## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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E x p a r t e K E N N E T H V E L A , A p p l i c a n t O N A P P L I C A T I O N F O R A W R I T O F H A B E A S C O R P U S C A U S E N O . 9 0 - C R - 4 3 6 4 I N T H E 1 4 4 D I S T R I C T C O U R T T H B E X A R C O U N T Y
K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h M E Y E R S , J O H N S O N , K E A S L E R , A L C A L A , R IC H A R D S O N , Y E A R Y a n d N E W E L L , J J . , j o i n e d . H E R V E Y , J . , d i d n o t p a r t i c i p a t e . We filed and set this habea s application to deter mine what eff

ect g ranting a new punishment h ea ri ng has on a stacking order

. We conclude that the g ranting of a new punishment hear in g

remove s the sentenc e from the stacking order

. Be cause the trial judge in t h e prese nt case did not issue a new order stacking the new sentenc e in the re- sentenc ed case onto the sentenc e for an exis ting conviction, applica

nt’s sentenc es ar e running concur rently . We gr ant re lief. I. BACKG ROUND Applicant was convicted of ag g rava ted robber y and sentenc ed to life in prison. He was also convicted of possession of heroin and sent en ce d t o s i x t y y ear s. The trial court order ed that the h e r o in s e n te nce be “stac ked” onto (run consec utively to) the ag g rava ted-robbe ry sentenc e. A p p li c a n t subsequently appea led his ag g rava ted-robbe ry conviction, and the case was reve rsed and rema ndedVELA — 2

for a new punishm ent hearing

. At the new punishment hear ing, he aga in rec eived a life sentence, but the trial court did not issue a ne w stacking order with respec t to the heroin sentenc e. Applicant now complains that the Texas Depa rtment of Criminal J ustice (TDCJ) is trea ting his heroin sentenc e as if it wer e stacke d onto the ag g rava ted-robbe ry sentenc e. He claims that, once 1 the ag g rava ted-robbe ry case was reve rsed, it va nished for stacking purposes. He further contends
t h at , b eca use t he trial court did not issue a new stacking order with respe ct t o the heroin s en t en ce when he was re- sentenc ed for the ag g rava ted robber y , the heroin and ag g rava ted-robbe ry sentenc es should be running concur rently

. He relies upon Ex parte Nickers o n , whi ch held that a sentenc e

cea ses to opera te for sta cking purposes if the c ase is re verse d and re manded f or a ne w trial. 2 The State contends that the sentenc e in the ag g rava ted-robbe ry ca s e d id n o t “ c ease to opera te” beca use it had not y et beg un. I n the State’s view, the rema nd for a new punishment hear ing mere ly suspended the case for s t acking purposes, and the defe ndant’s convictions resumed their stacke d
status once he was re- sentenc ed in the ag g rava ted-robbe ry case . The State relies in part on Alsup v. State , which held that a sentenc e does not cea se to opera te for stacking purposes when the defe ndant files a notice of appe al. 3 II. ANALYSIS A. P rinciples of

Construction How the stacking statute opera tes is a question of statutory construction. The overa

rching rule of statutory construction is tha t w e construe a statute in ac corda nce w ith the plain meaning of

An af fidavit from TDCJ shows that it is indeed trea ting the se ntence s in that fashion. 1 893 S.W .2d 546 (Tex. Crim. App. 1995). 2 84 Tex. Crim . 208, 206 S.W . 345 (1918). 3VELA — 3

its text unless the text is ambig uous or the plain meaning leads to absurd results that the leg islature could not possibly have intended. When a statute is unambig uous, the courts should not add to or 4 subtract from it. And when a term has a technica l meaning confe rre d by statute, courts should g ive 5 eff ect to the statutory

definition. 6 B. Th e Statutor y Schem e Artic le 4 2

. 08(a) provides for the discretionar y stacking of a sentenc e onto an ear lier sentenc e: W h en the same defe ndant has been convicted in two or more case s, judgme n t an d sentenc e shall be pronounc ed in eac h case in the s ame manner as if there had been but one conviction. Ex cept as provided by Sections (b) and (c) of this article , in the discretion of the court, the judgme nt in the second and subsequent convictions may either be that the sentenc e imposed or suspended shall beg in when the judgme nt and the sentenc e imposed or suspended in the prec eding conviction has cea sed to opera te, or that the sentenc e imposed or suspended shall run concur rently with the other case or ca ses, and se ntence and execution shall be a ccor dingly

. . . . 7 One limit ation on the trial court’s discretion is that a sentenc e imposing incar cer ation cannot be stacke d onto a suspended se ntence that imposes community supervision: I f a defe ndant has been convicted in two or more case s and the cou rt suspends the imposit ion of the sentenc e in one of the case s, the court may not order a sentenc e of c o nfinement to commence on the completion of a suspended sentenc e for an offe ns e . 8

Boyk in 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 T E X . G O V ’ T C O D E § 311.011(b) (“Words and phrase s that hav e acquir ed a technica l or 6 particula r meaning , w h e th e r b y le g islative definition or otherwise, shall be construed acc ording ly .”); Rushing v. State , 353 S.W .3d 863, 865 (Tex. Crim. App. 20 1 1 ) (apply ing Gover

nment Code definition of “state” ); Howard v. State , 333 S.W .3d 137, 140 (Tex. Crim. App. 2011) (“‘ Knowing ly ’ is a term of a

rt with a leg islatively

presc ribed de finition in t he Penal Code.” ). T E X . C O D E C R I M . P R O C . art. 42.08(a ) (e mphasis added)

. 7 Id. art. 42.08(c ). 8VELA — 4

As can be seen above, the stacking statute ref ers to “judg ments” and when those judgme nts “ce ase to ope rate .” The term “judg ment” is define d elsewhe re in the C ode of Crimi nal Proce dure

as “the written decla

ration of the court signe d by the trial judge entered of rec ord showing the conviction or acquittal of the defe ndant.” The judgme nt includes the sentenc e, or the suspension of 9

a sentenc e, which “shall be based on the information contained in the judgme nt.” The Gover nment 1 0 Code define s what is meant by “ce ase to ope rate ,” as tha t term is used in Article 42.08: For the purposes of Article 42.08, Code of Criminal Procedur e, the ju d gm ent and sentenc e of an inmate sentenc ed for a felony , other than the last sentenc e in a series of conse cutive sente nces, c ease to opera te: (1 ) wh en t he actual calendar time serve d by the i nmate equals the s entenc e imposed by

the cour t; or (2) o n t h e date a parole panel desig nates as the date the i nmate would have been elig ible for rele ase on parole if the inmate had been sentenc ed to se rve a sing le sentenc e. 1 1 Also rele vant to our discussion is the statute that explains that a reve rsal in a non-ca pital case

on the basis of punishment returns the parties to the point wher e a finding of g uilt has been made but punishment has not y et bee n assessed: I f the court of appea ls or the Cour t o f C ri minal Appea ls awa rds a new trial to a defe ndant other than a defe ndant convicted of an offe nse under Section 19.03, Penal Code, only on the basis of an err or or err ors made in the punishment stag e of the trial, the cause shall stand as it would have stood in case the new trial had been g rante d by the court below, except that the court shall commence the new trial as if a finding of g uilt had been returne d and proce ed to the punishment s t age o f the trial under

Id. art. 42.01, § 1. 9 Id. See also id. , subsec. 9, 10. 1 0 T E X . G O V ’ T C O D E § 508.150(b). 1 1VELA — 5

Subsection (b), Sec tion 2, Article 37.07, of this code

. 1 2 C. Caselaw I n Alsup , we construed a prede cessor to Article 42.08 that contained lang uag e simil ar to the

curr ent version of t he statute. The de fenda nt in that case c ontended that the tr ial court c ould not 1 3 stack his second sentenc e onto his first sentenc e beca use the first sentenc e was on appea l a nd was, thus, not final. We observe d that the construction advocated by the defe ndant “would put it within

1 4 the power of the acc used to annul the eff ect of the [cumulation] statute by g iving notice of appea l.” 1 5 Dec lining to g ive the statute such a construction, we held that an appea l “ does not the reby deprive the cour t of the powe r vested in it by the statute” to impose conse cutive sente nces. 1 6 I n Nickerson , we addresse d the effec t of an ap p ellate rever sal and remand for new trial on

a stacking order under Article 42.08. We held that, unlike the situation in which a case was mere ly 1 7 pending on appea l, the g ranting of a new trial restore d the case to a position before the former

T E X . C O D E C R I M . P R O C . art. 44.29(b)

. 1 2 84 Tex. Crim. at 209, 206 S.W

. at 345 (The prede cessor statute provided: “When the same 1 3 defe ndant has been convicted in two or m o re ca s es , and the punishment assessed in eac h case is confine ment in the penitentiary or the county jail for a term of imprisonment, judgme nt and sentenc e shall be rende red and pronounce d in eac h case in t h e s am e m an n er as if there had been but one conviction, except that the judgme nt in the second and subsequent convictions shall be that the punishment shall beg in when the judgme nt and sentenc e in the prec eding conviction have cea sed to opera te, and the judg ment and execution there of shall be a ccor dingly .”).

Id. 1 4 Id. 1 5 Id. , 206 S.W . at 346. 1 6 893 S.W .3d at 547-48. 1 7VELA — 6

trial—which meant that no conviction exis ted. “B eca use no conv ic ti o n r e ma in s when the judgme nt 1 8 has been reve rsed and rema nded for a new trial,” we explained, “the sentenc e is no longe r in eff ect; it has cea sed to opera te beca use it no longe r exis ts.” Consequently , we held that, “in acc ord with 1 9 the cumulation order , the sentenc e in the second or subseque nt conviction should beg in to operate when the r ever sal in the prec eding conviction is final.” 2 0 D. Discussion The pre sent ca se fa lls between the situations in Alsup and Nickerson . A re mand for a new punishment hear ing disturbs the case m o re t h an simply filing a notice of appea l but less than a

rema nd for an entire new trial. Whether the prese nt case is more like Alsup or more like Nickerson require s us to more closely examine the lang uag e of the statutes than we did in those c ases. We ag ree with the State that a rema nd for a new punishment hear i n g d o es not cause a judgme nt of conviction to “ce ase to opera te,” but that is bec ause e ven a rema nd for a new trial on g uilt has nothing to do with w hether a judgme nt “ cea ses to ope rate .” The term “ce ase to ope rate ” is statutorily define d with respe ct to its use in Article 42.08. That term encompa sses only the completion of a sentenc e or the action of a parole panel with respe ct to a sentenc e. Nickerson ’s use 2 1 of the term “ce ase to ope rate ” in conjunction with a r ever sal on appea l w as misleading

. “Cea se to opera te” descr ibes a stag e in the natura l prog ression of the defe ndant’s sentenc e; it does not descr ibe the disturbing of

such a se ntence on appea l.

Id. at 548. 1 8 Id. 1 9 Id. 2 0 See this op., part I I .B. (citing and quoting T E X . G O V ’ T C O D E § 508.150(b))

. 2 1VELA — 7

Neve rtheless, Nickerson was corr ect in say ing that, when the case is rema nded for a new trial, the conviction and sentenc e no longe r exis t, a nd the absenc e of this sente nce will c ause a sentenc e that is stacke d upon it to beg in to run. Article 42.08 require s that the sentenc e from the “the second and subsequent convictions” be stacke d on the sentenc e “in the preceding conviction.” I f a new 2 2 trial is g rante d in the first case , the judgme nt of conviction in that case no longe r exis ts, and the case is no longe r a “pre ceding co n v i ct i o n .” L ikewise, in that situation, the second case is no longe r a “sec ond or subseque nt conviction” with re spect to the fir st case. This rea soning applies equally when an appellate court g rants a new hear ing on punishment. When a case is rema

nded for a new hear ing on punishment, there is a finding of g uilt but there is no judgme nt of conviction. Article 42.08 specific ally focuse s on the “judg ment” when it r efe rs to the stacking of one sent en ce u p o n an o ther. And a judgme nt is not mere ly a finding of g uilt; it is an 2 3 officia l action of the tria l court committing the de fenda nt to sanctions as a re sult of that finding. 2 4 Foc using on the judgme nt is also consistent with our h o l d i n g i n Pettigrew v. State

. 2 5 Pettigrew involved a defe ndant who was place d on probation for ag g rava ted sexual assault and subsequently committed the new offe nse of murder. The defe ndant was convicted and sentenc ed 2 6

See id. (citing and quoting T E X . C O D E C R I M . P R O C . art. 42.08(a )). 2 2 See id. 2 3 S ee id. (citing and quoting T E X . C O D E C R I M . P R O C . art. 42.01, § 1). See also B L A C K ’ S 2 4 L A W D I C T I O N A R Y 755 (5th ed. 1979) ( “judg ment” entr y : “The of

ficial a nd authentic decision of a court of justice upon the respe ctive rig hts an d cl aims of the parties to an action or suit there in litigated a nd submitt ed to its determination.”)

. 48 S.W .3d 769 (Tex. Crim. App. 2001). 2 5 Id. at 770. 2 6VELA — 8

on the new offe n s e, an d, afte rwa rds, his probation was revoke d. The trial court stacke d the 2 7

revoc ation sentenc e onto the sentenc e for the new offe nse. Th e d efendant contende d that the 2 8 stacking was improper beca use the revoc ation sentenc e was based on a conviction that prec eded the conviction for the new offe nse. We disag ree d, holding that, for stacking purposes, a case could be 2 9
trea ted as a conviction “at the time sentenc e is suspended or at the time sentenc e is imposed.” This 3 0 holding is consistent with the i dea that it is t h e j u dg ment, not the findi ng of guilt, that deter mines whether a convic tion is a prior or subseque nt conviction for stac king pur poses. Moreove r, allowing t he first sentenc e to rema in the first sentenc e in a st ackin g o rd er even afte r a new punishment hear ing has been g rante d could g ive rise to a contra dictory result if the trial
court decide s on rema

nd to suspend t h e i m p osition of sentenc e and place the defe ndant on community supervision. Article 42.08 makes clea r that a sentenc e of incar cer ation cannot be stacke d
onto a period of community super v ision. The obvious import of the provision is to preve nt the 3 1 situation in which the defe ndant is place d on community supervision for sever al y ear s, succe ssfully completes the supervision, and then is hauled off to prison at the end of that period. But if the first 3 2

case reta ins its place i n a s t ac k i ng order of incar cer ation sentenc es even afte r the case has been

Id. 2 7 Id. 2 8 Id. 2 9 Id. at 771 (e mphasis in origina l). 3 0 See this op., part I I .B. (citing and quoting T E X . C O D E C R I M . P R O C . art. 42.08(c )). 3 1 The statute doe s, howeve r, allow a period of c ommunity supervision to be st acke d onto 3 2 a sentenc e of incar cer ation or onto another period of community supervision. See T E X . C O D E C R I M . P R O C . art. 42.08(a ).VELA — 9

rema nded for a new punishment hear ing, and t h e t rial court on rema nd opts for community supervision, then the stac king or der w ill suddenly become illega l. Finally , the policy rea son behind the holding in Pettigrew —that the leg islature soug ht to g ive the t rial cour

t “the maximum flexibi lity possible in stacking sentenc es” — supports a conclusion 3 3 that a sentenc e that is reve rsed on appea l must disappea r from its prior place in a stacking order

. A

rema nd for a new punishment hear ing offe rs the opportunity to rea ssess, perha ps in light of whateve r

cause d the case to be rema nded, whether the sentenc es at issue should be stacke d. I f the trial court decide s that the sentenc es should be stacke d, the proper course would be to stack the new sentenc e 3 4 in the rema

nded ca se onto what is now a prior sentenc e in a nother case . So, the trial court in the

3 5 p re s en t case could have stacke d the new life sentenc e for ag g rava ted robber y onto the six ty -y ea r sentenc e for

possession of heroin, but it did not do so. Be cause the rema

nd for a new punishment hear ing in the ag g rava ted-robbe ry case cause d the ag g rava ted-robbe ry sentenc e to be remove d from the stacking order and beca use the trial court did
not choose to stack the new ag g rava ted-robbe ry sentenc e onto the s entenc e in the heroin case , the
sentenc es in the two ca ses ar e running concur rently . We gr ant re lief. Deliver ed: May

13, 2015 Publis h

48 S.W .3d at 773.

3 3 This assumes that the sentenc e is o t h er wi s e eli g ible to be stacke d and the trial judge 3 4 exercises the discr etion to stack or is re quired to stack.

See Nickerson , 893 S.W .2d at 548 (“F urther, since no cumulation order was enter ed 3 5 commanding that Applicant’s subsequent sent ence i n cause number 18,727, imposed afte r retrial, beg in to run afte r the sentenc e in cause number 518,028 had cea sed to opera te, the sentenc es in both cause s must run concurr ently .”).