NUMBERS 13-11-00628-CR & 13-11-00629-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

EDWARD ERIC WEEKS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 252nd District Court 

of Jefferson County, Texas.

 

MEMORANDUM OPINION ON REHEARING

Before Justices Rodriguez, Benavides, and Perkes

Memorandum Opinion by Justice Benavides

We grant the appellant’s and appellee’s motions for rehearing, withdraw our 

opinion and judgment dated July 26, 2012, and issue this opinion on rehearing.

In this consolidated appeal, appellant Edward Eric Weeks raises six issues. In 
2

Cause Number 13-11-00629-CR, Weeks argues (1) the trial court had no jurisdiction to 

revoke his community supervision in a felony theft case when it failed to timely issue a 

capias for him.1 In Cause Number 13-11-00628-CR, Weeks contends that: (2) the 

trial court abused its discretion in cumulating his sentences arising out of the same 

criminal episode; (3) the trial court’s cumulation order was not sufficient to cumulate his 

sentence upon another sentence from another county; (4) the trial court erred in failing to 

follow a plea bargain agreement or to allow Weeks to withdraw his plea; (5) his sentence 

constituted cruel and unusual punishment; and (6) the trial court erred in assessing 

attorney’s fees against him because he was declared indigent. 

We modify the judgments and, as modified, affirm. 

I. BACKGROUND

A grand jury in Jefferson County, Texas2indicted Weeks on a charge of burglary 

of a habitation, a second-degree felony. See TEX. PEN. CODE ANN. § 30.02(a)(3), (c)(2) 

(West 2011). The indictment charged that, on November 4, 2007, Weeks intentionally 

entered the home of Mickie Crawford without consent and with the intent to commit theft. 

One month later, the grand jury also indicted Weeks for the offense of felony theft, a 

state-jail felony. See id. § 31.03 (West 2011). In this indictment, Weeks was accused 

 

1 We note that Weeks’s prior counsel filed an Anders brief in this case. See Anders v. California, 

386 U.S. 738, 741–42 (1967) (holding that “if counsel appointed to represent one seeking leave to appeal in 

forma pauperis . . . is convinced, after conscientious investigation, that the appeal is frivolous, he may ask to 

withdraw on that account, and if the court is satisfied that counsel has diligently investigated the possible 

ground of appeal, and agrees with counsel's evaluation of the case, then it may allow leave to withdraw and 

deny leave to appeal.”). Weeks’s new counsel requested that the Anders brief be stricken and that we 

substitute his appellate brief in its place. We granted this motion on March 30, 2012. We therefore do not 

address the Anders brief on appeal.

2

This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant 

to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
3

of stealing insulated and non-insulated copper wire and cable on December 21, 2007.

On February 25, 2008, Weeks entered a plea of guilty for both offenses in 

exchange for a plea-bargain agreement where the trial court deferred the adjudication of 

guilt, placed him on community supervision for three years, and assessed various fines. 

A year later, on January 8, 2009, Weeks’s community supervision terms were 

amended because he moved to San Patricio County. His community supervision term 

was extended until April 30, 2011 on the burglary of a habitation case. For unexplained 

reasons, his community supervision term was not extended in the felony theft case.

On May 27, 2009, the State filed a Motion to Revoke Unadjudicated Probation in 

both underlying cases, alleging Weeks violated five separate provisions of the terms of 

his community supervision. These violations included: (1) committing an offense 

against the laws of Texas (Weeks committed an aggravated robbery in San Patricio 

County, Texas); (2) failing to perform 800 hours of community service restitution; (3) 

failing to participate in a G.E.D. program; (4) not paying restitution; and (5) not paying 

assessed fines. The trial court issued two separate capiases for Weeks’s arrest: one 

for Weeks’s arrest in the burglary of a habitation case and another for the felony theft of 

copper wire case.

Weeks pleaded true to the first violation, admitting that he committed an 

aggravated robbery in San Patricio County. See id. § 29.03 (West 2011). The plea of 

true was taken on August 29, 2011. The trial court adjudicated Weeks guilty of the 

underlying felony theft charge and sentenced him to jail for two years. It also 

adjudicated Weeks guilty in the underlying burglary of a habitation offense and 
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sentenced him to twenty years. The trial court ordered that these sentences run 

consecutively. It further ordered that these sentences run consecutively to his sentence 

in the San Patricio County robbery case. These appeals ensued.

II. DISCUSSION

A. Revocation of Community Supervision for Theft

Texas Code of Criminal Procedure article 42.12, section 5 establishes the 

procedures regarding deferred adjudication community supervision. 

A court retains jurisdiction to hold a hearing under Subsection (b) and to 

proceed with an adjudication of guilt, regardless of whether the period of 

community supervision imposed on the defendant has expired, if before 

the expiration the attorney representing the state files a motion to proceed 

with the adjudication and a capias is issued for the arrest of the defendant.

See TEX. CODE CRIM. PROC. ANN. art. 42.12(h) (West 2006).

Weeks asserts that the trial court did not have jurisdiction to revoke his community 

supervision in the felony theft case. He contends that he was placed on community 

supervision on February 25, 2008 for three years, so the court’s jurisdiction over him 

expired on February 24, 2011, when his community supervision period terminated. 

Thus, Weeks claims, his adjudication for felony theft on August 29, 2011 took place 

outside the three-year period of the court’s jurisdiction.3

However, we note that the State filed a motion to revoke his community 

supervision on May 27, 2009 and also issued a capias on this matter the same day.

Because he was sentenced to three years of community supervision on February 28, 

2008, and the capias was issued only a year and a half later, the capias was issued 

 

3 Weeks does not challenge the sentence for offense of burglary of a habitation on appeal. 
5

before the expiration of his community supervision. See id. The court thus retained 

jurisdiction to hear the underlying felony theft case, despite the fact that his community 

supervision term expired. Id. We overrule this issue. 

B. The Cumulation of Sentences 

By his second issue, Weeks argues that the trial court abused its discretion in 

cumulating his sentences because they were offenses arising from the same criminal 

episode. We review a trial court's decision to “stack,” or cumulate, sentences for an 

abuse of discretion. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West 2010); 

Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). 

So long as the law allows the imposition of cumulative sentences, the trial judge has 

absolute discretion to stack sentences. Nicholas, 56 S.W.3d at 765. Under article 

42.08 of the code of criminal procedure, the trial judge has the discretion to cumulate the 

sentences for two or more convictions. TEX. CODE CRIM. PROC. ANN. art. 42.08(a). 

Article 42.08 provides that when a defendant has been convicted in two or more 

cases, the trial court has discretion to order the judgment and sentence in the second 

conviction to either (1) begin to run after the judgment and sentence imposed in the 

preceding conviction ceased to operate, or (2) run concurrently with the judgment and 

sentence imposed in the preceding conviction. Id. A trial court’s ability to cumulate 

sentences, however, is limited by the Texas Penal Code. Section 3.03(a) of the Texas 

Penal Code provides as follows:

When the accused is found guilty of more than one offense arising out of 

the same criminal episode prosecuted 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 
6

run concurrently.

TEX. PEN. CODE ANN. § 3.03(a) (West Supp. 2011). A “criminal episode” is defined as:

the commission of two or more offenses, regardless of whether the harm is 

directed toward or inflicted upon more than one person or item of property, 

under the following circumstances:

(1) The offenses are committed pursuant to the same transaction or 

pursuant to two or more transactions that are connected or 

constitute a common scheme or plan; or

(2) The offenses are the repeated commission of the same or similar 

offenses.

Id. § 3.01 (West 2011). 

Weeks argues that his two crimes, burglary of a habitation, id. § 30.02(a)(3), 

(c)(2), and felony theft, id. § 31.03, are from the same “criminal episode” because they 

occurred in “close temporal proximity.” He also argues that the crimes are from the 

same criminal episode because theft “can be a lesser-included offense of burglary.” 

Thus, Weeks believes his sentences should run concurrently. We disagree on both 

counts. First, the burglary of a habitation occurred on November 4, 2007, while the theft 

occurred on December 21, 2007. Although we have previously held that section 

3.01(2) does not impose a time differential between the commission of the same or 

similar offenses, these two crimes were not the same or similar. See Guidry v. State, 

909 S.W.2d 584, 585 (Tex. App.—Corpus Christi 1995, pet. ref’d). Here, the indictment 

for felony theft stated that Weeks unlawfully appropriated “insulated and non-insulated 

wire and cable that consists of at least 50 percent copper” from a man named Thomas 

Ray. The burglary of the habitation indictment provided that Weeks intentionally, and 

without the consent of Mickie Crawford, entered Crawford’s habitation to commit a theft. 
7

Other than the fact that these crimes involved taking property, the record does not 

support any “common scheme or plan” between the two offenses. Further, the record 

does not support that these offenses were repeated in a similar fashion. See id. 

(holding that two aggravated robberies were similar because the perpetrator branded a 

knife during both offenses, so their sentences should run concurrently); Baker v. State, 

107 S.W.3d 671, 673 (Tex. App.—San Antonio 2003, no pet.) (holding that three sexual 

assault sentences should run concurrently because each offense was against “a woman 

living on or near Hope's Ferry, occurred in or near her home while she was alone, and 

took place in the early morning hours,” even though they occurred months apart). In 

short, although the trial court took Weeks’s pleas for both crimes at the same time, there 

is no evidence to substantiate that they arose from the same “criminal episode.” TEX.

PEN. CODE ANN. § 3.01(1). Accordingly, Texas Penal Code section 3.03(a) does not 

apply here.

Because nothing in the record indicates that these two “transactions” were 

“connected or constitute[d] a common scheme or plan,” id., the trial court was within its 

discretion to stack the sentences. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a); 

Nicholas, 56 S.W.3d at 765. We overrule Weeks’s second issue.

C. Sufficiency of Cumulation Sentence

By his third issue, Weeks argues that the trial court’s cumulation order is not 

sufficient to cumulate his sentence to the aggravated robbery from San Patricio County. 

The Texas Court of Criminal Appeals has set forth recommended elements for 

cumulation orders. See Ward v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975). 
8

These elements include: (1) the trial court number of the prior conviction; (2) the correct 

name of the court where the prior conviction was taken; (3) the date of the prior 

conviction; (4) the term of years of the prior conviction; and (5) the nature of the prior 

conviction. Id. However, it is well-settled law that not all of these elements have to be 

present for a cumulation order to be valid. See Banks v. State, 708 S.W.2d 460, 461 

(Tex. Crim. App. 1986); Williams v. State, 675 S.W.2d 754, 764 (Tex. Crim. App. 1984) 

(op. on reh’g); Ex parte March, 423 S.W.2d 916, 918 (Tex. Crim. App. 1968) (“this Court 

has held cumulation orders valid when such orders contained two, rather than three or 

more, details of the prior conviction”). “A valid cumulation order should be sufficiently 

specific to allow the Texas Department of Criminal Justice–Institutional Division 

[TDCJ-ID], to identify the prior with which the newer conviction is cumulated.” Ex Parte 

San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998) (citing Ward, 523 S.W.2d at 

681). “The courts of appeals and the Court of Criminal Appeals have the authority to 

reform and correct cumulation orders when the necessary data is contained in the 

record.” Madrigal Rodriguez v. State, 749 S.W.2d 576, 580 (Tex. App.—Corpus Christi 

1988, pet. ref’d). 

At the hearing on the motion to revoke on August 29, 2011, the trial court made 

the following order on the record:

Cause No. 2434[

4

] will run consecutive to Cause No. 2608[

5

]. It will also 

run consecutive to your case in San Patricio County, whatever that cause 

number may be. 

 

4

This was the trial court cause number from the 252nd District Court of Jefferson County for the 

burglary of a habitation crime.

5

This was the trial court cause number from the 252nd District Court of Jefferson County for the 

felony theft offense.
9

Here, the trial court’s oral cumulation order failed to include several elements 

recommended by the court of criminal appeals. Weeks contends that this lack of 

specificity makes the cumulation order vague and insufficient. However, the written 

orders that were issued that same day by the trial court clarify this issue. The first

order, regarding Weeks’s two-year sentence for felony theft, provides that the sentence 

“shall run consecutively and shall begin only when the judgment and sentence in the 

following case has ceased to operate: S-09-3300-2CR from San Patricio County for 

Aggravated Robbery.” This written order included the trial court number of the prior 

conviction, the correct name of the court where the prior conviction was taken, and the 

nature of the prior conviction. See Ward, 523 S.W.2d at 682. The second order, 

concerning Weeks’s twenty-year sentence for burglary of a habitation, stipulated that 

“this conviction shall run consecutively and shall begin only when the judgment and 

sentence in the following case has ceased to operate: 08-02608.” Although this order 

does not include several recommended elements, it is clear from the record that 

“08-02608” refers to Weeks’s felony theft offense arising from the 252nd Judicial District 

Court of Jefferson County. See Madrigal Rodriguez, 749 S.W.2d at 580. 

Because we hold that the record has sufficient information to allow the TDCJ–ID 

to identify which sentences are cumulated, see Ex Parte San Migel, 973 S.W.2d at 311, 

we overrule this issue.

D. Plea Bargain Agreement

Weeks, in his fourth issue, asserts that he entered into a plea bargain agreement 

with the State for the felony theft and burglary of a habitation offenses. Part of his plea 
10

bargain, he argues, was that he “would be placed on community supervision, and, 

should a sentence be imposed, the sentence would be served concurrently with cause 

number 08-02608.” To support this contention, he refers us to the “Agreed Punishment 

Recommendation” form in the reporter’s record for the burglary of a habitation offense. 

This form, signed on January 24, 2008, demonstrates that Weeks was awarded deferred 

adjudication, fined $1,000, sentenced to five years of community supervision, and that 

“this sentence will run concurrently with 08-02608” (the felony theft offense). Weeks 

claims that he should be able to withdraw his plea of guilty now because the trial court 

judge ordered his sentences to be stacked after the hearing on his motion to revoke. 

See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2) (West Supp. 2011) (“should the court 

reject any such [plea] agreement, the defendant shall be permitted to withdraw his plea 

of guilty or nolo contendere.”). 

We disagree with Weeks’s interpretation of this form. It is clear from the “Agreed 

Punishment Recommendation” that the trial court intended for the community 

supervision terms to run concurrently, not any possible sentences that might arise from 

Weeks’s community supervision revocation. And even assuming Weeks’s 

interpretation was correct, “the statutes governing probation do not make reference to 

article 26.13 or to any right of a plea-bargainer to withdraw a plea.” Gutierrez v. State, 

108 S.W.3d 304, 309–10 (Tex. Crim. App. 2003) (citing TEX. CODE CRIM. PROC. art. 

42.12 (West Supp. 2011)). “In the context of revocation proceedings, the legislature 

has not authorized binding plea agreements, has not required the court to inquire as to 

the existence of a plea agreement or admonish the defendant pursuant to 26.13, and 
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has not provided for withdrawal of a plea after sentencing.” Id. “Unlike regular 

community supervision, ‘upon violation of the deferred adjudication probations, the 

judges have no further obligation to comply with the plea bargains since the bargains 

had already been satisfied by the judges' initial sentencing.’” Ditto v. State, 988 S.W.2d 

236, 239 (Tex. Crim. App. 1999).

We overrule Weeks’s fourth issue.

E. Cruel and Unusual Punishment

In his fifth issue, Weeks argues that his twenty-year prison sentence for the 

burglary of a habitation offense is disproportionate and constitutes cruel and unusual 

punishment under the Eighth Amendment of the U.S. Constitution and article 1.09 of the 

Texas Code of Criminal Procedure. See U.S. CONST., amend. VIII; TEX. CODE CRIM.

PROC. ANN. art. 1.09 (West 2011). Weeks contends that his youth (he was twenty-two 

years old) and mental health condition should be considered in this disproportionate 

analysis.

The Eighth Amendment, which forbids cruel and unusual punishment, contains a 

narrow proportionality principle prohibiting a sentence from being greatly 

disproportionate to the crime it punishes. See Ewing v. California, 538 U.S. 11, 20 

(2003) (citing Harmelin v. Michigan, 501 U.S. 957, 996–97 (1991) (Kennedy, J., 

concurring in part and concurring in judgment)). Embodied within the U.S. 

Constitution's ban on cruel and unusual punishment is the "precept of justice that 

punishment for crime should be graduated and proportioned to [the] offense." Weems 

v. United States, 217 U.S. 349, 367 (1910). 
12

In Texas, courts have traditionally held that, as long as the punishment assessed 

falls within the punishment range prescribed by the Legislature in a valid statute, the 

punishment is not excessive. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. 

App. 1973); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. 

ref'd). Here, under the Texas Penal Code, burglary of a habitation is a second-degree 

felony. See TEX. PEN. CODE ANN. § 30.02(a)(3) (explaining that a person commits this 

crime if they “enter[] a building or habitation and commit[] or attempt[] to commit a felony, 

theft, or an assault); id. § 30.02 (c)(2) (averring that this crime is “a felony of the second 

degree if committed in a habitation”). Section 12.33 of the penal code provides that “an 

individual adjudged guilty of a felony of the second degree shall be punished by 

imprisonment in the Texas Department of Criminal Justice for any term of not more than 

20 years or less than 2 years.” Id. § 12.33 (West 2011). 

Because Weeks was sentenced within the range of punishment allowed for a 

second-degree felony, we hold that the punishment was not excessive or 

disproportionate under federal or Texas law. See Jordan, 495 S.W.2d at 952. We 

overrule Weeks’s fifth issue. 

F. Attorney’s Fees

In his sixth and final issue, Weeks argues that attorney’s fees should be deleted 

from his judgment in 13-11-00628-CR because he was declared indigent by the trial 

court. 

We agree. Weeks was declared indigent and appointed counsel in his initial plea 

proceedings. “A defendant who is determined by the court to be indigent is presumed 
13

to remain indigent for the remainder of the proceeding in the case unless a material 

change in the defendant’s financial circumstances occurs.” See TEX. CODE CRIM. PROC.

ANN. art. 26.04(p) (West Supp. 2011); Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. 

App. 2010). There is no evidence in the record that Weeks’s financial circumstances 

materially changed, however, the court included $1,200 of attorney’s fees when 

assessing “Administrative Fees” of $4,662 against Weeks. Therefore, we sustain this 

issue. 

III. CONCLUSION

We modify the judgment’s cumulation order in cause number 07-02434 to include 

the trial court number, court name, date of conviction, term of conviction, and nature of 

conviction in cause number 08-02608. We further modify the judgment in 07-0234 to 

delete $1,200 in attorney’s fees from the $4,662 in administrative fees. 

As modified, we affirm the trial court judgments.

__________________________

GINA M. BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed the

7th day of February, 2013.