NO. PD-0213-15

IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

BRIEF FOR APPELLANT 

On Discretionary Review From the

Waco Court of Appeals 

Cause No. 10-13-00381-CR

E. Alan Bennett

State Bar #02140700 

Counsel for Appellant 

Sheehy, Lovelace & Mayfield, P.C. 

510 N. Valley Mills Dr., Ste. 500 

Waco, Texas 76710 

Telephone: (254) 772-8022 

Telecopier: (254) 772-9297 

Email: abennett@slmpc.com

THOMAS LEON BYRD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

PD-0213-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/19/2015 3:10:07 PM

Accepted 6/19/2015 3:16:24 PM

ABEL ACOSTA

CLERK
Appellant’s Brief Page 2

Identity of Judge, Parties and Counsel

Appellant, pursuant to Rules of Appellate Procedure 38.1(a) and 70.3, 

provides the following list of the trial court judge, all parties to the trial 

court’s judgment, and the names and addresses of all trial and appellate 

counsel.

THE TRIAL COURT:

Hon. Matt Johnson

54th District Court, McLennan County

501 Washington Avenue, Suite 305

Waco, Texas 76701

THE DEFENSE:

Thomas Leon Byrd

Thomas Clayton West

4125 West Waco Drive

Waco, Texas 76710

Danny Leon Stokes, Jr.

801 Washington Avenue, Suite 600

Waco, Texas 76701

E. Alan Bennett

510 North Valley Mills Drive, Suite 500

Waco, Texas 76710

Trial Court Judge

Appellant

Trial Counsel

Appellate Counsel
Appellant’s Brief Page 3

THE STATE:

Landon Wade Ramsay

Evan Miles O’Donnell

Assistant Criminal District Attorneys

Sterling Alan Harmon

Assistant Criminal District Attorney

Trial Counsel

Appellate Counsel 

Abelino Reyna

Criminal District Attorney

McLennan County District Attorney’s Office

219 North 6th Street, Suite 200

Waco, Texas 76701
Appellant’s Brief Page 4

Table of Contents

Identity of Judge, Parties and Counsel ................................................................2

Table of Contents ....................................................................................................4

Index of Authorities................................................................................................5

Issue Presented........................................................................................................7

Summary of the Argument....................................................................................7

Argument .................................................................................................................8

Whether a trial court may order a sentence to run consecutively with a 

future parole revocation......................................................................................8

A. This Court Reviews for an Abuse of Discretion.....................................9

B. The State Must Offer Proof of a Prior Sentence. .....................................9

C. The State Must Also Prove Parole Status...............................................11

D. A Present Sentence Cannot Be Stacked on a Future Sentence. ..........12

E. Jimenez And Its Progeny Are Inconsistent With Applicable Law. .....13

F. The Remedy Is to Reform the Judgment by Deleting the Stacking 

Order. ...............................................................................................................17

G. This Court Should Delete the Stacking Order in Appellant’s Case. .17

Prayer......................................................................................................................19

Certificate of Compliance ....................................................................................20

Certificate of Service .............................................................................................20
Appellant’s Brief Page 5

Index of Authorities

Texas Cases

Banks v. State, 708 S.W.2d 460 (Tex. Crim. App. 1986).....................................11

Barela v. State, 180 S.W.3d 145 (Tex. Crim. App. 2005)............................. 10, 11

Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008).......................... 9, 17, 18

Bell v. State, No. 13-01-00570-CR, 2003 WL 1893266 (Tex. App.—Corpus 

Christi Apr. 17, 2003, pet. ref’d) (mem. op., not designated for publication)

..................................................................................................................................16

Bollman v. State, No. 02-08-00061-CR, 2009 WL 161032 (Tex. App.—Fort 

Worth Jan. 22, 2009, no pet.) (per curiam) (mem. op., not designated for 

publication) ..................................................................................................... 12, 15

Bullard v. State, 40 Tex. Crim. 270, 50 S.W. 348 (1899)......................................10

Carpenter v. State, 828 S.W.2d 441 (Tex. App.—Austin 1992, no pet.)...........16

De La Paz v. State, 05-06-00963-CR, 2009 WL 3087253 (Tex. App.—Dallas Sept. 

29, 2009, no pet.) (mem. op., not designated for publication)........................16

Ex parte Kuester, 21 S.W.3d 264 (Tex. Crim. App. 2000) ..................................14

Ex parte San Migel, 973 S.W.2d 310 (Tex. Crim. App. 1998)............................11

Hamm v. State, 513 S.W.2d 85 (Tex. Crim. App. 1974) .............................. 15, 16

Jimenez v. State, 634 S.W.2d 879 (Tex. App.—San Antonio 1982, pet. ref’d)13, 

15

McGown v. State, No. 10-12-00092-CR, 2013 WL 5494676 (Tex. App.—Waco 

Sept. 26, 2013, pet. ref’d) (mem. op., not designated for publication) ..........16

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

ref’d)..........................................................................................................................9
Appellant’s Brief Page 6

Strahan v. State, 306 S.W.3d 342 (Tex. App.—Fort Worth 2010, pet. ref’d).....9

Sullivan v. State, 387 S.W.3d 649 (Tex. Crim. App. 2013).......................... 17, 18

Turner v. State, 733 S.W.2d 218 (Tex. Crim. App. 1987)...................................10

Wilson v. State, 854 S.W.2d 270 (Tex. App.—Amarillo 1993, pet. ref’d)........16

Texas Statutes

TEX. CODE CRIM. PROC. art. 42.08(a) ............................................................. 10, 14

TEX. CODE CRIM. PROC. art. 42.08(b)....................................................................14

Rules

TEX. R. APP. P. 43.2(b)..................................................................................... 18, 19
Appellant’s Brief Page 7

Issue Presented

Whether a trial court may order a sentence to run consecutively with 

a future parole revocation.

Summary of the Argument

The State must prove that the defendant is serving a prior sentence 

with which his current sentence may be ordered to run consecutively. A trial 

court cannot order a defendant’s sentence to run consecutively with some 

unspecified future sentence. For the same reason, a trial court cannot order 

a defendant’s sentence to run consecutively with a sentence from which the 

defendant has been paroled absent evidence that the defendant’s parole has 

been revoked. Otherwise, the trial court is ordering the defendant’s sentence 

to run consecutively with some future parole-revocation sentence that may 

or may not be imposed.

Here, the trial court ordered Appellant’s sentence to run consecutively 

with a sentence for which he was on parole. Because the State failed to prove 

that his parole had been revoked, the cumulation order is improper. This 

Court should reform the judgment to delete the cumulation order. 
Appellant’s Brief Page 8

Argument

Whether a trial court may order a sentence to run consecutively with a

future parole revocation.

Texas trial courts unquestionably have discretion to order a 

defendant’s sentence to run consecutively with a prior sentence when 

otherwise authorized by law. The State must prove up the details of the prior 

sentence to support such an order. As a matter of law, logic and common 

sense, however, a trial court cannot order a sentence to run consecutively 

with a sentence that the defendant is not serving at the time of sentencing.

Nor can the trial court order a sentence to run consecutively with a sentence 

that the State has failed to prove the defendant is serving at the time of 

sentencing. Therefore, when the State seeks to obtain consecutive sentencing 

with a parole-revocation sentence, the State must offer evidence that the 

defendant’s parole has been revoked. Here, the State failed to do so. 

Accordingly, the trial court’s cumulation order essentially ordered 

Appellant’s sentence to run consecutively with some future (or non-existent) 

parole revocation. This was improper. 
Appellant’s Brief Page 9

A. This Court Reviews for an Abuse of Discretion.

The appellate court reviews a cumulation order rendered under 

Article 42.08(a) of the Code of Criminal Procedure under an abuse-ofdiscretion standard. Strahan v. State, 306 S.W.3d 342, 351 (Tex. App.—Fort 

Worth 2010, pet. ref’d); Nicholas v. State, 56 S.W.3d 760, 764-65 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d); see Beedy v. State, 250 S.W.3d 107, 110 

(Tex. Crim. App. 2008). A trial court abuses its discretion if it orders 

consecutive sentences when consecutive sentences are not authorized by 

law. Nicholas, 56 S.W.3d at 765.

B. The State Must Offer Proof of a Prior Sentence.

Article 42.08 governs consecutive sentences. Subsection (a) provides in 

relevant part:

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.
Appellant’s Brief Page 10

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

The State must prove the particulars of a prior sentence to support a 

cumulation order under article 42.08.

We hold that, unless record evidence of former convictions of the 

defendant is introduced, together with oral evidence of his 

identity unless the convictions occurred at the same term that the 

appellant is tried, the court will not be authorized to make the 

sentence cumulative.

Turner v. State, 733 S.W.2d 218, 221 (Tex. Crim. App. 1987) (quoting Bullard 

v. State, 40 Tex. Crim. 270, 50 S.W. 348, 349 (1899)).

As this Court has expressed more recently, “there must be before the 

court both evidence of the former conviction and evidence that the 

defendant was the same person previously convicted.” Barela v. State, 180 

S.W.3d 145, 148 (Tex. Crim. App. 2005). Such evidence should include the 

details of the prior conviction so the trial court may render a proper 

cumulation order (and one that is supported by the evidence).

A proper cumulation order should contain:

1. The cause number of the prior conviction;

2. The correct name of the court in which the prior conviction occurred;

3. The date of the prior conviction;

4. The term of years assessed for the prior conviction; and
Appellant’s Brief Page 11

5. The nature of the prior conviction.

Id. at 148 n.6 (citing Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim. App. 

1986)).1

This Court’s decision in Barela essentially identifies the type of 

evidence the State must offer under Turner to support a cumulation order by 

correlating this evidentiary requirement with the Banks requirements for the 

content of such an order.

C. The State Must Also Prove Parole Status.

When the State requests that a sentence begin to run after a sentence 

for which parole has been revoked, the State should be required to offer 

evidence of the particulars of the revocation. Cf. id. at 148. Thus, Appellant 

contends that the State should be required to prove the particulars of the 

original conviction as set out in Banks as well as evidence that the 

defendant’s parole has been revoked and the date of revocation. Such a 

requirement accomplishes two purposes: (1) it establishes that, at the time of 

 

1 While these requirements are not “absolutes,” the trial court’s 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).
Appellant’s Brief Page 12

sentencing, the defendant is actually serving a prison sentence with which 

the new sentence can be ordered to run consecutively; and (2) it provides the 

information necessary for the trial court to render a proper cumulation 

order.

Here, the State made no effort to offer evidence regarding Appellant’s 

parole status.

D. A Present Sentence Cannot Be Stacked on a Future Sentence.

Article 42.08 does not authorize a trial court to order a sentence to run 

consecutively with a sentence that the defendant may begin serving at some 

unknown point in the future. Bollman v. State, No. 02-08-00061-CR, 2009 WL 

161032, at *5 (Tex. App.—Fort Worth Jan. 22, 2009, no pet.) (per curiam) 

(mem. op., not designated for publication).

In Bollman, the trial court ordered the defendant’s sentence to run 

“consecutive to any other sentence [appellant] may receive” in three other 

pending cases. Id. at *2. The Fort Worth Court held that this was improper

because the State had not met its burden of proof to support a cumulation 

order. Id. at *5.
Appellant’s Brief Page 13

For the same reason, when the State fails to prove that a defendant’s 

parole has been revoked, a defendant’s sentence cannot be ordered to run 

consecutively with a parole-revocation sentence that may (or may not) occur 

in the future.

E. Jimenez And Its Progeny Are Inconsistent With Applicable Law.

There are a series of intermediate appellate court decisions holding 

that a trial court may stack a defendant’s sentence on one for which the 

defendant is on parole. These cases all find their genesis in the decision of 

the San Antonio court in Jimenez. For the reasons that follow, Jimenez was 

wrongly decided.

In Jimenez, the trial court ordered the defendant’s sentence to run 

consecutively with a sentence for which he was on parole at the time of 

sentencing. The San Antonio court held that the cumulation order was 

proper because “[p]arole is essentially a constructive confinement. Release 

from prison for rehabilitation purposes does not mean release from the 

operation of the judgment and sentence in that cause.” Jimenez v. State, 634 

S.W.2d 879, 881 (Tex. App.—San Antonio 1982, pet. ref’d). However, this is 

inconsistent with how this Court has construed Article 42.08.
Appellant’s Brief Page 14

Article 42.08(a) provides that the second in a series of consecutive 

sentences begins to run when the prior sentence “has ceased to operate.” TEX.

CODE CRIM. PROC. art. 42.08(a). Article 42.08(b), which applies when a 

prisoner commits an offense, requires that the sentence for the offense 

committed while incarcerated will begin to run “immediately on completion 

of the sentence for the original offense.” Id. art. 42.08(b).

This Court has construed the phrases in Subsection (a) (“ceased to 

operate”) and Subsection (b) (“completion of the sentence”) to mean the 

same thing when considering the intersection between parole law and 

cumulative sentencing. Ex parte Kuester, 21 S.W.3d 264, 271 (Tex. Crim. App. 

2000).

Considering the consequences of varying constructions, the 

legislative history, the meaning of “completion of the sentence” 

in other statutes, the meaning of “cease to operate” in Art. 

42.08(a), the language of Art. 42.08(b), and its placement in the 

Code, we conclude that the phrase “completion of the sentence” 

means serving the sentence in full, day-for-day, until discharge, 

or receiving a vote of approval for parole by a parole panel. 

Granted, this results in “completion of the sentence” having the 

same meaning as “cease to operate.” But we are persuaded that 

the use of different phrases in subsections (a) and (b) of Art. 42.08 

is insignificant compared to the other considerations in this 

opinion.

Id.
Appellant’s Brief Page 15

A sentence for which a defendant is on parole “ceased to operate” for 

purposes of article 42.08(a) when he was released on parole. Therefore, if he 

commits an offense while on parole and if his parole has not been revoked 

at the time of sentencing for the subsequent offense, the sentence for the 

subsequent offense cannot be “stacked” on the sentence for which he has 

been released on parole because the prior sentence has already “ceased to 

operate.”

And even assuming parole revocation proceedings are pending, his 

sentence for the subsequent offense cannot be “stacked” on some future 

parole revocation that may or may not occur. See Bollman, 2009 WL 161032, 

at *5.

For these reasons, the San Antonio Court’s reliance on a theory of 

“constructive confinement” does not withstand scrutiny because it is 

contrary to the language of article 42.08(a) as construed by this Court

The San Antonio Court also drew an analogy to this Court’s decisions 

approving the order of consecutive sentences where the prior conviction was 

being appealed at the time of the subsequent sentencing proceeding. See 

Jiminez, 634 S.W.2d at 882 (citing Hamm v. State, 513 S.W.2d 85, 86 (Tex. Crim. 

App. 1974)). However, Hamm and similar decisions represent a different 
Appellant’s Brief Page 16

issue. In those cases, the complaint has been that the prior conviction and 

sentence were not “final.” See, e.g., Hamm, 513 S.W.2d at 86; De la Paz v. State, 

05-06-00963-CR, 2009 WL 3087253, at *5 (Tex. App.—Dallas Sept. 29, 2009, 

no pet.) (mem. op., not designated for publication). Article 42.08 has no 

“finality” requirement for consecutive sentences. Bell v. State, No. 13-01-

00570-CR, 2003 WL 1893266, at *3 (Tex. App.—Corpus Christi Apr. 17, 2003, 

pet. ref’d) (mem. op., not designated for publication). Thus, Hamm and 

similar decisions have no bearing on the issue presented.

Several other courts have cited Jimenez for the proposition that a trial 

court may stack a sentence on another for which the defendant was on 

parole. E.g., McGown v. State, No. 10-12-00092-CR, 2013 WL 5494676, at *9 

(Tex. App.—Waco Sept. 26, 2013, pet. ref’d) (mem. op., not designated for 

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

pet. ref’d); Carpenter v. State, 828 S.W.2d 441, 442 (Tex. App.—Austin 1992, 

no pet.). However, none of these courts purported to conduct an 

independent analysis on this issue. And because Jimenez was wrongly 

decided as explained, these decisions likewise lose their persuasive weight.
Appellant’s Brief Page 17

F. The Remedy Is to Reform the Judgment by Deleting the Stacking Order.

When a trial court renders an erroneous cumulation order, the 

appropriate remedy is to modify the judgment by deleting the cumulation 

provision(s). Beedy, 250 S.W.3d at 113; see TEX. R. APP. P. 43.2(b). This Court 

has done so quite recently. Sullivan v. State, 387 S.W.3d 649, 653 (Tex. Crim. 

App. 2013).

G. This Court Should Delete the Stacking Order in Appellant’s Case.

The State must prove that the defendant is serving a prior sentence 

with which his current sentence may be ordered to run consecutively. A trial 

court cannot order a defendant’s sentence to run consecutively with some 

unspecified future sentence. For the same reason, a trial court cannot order 

a defendant’s sentence to run consecutively with a sentence from which the 

defendant has been paroled absent evidence that the defendant’s parole has 

been revoked. Otherwise, the trial court is ordering the defendant’s sentence 

to run consecutively with some future parole-revocation sentence that may 

or may not be imposed.

Here, the State offered no evidence regarding the status of Appellant’s 

parole—not even evidence regarding whether parole revocation 
Appellant’s Brief Page 18

proceedings had been commenced. Regardless, the trial court ordered 

Appellant’s sentence in this case to run consecutively with his prior 

sentence.

For these reasons, the trial court abused its discretion by ordering 

consecutive sentences that were not authorized by law.

Accordingly, Appellant asks that the Court reform the judgment of the 

trial court by deleting the unauthorized cumulation order and affirm the 

judgment as modified. See TEX. R. APP. P. 43.2(b); Sullivan, 387 S.W.3d at 653; 

Beedy, 250 S.W.3d at 113.
Appellant’s Brief Page 19

Prayer

WHEREFORE, PREMISES CONSIDERED, Appellant Thomas Leon 

Byrd asks the Court to: (1) reform the judgment of the trial court by deleting 

the cumulation order and affirm the judgment as modified; and (2) grant 

such other and further relief to which Appellant may show himself justly 

entitled.

Respectfully submitted,

 /s/ Alan Bennett 

E. Alan Bennett

SBOT #02140700

Counsel for Appellant

Sheehy, Lovelace & Mayfield, P.C.

510 N. Valley Mills Dr., Ste. 500

Waco, Texas 76710

Telephone: (254) 772-8022

Fax: (254) 772-9297

Email: abennett@slmpc.com
Appellant’s Brief Page 20

Certificate of Compliance

The undersigned hereby certifies, pursuant to Rule of Appellate 

Procedure 9.4(i)(3), that this computer-generated document contains 3,065

words.

 /s/ Alan Bennett 

E. Alan Bennett

Certificate of Service

The undersigned hereby certifies that a true and correct copy of this 

brief was served by email on June 19, 2015 to: (1) counsel for the State, 

Sterling Harmon, sterling.harmon@co.mclennan.tx.us; and (2) the State 

Prosecuting Attorney, Lisa McMinn, Lisa.McMinn@SPA.texas.gov.

 /s/ Alan Bennett 

E. Alan Bennett