Beedy v. State
| Decision Date | 02 April 2008 |
| Docket Number | No. PD-1224-06.,No. PD-1225-06.,PD-1224-06.,PD-1225-06. |
| Citation | 250 S.W.3d 107 |
| Parties | Arnold Ray BEEDY, Appellant v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Joseph W. Varela, Houston, for Appellant.
Jeffrey L. Van Horn, State's Atty., Lisa C. McMinn, Asst. State's Atty., Austin, for State.
The court of appeals held that the trial judge erred in ordering Arnold Ray Beedy's deferred adjudication community supervision term to begin after his prison sentence ended.1 The court deleted the cumulation order.2 We hold that the court of appeals did not err in rejecting the State's proposal to remand for resentencing because an unlawful cumulation order does not constitute "reversible error" under Article 44.29, Texas Code of Criminal Procedure.
In a single proceeding, Beedy entered two open guilty pleas to two counts of indecency with a child by exposure. He also pled true to an enhancement paragraph alleging a prior conviction for sexual assault of a child. The trial judge sentenced Beedy to twelve years' imprisonment on Count One, deferred adjudication of guilt on Count Two, and ordered Beedy to serve ten years of community supervision. As to Count Two, the trial judge entered a cumulation order stacking Beedy's deferred adjudication community supervision term onto Beedy's prison sentence for Count One.3
Beedy appealed, arguing that the trial judge abused his discretion by stacking his ten-year deferred adjudication community supervision term onto his twelve-year prison sentence.4 The court of appeals agreed and held that the cumulation order was improper because deferred adjudication community supervision is not a "conviction" for purposes of the statutes authorizing cumulation, Texas Penal Code Section 3.03(c) and Texas Code of Criminal Procedure Article 42.08(a).5 The court then considered the appropriate remedy.6 In doing so, the court rejected the State's argument that the case should be remanded for a new punishment hearing on Count Two.7 Relying on our precedent, the court held: "The proper remedy for a void cumulation order is to reform the judgment to delete the cumulation order."8 In deleting the cumulation order, the court ordered Beedy's prison sentence and term of community supervision to run concurrently.9 The court reasoned, "This disposition is appropriate because the decision to stack comes after the decision . . . to adjudicate or not to adjudicate guilt and to assess punishment if guilt is decreed."10
The State petitioned us for review, and we granted review to resolve the following issue:
If the trial court assesses punishment and imposes a cumulation order that an appellate court later determines is improper, should the order be deleted or is the correct remedy to remand the cause to the trial court for resentencing in order to ensure that the trial court is able to assess the level of punishment originally intended?
The State claims that when a trial judge assesses punishment and enters an improper cumulation order, the error should be remedied by remanding the case to the trial judge for resentencing. The State maintains that the deletion of an improper cumulation order penalizes the trial judge for making a mistake and that it strips the trial judge of his or her discretion to fashion a punishment that approximates, as closely as possible, the punishment that was originally intended.
The State contends that by deleting the improper cumulation order in this case, the court of appeals decreased the trial judge's oversight of Beedy by ten years. According to the State, the trial judge may have chosen a different punishment if he had known that cumulation was improper. And proceeding under the assumption that the trial judge would want to cumulate, the State contends that, if Count Two were remanded for the reassessment of punishment, the trial judge will have to find Beedy guilty before assessing punishment. Continuing, the State suggests that the trial judge may decide to place Beedy on community supervision after adjudicating him guilty and probating his sentence.
Beedy argues that the State's position conflicts with our precedent and submits that there is no good reason to overrule it. Beedy further contends that the State's assertion that the trial judge may have chosen a different punishment had he known cumulation was improper invites speculation.
The Legislature has assigned the task of cumulating sentences exclusively to the trial judge.11 In some cases, the trial judge is required to cumulate individual punishment, while in other cases, the trial judge's decision to cumulate is discretionary.12 Like the assessment of individual punishment, a trial judge's decision to cumulate under Texas Code of Criminal Procedure, Article 42.08(a), is "a normative, discretionary function that does not turn on discrete findings of fact."13 As a result, when a trial judge lawfully exercises the option to cumulate, that decision is unassailable on appeal.14 But when a trial judge unlawfully enters a cumulation order in a case that did not involve a negotiated plea agreement, the appellate court, according to our precedent, will reform the judgment by deleting the order.15
By questioning this well-established remedy, the State's ground for review requires us to decide whether an unlawful cumulation order can be remedied by a reversal. To resolve this question, we turn to Article 44.29 of the Texas Code of Criminal Procedure. Although we have never discussed the role of Article 44.29 when setting aside an unlawful cumulation order, our precedent applying this remedy makes clear that we have never interpreted "reversible error" under Article 44.29 to encompass an unlawful cumulation order.
Article 44.29 is titled "Effect of reversal."16 As enacted by the Fifty-Ninth Legislature in 1965, Article 44.29 stated: "Where the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in case the new trial had been granted by the court below."17 In 1981, after the courts of civil appeals became courts of appeals and were given jurisdiction over criminal law matters, the Legislature amended 44.29 to include courts of appeals.18 As amended, Article 44.29 provided: "Where the court of appeals or the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in case the new trial had been granted by the court below."19 We interpreted Article 44.29 to mean that when an appellate court concluded that reversible error occurred during either phase of a trial and the jury had assessed punishment, the defendant was entitled to a complete new trial on remand.20 We rendered this interpretation because, under Article 37.07, Texas Code of Criminal Procedure, a defendant was required to have the same jury determine guilt and assess punishment.21 Article 44.29, therefore, permitted a remand limited to the reassessment of punishment only where the trial judge assessed punishment.22
In 1987, the Legislature made significant changes to Article 44.29 by creating subsections (a) and (b).23 The text of subsection (a), which has remained unchanged since 1987, describes the effect of a reversal by an appellate court based on an error made during the guilt phase only or errors made at both the guilt and punishment phases.24 Under subsection (a), when a new trial is granted "the cause shall stand as it would have stood in case the new trial had been granted by the court below."25 Subsection (b) permitted, for the first time, a remand for the limited purpose of reassessment of punishment when an appellate court determined that there was reversible error at the punishment phase and the jury assessed punishment.26 When a new trial was granted under subsection (b), the trial court was directed to "commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial under Subsection (b), Section 2, Article 37.07, of this code."27 At that time, the court was required to empanel a jury to assess punishment if the defendant so elected.28 Except for the addition of a clause that makes subsection (b) inapplicable to death sentences, the text of subsection (b) has remained unchanged since 1987.29
We considered the applicability of Article 44.29(b) to remedy a lawful but insufficient restitution order entered as a condition of community supervision in Barton v. State.30 There, we granted review to determine whether the Fourteenth Court of Appeals erred in holding that Article 44.29(b) superceded the remedy we announced in Cartwright v. State in 1980.31 In Cartwright, we held that when the record is insufficient to support the amount of restitution ordered as a condition of probation, the proper remedy is to remand the cause to the trial judge for a new restitution hearing.32 The court of appeals in Barton concluded that the amount of restitution ordered by the trial judge as a condition of community supervision was not supported by the record.33 The court then rejected Cartwright's remedy and held that the appellant, Barton, was entitled to an entirely new punishment hearing under 44.29(b).34
We disagreed and held that Article 44.29(b) did not supercede the remedy announced in Cartwright.35 We determined that the Cartwright Court, without specifically mentioning the version of Article 44.29 in effect before 1987, "implied that the lack of a sufficient record to sustain a restitution award did not amount to `reversible error' so as to trigger the procedure outlined in the article"36 We reached this conclusion based on the Cartwright Court's decision "to remand the case for a new restitution hearing rather than a new trial" and "its emphasis on the fact that the error involved a condition...
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Morris v. State
...the appropriate remedy would have been a remand to the trial court. 4. Unlawful cumulation orders do not constitute reversible error. In Beedy v. State,48 a case decided after the parties submitted their briefs in this case, we addressed a nearly identical issue. There, the trial court had ......
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...be cumulated). The Texas Legislature has “assigned the task of cumulating sentences exclusively to the trial judge.” Beedy v. State, 250 S.W.3d 107, 110 (Tex.Crim.App.2008) ; Barrow v. State, 207 S.W.3d 377, 380 (Tex.Crim.App.2006). In some cases, the trial court is statutorily required to ......
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Punishment Phase
...a deferred adjudication onto a prison sentence because a defendant on deferred adjudication has not been sentenced. See Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008). A trial court does not have authority to partially cumulate sentences. Morris v. State, 301 S.W.3d 281 (Tex. Crim. A......
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Punishment Phase
...a deferred adjudication onto a prison sentence because a defendant on deferred adjudication has not been sentenced. See Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008). A trial court does not have authority to partially cumulate sentences. Morris v. State, 301 S.W.3d 281 (Tex. Crim. A......
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Punishment Phase
...a deferred adjudication onto a prison sentence because a defendant on deferred adjudication has not been sentenced. See Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008). A trial court does not have authority to partially cumulate sentences. Morris v. State, 301 S.W.3d 281 (Tex. Crim. A......
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Punishment Phase
...a deferred adjudication onto a prison sentence because a defendant on deferred adjudication has not been sentenced. See Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008). A trial court does not have authority to partially cumulate sentences. Morris v. State, 301 S.W.3d 281 (Tex. Crim. A......