                                                                                     PD-0213-15
                                                                    COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                  Transmitted 7/20/2015 10:25:57 AM
                                                                    Accepted 7/20/2015 11:30:46 AM
 July 20, 2015                                                                       ABEL ACOSTA
                                   PD-0213-15                                                CLERK


                                     IN THE
                      COURT OF CRIMINAL APPEALS
                        SITTING AT AUSTIN, TEXAS
                 _________________________________________________

                                THOMAS LEON BYRD,

                                                   PETITIONER

                                        V.

                              THE STATE OF TEXAS

                   ___________________________________________

                 ON REVIEW FROM THE TENTH COURT OF APPEALS
                             No. 10-13-00381-CR
             AN APPEAL OF A CONVICTION IN CAUSE NO. 2012-1658-C2
                  FROM THE 19TH JUDICIAL DISTRICT COURT OF
                          MCLENNAN COUNTY, TEXAS

                   ____________________________________________


                                   STATE'S BRIEF

                   ____________________________________________


ABELINO "ABEL" REYNA                         GABRIEL C. PRICE
Criminal District Attorney                   Appellate Division
McLennan County, Texas                       State Bar No. 24068071

                                             219 North 6th Street, Suite 200
                                             Waco, Texas 76701
                                             [Tel.] (254) 757-5084
                                             [Fax] (254) 757-5021
                                             [Email]
                                             gabe.price@co.mclennan.tx.us
                                         i
                     Identity of Parties and Counsel

Petitioner                               Thomas Leon Byrd

Petitioner’s Trial Attorney              Mr. Thomas West
                                         4125 W. Waco Dr.
                                         Waco, TX 76710
                                         Mr. Dan Stokes Jr.
                                         2121 W. Waco Dr.
                                         Waco, Texas 76710

Petitioner’s Attorney on Appeal          Mr. Alan Bennett
                                         510 N. Valley Mills Dr.
                                         Suite 500
                                         Waco, Texas 76710

State’s Trial Attorney                   Mr. Landon Ramsay
                                         Mr. Evan O’Donnell
                                         Assistant Criminal District
                                         Attorneys
                                         219 North 6th Street, Suite 200
                                         Waco, Texas 76701

State’s Attorney on Appeal               Abelino ‘ Abel’ Reyna
                                         Criminal District Attorney
                                         Gabriel Price
                                         Assistant Criminal District
                                         Attorney
                                         219 North 6th Street, Suite 200
                                         Waco, Texas 76701




                                    ii
                                              Table of Contents


Contents

Identity of Parties and Counsel............................................................................ ii

Table of Contents .................................................................................................. iii

Index of Authorities ............................................................................................... v

Statement of the Case ........................................................................................... vi

Issues Presented .................................................................................................. viii

Statement Regard Oral Argument.................................................................... viii

Summary of Argument ..........................................................................................1

Argument .................................................................................................................2

Issue 1: The trial court properly cumulated Petitioner’s sentence with a
prior sentence that had been imposed. ................................................................2

   Standard of Review.............................................................................................2

   Argument .............................................................................................................2

       No Evidence of Parole Status ........................................................................2

       Sufficiency of Evidence of Prior Conviction ...............................................3

       A Present Conviction Can be Stacked on a Prior Conviction ..................5

       The trial court’s cumulation order was authorized ...................................6

       Conclusion........................................................................................................8


                                                            iii
Prayer ......................................................................................................................10

Certificate of Compliance ....................................................................................10

Certificate of Service .............................................................................................11




                                                              iv
                                             Index of Authorities


State Cases

Banks v. State, 708 S.W.2d 460 (Tex. Crim. App. 1986) ......................................3, 9

Bollman v. State, 2009 WL 161032 (Tex. App.—Fort Worth Jan. 22, 2009,

  no pet.) ....................................................................................................................5

Byrd v. State, 2015 WL 294674 (Tex. App.—Waco Jan. 22, 2015) .....................v, 3

Barela v. State, 180 S.W.3d 145 (Tex. Crim. App. 2005)........................ 3, 4, 5, 6, 9

Ex parte Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003) .......................................6

Ex parte Kuester, 21 S.W.3d 264, 265 (Tex. Crim. App. 2000) ............................6

Ex parte Vela, 460 S.W.3d 610 (Tex. Crim. App. 2015) ........................................7, 8

Hill v. State, 213 S.W.3d 533, 537 (Tex. App.—Texarkana 2007, no pet.) ....6, 7

Hurley v. State, 130 S.W.3d 501 (Tex. App.—Dallas 2004, no pet.) .......................2

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

  pet. ref'd) ........................................................................................................ 2, 6, 9

Townsend v. State, 187 S.W.3d 131, 133 (Tex. App.—Texarkana 2006,

  pet. ref'd) .................................................................................................................7

Wilson v. State, 854 S.W.2d 270, 273 (Tex. App.—Amarillo 1993,

  pet. ref'd). ............................................................................................................3, 9


                                                              v
State Statutes and Rules

Tex. Crim. Proc. Code Ann. § art. 42.08(a) (West) ...................................................8

Tex. R App. P. 9.4(e) ...............................................................................................10

Tex. R. App. P. 9.4(i) ...............................................................................................10

Tex. R. App. P. 9.4(i)(1) ..........................................................................................11




                                          Statement of the Case


         Petitioner, THOMAS LEON BYRD, was charged by indictment with
POSSESSION OF A CONTROLLED SUBSTANCE IN A DRUG FREE
ZONE (Habitual) COUNTS I, II and EVADING ARREST OR DETENTION
WITH A PRIOR CONVICTION (Enhanced) COUNT III as proscribed by
Sections 481.115, 481.134 of the Texas Health and Safety Code and 38.04 of
the Texas Penal Code. This offense was alleged to have been committed on
or about the 23rd day of October, 2012, in McLennan County, Texas. 1 CR 5-

7 1. The State abandoned the drug free zone allegation. 3 RR 5 2.
         Petitioner pled not guilty to ALL counts. 1 CR 57. Trial was before the
court beginning September 30th, 2013 and ending October 1st, 2013 with a



1Reference to the clerk’s record is indicated by volume number followed by CR followed by page number
2Reference to the reporter’s record is indicated by volume number followed by RR followed by page
number

                                                           vi
verdict of guilty on Counts I, II and III. 5 RR 187-188. Punishment was
assessed by the fury at eighty (80) years imprisonment on Count I and

twenty (20) years imprisonment on Counts II and III in the Texas
Department of Criminal Justice – Institutional Division and no fine. 6 RR
41-42. The trial court ordered that the sentence in this case not begin to
operate until the sentence in cause number 2007-1823-C1 out of the 19th
District Court ceases to operate. 6 RR 45.
      The Tenth Court of Appeals affirmed Petitioner’s conviction and
sentence in a memorandum opinion on January 22nd, 2015. Byrd v. State, 10-
13-00381-CR, 2015 WL 294674 (Tex. App.—Waco Jan. 22, 2015), petition for
discretionary review granted (May 20, 2015).




                                      vii
                                Issues Presented
Petitioner’s Issues Presented and State’s Response to each:

1. Whether a trial court may order a sentence to run consecutively with a
future parole revocation.
State’s Response: The trial court properly cumulated the current sentence

on a prior sentence that had been previously imposed.


                      Statement Regard Oral Argument


      The Honorable Court of Criminal Appeals granted review as to the
above issue and ordered that oral arguments would not be permitted.




                                        viii
                           Summary of Argument
      There is no evidence in the record as to Petitioner’s parole status on

his prior conviction at the time of sentencing. Petitioner attempts to add an
additional sufficiency requirement to the proof that the State must provide
at trial without any authoritative support for his position. The State met its
burden of proof with regard to the details of the prior conviction as
identified in this Court’s prior case law. Without the factual basis in the
record for this Court to review, this case should be dismissed as

improvidently granted.
      A current sentence may be stacked on a prior conviction where the
sentence has not yet been imposed under this Court’s previous decision in
Barela. It is the order of conviction that is important and not the order of
sentencing. Since Petitioner was previously convicted in the first case, the
trial court’s cumulation order was valid and there was no abuse of
discretion.
      The trial court was not limited by the legislature from entering this
cumulation order. This Court has noted that the legislature has intended to
give the trial court the maximum amount of flexibility when cumulating
sentences. Because not unauthorized, the trial court was authorized in
entering the cumulation order in Petitioner’s case.




                                       1
                                 Argument
Issue 1: The trial court properly cumulated Petitioner’s sentence with a

prior sentence that had been imposed.


      The issue in Petitioner’s case is narrowly presented as whether the

trial court’s cumulation order was authorized. The issue is not how the
sentence is to be calculated by the Texas Department of Criminal Justice.


STANDARD OF REVIEW
      An appellate court reviews the trial court's decision to stack or
cumulate sentences for an abuse of discretion. Hurley v. State, 130 S.W.3d
501, 503 (Tex. App.—Dallas 2004, no pet.). An abuse of discretion generally
will be found only if the trial court imposes consecutive sentences where
the law requires concurrent sentences, where the court imposes concurrent

sentences but the law requires consecutive ones, or where the court
otherwise fails to observe the statutory requirements pertaining to
sentencing. Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—Houston [14th
Dist.] 2001, pet. ref'd).


ARGUMENT

No Evidence of Parole Status
      There is no evidence to support Petitioner’s position that he was on
parole for the first conviction in cause number 2007-1823-C1 at the time he

                                      2
was sentenced in this case3. In Wilson, the appellant argued in his first point
of error that the court erred in cumulating his new sentence with a sentence

he was currently on parole for. Wilson v. State, 854 S.W.2d 270, 273 (Tex.
App.—Amarillo 1993, pet. ref'd). The court of appeals held that, “It would
therefore appear from the record that, there being no evidence appellant
was on parole, there is no factual basis for appellant's first point of error.”
Id. Similarly in Petitioner’s case, there being no evidence in the record of
his parole status, there is no factual basis for this issue on appeal and

therefore this case should be dismissed as improvidently granted.


Sufficiency of Evidence of Prior Conviction
        In Banks, this Court held that there are five requirements to a proper
cumulation order: (1) the trial court number of the prior conviction; (2) the
correct name of the court where the prior conviction was had; (3) the date
of the prior conviction; (4) the term of years of the prior conviction; and (5)
the nature of the prior conviction. Banks v. State, 708 S.W.2d 460 (Tex. Crim.
App. 1986); see also Barela v. State, 180 S.W.3d 145, 148 (Tex. Crim. App.
2005). Petitioner is attempting to add an additional requirement of the State
to prove whether a defendant is currently on parole or whether his parole
has been revoked. App. Br. 11 4. Petitioner relies on Barela as his sole


3 The 10th Court of Appeals found that it was clear from the record that Petitioner was on parole when
this offense was committed but did not discuss whether he was on parole at the time of sentencing. See
Byrd, 2015 WL 294674.
4 Reference to Petitioner’s brief is indicated by App. Br. Followed by page number.



                                                   3
supporting authority on this point. App. Br. 11. Petitioner’s reliance on
Barela is misplaced. Barela contains no requirement or indication that the

State must provide evidence of the defendant’s current status as to the
serving of his sentence. In fact Barela stands for the opposite proposition.
      In Barela, this Court reviewed a trial court’s order cumulating a
conviction and sentence in Texas with a prior conviction from Arizona
where the defendant had escaped prior to sentencing. Id. at 147. This Court
held that “It is the order of conviction, rather than the order of sentencing,

that is important when contemplating the propriety of a cumulation order.
There is no requirement that a sentence must be imposed in the first
conviction before a stacked sentence can be imposed in any subsequent
sentence.” Id. at 149. This would indicate that the State is not required to
prove the current status of a sentence to support a valid cumulation order.
As long as the State produces evidence that the defendant has been
convicted prior to the current conviction and sufficient details of the prior
conviction to allow the Texas Department of Criminal Justice to properly
calculate the sentence, a cumulation order by the court would be upheld. In
Petitioner’s case the State produced legally sufficient evidence to allow
TDCJ to identify and properly calculate Petitioner’s sentence. State’s
Exhibit 36; 6 RR 5-6. The trial court did not abuse its discretion in
cumulating Petitioner’s sentences and Petitioner’s sole issue should be
denied.



                                       4
A Present Conviction Can be Stacked on a Prior Conviction
      Petitioner argues that a court may not order a sentence to run

consecutively with a future sentence and relies on Bollman. App. Br. 12.
Bollman is not relevant to Petitioner’s case. In Bollman, the trial court
ordered the sentence to run consecutively with a sentence in a case that
was currently pending without any disposition or conviction. Bollman v.
State, 2-08-061-CR, 2009 WL 161032, at *2 (Tex. App.—Fort Worth Jan. 22,
2009, no pet.). In Bollman the State conceded that the cumulation order was

invalid because there was no evidence under Barela of any prior conviction.
Id at 5. Bollman is distinguishable to Petitioner’s case because in Petitioner’s
case the State did present evidence of his prior conviction. The State
presented legally sufficient evidence to prove that Petitioner was
previously convicted and that he was the same person that was convicted
on July 8th, 2008 in cause number 2007-1823-C1 in the 19th District Court of

McLennan County with a fifteen (15) year sentence for Possession of a
Controlled Substance with Intent to Deliver Cocaine and Petitioner pled
true to the enhancement paragraph contained in the indictment which was

this prior conviction. State’s Exhibit 36; 6 RR 5-6. Additionally, Petitioner’s
reliance on Bollman is directly contradicted by this Court’s decision in
Barela. This Court specifically addressed the issue of stacking a current
sentence onto a future sentence from a prior conviction. Barela, 180 S.W.3d
at 147, fn5.



                                        5
The trial court’s cumulation order was authorized
      This Court has held that it is the order of conviction and not the order

of sentencing that authorizes a valid cumulation order. Id. at 149. An abuse
of discretion generally will be found only if the trial court imposes
consecutive sentences where the law requires concurrent sentences, where
the court imposes concurrent sentences but the law requires consecutive
ones, or where the court otherwise fails to observe the statutory
requirements pertaining to sentencing. Nicholas, 56 S.W.3d at 765.

      The issue in Petitioner’s case is narrowly presented as whether the
trial court’s cumulation order was authorized. The issue is not how the
sentence is to be calculated by the Texas Department of Criminal Justice.
Petitioner cites to Ex Parte Kuester for the proposition that once a defendant
is released on parole the sentence “ceases to operate” and therefore the
court may not stack a new sentence on that case. App. Br. 14-15. The issue
before this Court in Kuester was stated as, “This case presents a
complicated time-credit issue, specifically, how to compute time on a
stacked sentence.” Ex parte Kuester, 21 S.W.3d 264, 265 (Tex. Crim. App.
2000), disapproved of by Ex parte Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003).
The same argument as Petitioner’s was made in Hill where the appellant
relied on Kuester to argue that since his sentence had “ceased to operate”
when he was placed on parole the judge lacked the authority to cumulate
his sentence with his current parole. Hill v. State, 213 S.W.3d 533, 537 (Tex.
App.—Texarkana 2007, no pet.). The Hill court concluded that Kuester only

                                        6
dealt with time credit and did not address the authority of a trial court’s
cumulation order. Id. The only issue in Petitioner’s case is whether the trial

court had the discretion to cumulate the sentences5. Kuester does not stand
for the proposition that a trial court is not authorized to cumulate new
sentence with a prior sentence that has ceased to operate. No Texas court
has ever placed a limitation on the trial court’s authority to cumulate a
sentence based solely on the fact that the previous conviction had ceased to
operate and this Court should not place a limitation on the trial court’s

authority that was not intended by the legislature and not included within
Article 42.08.
        Moreover, this Court has recognized that the legislature has intended
to give the trial court broad discretion in cumulating sentences. “The
legislature sought to give the trial court the maximum flexibility possible in
stacking sentences.” Ex parte Vela, 460 S.W.3d 610 (Tex. Crim. App. 2015);
see also Townsend v. State, 187 S.W.3d 131, 133 (Tex. App.—Texarkana 2006,
pet. ref'd). The rationale and reasoning behind the ruling in Vela is not
present in Petitioner’s case either. The decision in Vela was whether the

granting of a new trial for punishment on the first conviction in a series of
two consecutive sentences also removed the court’s cumulation order. Id.
The concern in Vela was that the granting of the new punishment trial
could lead to an unlawful cumulation order if the court granted

5The issue of time calculation may arise in a Writ of Habeas Corpus in the future as a similar issue as
what was presented in Kuester but that issue is not before this Court on this case and is not ripe for
review.

                                                     7
community supervision and thus when a new punishment trial is granted
only on the first conviction in the series the court must then treat that as the

subsequent conviction for stacking purposes. See Vela 460 S.W.3d 610. That
reasoning and concern does not apply to the issue in Petitioner’s case.
Petitioner was convicted and sentenced in the prior cause number. The trial
court did not have the option of now sentencing Petitioner to community
supervision on the first conviction or modifying the sentence in any way.
Any action regarding parole in the first conviction, cause number 2007-

1823-C1, would not lead to an unlawful cumulation order and therefore the
trial court’s cumulation order in this case is not affected by the parole
status of the prior case.
      Regardless of the time calculation by TDCJ on Petitioner’s sentences,
the trial court acted within its discretion by cumulating Petitioner’s
sentences. Since the trial court was not prohibited from cumulating
Petitioner’s sentences there was no abuse of discretion. Article 42.08(a)
does not limit the authority of a trial court’s discretion in enter a
cumulation order expect with regards to suspended sentences. Tex. Crim.
Proc. Code Ann. § art. 42.08(a) (West). Because the legislature has given the
trial court broad discretion in cumulating sentence, and the trial court was
not prohibited from cumulating this sentence there was no abuse of
discretion and Petitioner’s sole issue should be denied.


Conclusion

                                        8
      There is no evidence in the record as to the current parole status at the time
of sentencing in regards to cause number 2007-1823-C1 and thus no factual basis

to support Petitioner’s issue. This Court should dismiss this petition as
improvidently granted. See Wilson, 854 S.W.2d at 273.
      The State presented legally sufficient proof of; the cause number, the date,
the court, the term of years and the nature of the case, in Petitioner’s prior
conviction which the instant case was cumulated. The State satisfied the
evidentiary requirements to support the trial court’s order under Barela. Barela,

180 S.W.3d at 148 (citing Banks, 708 S.W.2d at 461).
      Even assuming that Petitioner was on parole at the time of sentencing, the
trial court’s cumulation order was valid under this Court’s prior case law. The trial
court was not prohibited from ordering this sentence be “stacked” on the prior
sentence and thus it was within the trial court’s authority to enter the cumulation
order. See Nicholas, 56 S.W.3d at 765. The 10th Court of Appeals decision should

be affirmed.




                                           9
                                   Prayer
      For the foregoing reasons, the State of Texas prays that this

Honorable Court affirm the conviction and punishment of THOMAS
LEON BIRD and prays for such other and further relief as may be provided
by law.

                                           Respectfully Submitted:

                                           ABELINO ‘ABEL’ REYNA
                                           Criminal District Attorney
                                           McLennan County, Texas

                                           /s/Gabriel C. Price_____________
                                           GABRIEL C. PRICE
                                           Appellate Division
                                           219 North 6th Street, Suite 200
                                           Waco, Texas 76701
                                           [Tel.] (254) 757-5084
                                           [Fax] (254) 757-5021
                                           [Email]
                                           gabe.price@co.mclennan.tx.us
                                           State Bar No. 24068071
                         Certificate of Compliance

      This document complies with the typeface requirements of Tex. R
App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document
also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if




                                      10
applicable, because it contains 2,297 words, excluding any parts exempted
by Tex. R. App. P. 9.4(i)(1).

                                Certificate of Service
      I certify that I caused to be served a true and correct copy of this
State’s Brief by eservice or email on Petitioner’s attorney of record, Alan
Bennett, and the State Prosecuting Attorney.


DATE: 7/20/2015                                /s/Gabriel C. Price________________

                                               GABRIEL C. PRICE




                                          11
