      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00608-CR



                                       Carl Sikes, Appellant

                                                 v.

                                   The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
   NO. 00-008-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Carl Sikes appeals the order revoking his probation which was granted after

his conviction for attempted indecency with a child by contact. See Tex. Penal Code Ann. §§ 15.01,

21.11 (West 2003).


                                       POINT OF ERROR

                Appellant does not expressly state his point of error. The crux of his “summary of

argument” is that, despite the plea agreement in the original plea proceedings, the cumulation order

then entered was an improper order in light of section 3.03(a) of the Texas Penal Code.1


       1
           Section 3.03(a) provides:

       (a)      when the accused is found guilty of more than one offense arising out of the
                same criminal episode 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 run concurrently.
                                PROCEDURAL BACKGROUND

               On January 11, 2000, a two-count indictment was returned charging that on or about

September 18, 1999, appellant committed the offenses of indecency with a child by contact. See

Tex. Penal Code Ann. § 21.11.

               On March 2, 2000, appellant entered into a plea agreement with the State. Waiving

trial by jury, appellant entered a plea of guilty before the trial court to count one of the indictment

and a plea of guilty to the lesser-included offense of attempted indecency with a child by contact as

charged in count two of the indictment. As a part of the plea agreement approved by the trial court,

appellant was sentenced to five years’ imprisonment on count one. With regard to count two,

the imposition of the sentence was suspended, see Tex. Code Crim. Proc. Ann. art. 42.12 § 23(a)

(West Supp. 2007), and appellant was placed on “regular” probation for ten years. The judgment

contained a cumulation order, as a part of the plea agreement, that appellant’s probation would not

begin until appellant had discharged his five year prison sentence imposed as a result of his

conviction on count one.

               Before accepting the pleas of guilty or approving the plea agreement, the trial court

carefully explained to appellant, a former police officer, the terms of the plea agreement including

the cumulation order. Appellant, represented by counsel, assured the trial court that he fully

understood each term of the plea agreement.




Tex. Penal Code Ann. § 3.03(a) (West Supp. 2006). Section 3.03(a) has remained virtually
unchanged since 1973.

                                                  2
               On April 13, 2000, the formal judgment and sentence on count one was entered of

record. On the same date, the formal judgment of probation with the cumulation order but without

sentence was also entered of record. Appellant waived his right to appeal.

               The record reflects that appellant served his full five year prison sentence and was

released in April 2005. Thereafter, appellant commenced his probationary term of ten years subject

to certain conditions.

               On April 12, 2006, the State filed a motion to revoke probation alleging a number of

violations of probationary conditions. On September 15, 2006, at the revocation hearing, appellant

entered a plea of “true” to several of the allegations. The trial court continued the hearing and found

additional alleged violations of conditions to be true. Appellant’s ten-year probation was revoked,

and he was sentenced to five years’ imprisonment on count two. At the revocation hearing there was

no objection nor was an issue raised about the plea agreement or the cumulation order. Appellant

did give notice of appeal from the revocation of probation.


                                           DISCUSSION

               Appellate review of an order revoking probation is limited to whether the trial

court abused its discretion. See Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983);

Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980); Edwards v. State, 54 S.W.3d

834, 835 (Tex. App.—Fort Worth 2001, pet. ref’d); Joseph v. State, 3 S.W.3d 627, 640

(Tex. App.—Houston [14th Dist.] 1999, no pet.). Appellant does not claim that the trial court

abused its discretion in revoking probation nor does he attack the sentence imposed after revocation.




                                                  3
               Appellant was accorded a right to appeal from a conviction resulting in the granting

of probation. See Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b) (West Supp. 2007). Appellant

waived that right. The failure to appeal from such conviction at the time probation is imposed

waives the right to complain of any error in the underlying conviction on appeal from the revocation

of probation. See Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999); Whetstone v. State,

786 S.W.2d 361, 363 (Tex. Crim. App. 1990); Corley v. State, 782 S.W.2d 859, 860 (Tex. Crim.

App. 1990); Traylor v. State, 561 S.W.2d 492, 494 (Tex. Crim. App. 1978); Holiday v. State,

983 S.W.2d 326, 327 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d). Manuel extended this rule

to the deferred adjudication context. 994 S.W.2d at 661.

               In his brief, appellant does not acknowledge the rule and does not discuss the

recognized exceptions to the rule. In the earlier cases dealing with appeals from revocation of

“regular” probation, there were exceptions to the general rule when the error was fundamental or

there was a lack of jurisdiction so as to render the judgment void. See, e.g., Corley, 782 S.W.2d at

860 n.2; Gonzales v. State, 723 S.W.2d 746, 747 n.3 (Tex. Crim. App. 1987); Morgan v. State,

571 S.W.2d 333, 334-35 (Tex. Crim. App. 1978); Evans v. State, 690 S.W.2d 112, 115

(Tex. App.—El Paso 1985, pet. ref’d). Two exceptions to the general rule announced in Manuel and

Whetstone have emerged: the void judgment exception and the habeas corpus exception. See Nix

v. State, 65 S.W.3d 666, 667 (Tex. Crim. App. 2001); Jordan v. State, 54 S.W.3d 783, 785

(Tex. Crim. App. 2001); Few v. State, 136 S.W.3d 707, 711 (Tex. App.—El Paso 2004, no pet.).

               The void judgment exception applies in “rare situations” in which the trial court had

no power to render the judgment. Nix, 65 S.W.3d 667; Few, 136 S.W.3d at 711. A judgment of



                                                 4
conviction is void when (1) the charging instrument did not satisfy the constitutional requisites of

a charging instrument; (2) the trial court did not have subject matter jurisdiction over the offense;

(3) there was no evidence to support the conviction; or (4) counsel was not appointed for an indigent

defendant who had not waived the right to counsel. Nix, 65 S.W.2d at 668. The Court of Criminal

Appeals has stated: “while we hesitate to call this an exclusive list, it is very nearly so.” Id.

               Like the void judgment exception, the habeas corpus exception has been narrowly

drawn. Few, 136 S.W.3d at 711. Pursuant to this exception, an appellate court must consider the

merits of issues that were raised in a petition for writ of habeas corpus before probation was revoked,

if the issues are cognizable by a writ of habeas corpus, and if the defendant attempted to litigate the

issues at the revocation hearing. Nix, 65 S.W.3d at 669-70; Few, 136 S.W.3d at 711. Of course,

under this exception, a petition for a writ of habeas corpus must have been timely filed. Nix,

65 S.W.3d at 670 (citing Jordan v. State, 54 S.W.3d 783 (Tex. Crim. App. 2001)). No habeas

corpus petition was filed in the instant case, so that exception is not applicable here.

               In his brief, appellant does not designate his claim as within the void judgment

exception. He does assert that section 3.03(a) is a statutorily mandated statute requiring “sentences”

to run concurrently under certain conditions and that he is entitled to its benefits. Appellant urges

that the cumulation order entered as a part of the plea agreement was improper and voided the

judgment and sentence in the instance case. See LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim.




                                                  5
App. 1992). LaPorte is distinguishable,2 but we shall consider whether section 3.03(a) entitles

appellant to the relief he claims.

                The primary statute now dealing with cumulative sentencing is article 42.08 of the

Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 42.08 (West 2006). It generally

authorizes a trial court, in its discretion, to either cumulate the sentences or allow them to run

concurrently. Article 42.08 has been broadly interpreted to apply to “convictions,” not just

sentences. See Pettigrew v. State, 48 S.W.3d 769, 772 (Tex. Crim. App. 2001). Under Pettigrew,

the trial court’s cumulation or stacking order in the instant case appears proper, even though only

one sentence was imposed at that time. Appellant does not mention article 42.08 but relies upon

section 3.03(a) for his claim that the “sentences” should have run concurrently. See Tex. Penal Code

Ann. § 3.03(a) (West Supp. 2006). Section 3.03(a) is a statutory limitation on article 42.08.




        2
           Appellant relies in part upon LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App.
1992) which stated: “An improper cumulation order is, in essence, a void sentence, and such error
cannot be waived.” See also Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d). The LaPorte language was overly broad and misleading. First, the
cumulation order must be improper. Second, if the impropriety of the order renders the order void,
it does not logically follow that it voids the entire judgment and sentence. In LaPorte itself, the court
reformed the judgments to delete the cumulation order and affirmed the judgments and sentences,
as reformed. 840 S.W.2d at 415. The proper remedy for a void cumulation order is to reform
the judgment to delete the offending cumulation order. Reedy v. State, 194 S.W.3d 595, 603
(Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Robbins v. State, 914 S.W.2d 582, 584
(Tex. Crim. App. 1996)); see also Rhodes v. State, 175 S.W.3d 348, 356 (Tex. App.—Houston
[1st Dist.] 2004, no pet.) (Keyes, J., dissenting).

                                                   6
LaPorte, 840 S.W.2d at 415. Even if section 3.03(a) were applicable, as appellant claims, there are

statutory exceptions to section 3.03(a).3




       3
           Among the pertinent exceptions are the provisions of subsection (b) of section 3.03, in
effect at the time of the commission of the instant offense, which provide:

       (b)     If the accused is found guilty of more than one offense arising out of the same
               criminal episode, the sentences may run concurrently or consecutively if each
               sentence is for a conviction of:

               (1)     an offense:

                       (A)     under Section 49.08; or

                       (B)     for which a plea agreement was reached in a case in which the
                               accused was charged with more than one offense under
                               Section 49.08; or

               (2)     an offense:

                       (A)     under Section 21.11, 22.011, 22.021, 25.02, or 43.25
                               committed against a victim younger than 17 years of age at
                               the time of the commission of the offense regardless of
                               whether the accused is convicted of violations of the same
                               section more than once or is convicted of violations of more
                               than one section; or

                       (B)     for which a plea agreement was reached in a case in which the
                               accused was charged with more than one offense listed in
                               Paragraph (A) committed against a victim younger than 17
                               years of age at the time of the commission of the offense
                               regardless of whether the accused is charged with violations
                               of the same section more than once or is charged with
                               violations of more than one section.

Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 2, 1997 Tex. Gen. Laws 2251 (amended 2005)
(current version at Tex. Penal Code Ann. § 3.03(b) (West Supp. 2006)).

                                                 7
               Appellant successfully exempts himself from the exception in section 3.03(b)(2)(A),

See Tex. Penal Code Ann. § 3.03(b)(2)(A) (West Supp. 20007), by citing Parfait v. State, 120

S.W.3d 318, 350 (Tex. Crim. App. 2003), in which the court of criminal appeals held that the

exception is inapplicable to certain attempted offenses.4

               Appellant does not mention when section 3.03(b)(2)(B) comes into play as an

exception to the concurrent “sentences” requirement of section 3.03(a). This exception permits

consecutive sentencing when a plea agreement, as here, is involved. A careful reading of section

3.03(b)(2)(B) shows that it is applicable when the defendant is merely charged with more than one

offense under sections 21.11, 22.011, 22.021, 25.02, or 43.25 of the penal code. The key word is

charged, not convicted. Here, appellant was charged by indictment with two counts of indecency

with a child under the age of seventeen years under section 21.11. Appellant’s guilty pleas were in

accordance with the plea agreement. Even if it could be argued, as appellant does, that section

3.03(a) would normally require concurrent sentences, appellant’s case clearly falls within the




       4
          In Parfait v. State, 120 S.W.3d 348, 350 (Tex. Crim. App. 2003), it was held that section
3.03(b)(2)(A)—an exception to section 3.03(a), and which authorizes sentences to run consecutively
in offenses under sections 21.11, 22.011, 22.021, 25.02 or 43.25 of the penal code—did not include
attempt offenses under section 15.01 of the penal code. See Tex. Penal Code Ann. § 15.01
(West 2003). Thus, the sentences in Parfait for indecency with a child under section 21.11 and
attempted sexual assault of a child could not be stacked or run consecutively. Parfait, 120 S.W.3d
at 350. We agree with appellant that section 3.03(b)(2)(A) cannot be applied in the instant case as
an exception to section 3.03(a) because of his conviction for attempted indecency with a child.

                                                 8
exception set forth in section 3.03(b)(2)(B).5 The trial court did not err in permitting the cumulation

order to be included in the plea agreement.

               We conclude that appellant’s collateral attack raised on appeal from the revocation

of probation is without merit and presents no error. Because there is no error, we need not discuss

waiver of error or the doctrine of invited error. Whether error or not, an accused is not allowed to

complain on appeal about a trial action that he procured or brought upon himself at trial from which

he incurred a benefit.

               The plea agreement that appellant entered freely and voluntarily, and about which he

was carefully admonished, was most favorable to appellant, who was facing charges that could have




       5
          Because the exception to section 3.03(a) found in subsection 3.03(b)(2)(B) applies here,
we do not reach the question of whether section 3.03(a), in the absence of any exceptions, would be
relevant to appellant’s claim as he insists. In appellant’s situation, there was one sentence and a
judgment of probation (without a sentence) and a cumulation order. The language of section 3.03(a)
provides in part that “a sentence for each offense for which he has been convicted shall be
pronounced” and “shall run concurrently.” Tex. Penal Code Ann. § 3.03(a). The statutory language
has remained virtually unchanged since 1973 and through two revisions of the Texas Penal Code
when the section was simply section 3.03 and was the entire statute. Compare Act of May 24, 1973,
63rd Leg., R.S., ch. 391, § 1, 1973 Tex. Gen. Laws 883, 891, with Act of May 29, 1993, 73rd Leg.,
R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3592. Section 3.03 became section 3.03(a) in
1995 when the first exceptions were added. Act of May 25, 1995, 74th Leg., R.S., ch. 596, § 1, 1995
Tex. Gen. Laws 3435. There have been other amendments to the statute in the form of exceptions.
See Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 92, 1997 Tex. Gen. Laws 2250, 2251; Act of
May 23, 2005, 79th Leg., R.S., ch. 527, § 1, 2005 Tex. Gen. Laws 1429, 1430. Section 3.03(a) has
remained the same as in the 1995 legislative amendment.

         A sentence is still required to be pronounced. See Tex. Code Crim. Proc. Ann. art. 42.03
(West Supp. 2007). Probation is an arrangement in lieu of a sentence, not a part of a sentence. See
Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). While a sentence and an order
of probation may be cumulated under article 42.08 as interpreted in Pettigrew, 48 S.W.3d 769, 772
(Tex. Crim. App. 2001), it may be a questionable practice under section 3.03(a)’s plain language.
This, however, is not a question we need to resolve here.

                                                  9
resulted in two twenty-year sentences, and it cannot be said that the plea agreement exceeded the

maximum penalty provided by law for the offenses charged, even with the cumulation order.

               From a practical standpoint, it was immaterial whether the order was a cumulation

order or a concurrent order. Appellant was still within his ten-year probation period when he

violated his probationary conditions, so it matters not whether the probationary period commenced

at the same time the earlier prison sentence was pronounced or did not begin until that prison

sentence had been discharged. Thus, even if we agreed with appellant that the cumulation order was

void, the remedy would be reformation of the judgment to delete the cumulation order.

               The order revoking probation is affirmed.




                                             John F. Onion, Jr., Justice

Before Chief Justice Law, Justices Waldrop and Onion*

Affirmed

Filed: December 5, 2007

Do Not Publish




* Before John F. Onion, Jr., Presiding Judge (retired), Texas Court of Criminal Appeals, sitting by
assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).



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