i 

PD-0213-15 

IN THE

COURT OF CRIMINAL APPEALS 

SITTING AT AUSTIN, TEXAS

_________________________________________________

THOMAS LEON BYRD,

PETITIONER

V.

THE STATE OF TEXAS

___________________________________________

ON REVIEW FROM THE TENTH COURT OF APPEALS

No. 10-13-00381-CR

AN APPEAL OF A CONVICTION IN CAUSE NO. 2012-1658-C2

FROM THE 19TH JUDICIAL DISTRICT COURT OF

MCLENNAN COUNTY, TEXAS

____________________________________________

STATE'S BRIEF

____________________________________________

ABELINO "ABEL" REYNA GABRIEL C. PRICE

Criminal District Attorney Appellate Division

McLennan County, Texas State Bar No. 24068071

219 North 6th Street, Suite 200

Waco, Texas 76701

[Tel.] (254) 757-5084

[Fax] (254) 757-5021

[Email] 

gabe.price@co.mclennan.tx.us

PD-0213-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/20/2015 10:25:57 AM

Accepted 7/20/2015 11:30:46 AM

ABEL ACOSTA

CLERK
ii

Identity of Parties and Counsel

Petitioner Thomas Leon Byrd

Petitioner’s Trial Attorney Mr. Thomas West

4125 W. Waco Dr.

Waco, TX 76710

Mr. Dan Stokes Jr.

2121 W. Waco Dr.

Waco, Texas 76710

Petitioner’s Attorney on Appeal Mr. Alan Bennett

510 N. Valley Mills Dr.

Suite 500

Waco, Texas 76710

State’s Trial Attorney Mr. Landon Ramsay

Mr. Evan O’Donnell

Assistant Criminal District 

Attorneys

219 North 6th Street, Suite 200

Waco, Texas 76701

State’s Attorney on Appeal Abelino ‘ Abel’ Reyna

Criminal District Attorney

Gabriel Price

Assistant Criminal District 

Attorney

219 North 6th Street, Suite 200

Waco, Texas 76701
iii

Table of Contents

Contents

Identity of Parties and Counsel............................................................................ ii

Table of Contents ..................................................................................................iii

Index of Authorities............................................................................................... v

Statement of the Case ...........................................................................................vi

Issues Presented ..................................................................................................viii

Statement Regard Oral Argument....................................................................viii

Summary of Argument ..........................................................................................1

Argument .................................................................................................................2

Issue 1: The trial court properly cumulated Petitioner’s sentence with a 

prior sentence that had been imposed.................................................................2

Standard of Review.............................................................................................2

Argument .............................................................................................................2

No Evidence of Parole Status ........................................................................2

Sufficiency of Evidence of Prior Conviction...............................................3

A Present Conviction Can be Stacked on a Prior Conviction ..................5

The trial court’s cumulation order was authorized...................................6

Conclusion........................................................................................................8
iv

Prayer......................................................................................................................10

Certificate of Compliance ....................................................................................10

Certificate of Service .............................................................................................11
v

Index of Authorities

State Cases

Banks v. State, 708 S.W.2d 460 (Tex. Crim. App. 1986)......................................3, 9

Bollman v. State, 2009 WL 161032 (Tex. App.—Fort Worth Jan. 22, 2009, 

no pet.) ....................................................................................................................5

Byrd v. State, 2015 WL 294674 (Tex. App.—Waco Jan. 22, 2015).....................v, 3

Barela v. State, 180 S.W.3d 145 (Tex. Crim. App. 2005)........................ 3, 4, 5, 6, 9

Ex parte Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003) .......................................6

Ex parte Kuester, 21 S.W.3d 264, 265 (Tex. Crim. App. 2000) ............................6

Ex parte Vela, 460 S.W.3d 610 (Tex. Crim. App. 2015)........................................7, 8

Hill v. State, 213 S.W.3d 533, 537 (Tex. App.—Texarkana 2007, no pet.)....6, 7

Hurley v. State, 130 S.W.3d 501 (Tex. App.—Dallas 2004, no pet.) .......................2

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

pet. ref'd)........................................................................................................ 2, 6, 9

Townsend v. State, 187 S.W.3d 131, 133 (Tex. App.—Texarkana 2006,

pet. ref'd).................................................................................................................7

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

pet. ref'd). ............................................................................................................3, 9
vi

State Statutes and Rules

Tex. Crim. Proc. Code Ann. § art. 42.08(a) (West)...................................................8

Tex. R App. P. 9.4(e)...............................................................................................10

Tex. R. App. P. 9.4(i)...............................................................................................10

Tex. R. App. P. 9.4(i)(1)..........................................................................................11

Statement of the Case

Petitioner, THOMAS LEON BYRD, was charged by indictment with 

POSSESSION OF A CONTROLLED SUBSTANCE IN A DRUG FREE 

ZONE (Habitual) COUNTS I, II and EVADING ARREST OR DETENTION 

WITH A PRIOR CONVICTION (Enhanced) COUNT III as proscribed by 

Sections 481.115, 481.134 of the Texas Health and Safety Code and 38.04 of 

the Texas Penal Code. This offense was alleged to have been committed on 

or about the 23rd day of October, 2012, in McLennan County, Texas. 1 CR 5-

71. The State abandoned the drug free zone allegation. 3 RR 52.

Petitioner pled not guilty to ALL counts. 1 CR 57. Trial was before the 

court beginning September 30th, 2013 and ending October 1st, 2013 with a 

 1 Reference to the clerk’s record is indicated by volume number followed by CR followed by page number 

2 Reference to the reporter’s record is indicated by volume number followed by RR followed by page 

number
vii

verdict of guilty on Counts I, II and III. 5 RR 187-188. Punishment was 

assessed by the fury at eighty (80) years imprisonment on Count I and 

twenty (20) years imprisonment on Counts II and III in the Texas 

Department of Criminal Justice – Institutional Division and no fine. 6 RR 

41-42. The trial court ordered that the sentence in this case not begin to 

operate until the sentence in cause number 2007-1823-C1 out of the 19th

District Court ceases to operate. 6 RR 45.

The Tenth Court of Appeals affirmed Petitioner’s conviction and 

sentence in a memorandum opinion on January 22nd, 2015. Byrd v. State, 10-

13-00381-CR, 2015 WL 294674 (Tex. App.—Waco Jan. 22, 2015), petition for 

discretionary review granted (May 20, 2015).
viii

Issues Presented

Petitioner’s Issues Presented and State’s Response to each:

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

future parole revocation.

State’s Response: The trial court properly cumulated the current sentence 

on a prior sentence that had been previously imposed.

Statement Regard Oral Argument

The Honorable Court of Criminal Appeals granted review as to the 

above issue and ordered that oral arguments would not be permitted. 
1

Summary of Argument

There is no evidence in the record as to Petitioner’s parole status on 

his prior conviction at the time of sentencing. Petitioner attempts to add an 

additional sufficiency requirement to the proof that the State must provide 

at trial without any authoritative support for his position. The State met its 

burden of proof with regard to the details of the prior conviction as 

identified in this Court’s prior case law. Without the factual basis in the 

record for this Court to review, this case should be dismissed as 

improvidently granted. 

A current sentence may be stacked on a prior conviction where the 

sentence has not yet been imposed under this Court’s previous decision in 

Barela. It is the order of conviction that is important and not the order of 

sentencing. Since Petitioner was previously convicted in the first case, the 

trial court’s cumulation order was valid and there was no abuse of 

discretion.

The trial court was not limited by the legislature from entering this 

cumulation order. This Court has noted that the legislature has intended to 

give the trial court the maximum amount of flexibility when cumulating 

sentences. Because not unauthorized, the trial court was authorized in 

entering the cumulation order in Petitioner’s case.
2

Argument

Issue 1: The trial court properly cumulated Petitioner’s sentence with a 

prior sentence that had been imposed.

The issue in Petitioner’s case is narrowly presented as whether the 

trial court’s cumulation order was authorized. The issue is not how the 

sentence is to be calculated by the Texas Department of Criminal Justice.

STANDARD OF REVIEW

An appellate court reviews the trial court's decision to stack or 

cumulate sentences for an abuse of discretion. Hurley v. State, 130 S.W.3d 

501, 503 (Tex. App.—Dallas 2004, no pet.). An abuse of discretion generally 

will be found only if the trial court imposes consecutive sentences where 

the law requires concurrent sentences, where the court imposes concurrent 

sentences but the law requires consecutive ones, or where the court 

otherwise fails to observe the statutory requirements pertaining to 

sentencing. Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—Houston [14th 

Dist.] 2001, pet. ref'd).

ARGUMENT

No Evidence of Parole Status

There is no evidence to support Petitioner’s position that he was on 

parole for the first conviction in cause number 2007-1823-C1 at the time he 
3

was sentenced in this case3. In Wilson, the appellant argued in his first point 

of error that the court erred in cumulating his new sentence with a sentence 

he was currently on parole for. Wilson v. State, 854 S.W.2d 270, 273 (Tex. 

App.—Amarillo 1993, pet. ref'd). The court of appeals held that, “It would 

therefore appear from the record that, there being no evidence appellant 

was on parole, there is no factual basis for appellant's first point of error.” 

Id. Similarly in Petitioner’s case, there being no evidence in the record of 

his parole status, there is no factual basis for this issue on appeal and 

therefore this case should be dismissed as improvidently granted. 

Sufficiency of Evidence of Prior Conviction

In Banks, this Court held that there are five requirements to a proper 

cumulation order: (1) the trial court number of the prior conviction; (2) the 

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

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

the nature of the prior conviction. Banks v. State, 708 S.W.2d 460 (Tex. Crim. 

App. 1986); see also Barela v. State, 180 S.W.3d 145, 148 (Tex. Crim. App. 

2005). Petitioner is attempting to add an additional requirement of the State 

to prove whether a defendant is currently on parole or whether his parole 

has been revoked. App. Br. 114. Petitioner relies on Barela as his sole 

 3 The 10th Court of Appeals found that it was clear from the record that Petitioner was on parole when 

this offense was committed but did not discuss whether he was on parole at the time of sentencing. See 

Byrd, 2015 WL 294674.

4 Reference to Petitioner’s brief is indicated by App. Br. Followed by page number.
4

supporting authority on this point. App. Br. 11. Petitioner’s reliance on 

Barela is misplaced. Barela contains no requirement or indication that the 

State must provide evidence of the defendant’s current status as to the 

serving of his sentence. In fact Barela stands for the opposite proposition.

In Barela, this Court reviewed a trial court’s order cumulating a 

conviction and sentence in Texas with a prior conviction from Arizona 

where the defendant had escaped prior to sentencing. Id. at 147. This Court 

held that “It is the order of conviction, rather than the order of sentencing, 

that is important when contemplating the propriety of a cumulation order. 

There is no requirement that a sentence must be imposed in the first 

conviction before a stacked sentence can be imposed in any subsequent 

sentence.” Id. at 149. This would indicate that the State is not required to 

prove the current status of a sentence to support a valid cumulation order. 

As long as the State produces evidence that the defendant has been 

convicted prior to the current conviction and sufficient details of the prior 

conviction to allow the Texas Department of Criminal Justice to properly 

calculate the sentence, a cumulation order by the court would be upheld. In 

Petitioner’s case the State produced legally sufficient evidence to allow 

TDCJ to identify and properly calculate Petitioner’s sentence. State’s 

Exhibit 36; 6 RR 5-6. The trial court did not abuse its discretion in 

cumulating Petitioner’s sentences and Petitioner’s sole issue should be 

denied.
5

A Present Conviction Can be Stacked on a Prior Conviction

Petitioner argues that a court may not order a sentence to run 

consecutively with a future sentence and relies on Bollman. App. Br. 12. 

Bollman is not relevant to Petitioner’s case. In Bollman, the trial court 

ordered the sentence to run consecutively with a sentence in a case that 

was currently pending without any disposition or conviction. Bollman v. 

State, 2-08-061-CR, 2009 WL 161032, at *2 (Tex. App.—Fort Worth Jan. 22, 

2009, no pet.). In Bollman the State conceded that the cumulation order was 

invalid because there was no evidence under Barela of any prior conviction. 

Id at 5. Bollman is distinguishable to Petitioner’s case because in Petitioner’s 

case the State did present evidence of his prior conviction. The State 

presented legally sufficient evidence to prove that Petitioner was 

previously convicted and that he was the same person that was convicted

on July 8th, 2008 in cause number 2007-1823-C1 in the 19th District Court of 

McLennan County with a fifteen (15) year sentence for Possession of a 

Controlled Substance with Intent to Deliver Cocaine and Petitioner pled 

true to the enhancement paragraph contained in the indictment which was 

this prior conviction. State’s Exhibit 36; 6 RR 5-6. Additionally, Petitioner’s 

reliance on Bollman is directly contradicted by this Court’s decision in 

Barela. This Court specifically addressed the issue of stacking a current 

sentence onto a future sentence from a prior conviction. Barela, 180 S.W.3d 

at 147, fn5. 
6

The trial court’s cumulation order was authorized

This Court has held that it is the order of conviction and not the order 

of sentencing that authorizes a valid cumulation order. Id. at 149. An abuse 

of discretion generally will be found only if the trial court imposes 

consecutive sentences where the law requires concurrent sentences, where 

the court imposes concurrent sentences but the law requires consecutive 

ones, or where the court otherwise fails to observe the statutory 

requirements pertaining to sentencing. Nicholas, 56 S.W.3d at 765.

The issue in Petitioner’s case is narrowly presented as whether the 

trial court’s cumulation order was authorized. The issue is not how the 

sentence is to be calculated by the Texas Department of Criminal Justice. 

Petitioner cites to Ex Parte Kuester for the proposition that once a defendant 

is released on parole the sentence “ceases to operate” and therefore the 

court may not stack a new sentence on that case. App. Br. 14-15. The issue 

before this Court in Kuester was stated as, “This case presents a

complicated time-credit issue, specifically, how to compute time on a 

stacked sentence.” Ex parte Kuester, 21 S.W.3d 264, 265 (Tex. Crim. App. 

2000), disapproved of by Ex parte Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003). 

The same argument as Petitioner’s was made in Hill where the appellant 

relied on Kuester to argue that since his sentence had “ceased to operate” 

when he was placed on parole the judge lacked the authority to cumulate 

his sentence with his current parole. Hill v. State, 213 S.W.3d 533, 537 (Tex. 

App.—Texarkana 2007, no pet.). The Hill court concluded that Kuester only 
7

dealt with time credit and did not address the authority of a trial court’s 

cumulation order. Id. The only issue in Petitioner’s case is whether the trial 

court had the discretion to cumulate the sentences5. Kuester does not stand 

for the proposition that a trial court is not authorized to cumulate new 

sentence with a prior sentence that has ceased to operate. No Texas court 

has ever placed a limitation on the trial court’s authority to cumulate a 

sentence based solely on the fact that the previous conviction had ceased to 

operate and this Court should not place a limitation on the trial court’s 

authority that was not intended by the legislature and not included within 

Article 42.08. 

Moreover, this Court has recognized that the legislature has intended 

to give the trial court broad discretion in cumulating sentences. “The 

legislature sought to give the trial court the maximum flexibility possible in 

stacking sentences.” Ex parte Vela, 460 S.W.3d 610 (Tex. Crim. App. 2015); 

see also Townsend v. State, 187 S.W.3d 131, 133 (Tex. App.—Texarkana 2006, 

pet. ref'd). The rationale and reasoning behind the ruling in Vela is not 

present in Petitioner’s case either. The decision in Vela was whether the 

granting of a new trial for punishment on the first conviction in a series of 

two consecutive sentences also removed the court’s cumulation order. Id.

The concern in Vela was that the granting of the new punishment trial 

could lead to an unlawful cumulation order if the court granted 

 5 The issue of time calculation may arise in a Writ of Habeas Corpus in the future as a similar issue as 

what was presented in Kuester but that issue is not before this Court on this case and is not ripe for 

review.
8

community supervision and thus when a new punishment trial is granted 

only on the first conviction in the series the court must then treat that as the 

subsequent conviction for stacking purposes. See Vela 460 S.W.3d 610. That 

reasoning and concern does not apply to the issue in Petitioner’s case. 

Petitioner was convicted and sentenced in the prior cause number. The trial 

court did not have the option of now sentencing Petitioner to community 

supervision on the first conviction or modifying the sentence in any way. 

Any action regarding parole in the first conviction, cause number 2007-

1823-C1, would not lead to an unlawful cumulation order and therefore the 

trial court’s cumulation order in this case is not affected by the parole 

status of the prior case. 

Regardless of the time calculation by TDCJ on Petitioner’s sentences, 

the trial court acted within its discretion by cumulating Petitioner’s 

sentences. Since the trial court was not prohibited from cumulating 

Petitioner’s sentences there was no abuse of discretion. Article 42.08(a) 

does not limit the authority of a trial court’s discretion in enter a 

cumulation order expect with regards to suspended sentences. Tex. Crim. 

Proc. Code Ann. § art. 42.08(a) (West). Because the legislature has given the 

trial court broad discretion in cumulating sentence, and the trial court was 

not prohibited from cumulating this sentence there was no abuse of 

discretion and Petitioner’s sole issue should be denied.

Conclusion
9

There is no evidence in the record as to the current parole status at the time 

of sentencing in regards to cause number 2007-1823-C1 and thus no factual basis 

to support Petitioner’s issue. This Court should dismiss this petition as 

improvidently granted. See Wilson, 854 S.W.2d at 273.

The State presented legally sufficient proof of; the cause number, the date, 

the court, the term of years and the nature of the case, in Petitioner’s prior 

conviction which the instant case was cumulated. The State satisfied the 

evidentiary requirements to support the trial court’s order under Barela. Barela, 

180 S.W.3d at 148 (citing Banks, 708 S.W.2d at 461).

Even assuming that Petitioner was on parole at the time of sentencing, the 

trial court’s cumulation order was valid under this Court’s prior case law. The trial 

court was not prohibited from ordering this sentence be “stacked” on the prior 

sentence and thus it was within the trial court’s authority to enter the cumulation 

order. See Nicholas, 56 S.W.3d at 765. The 10th Court of Appeals decision should 

be affirmed.
10

Prayer

For the foregoing reasons, the State of Texas prays that this 

Honorable Court affirm the conviction and punishment of THOMAS 

LEON BIRD and prays for such other and further relief as may be provided 

by law.

Respectfully Submitted:

ABELINO ‘ABEL’ REYNA

Criminal District Attorney

McLennan County, Texas

/s/Gabriel C. Price_____________

GABRIEL C. PRICE

Appellate Division

219 North 6th Street, Suite 200

Waco, Texas 76701

[Tel.] (254) 757-5084

[Fax] (254) 757-5021

[Email] 

gabe.price@co.mclennan.tx.us

State Bar No. 24068071

Certificate of Compliance

This document complies with the typeface requirements of Tex. R 

App. P. 9.4(e) because it has been prepared in a conventional typeface no 

smaller than 14-point for text and 12-point for footnotes. This document 

also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if 
11

applicable, because it contains 2,297 words, excluding any parts exempted 

by Tex. R. App. P. 9.4(i)(1).

Certificate of Service

I certify that I caused to be served a true and correct copy of this 

State’s Brief by eservice or email on Petitioner’s attorney of record, Alan 

Bennett, and the State Prosecuting Attorney.

DATE: 7/20/2015 /s/Gabriel C. Price________________

GABRIEL C. PRICE