IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-37,070-02

Ex parte KENNETH VELA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 90-CR-4364 IN THE 144 DISTRICT COURT

TH

BEXAR COUNTY

KELLER, P.J., delivered the opinion of the Court in which MEYERS,

JOHNSON,KEASLER,ALCALA, RICHARDSON, YEARY and NEWELL, JJ., joined. HERVEY,

J., did not participate.

We filed and set this habeas application to determine what effect granting a new punishment

hearing has on a stacking order. We conclude that the granting of a new punishment hearing

removes the sentence from the stacking order. Because the trial judge in the present case did not

issue a new orderstacking the new sentence in the re-sentenced case onto the sentence for an existing

conviction, applicant’s sentences are running concurrently. We grant relief. 

I. BACKGROUND

Applicant was convicted of aggravated robbery and sentenced to life in prison. He was also

convicted of possession of heroin and sentenced to sixty years. The trial court ordered that the

heroin sentence be “stacked” onto (run consecutivelyto) the aggravated-robberysentence. Applicant

subsequently appealed his aggravated-robbery conviction, and the case was reversed and remanded
VELA — 2

for a new punishment hearing. At the new punishment hearing, he again received a life sentence,

but the trial court did not issue a new stacking order with respect to the heroin sentence. 

Applicant now complains that the Texas Department of Criminal Justice (TDCJ) is treating

his heroin sentence as if it were stacked onto the aggravated-robbery sentence. He claims that, once 1

the aggravated-robbery case was reversed, it vanished for stacking purposes. He further contends

that, because the trial court did not issue a new stacking order with respect to the heroin sentence

when he was re-sentenced for the aggravated robbery, the heroin and aggravated-robbery sentences

should be running concurrently. He relies upon Ex parte Nickerson, which held that a sentence

ceases to operate for stacking purposes if the case is reversed and remanded for a new trial. 

2

The State contends that the sentence in the aggravated-robberycase did not “cease to operate”

because it had not yet begun. In the State’s view, the remand for a new punishment hearing merely

suspended the case for stacking purposes, and the defendant’s convictions resumed their stacked

status once he was re-sentenced in the aggravated-robbery case. The State relies in part on Alsup v.

State, which held that a sentence does not cease to operate for stacking purposes when the defendant

files a notice of appeal.3

II. ANALYSIS

A. Principles of Construction

How the stacking statute operates is a question of statutory construction. The overarching

rule of statutory construction is that we construe a statute in accordance with the plain meaning of

 An affidavit from TDCJ shows that it is indeed treating the sentences in that fashion. 1

 893 S.W.2d 546 (Tex. Crim. App. 1995). 2

 84 Tex. Crim. 208, 206 S.W. 345 (1918). 3
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its text unless the text is ambiguous or the plain meaning leads to absurd results that the legislature

could not possibly have intended. When a statute is unambiguous, the courts should not add to or 4

subtract from it. And when a term has a technical meaning conferred by statute, courts should give 5

effect to the statutory definition.6

B. The Statutory Scheme

Article 42.08(a) provides for the discretionarystacking of a sentence onto an earlier sentence:

When the same defendant has been convicted in two or more cases, judgment and

sentence shall be pronounced in each case in the same manner as if there had been

but one conviction. Except as provided by Sections (b) and (c) of this article, in the

discretion of the court, the judgment in the second and subsequent convictions may

either be that the sentence imposed or suspended shall begin when the judgment and

the sentence imposed or suspended in the preceding conviction has ceased to operate,

or that the sentence imposed or suspended shall run concurrently with the other case

or cases, and sentence and execution shall be accordingly . . . .

7

One limitation on the trial court’s discretion is that a sentence imposing incarceration cannot be

stacked onto a suspended sentence that imposes community supervision: 

If a defendant has been convicted in two or more cases and the court suspends the

imposition of the sentence in one of the cases, the court may not order a sentence of

confinement to commence on the completion of a suspended sentence for an offense.

8

 Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). 4

 Ex parte Gill, 413 S.W.3d 425, 429 (Tex. Crim. App. 2013). 5

TEX. GOV’T CODE § 311.011(b) (“Words and phrases that have acquired a technical or 6

particular meaning,whether bylegislative definition or otherwise, shall be construed accordingly.”); 

Rushing v. State, 353 S.W.3d 863, 865 (Tex. Crim. App. 2011) (applying Government Code

definition of “state”); Howard v. State, 333 S.W.3d 137, 140 (Tex. Crim. App. 2011) (“‘Knowingly’

is a term of art with a legislatively prescribed definition in the Penal Code.”).

 TEX. CODE CRIM. PROC. art. 42.08(a) (emphasis added).

7

 Id. art. 42.08(c). 8
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As can be seen above, the stacking statute refers to “judgments” and when those judgments

“cease to operate.” The term “judgment” is defined elsewhere in the Code of Criminal Procedure

as “the written declaration of the court signed by the trial judge entered of record showing the

conviction or acquittal of the defendant.” The judgment includes the sentence, or the suspension of 9

a sentence, which “shall be based on the information contained in the judgment.” The Government 10

Code defines what is meant by “cease to operate,” as that term is used in Article 42.08:

For the purposes of Article 42.08, Code of Criminal Procedure, the judgment and

sentence of an inmate sentenced for a felony, other than the last sentence in a series

of consecutive sentences, cease to operate:

(1) when the actual calendar time served by the inmate equals the sentence

imposed by the court; or

(2) on the date a parole panel designates as the date the inmate would have

been eligible for release on parole if the inmate had been sentenced to serve

a single sentence.11

Also relevant to our discussion is the statute that explains that a reversal in a non-capital case

on the basis of punishment returns the parties to the point where a finding of guilt has been made but

punishment has not yet been assessed:

If the court of appeals or the Court of Criminal Appeals awards a new trial to a

defendant other than a defendant convicted of an offense under Section 19.03, Penal

Code, only on the basis of an error or errors made in the punishment stage of the trial,

the cause shall stand as it would have stood in case the new trial had been granted by

the court below, except that the court shall commence the new trial as if a finding of

guilt had been returned and proceed to the punishment stage of the trial under

 Id. art. 42.01, § 1. 9

 Id. See also id., subsec. 9, 10. 10

 TEX. GOV’T CODE § 508.150(b). 11
VELA — 5

Subsection (b), Section 2, Article 37.07, of this code.

12

C. Caselaw

In Alsup, we construed a predecessor to Article 42.08 that contained language similar to the 

current version of the statute. The defendant in that case contended that the trial court could not 13

stack his second sentence onto his first sentence because the first sentence was on appeal and was,

thus, not final. We observed that the construction advocated by the defendant “would put it within 14

the power of the accused to annul the effect of the [cumulation]statute by giving notice of appeal.”15

Declining to give the statute such a construction, we held that an appeal “does not thereby deprive

the court of the power vested in it by the statute” to impose consecutive sentences.16

In Nickerson, we addressed the effect of an appellate reversal and remand for new trial on

a stacking order under Article 42.08. We held that, unlike the situation in which a case was merely 17

pending on appeal, the granting of a new trial restored the case to a position before the former

 TEX. CODE CRIM. PROC. art. 44.29(b).

12

84 Tex. Crim. at 209, 206 S.W. at 345 (The predecessorstatute provided: “When the same 13

defendant has been convicted in two or more cases, and the punishment assessed in each case is

confinement in the penitentiary or the county jail for a term of imprisonment, judgment and sentence

shall be rendered and pronounced in each case in the same manner as if there had been but one

conviction, except that the judgment in the second and subsequent convictions shall be that the

punishment shall begin when the judgment and sentence in the preceding conviction have ceased to

operate, and the judgment and execution thereof shall be accordingly.”).

 Id. 14

 Id. 15

 Id., 206 S.W. at 346. 16

 893 S.W.3d at 547-48. 17
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trial—which meant that no conviction existed. “Because no conviction remains when the judgment 18

has been reversed and remanded for a new trial,” we explained, “the sentence is no longer in effect;

it has ceased to operate because it no longer exists.” Consequently, we held that, “in accord with 19

the cumulation order, the sentence in the second or subsequent conviction should begin to operate

when the reversal in the preceding conviction is final.”20

D. Discussion

The present case falls between the situations in Alsup and Nickerson. A remand for a new

punishment hearing disturbs the case more than simply filing a notice of appeal but less than a

remand for an entire new trial. Whether the present case is more like Alsup or more like Nickerson

requires us to more closely examine the language of the statutes than we did in those cases. 

We agree with the State that a remand for a new punishment hearing does not cause a

judgment of conviction to “cease to operate,” but that is because even a remand for a new trial on

guilt has nothing to do with whether a judgment “ceases to operate.” The term “cease to operate” 

is statutorily defined with respect to its use in Article 42.08. That term encompasses only the

completion of a sentence or the action of a parole panel with respect to a sentence. Nickerson’s use 21

of the term “cease to operate” in conjunction with a reversal on appeal was misleading. “Cease to

operate” describes a stage in the natural progression of the defendant’s sentence; it does not describe

the disturbing of such a sentence on appeal.

 Id. at 548. 18

 Id. 19

 Id. 20

 See this op., part II.B. (citing and quoting TEX. GOV’T CODE § 508.150(b)).

21
VELA — 7

Nevertheless, Nickerson was correct in saying that, when the case is remanded for a new trial,

the conviction and sentence no longer exist, and the absence of this sentence will cause a sentence

that is stacked upon it to begin to run. Article 42.08 requires that the sentence from the “the second

and subsequent convictions” be stacked on the sentence “in the preceding conviction.” If a new 22

trial is granted in the first case, the judgment of conviction in that case no longer exists, and the case

is no longer a “preceding conviction.” Likewise, in that situation, the second case is no longer a

“second or subsequent conviction” with respect to the first case.

This reasoning applies equally when an appellate court grants a new hearing on punishment. 

When a case is remanded for a new hearing on punishment, there is a finding of guilt but there is no

judgment of conviction. Article 42.08 specifically focuses on the “judgment” when it refers to the

stacking of one sentence upon another. And a judgment is not merely a finding of guilt; it is an 23

official action of the trial court committing the defendant to sanctions as a result of that finding.24

Focusing on the judgment is also consistent with our holding in Pettigrew v. State.

25

Pettigrew involved a defendant who was placed on probation for aggravated sexual assault and

subsequently committed the new offense of murder. The defendant was convicted and sentenced 26

 See id. (citing and quoting TEX. CODE CRIM. PROC. art. 42.08(a)). 22

 See id. 23

See id. (citing and quoting TEX. CODE CRIM. PROC. art. 42.01, § 1). See also BLACK’S

24

LAW DICTIONARY 755 (5th ed. 1979) (“judgment” entry: “The official and authentic decision of a

court of justice upon the respective rights and claims of the parties to an action or suit therein

litigated and submitted to its determination.”).

 48 S.W.3d 769 (Tex. Crim. App. 2001). 25

 Id. at 770. 26
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on the new offense, and, afterwards, his probation was revoked. The trial court stacked the 27

revocation sentence onto the sentence for the new offense. The defendant contended that the 28

stacking was improper because the revocation sentence was based on a conviction that preceded the

conviction for the new offense. We disagreed, holding that, for stacking purposes, a case could be 29

treated as a conviction “at the time sentence is suspended or at the time sentence is imposed.” This 30

holding is consistent with the idea that it is the judgment, not the finding of guilt, that determines

whether a conviction is a prior or subsequent conviction for stacking purposes. 

Moreover, allowing the first sentence to remain the first sentence in a stacking order even

after a new punishment hearing has been granted could give rise to a contradictory result if the trial

court decides on remand to suspend the imposition of sentence and place the defendant on

community supervision. Article 42.08 makes clear that a sentence of incarceration cannot be stacked

onto a period of community supervision. The obvious import of the provision is to prevent the 31

situation in which the defendant is placed on community supervision for several years, successfully

completes the supervision, and then is hauled off to prison at the end of that period. But if the first 32

case retains its place in a stacking order of incarceration sentences even after the case has been

 Id. 27

 Id. 28

 Id. 29

 Id. at 771 (emphasis in original). 30

 See this op., part II.B. (citing and quoting TEX. CODE CRIM. PROC. art. 42.08(c)). 31

 The statute does, however, allow a period of community supervision to be stacked onto 32

a sentence of incarceration or onto another period of community supervision. See TEX.CODECRIM.

PROC. art. 42.08(a).
VELA — 9

remanded for a new punishment hearing, and the trial court on remand opts for community

supervision, then the stacking order will suddenly become illegal.

Finally, the policyreason behind the holding in Pettigrew—that the legislature sought to give

the trial court “the maximum flexibility possible in stacking sentences” — supports a conclusion 33

that a sentence that is reversed on appeal must disappear from its prior place in a stacking order. A

remand for a new punishment hearing offers the opportunity to reassess, perhaps in light of whatever

caused the case to be remanded, whether the sentences at issue should be stacked. If the trial court

decides that the sentences should be stacked, the proper course would be to stack the new sentence

34

in the remanded case onto what is now a prior sentence in another case. So, the trial court in the 35

present case could have stacked the new life sentence for aggravated robbery onto the sixty-year

sentence for possession of heroin, but it did not do so.

Because the remand for a new punishment hearing in the aggravated-robbery case caused the

aggravated-robbery sentence to be removed from the stacking order and because the trial court did

not choose to stack the new aggravated-robbery sentence onto the sentence in the heroin case, the

sentences in the two cases are running concurrently. We grant relief.

Delivered: May 13, 2015

Publish

 48 S.W.3d at 773. 33

This assumes that the sentence is otherwise eligible to be stacked and the trial judge 34

exercises the discretion to stack or is required to stack. 

See Nickerson, 893 S.W.2d at 548 (“Further, since no cumulation order was entered 35

commanding that Applicant’s subsequent sentence in cause number 18,727, imposed after retrial,

begin to run after the sentence in cause number 518,028 had ceased to operate, the sentences in both

causes must run concurrently.”).