### NO. PD
- 0213
- 15

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

BRIEF FOR APPELLANT On Discretionary Review From t he Waco Court of Appeals Cause No. 10 -13- 00 381- 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 CLERKAppellant ’s Brief Page 2 

### Identity of Judge, Parties and Counsel Appellant, pursuant to Rule s 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 CounselAppellant’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 76701Appellant’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 Progen y 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

................................ ................................ ............................. 20Appellant’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 , 1 80 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)

................................ ................................ ................................ ................................ .. 1 6 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 44 1 (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)

................................ ................................ ................................ .......................... 9Appellant’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 Stat utes T EX

. C ODE C RIM

. P ROC

. art. 42.08(a)

................................ ............................. 10, 14 T EX

. C ODE C RIM

. P ROC . art. 42.08(b)

................................ ................................ .... 14

Rules T EX

. R. A PP . P. 43.2(b)

................................ ................................ ..................... 18, 19Appellant’s Brief Page 7 

### Issue Presented

Whether a trial court may order a sentence to run consecutively with a future parole revo cation

.



### 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
unsp ecified 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 tria l 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 con secutively 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
def endant’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. Th is 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

- of

discretion standard. Strahan v. State , 306 S.W.3d 342, 351 (Tex. App.

— Fort
Wor th 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 i f 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 articl e, 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 oper ate, 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

T EX

. C ODE C RIM

. P ROC

. 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 bo th 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 c onviction ; andAppellant’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

. W hen the State requests that a sentence begin to run after a sentence for which parol e 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 Cri minal 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. Sta te , 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 defenda nt’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 c ourt in Jimenez

. F or the reasons that follow, Jimenez was wrongly deci ded.
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. T he 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. ” J imene z v. State , 634 S.W.2d 879, 881 (Tex. App.

— San Antonio 1982, pet. ref’d)

. However, this is
inconsi stent 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 t he prior sentence “ has ceased to operate. ” T EX

. C ODE C RIM

. P ROC . 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 t o 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), an d 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 th e 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 sen tence 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 subs equent 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, h is 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 prio r 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 differentAppellant’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 o ther 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.

— A marillo 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 I s 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 deletin g the cumulation provision(s). Beedy , 250 S.W.3d at 113; see T EX

. R. A PP . 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 Appell ant’s parole

— not even evidence regarding whether parole revocationAppellant’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 abuse d 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 T EX

. R. A PP . 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 a sks 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 h im self justly
entitled. Respectfully submitted,

/ s / Alan Bennett E. Alan Bennett SBOT #02140700 Counsel for Appellant
S heehy, Lovelace & Mayfield, P.C. 510 N. Valley Mills Dr., Ste. 500 Waco, Texas 76710 Telephone: (254) 772

- 8022 Fax: (254) 772

- 9297 Email: abe nnett@slmpc.comAppellant’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 3,06 5
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 e mail on June 19, 2015 to : (1) counsel for the State , Sterling Harmon , sterling.harmon@co.mclennan.tx.us ; and (2) the State Prosecuting Attorn ey, Lisa McMinn, Lisa.McMinn@SPA.texas.gov.

/ s / Alan Bennett E. Alan Bennett