1

The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-13-00368-CR

NO. 09-13-00369-CR

NO. 09-13-00370-CR

NO. 09-13-00371-CR

NO. 09-13-00372-CR

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CHRISTOPHER PAUL DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________ __

On Appeal from the 252nd District Court

Jefferson County, Texas

Trial Cause Nos. 07-02148, 08-03290, 10-10714, 10-10715, 10-10716

_________________________________________________________________ _

MEMORANDUM OPINION

Challenging his sentences in five cases, Christopher Paul Davis1 appeals 

from the trial court’s revocation of its respective orders that placed Davis on

community supervision. In all five cases, Davis contends that the sentences the 

 1

The record reflects that the defendant, Christopher Paul Davis, is also 

known as Kermit Joseph Davis. 
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trial court assessed are disproportionate and unreasonable; he concludes that the 

sentences he received violate the Eighth Amendment of the United States 

Constitution and article I, section 13 of the Texas Constitution. In two of his cases, 

trial cause numbers 08-03290 and 10-10714, Davis also complains that the trial 

court erred by entering judgments stacking his sentences. According to Davis,

because the trial court first placed him on shock community supervision2 in trial 

cause numbers 08-03290 and 10-10714, and he had served a portion of those

sentences, his sentences in these cases could not be stacked. With respect to 

Davis’s stacking complaints in trial cause numbers 08-03290 and 10-10714, the 

State concedes error.

We overrule Davis’s issues that assert Eighth Amendment and article I, 

section 13 arguments. After reviewing the records in trial cause numbers 08-03290 

and 10-10714, we agree with the State that the trial court rendered judgments that 

improperly stacked Davis’s sentences. Based on our resolution of Davis’s issues, 

we affirm the trial court’s judgments in trial cause numbers 07-02148, 10-10715, 

and 10-10716. In trial cause numbers 08-03290 and 10-10714, we delete the trial 

 2

See Tex. Code Crim. Proc. Ann. art. 42.12, § 6 (West Supp. 2013). “Shock 

community supervision” describes a trial court’s decision to place a defendant on 

deferred adjudication community supervision within 180 days following the date 

the defendant’s sentence was executed. See State v. Dunbar, 297 S.W.3d 777, 780-

81 (Tex. Crim. App. 2009).
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court’s cumulation orders, and we order that Davis serve his sentences in these two 

cause numbers concurrently. As modified, we affirm the trial court’s judgments in 

trial cause numbers 08-03290 and 10-10714. 

Background

In cause numbers 07-021483 and 08-03290,4 after Davis was given shock 

probation and then placed on community supervision, the State filed motions that 

asked the trial court to revoke its community supervision orders. Following a 

hearing, the trial court found that Davis had violated the terms of its community 

supervision orders; it then revoked these orders and assessed ten year sentences in 

the two cases, trial cause numbers 07-02148 and 08-03290. The trial court stacked 

Davis’s sentence in trial cause number 08-03290 onto the sentence that it imposed 

in trial cause number 07-02148. 

The trial court also placed Davis on shock community supervision in trial 

cause numbers 10-10714, 10-10715, and 10-10716, the three other cases that are 

the subject of Davis’s appeal. After revoking the order that was used in placing 

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In cause number 07-02148, Davis pled guilty to taking a prohibited 

substance into a correctional facility, a third degree felony. See Tex. Penal Code 

Ann. § 38.11(b), (g) (West 2011). Although this section of the Penal Code was 

amended after the date of Davis’s offense, the changes do not affect the outcome of 

the appeal.

4

In cause number 08-03290, Davis pled guilty to forging money, a third 

degree felony. See Tex. Penal Code Ann. § 32.21(a), (e)(1) (West 2011).4
4

Davis on community supervision in trial cause number 10-10714 (attempted 

possession of a controlled substance by fraud, a third degree felony), trial cause 

number 10-10715 (fabricating physical evidence, a third degree felony), and trial 

cause number 10-10716 (fabricating physical evidence, a third degree felony), the 

trial court sentenced Davis to serve ten years in prison in each of these cases. See 

Tex. Health & Safety Code Ann. § 481.129(a)(3), (d)(2) (West Supp. 2013),

5 Tex. 

Penal Code Ann. § 37.09(a)(2), (c) (West Supp. 2013).

6 The trial court’s judgment 

in cause number 10-10714 requires Davis to serve his sentence in trial cause 

number 10-10714 after completing his sentence in trial cause number 08-03290.

Discretion in Sentencing

The record reflects that Davis failed to challenge his sentences based on 

claims that the length of his sentences, ten years in each case, violated the Eighth 

Amendment of the United States Constitution or violated article I, section 13 of the 

Texas Constitution. Because Davis failed to bring his constitutional claims to the 

trial court’s attention, we cannot consider them in his appeals. See Tex. R. App. P. 

33.1(a). 

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We cite to the current version of the statute, as any amendments after the 

date of Davis’s offense do not impact the issues Davis raises in his appeal.

6

We cite to the current version of the statute, as any amendments after the 

date of Davis’s offense do not impact the issues Davis raises in his appeal.
5

Nevertheless, even if Davis had preserved these issues for review, the 

challenges he raises regarding the length of his sentences would fail. The sentences 

the trial court assessed, all based on convictions for third-degree felonies, are 

within the statutorily-authorized range of punishment for the respective convictions

at issue. See Tex. Penal Code Ann. § 12.34 (West 2011) (providing that third 

degree felony punishment is confinement of not more than ten years or less than 

two years in prison), § 32.21(e)(1) (West 2011) (providing that forgery of money is 

a third degree felony), § 37.09(c) (providing that fabricating physical evidence is a 

third degree felony), 38.11(g) (West 2011) (providing that possession of a 

prohibited substance in a correctional facility is a third degree felony);

7 Tex. 

Health & Safety Code Ann. § 481.129(d)(2) (providing that the attempt to possess 

a controlled substance, hydrocodone, by presenting a forged prescription to a 

pharmacist is a third degree felony). 

Generally, if a trial court sentences a defendant within the range of 

punishment established by the legislature for the crime at issue, an appellate court 

will not disturb the sentence on appeal. Jackson v. State, 680 S.W.2d 809, 814 

(Tex. Crim. App. 1984). Usually, a trial court’s decision to assess a sentence that is 

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We cite to the current version of these provisions of the Penal Code, as any 

amendments since the date Davis committed the offenses do not impact the issues 

Davis raises in his appeals.
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within the statutory range for the offense at issue is not excessive under the United 

States Constitution or the Texas Constitution. Kirk v. State, 949 S.W.2d 769, 772 

(Tex. App.—Dallas 1997, pet. ref’d); see also Jackson v. State, 989 S.W.2d 842, 

846 (Tex. App.—Texarkana 1999, no pet.). If Davis’s complaints that his 

sentences were too harsh had been preserved, we would nevertheless conclude that 

these complaints are without merit. 

Cumulation Orders

Davis also argues that the cumulation orders in the judgments rendered in

trial cause numbers 08-03290 and 10-10714 are void. According to Davis, he 

served part of the sentences imposed on him in these two cases before the trial 

court placed him on community supervision. Because portions of Davis’s 

sentences in trial cause numbers 08-03290 and 10-10714 were served before he 

was finally sentenced, Davis contends that the sentences he received in these cases 

could not be stacked. See Tex. Code Crim. Proc. Ann. art. 42.12, § 6(a) (West 

Supp. 2013).8 The State agrees that under the circumstances, the trial court could 

not stack Davis’s sentences in these two cause numbers. 

We agree the trial court erred when it stacked Davis’s sentences in trial 

cause numbers 08-03290 and 10-10714. If a defendant has not yet served a portion 

 8

We cite to the current version of the statute, as any amendments since the 

dates of Davis’s offenses do not impact the issues Davis raises in his appeals.
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of his sentence, the conviction on that case may be stacked. See Pettigrew v. State, 

48 S.W.3d 769, 772-73 (Tex. Crim. App. 2001). However, “if the [defendant] has 

already served a portion of his sentence before the sentence is suspended or 

probated, then a cumulation order may not be entered[;]” the decision to stack in 

that circumstance is improper. Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. 

App. 2004); see also Ex parte Barley, 842 S.W.2d 694, 695 (Tex. Crim. App. 

1992). This prohibition against stacking applies to defendants placed on shock 

probation—in that circumstance, the defendant served a portion of his sentence 

before the trial court placed him on community supervision. See O’Hara v. State, 

626 S.W.2d 32, 35 (Tex. Crim. App. 1981). In such a case, the trial court’s 

cumulation “is null and void and of no legal effect.” Id.

We hold the trial court erred in rendering a judgment that stacked the 

sentences Davis received in trial cause numbers 08-03290 and 10-10714 onto two 

of his other sentences. See id. We sustain Davis’s complaints regarding the 

cumulation of his sentences in trial cause numbers 08-03290 and 10-10714.

We order the language cumulating Davis’s sentences in trial cause numbers

08-03290 and 10-10714 be deleted, and we order that Davis serve his sentences in

trial cause numbers 08-03290 and 10-10714 concurrently. See Moore v. State, 371
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S.W.3d 221, 229 (Tex. Crim. App. 2012). As modified, the judgments the trial 

court rendered in trial cause numbers 08-03290 and 10-10714 are affirmed.

In conclusion, as modified, we affirm the district court judgments in trial 

cause numbers 08-03290 and 10-10714. We affirm the trial court judgments as 

written in trial cause numbers 07-02148, 10-10715, and 10-10716.

TRIAL CAUSE NUMBERS 07-02148, 10-10715, and 10-10716 ARE 

AFFIRMED; TRIAL CAUSE NUMBERS 08-03290 AND 10-10714 ARE 

AFFIRMED AS MODIFIED.

___________________________

 HOLLIS HORTON

 Justice

Submitted on April 21, 2014

Opinion Delivered June 25, 2014

Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.