Byrd v. State

• Decision Date: 14 September 2016
• Docket Number: NO. PD-0213-15,PD-0213-15
• Citation: 499 S.W.3d 443
• Parties: Thomas Leon Byrd, Appellant v. The State of Texas
• Court: Texas Court of Criminal Appeals

499 S.W.3d 443

Thomas Leon Byrd, Appellant

v.The State of Texas

NO. PD-0213-15

Court of Criminal Appeals of Texas.

DELIVERED: September 14, 2016

Edward Alan Bennett, Sheehy, Lovelace, & Mayfield, P.C., Waco, for Appellant.

Gabriel Price, Assistant District Attorney, Waco, Lisa McMinn, State's Attorney, Austin, for the State.

Richardson, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Johnson, Keasler, Alcala, Yeary, and Newell, JJ. joined.

OPINION

In this case, we examine our decision in Ex Parte Wrigley¹

to determine whether it applies under these facts. In Wrigley, this Court was asked to resolve the “novel issue of whether an original sentence is completed and a stacked sentence begins to run at the time the defendant makes parole on the original offense, if his parole is revoked before the trial court sentences the defendant for the stacked offense.”² In Wrigley, the defendant was in prison serving a twenty-year sentence when he committed a second offense. He was paroled on the first sentence while awaiting trial on the second offense. His parole on the first offense was then revoked before the trial court sentenced the defendant for the second offense. We held that the trial court could stack the second sentence on top of the first sentence because the “original sentence [was] still in operation.”³ Under that scenario, the defendant's second sentence would not begin to run until the conclusion of the revoked first sentence.

The facts here are similar to those in Wrigley

except for one important twist—in this case appellant was sentenced on the second offense before his parole on the first offense was revoked.⁴ So, the question we must answer today is, if a defendant commits a second offense while on parole for a first offense, is the trial court able to stack the second sentence on top of the first sentence if the defendant's parole on the first offense has not been revoked before he is sentenced on the second offense?

Following appellate court precedent, the Tenth Court of Appeals held that a trial court may stack a new sentence on a prior sentence for which the defendant is on parole, “irrespective of parole revocation.”⁵ To support its decision, the Tenth Court of Appeals relies on Jimenez v. State⁶

(and cases citing to Jimenez v. State ). Jimenez was a 1982 case from the Fourth Court of Appeals, which was decided before the enactment of applicable statutory law and, as explained herein, runs contrary to more recently decided precedent from this Court.

To be consistent with our opinion in Wrigley

, we hold that the timing of a defendant's parole revocation regarding the original offense affects whether a trial court has the ability to stack a second sentence on top of that original offense pursuant to Article 42.08(a).⁷ In this case, because there was no evidence that appellant's parole had been revoked at the time he was sentenced on his second offense, the trial court's cumulation order was invalid. We modify the judgment of the court of appeals accordingly and reform the trial court judgments to delete the cumulation order. As modified, the judgment of the court of appeals is affirmed.

BACKGROUND

In May of 2012, when appellant, Thomas Leon Byrd, was on parole for a fifteen-year-sentence on a 2008 drug conviction, he committed the offenses of possession of cocaine, possession of methamphetamine, and evading arrest or detention.⁸ According to the record before us, on October 1, 2013, appellant was convicted of these three offenses and sentenced to eighty years, twenty years, and twenty years, respectively. All three judgments in this case (one for each count), reflect that the “Date Sentence [is] to Commence” is on the date of the judgment—“10/1/2013.” However, these three judgments also order that the sentences are to “run consecutively and shall begin only when the judgment and sentence in the following case has ceased to operate: 2007-1823-C1.” Cause 2007-1823-C1 is the 2008 conviction for which appellant was on parole at the time he committed these three offenses.

There is no evidence in the record that appellant's parole had been revoked. In fact, after the trial court pronounced appellant's sentences on the three offenses and remanded appellant to the custody of the Sheriff of McLennan County, the State requested that the sentences “run consecutive to his parole.”

One of the issues appellant raised on direct appeal was that, because there was no evidence that his parole had been revoked yet, the trial court's cumulation order impermissibly ordered appellant's sentences to run consecutive to some future sentence. The Tenth Court of Appeals rejected this argument, held that parole revocation was not necessary, and affirmed appellant's conviction and consecutive sentences.⁹

We granted appellant's petition for discretionary review to decide whether a trial court may order a sentence to run consecutive to a future parole revocation. We hold that it may not.

ANALYSIS

A. Article 42.08

—A Trial Court's Authority To Stack Sentences

Article 42.08 of the Code of Criminal Procedure

governs the manner in which trial courts are to order consecutive sentences.

(a) When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases ....

(b) If a defendant is sentenced for an offense committed while the defendant was an inmate in the Texas Department of Criminal Justice and serving a sentence for an offense other than a state jail felony and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion of the sentence for the original offense.

(c) If a defendant has been convicted in two or more cases and the court suspends the imposition of the sentence in one of the cases, the court may not order a sentence of confinement to commence on the completion of a suspended sentence for an offense.¹⁰

We review a trial court's decision under Article 42.08(a)

for an abuse of discretion. “Normally, the trial judge has absolute discretion to cumulate sentences,” so long as the law authorizes the imposition of cumulative sentences.¹¹ A trial court abuses its discretion if it imposes consecutive sentences where the law requires concurrent sentences.

B. Section 508.150(b)—The Meaning of “Cease To Operate”

Article 42.08, subsection (a)

, gives a trial court judge discretion to order a defendant's sentence to begin after a preceding conviction's sentence has “ceased to operate.” To determine the meaning of the phrase, “cease to operate,” we first look for guidance in Section 508.150(b) of the Texas Government Code :

(b) For the purposes of Article 42.08, Code of Criminal Procedure

, the judgment and sentence of an inmate sentenced for a felony, other than the last sentence in a series of consecutive sentences, cease to operate:

(1) when the actual calendar time served by the inmate equals the sentence imposed by the court; or

(2) on the date a parole panel designates as the date the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence.¹²

Citing to Ex parte Kuester

,¹³ appellant argues that his 2008 sentence had already “ceased to operate” when he was released on parole. In Kuester, the applicant was initially sentenced to a ten-year prison term for burglary of a building. While in the custody of TDCJ, he struck a correctional officer and was convicted of aggravated assault. The trial court sentenced Kuester to a four-year prison term on the aggravated assault charge and ordered that it would not begin to run until Kuester's ten-year sentence had “ceased to operate.” This Court decided that “the phrase ‘completion of the sentence’ [in Art. 42.08(b) has] the same meaning as ‘cease to operate’ [in Art. 42.08(a) ] .... So a sentence is ‘completed,’ for purposes of Art. 42.08(b), when it is served out in full day-for-day, or when a parole panel approves the inmate for parole release.”¹⁴ We explained that

[Article 42.08

's] placement [in the Code of Criminal Procedure] and its language are both some support for the view that the first sentence should not have to be served in full, day-for-day, in order for the second sentence to begin. Rather, the parole laws should apply to stacked sentences as they do to all other sentences, and the second sentence should begin when the inmate makes parole on the first sentence.”¹⁵

Our analysis in Kuester

of how Article 42.08 and Section 508.150 are to be read together leads to the conclusion that a sentence “ceases to operate” when a defendant “makes parole.” Appellant would have us stop there.

However, our decision in Ex parte Wrigley¹⁶

clarifies that a defendant who had been on parole can still be considered to have not “made parole” if his parole is revoked. While in prison on a twenty-year sentence for possession of a controlled substance, Wrigley assaulted another prisoner. Wrigley was paroled on the original twenty-year sentence while the new case was pending and then pled guilty to the aggravated assault offense. His parole on the original twenty-year sentence was revoked, then he was sentenced to seven years for the aggravated assault. The trial court ordered that the seven-year sentence was to run consecutively with the original twenty-year sentence. Wrigley contended that the seven-year sentence, which was to be stacked onto the twenty-year sentence, began to run on the date he was...