NO. PD-0213-15 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

REPLY 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 7/28/2015 8:57:11 AM

Accepted 7/28/2015 10:09:55 AM

ABEL ACOSTA

CLERK
Appellant’s Reply Brief Page 2

Table of Contents

Table of Contents ................................................................................................ 2

Index of Authorities............................................................................................ 3

Issue Presented.................................................................................................... 4

Summary of the Argument................................................................................ 4

Argument............................................................................................................. 5

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

future parole revocation.................................................................................. 5

Prayer................................................................................................................... 8

Certificate of Compliance................................................................................... 9

Certificate of Service ........................................................................................... 9
Appellant’s Reply Brief Page 3

Index of Authorities

Texas Cases

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

Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008)..................................... 7

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).......................................................................................................... 6

Sullivan v. State, 387 S.W.3d 649 (Tex. Crim. App. 2013)................................. 7
Appellant’s Reply Brief Page 4

Issue Presented

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

a future parole revocation.

Summary of the Argument

In this Reply Brief, Appellant responds to the State’s assertion that 

Appellant’s argument that a sentence may not be ordered to run 

consecutively with a future (or unproved) parole revocation “is directly 

contrary to this Court’s decision in Barela.” (State’s Brief at 5) The State is 

incorrect.
Appellant’s Reply Brief Page 5

Argument

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

future parole revocation.

The State relies on Barela v. State, 180 S.W.3d 145 (Tex. Crim. App. 

2005), to assert that only a prior conviction is required for cumulation of 

sentences, even if the defendant has not yet been sentenced in the case giving 

rise to the prior conviction. With all due respect to the State, this assertion 

does not resolve the issue presented by Appellant. In equating this “prior 

conviction” requirement to parole revocation proceedings, Appellant 

contends that the State must prove that the defendant’s parole has been 

revoked before the court can order a sentence to run consecutively with a 

sentence for which the defendant was on parole at the time of the offense. 

Here, the State did not even prove that revocation proceedings had been 

instituted against Appellant.

The State Must Prove a “Conviction”

In Barela, this Court held that the State “must” provide evidence of the 

prior conviction to support a cumulation order. Barela, 180 S.W.3d at 148. 

Appellant contends by analogy that, if the State seeks to obtain a cumulation 

order for a prior conviction for which the defendant was on parole at the 
Appellant’s Reply Brief Page 6

time of the offense, the State “must” prove: (1) parole revocation proceedings 

were commenced against the defendant; and (2) his parole was revoked.

Otherwise, the defendant has not been “convicted” in his parole revocation 

proceeding.

Absent Such Proof, Cumulation is Unauthorized

If the State fails to establish these two facts with respect to a defendant 

on parole, then a trial court’s cumulation order effectively orders the

sentence to run consecutively with some future sentence or, if parole is not 

revoked, some non-existent 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 if convicted in some pending case. 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).

By the same token, the statute does not authorize cumulative sentences 

where there is a pending parole revocation proceeding because the

defendant’s parole has not been (and may not be) revoked.
Appellant’s Reply Brief Page 7

Here, the State made no effort to prove whether parole revocation 

proceedings were even instituted against Appellant, much less whether his 

parole was revoked.

For these reasons, Appellant continues to assert that the trial court 

abused its discretion by ordering consecutive sentences that were not 

authorized by law.

Therefore, 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 v. State, 387 S.W.3d 

649, 653 (Tex. Crim. App. 2013); Beedy v. State, 250 S.W.3d 107, 113 (Tex. 

Crim. App. 2008).
Appellant’s Reply Brief Page 8

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 Reply Brief Page 9

Certificate of Compliance

The undersigned hereby certifies, pursuant to Rule of Appellate 

Procedure 9.4(i)(3), that this computer-generated document contains 889

words.

 /s/ Alan Bennett 

E. Alan Bennett

Certificate of Service

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

reply brief was served by email on July 28, 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