NO. 07-03-0226-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C DECEMBER 2, 2004

______________________________ FREEMAN J ONES, Appellant

v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 3 56TH DI STRICT COURT OF HA RDIN COUNT Y; NO. 15,558 ; HON. BRITT PLUNK, PRES IDING

_______________________________ Before JOHNSON, C.J., and QUINN and REAV IS, JJ. Freeman Jones appeals hi s convic tion for possess ing a controlled substance. His two issues involve the trial court’s decision to 1) stack his sentence on top of a sentence arising from a federal convicti on and 2) refuse to inform the jury , in response to a jury n ote, thatthe trial court had discretion to stack or cumul ate the sentences. We modify the judgment and affirm i t as modified. Background Appellant was convicted in fede ral court, in cause number 1: 02CR51, for posse ssing “with i ntent to distribute” crac k cocaine. Thi s federal conv iction, acco rding tothe record,2

wasbased upon the same facts underlyi ng the tria l and convi ction from whi ch this appeal arose. And, i t resulted i n a sentence of 71 months in a federal penitentiary. Thereafter, appellant was tried and convicted, in the courts f or the State of Te xas, of possessing cocaine. W hile the jury deliberated punishmen t, itsent the tri al court a note asking, among other thi ngs, if “the federal sentence [would] be served at the same time as the state sentence or

one after the other?”The trial courtresponded by directing the jury to strictly follow the court’s char ge on punishment. Appellant object ed to this res ponse. He acknowled ged that w hether tocumulate sentences was not a top ic“within the province of the jury.” Nonetheless, he believed that the juror s had “the law

ful right to know w hether this court does have the ability [to cumulate sent ences] not whether t h ey [sic] would but whether the Court has the a bility to cumulate a sente nce.” The objection w as overruled. Event uall y, the jury

returned a sentence of ten years imprisonment. Before that sentence was pronou nced by the j udge in open cou rt, the State r e-urged a pr

evious moti on wherein it sought to have appell ant’s state se ntence run consec utively to that aris ing from the federal prosecut ion. The trial court gr anted the motion and or dered that “thi s 10-year sentence . . . run as a cu m ulative sentence to the fe deral sentence that you’re currently serving .” In making this pronouncemen t, the trial court did not mention th e particular cause number assigned tothe federal prosecution, the particula r federal court i n which appe llant
wastried, conv icted and sentenced, the length of the sen tence, or the date on w hich it was imposed. Nor were these matters contained in th e writte n judgment memori alizing the trial court’s oral pronounc ement. Indeed, w ith regar d to the cumulati on of sentences, the judgment

simp ly read that “[t]h is sen tenc e sha ll run cons ecut ive [sic] to the case specified belo w” and “[t]he court orders that the sentence in this conviction shall run consecutively3

and shall begin onlywhen the ju dgment and sentence in the following case has ceased to operate.” No partic ular cause, conviction or sentence w as ei ther “speci fied below” or referenced as the “following case” in thejudgment. Issue One - A ccumulation Order Appellant

initiall y contends t hat the trial court failed to provi de a “descript ion of prior convicti ons which g ives suffici ent notice to the defendant or the T exas Depart ment of Correction s and fails to support the validity of the o ral cumulatio n order made in open court.” Because of this, he continues, thefederal and state sen tences should be made to
run concurr

ently. We sustain the is sue. Accordi ng to the Texas Court of Criminal Appe als, “if a judge wants to ‘stack’ a defendant ’s sentences so that they run consecutively . . . he must make such an order at the time and place that

sentence is orally pronounced.” Ex parte Maddi ng , 70 S.W.3d 131, 136 (Tex. C rim. App. 2002). Furthermore, to be valid, the order “should be sufficien tly specific to allow

the Texas Depa rtment of Crimin al Justice- Institutional Divis ion . . . to iden tify the prior with which the newer conviction is cumulated.” Ex parte SanMigel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998) . And, wheth er thi s standard is

met can be determined through theconsiderati on of such things as 1) the caus e number of the prior conviction, 2) the correctname of the court from w hich the prior conv iction emanated, 3) the date of the prior conviction, and 4) whether the term of years assess ed in the pri or convicti on was mentioned by the trial c ourt

. Id. So too is i t suggested that the order include a description of the prior offense for which the accused w as convic

ted. Hamm v. State , 513 S.W.2d 85, 86 (Tex. Cri m. App. 1974). These factors are guides used to reach4

the answer; the information to w hich they al lude, however, ne ed n ot be in the pronouncement

if the p ronoun cement nonetheless gives the Department of Criminal Justice sufficie nt information to i dentify the pri or convic tion invol ved. Id. As previously mentioned the trial court pronounce d, in open court, that the ten years imposed would “run a s a cu mula tive sentence to the feder al sentence that you’re currently serving .” Yet, it made no mention of the particular court from w hich the prio r convic tion emanated, the length of that sentence, the cau se number assig ned to that prosecuti on, or the term of yearsassessed. N or was th is information i ncluded in t he written judgment manifesting the oral pron ou ncement. S ee Ex parte Mad ding , 70 S.W.3d at 135 (stating thata trial co urt’s pronouncement of sentence is or al whil e the jud gment is merel y the written declaration of the oral p ron ouncement and when the oral pronoun cement and written judgment

differ, the f ormer controls). Nor was a copy of the judgment manifesti ng the federal senten ce admi tted into evidence. And, whil e the prosecutor alluded to a particular

cause number and leng th of sentence in i ts oral motion during the punishment stage of the trial, nothing was said about the spe cific federal c ourt fr om which the convicti on emanated nor of the state, f ederal district or federal division in which that court sat. Similarlymissing i s evidence illustrat ing that the assignment

of a cause number

to
one federal prosecution bars other fed eral courts in different sta tes, districts, and divis ions from using the s ame number. So, it cannot besaid, based on t he record before us , that simplymentioning a cause number allows one to identify the particula r action or court in which it pends or pe n ded. Indeed, had the same t rial court sentenced the appel lant on both occasions, t hen mention of the cause n umber alon e may have sufficed. Hamm v.1 It m ak es s ens e for the ju dgm ent t o discl ose the pe rti nent i nformati on because t he Department of

Criminal Justi ce wil l most li kely not hav e the record of proceedi ngs ( i.e . clerk’s and reporter’s records) before it. 2 W e no te v ar iou s o pin ion s w he re in two o f our sister cou rts have required the app ellant t o show harm as a co ndition to su cce edin g in its ar gum ent. Se e Hoit t v. State , 30 S. W .3d 670, 675-76 ( Tex. App.–Texarkana 200 0, pe t. ref’ d.) and Sa enz v . State , No. 12- 00- 037 8- CR, 2002 Lexi s 5162 (Tex. App.–Tyl er 2002, no pet. ) (not

design ated f

or publ icat ion) . I n so hol ding, each ci tes a st atement in San Migel as supp ort forits decisi on. The st atement consi sted of the Court

of Cri minal Appeal s sayi ng “t he appl icant must show that the cu m ula tion ord er wa s n ot s uf fic ien tly sp ec ific an d h e w as ha rm ed by th is la ck of s pe cif icity, ” and i t must be shown th at t he Texas Department of Cri minal Just ice “ is not properl y cumu la ting his se nte nc es in order fora cum ulation order to be found void.” Ex parte San Migel , 973 S. W .2d 310, 311 (Tex. Cri m. App. 1998). Yet, the San Migel courttook caut ion to not e that the matt er before it

came by way of

habeas corpus, not direct appeal. This is of import since one s eeking to affect a co nviction vi a habea s m ust show h arm
. Ex parte Millard, 48 S.W .3d 190, 192 (Tex. Cri m. App. 2001). The sam e is not true on a direct appeal, however. In the l att er circ um sta nc e, a cc or din g to the Co ur t of Cr im ina l Ap pe als , it is no t t he obl igat ion of the appe ll ant to illustrate h arm
. Joh nso n v. S tate, 43 S.W .3d 1, 4 (T ex . C rim

. App. 2001)

. And , we h ave no a utho rity to igno re tha t rule or crea te ex cep tions to it without p rior dire ctive fro m our C ourt o f Cr im inal Ap pea ls. 5 State , 513 S.W.2d at 86-87 (so hol ding). Yet, more ce rtainty i s requir ed than that w hen,
as here, the conv ictions ari se from different courts. Id., quoting Ex parte March , 423 S.W.2d 916 (Tex . Crim. App. 1968); see Ex parte Lewis , 414 S.W .2d 6 82, 6 83-8 4 (Te x. Crim. App. 1967) (striking a c umulation order when it mer

ely referr ed to the cause number since the tw

o convicti ons came from different cour ts). As said by our Courtof Criminal Ap peals in Stokes v. State , 688 S.W.2d 539 (Tex. Crim. App. 1985), “‘[a] sentence is a final j udgment and should be sufficient on its face to effect its purpose without r esort to ev idence in aid thereo f.’” Id. at 540, quoting Ex parte Lewis , 441 S .W .2d 6 82 (T ex. Crim. App. 1967) (involving a prosecution wherein sentences
were to be stacked). 1 Looking to the oral pronouncement and w ritten judgment manifesti ng itat bar, we conclude that ne ither prov ide information s ufficiently sp ecific to permi t the Texas Depart ment of Criminal Justice–Insti tutional Div ision to identify the prior sentence contemplated by the tri al court. Accordingly, the judgment will be modified to redact allusion to the cumulation ofsentences. 2 See Collifower v. State , No. 02-03-03 6 6-C R,6

2004 L EXIS 10467 (Tex. App.– Fort Worth November 18, 200 4) (no t designat ed for publicatio n) (wherei n the trial court modified the j udgment to exclude languag e referring to the cumulation of sentences when the or al pronouncement fail ed to meet the standard in San Migel

). Issue Two – Jury Question Throu gh his last issue, appellant asser ts that the tri al court err ed in refusing to tell the jury that it (the t rial court ) had the authority to order appellant’s state sentence to not begin to run until he completed the federal sentence. We overrule the iss ue. Whetherto cumulate asentence lies within the discreti on of the trial court, not the jury. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42.08(a) ( Ver non Supp. 2004-2005); Stokes v. State , 688 S.W.2d at 540. Because it does, it is not a matter of which the trial court must inform the jury. P eterson v. Stat e , No. 01-02-00 603-CR, 2003 L EXIS 9734 (Tex. App.–Houston [1 stD ist.] 2003, pet. ref’d) (not d esignated for publication) (hold ing that it
wasnot error for the trial cou rt to refuse to instruct the jury on stacked sent ences since whether to cumulate sentence s lies within the discretion of the trial court). Acco rdin gly, we mod ify t he judgment t o remove all reference to appe llant’s sentence running consecutively to any other, order

the sent ence s to ru n con curre ntly, and affirm the judgment as modi fied.

Brian Quinn Justice Do not publish

.