possession of methamphetamine with an earlier sentence he had received for possession of

a controlled substance in a drug-free zone. Moore v. State, 339 S.W.3d 365 (Tex.

App.—Amarillo 2011). The trial court and court of appeals determined that cumulation of
                                                                           Jammie Lee Moore - 2

the sentences was mandatory under Texas Health and Safety Code section 481.134(h), which

states, “Punishment that is increased for a conviction for an offense listed under this section

may not run concurrently with punishment for a conviction under any other criminal statute.”

T EX. H EALTH & S AFETY C ODE § 481.134(h). Because the record does not support mandatory

cumulation under that provision and because the record reveals that the trial court did not

otherwise intend to cumulate the sentences, we modify the judgment of the court of appeals

to delete the cumulation order and affirm the judgment as modified.

                                        I. Background

       A. The Trial Court

       In this case, appellant was charged with possession of methamphetamine in an amount

of four grams or more but less than 200 grams. See id. § 481.115(d). The State filed a pretrial

motion to cumulate the sentence in this case with appellant’s prior sentence for possession

of a controlled substance in a statutorily designated drug-free zone in cause number 55,555-

E, for which he had been sentenced to 30 years’ confinement.1 The State’s pretrial motion

asserted that cumulation was mandatory under Texas Health and Safety Code section

481.134(h). See id. § 481.134(h).




1
        Appellant’s previous conviction in cause number 55,555-E was for possession of a controlled
substance, methamphetamine, in an amount of more than four grams but less than 200 grams. See
TEX . HEALTH & SAFETY CODE § 481.115(d). Because the offense occurred in a statutorily designated
drug-free zone, the statute increased the applicable punishment range from 25 to 99 years’
confinement to 30 to 99 years’ confinement. See id. § 481.134(c).
                                                                          Jammie Lee Moore - 3

       After receiving all of the evidence, the jury found appellant guilty. In the punishment

phase of trial, appellant pleaded “true” to two felony-enhancement allegations.2 Appellant

requested that the trial court instruct the jury that any sentence the jury assessed would be

cumulated with the sentence appellant was serving for possession of a controlled substance

in a drug-free zone. The trial court denied the request. The jury assessed his punishment at

50 years’ confinement, and the trial court orally pronounced his sentence. As the trial court

concluded the proceedings, the prosecutor reminded the trial court of the State’s motion to

cumulate the sentences. The trial court granted the motion and ordered that appellant’s

sentence not begin until he had completed the sentence for his prior drug-free-zone

conviction. Appellant did not object, and the proceedings ended.

       B. The Appellate Proceedings

       Appellant’s direct appeal challenged the sufficiency of the evidence to support the

cumulation order. The State responded that appellant waived his challenge because he failed

to lodge an objection at the time the trial court ordered the sentences cumulated. The court

of appeals agreed with the State. The court acknowledged appellant’s contention that general

sufficiency-of-the-evidence complaints need not be preserved at trial, but interpreted his

issue as challenging “a jury finding from a previous trial on a sufficiency basis.” Moore, 339

S.W.3d at 368. It determined that appellant had cited no authority permitting him to

collaterally attack the drug-free zone finding that had been made in the previous trial. Id. The

2
        The enhancement paragraphs alleged two felony assault convictions and did not include the
prior drug-free-zone offense that is the subject of this appeal.
                                                                        Jammie Lee Moore - 4

court held that appellant’s failure to object to the cumulation order resulted in “a complete

procedural default on any issue related to the trial court’s cumulative sentence order.”Id.

       Although it determined that appellant had not preserved his issue, the court of appeals

analyzed the merits of part of appellant’s issue. Id. Appellant contended that his present

conviction was not “a conviction under any other criminal statute,” which he claimed meant

that his present sentence could not be cumulated with the previous sentence. See T EX.

H EALTH & S AFETY C ODE § 481.134(h). The court of appeals interpreted the language of the

mandatory-cumulation provision, which states, “Punishment that is increased for a conviction

for an offense listed under this section may not run concurrently with punishment for a

conviction under any other criminal statute,” and determined that “this section” refers to

“drug-free zones.” Moore, 339 S.W.3d at 368 (citing T EX . H EALTH & S AFETY C ODE §

481.134(h)). It concluded that appellant’s present conviction for possession of

methamphetamine under section 481.115(d) was not a conviction for a drug-free-zone

offense under section 481.134(c) and, therefore, constituted a “conviction under any other

criminal statute.” Id.; See T EX. H EALTH & S AFETY C ODE §§ 481.115(d), 481.134(c). The

court held that the trial court properly cumulated the sentence in cause number 55,555-E with

the sentence in this case because the former sentence was for a conviction under the drug-

free-zone statute and the present sentence is for a conviction under a different criminal

statute. Moore, 339 S.W.3d at 368-69.
                                                                               Jammie Lee Moore - 5

       This Court granted review of the four issues appellant raised in his petition for

discretionary review. Appellant’s second issue pertains to the court of appeals’s holding that

he procedurally defaulted his challenge to the cumulation order. We begin with that issue

because an appellate issue that is not preserved at trial is ordinarily forfeited.3 Appellant

asks, “Is insufficient evidence of an increased punishment – which would bar concurrent

sentencing under § 481.134(h) – cognizable on direct appeal?” See T EX. H EALTH & S AFETY

C ODE § 481.134(h). He argues that he may challenge the sufficiency of the evidence

supporting the cumulation of his sentences without having preserved the issue at trial. The

State responds that preservation is required and that appellant’s failure to object to the

cumulation order at the time the trial court issued it precludes appellate review of his issue.

       We then address appellant’s fourth issue, which asks, “Is a conviction for an offense

listed in T EX. H EALTH & S AFETY C ODE § 481.134 – but not alleged to have been committed

in a drug-free zone – a ‘conviction under any other criminal statute’”? See id. § 481.134. We

examine the court of appeals’s statutory analysis of whether the present conviction was under

a different statute than the drug-free-zone statute.




3
        Although the parties discuss the preservation issue in terms of “waiver,” we have held that
failure to properly object to trial error constitutes a “forfeiture” of rights. See Clark v. State, 365
S.W.3d 333, 339 n.1 (Tex. Crim. App. 2012) (citing Marin v. State, 851 S.W.2d 275, 279-80 (Tex.
Crim. App. 1993)).
                                                                             Jammie Lee Moore - 6

         Appellant’s two remaining issues ask,

         Issue 1: May a court of appeals interpret a statute, as a matter of first
         impression statewide, with an opinion that omits any consideration of the issue
         raised?

         Issue 3: Does the statutory phrase “punishment that is increased…” require
         only that the punishment range have been increased?

These issues challenge the court of appeals’s failure to address appellant’s argument

concerning whether his prior sentence was increased because it occurred in a drug-free zone.

We do not address these two issues because the other two issues are dispositive of this

appeal.

    II. Preservation of Claim that Evidence Insufficient to Support Cumulation Order

         The court of appeals held that “there has been a complete procedural default on any

issue related to the trial court’s cumulative sentence order,” citing Texas Rule of Appellate

Procedure 33.1, which sets forth requirements for preserving a complaint for appellate

review. Moore, 339 S.W.3d at 368 (citing T EX. R. A PP. P. 33.1).4 Under that rule, the record

must show that the complaining party made a specific and timely complaint to the trial judge

and that the trial judge ruled on the complaint. T EX. R. A PP. P. 33.1(a)(1)(A). Generally, error

that is not preserved may not be raised for the first time on appeal. See id.; Mendez v. State,




4
        Texas Rule of Appellate Procedure 33.1(a)(1)(A) provides, “As a prerequisite to presenting
a complaint for appellate review, the record must show that the complaint was made to the trial court
by a timely request, objection, or motion that stated the grounds for the ruling that the complaining
party sought from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context.” TEX . R. APP . P. 33.1.
                                                                          Jammie Lee Moore - 7

138 S.W.3d 334, 338 (Tex. Crim. App. 2004). However, this Court has held that “a claim

regarding sufficiency of the evidence need not be preserved for appellate review at the trial

level, and it is not forfeited by the failure to do so.” Moff v. State, 131 S.W.3d 485, 489 (Tex.

Crim. App. 2004); Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001). Therefore,

“an appellate court must always address challenges to the sufficiency of the evidence.”

McFarland v. State, 930 S.W.2d 99, 100 (Tex. Crim. App. 1996).

       In contrast to evidence-sufficiency challenges, for which no preservation of error is

required, challenges to the propriety of trial-court rulings must be preserved for appeal. See

Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002). In other words, while

complaints as to the “factual basis” of a trial court’s order may be raised for the first time on

appeal, complaints as to the “appropriateness” of that order must be preserved in the trial

court. See id. In Mayer v. State, the appellant, who had failed to object to the trial court’s

restitution order at trial, challenged the “factual basis” of that order for the first time on

appeal. 309 S.W.3d 552, 554 (Tex. Crim. App. 2010). We observed that the appellant did

“not challenge the propriety of assessing attorney’s fees, but argue[d] . . . that a challenge to

the factual basis of a restitution order . . . is a challenge to the sufficiency of the evidence

regarding that order.” Id. We held, “While this claim of evidentiary insufficiency differs

somewhat from a claim of insufficient evidence of guilt,” it is a “well-settled principle” that

“no trial objection is required to preserve an appellate claim of insufficient evidence.” Id. at
                                                                               Jammie Lee Moore - 8

554, 556.5 Although this Court has never expressly held that sufficiency challenges to a

cumulation order need not be preserved for appeal, we have implicitly applied that standard

by reviewing the merits of those complaints even when they were not preserved at trial. See

Mungaray v. State, 188 S.W.3d 178, 183-84 (Tex. Crim. App. 2006) (deciding merits of

appellant’s challenge to sufficiency of evidence supporting cumulation order despite absence

of trial objection to order); Miller v. State, 33 S.W.3d 257, 259 (Tex. Crim. App. 2000)

(same); Resanovich v. State, 906 S.W.2d 40, 41 (Tex. Crim. App. 1995) (same).

       The trial court cumulated appellant’s sentences under the mandatory-cumulation

provision in the Texas Health and Safety Code, but in the absence of the provision, the trial

court had discretion to cumulate his sentences under the Texas Code of Criminal Procedure.

See T EX . H EALTH & S AFETY C ODE § 481.134(h); T EX. C ODE C RIM. P ROC. art. 42.08. In

analyzing the sufficiency of discretionary-cumulation orders, this Court has routinely held

that such orders must be “substantially and sufficiently specific to authorize the punishment

sought to be imposed.” Williams v. State, 675 S.W.2d 754, 764 (Tex. Crim. App. 1984)

(internal quotation marks omitted). We have expressly required that the record contain some




5
        See also Holz v. State, 320 S.W.3d 344, 352 (Tex. Crim. App. 2010) (explaining that,
although testimony could raise issues of admissibility or sufficiency, “[i]n this case the issue is the
sufficiency of the evidence, because that is the issue raised by the appellant.”); Moff v. State, 131
S.W.3d 485, 489 (Tex. Crim. App. 2004) (observing that “[s]ometimes a claim of trial court
evidentiary error and a claim of insufficient evidence overlap so much that it is hard to separate
them.”); Lugo v. State, 299 S.W.3d 445, 455 (Tex. App.—Fort Worth 2009, pet. ref’d) (“Our review
of Lugo’s brief indicates that he is challenging the sufficiency of the evidence to support one of the
indictment’s enhancement paragraphs, not the paragraph itself.”).
                                                                            Jammie Lee Moore - 9

evidence connecting the defendant with the prior convictions to cumulate the sentences. See

Turner v. State, 733 S.W.2d 218, 221 (Tex. Crim. App. 1987).

         We conclude that evidence-sufficiency review for mandatory-cumulation orders

should be consistent with sufficiency review for permissive-cumulation orders in requiring

that some evidence connect the defendant to the prior convictions that are to be cumulated.

But sentences cumulated under mandatory-cumulation statutes have an additional evidentiary

requirement. When sentences are mandatorily cumulated under the drug-free-zone statute,

the criminal offenses reflected in the judgment must not be listed in the drug-free-zone

statute. See id.; T EX. H EALTH & S AFETY C ODE § 481.134.

         Appellant’s complaints challenge the sufficiency of the evidence supporting the

mandatory-cumulation order by asserting that

         •     the State must prove that the punishment for the earlier conviction was
               actually increased and not merely that the punishment range was
               increased (appellant’s third issue in his petition for discretionary
               review); and

         •     the State must prove that the current conviction was not a conviction
               under the drug-free-zone statute (appellant’s fourth issue in his petition
               for discretionary review).

         Because these complaints concern the sufficiency of the evidence supporting the

order, they are not forfeited by appellant’s failure to object at trial. The court of appeals erred

by concluding that appellant’s failure to object to the cumulation order forfeited his

sufficiency complaint to the cumulation of the sentences. We sustain appellant’s second

issue.
                                                                            Jammie Lee Moore - 10

            III. Statutory Analysis for Determining Sufficiency of Evidence

       In his fourth issue, appellant asks, “Is a conviction for an offense listed in T EX.

H EALTH & S AFETY C ODE § 481.134 – but not alleged to have been committed in a drug-free

zone – a ‘conviction under any other criminal statute’?”

       Although statutory-construction complaints generally may not be raised for the first

time on appeal, appellate construction of a statute may be necessary to resolve an evidence-

sufficiency complaint when alternative statutory interpretations would yield dissimilar

outcomes. See, e.g., Ramos v. State, 303 S.W.3d 302, 305 (Tex. Crim. App. 2009)

(construing forgery statute in order to determine sufficiency of forgery evidence).6 This is

because an appellate court must determine what the evidence must show before that court can

assess whether the evidence is sufficient to show it. See id.

       In his brief on discretionary review, appellant argues that our holding in Williams v.

State, 253 S.W.3d 673 (Tex. Crim. App. 2008), precludes application of the mandatory-

cumulation provision in this case. In Williams, the appellant was charged, in three separate

indictments, with delivery of cocaine in violation of Texas Health & Safety Code section

481.112(c). Id. at 674. One of the indictments alleged that the offense occurred in a drug-

free zone under § 481.134(c). Id. He was convicted of all three charges, and the trial court


6
         See also Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005) (construing evading-
arrest statute in order to address sufficiency of evidence of deadly weapon finding); Thomas v. State,
65 S.W.3d 38, 39 n.1 (Tex. Crim. App. 2001) (deciding whether court of appeals erred in evidence-
sufficiency review by employing impermissibly restrictive definition of statutory term); Bailey v.
State, 38 S.W.3d 157, 158 (Tex. Crim. App. 2001) (per curiam) (construing deadly weapon statute
in deciding evidence-sufficiency issue).
                                                                                 Jammie Lee Moore - 11

ordered that the drug-free-zone sentence run consecutively to the other two sentences. Id. The

court of appeals affirmed. Id. Reversing the court of appeals, this Court held,

        It is apparent from the language of [the mandatory-cumulation provision] that
        a conviction for an offense listed anywhere within § 481.134 cannot run
        concurrently with a conviction for an offense under any other criminal statute.
        Just reading the statute under the auspices of common usage and grammar,
        “any other criminal statute” means a criminal statute not listed within
        § 481.134.

Id. at 678. We concluded that, because all of the appellant’s convictions were actually

“listed” within the drug-free-zone statute in subsection (c),7 the mandatory-cumulation

provision did not apply. See id.

        Similarly, appellant’s current conviction is for an offense under 481.115(d), which is

also “listed” within the drug-free-zone statute in subsection (c). See T EX. H EALTH & S AFETY

C ODE §§ 481.115(d), 481.134(c). His current conviction, therefore, does not implicate the

mandatory-cumulation provision so as to require cumulation of his sentence with his prior

drug-free-zone sentence. See id. § 481.134(h). The court of appeals misconstrued Williams

as requiring that the conviction be “based upon” section 481.134 rather than merely listed

within that statute. See Moore, 339 S.W.3d at 368. It concluded that, because “appellant was

facing sentencing for an offense other than a drug offense committed in a drug-free zone,”



7
         Texas Health & Safety Code section 481.134(c) provides, in relevant part, “The minimum
term of confinement or imprisonment for an offense otherwise punishable under Section 481.112(c),
(d), (e), or (f), 481.113(c), (d), or (e), 481.114(c), (d), or (e), 481.115(c)–(f), 481.116(c), (d), or (e),
481.1161(b)(4), (5), or (6), 481.117(c), (d), or (e), 481.118(c), (d), or (e), 481.120(b)(4), (5), or (6),
or 481.121(b)(4), (5), or (6) is increased” if committed in a drug-free zone. TEX . HEALTH & SAFETY
CODE § 481.134(c).
                                                                          Jammie Lee Moore - 12

the mandatory-cumulation provision applied. Id. This was not the holding of Williams and

is contrary to the plain language of the statute, which refers to “an offense listed under this

section[.]” See T EX. H EALTH & S AFETY C ODE § 481.134(h); Boykin v. State, 818 S.W.2d 782,

785-86 (Tex. Crim. App. 1991). We, therefore, conclude that the trial court erred in

cumulating the sentences under the mandatory-cumulation provision in this case.

                 IV. Trial Court’s Discretion to Cumulate in Absence of
                     Mandatory-Cumulation Provision

       The State argues that, “even if section 481.134(h) was held to not require cumulative

sentencing in this situation, the trial court had discretion to cumulate the sentences,” citing

Texas Code of Criminal Procedure article 42.08(a). See T EX. C ODE C RIM. P ROC. art

42.08(a).8 We have long held that “[w]here the court does not order that two or more

sentences in different prosecutions shall be cumulative as permitted by Article 42.08 [], the

terms of imprisonment automatically run concurrently.” Ex parte Reynolds, 462 S.W.2d 605,

606 n.1 (Tex. Crim. App. 1970).9 Because a sentence begins to run at the time it is

pronounced, a trial court may not add a cumulation order onto a sentence once it has

pronounced a sentence that did not include cumulation. See T EX. C ODE C RIM. P ROC. art.



8
        There was no discussion in Williams as to whether the mandatory-cumulation provision was
the sole basis of the trial court’s cumulation order because, after this Court determined that the
mandatory-cumulation provision did not apply, it determined that another statute did apply that
required concurrent sentencing in that case. See Williams v. State, 253 S.W.3d 673, 678 (Tex. Crim.
App. 2008). That statute is inapplicable to the present case.
9
       See also Ex parte Knipp, 236 S.W.3d 214, 215 n.2 (Tex. Crim. App. 2007); Ex parte
Hernandez, 758 S.W.2d 594, 596 (Tex. Crim. App. 1988); Ex parte Sadler, 283 S.W.2d 236-37
(Tex. Crim. App. 1955).
                                                                           Jammie Lee Moore - 13

42.09, § 1; Ex parte Voelkel, 517 S.W.2d 291, 292 (Tex. Crim. App. 1975). Therefore, if the

trial court intends to exercise its statutory discretion to cumulate, it must do so “at the time

of pronouncement of the subsequent sentence or not at all.” Ex parte Vasquez, 712 S.W.2d

754, 755 n.2 (Tex. Crim. App. 1986).10

       The record is clear in this case that the trial court did not intend to cumulate

appellant’s sentences absent application of the mandatory-cumulation provision. At the close

of formal sentencing, the trial judge pronounced appellant’s sentence for the present

conviction and did not mention the prior sentence. He then stated, “I now remand you to the

custody of the [sheriff] to begin serving your sentence. The Court is in recess.” The

prosecutor immediately reminded the trial court of the State’s motion to cumulate:

       Prosecutor:    Judge, if I may. May I inquire as to the State’s motion? Do you
                      have a ruling for us on . . . the motion on cumulative sentence,
                      Judge.

       Court:         Oh, I’m sorry.
                      Yes. As part of the sentence, your 50-year sentence will only begin
                      to be served after the conclusion of the prior sentence . . .




10
       We have explained the rationale for this rule:

       [T]he imposition of sentence is the crucial moment when all of the parties are
       physically present at the sentencing hearing and able to hear and respond to the
       imposition of sentence. Once he leaves the courtroom, the defendant begins serving
       the sentence imposed. Thus, “it is the pronouncement of sentence that is the
       appealable event, and the written sentence or order simply memorializes it and should
       comport therewith.”

Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (quoting Coffey v. State, 979 S.W.2d
326, 328 (Tex. Crim. App. 1998)).
                                                                               Jammie Lee Moore - 14

The parties and the trial judge briefly discussed the details of the prior conviction and, once

the judge confirmed that it was a “mandatory stack” drug-free-zone conviction, he stated,

“[I]t is the ruling of this Court that you will only begin to serve the sentence in this case after

you’ve completed the sentence in 55,555-E, which was determined out of this Court earlier

last year.”

        In the absence of that last-minute alteration, appellant’s sentences would have run

concurrently. See Reynolds, 462 S.W.2d at 606. Had the State not reurged its motion and the

proceedings ended, the judge could not have entered a written judgment cumulating the

sentences thereafter.11 See Vasquez, 712 S.W.2d at 755; Voelkel, 517 S.W.2d at 292. Because

the evidence is insufficient to support the mandatory-cumulation order, that order must be

deleted from the judgment in this case. See Turner, 733 S.W.2d at 221; Beedy v. State, 250

S.W.3d 107, 113 (Tex. Crim. App. 2008). In the absence of that order, the sentences will

necessarily run concurrently. See Reynolds, 462 S.W.2d at 606.

        Because the trial court abused its discretion in cumulating appellant’s sentences, the

court of appeals erred in affirming the cumulation order. Appellant’s fourth issue is

sustained. Because we grant relief on that issue, we need not decide appellant’s remaining



11
        We note, however, that in a case in which the record fails to plainly reveal that the trial court
did not intend to cumulate the sentences absent application of the mandatory-cumulation provision,
remand may be appropriate to enable the trial court to exercise its discretion to cumulate as permitted
under Article 42.08. See TEX . CODE CRIM . PROC. art. 42.08; see also Beedy v. State, 250 S.W.3d
107, 114 (Tex. Crim. App. 2008); Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999).
Because that situation is not presently before us, we merely recognize the possibility of remand
without deciding its propriety under those circumstances.
                                                                      Jammie Lee Moore - 15

issues.

                                       V. Conclusion

          We modify the judgment of the court of appeals to delete the cumulation order and,

therefore, appellant’s sentences will run concurrently. We affirm the judgment as modified.




Delivered: June 20, 2012

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