McCullar v. State
Citation | 676 S.W.2d 587 |
Decision Date | 18 July 1984 |
Docket Number | Nos. 081-84,082-84 and 083-84,s. 081-84 |
Parties | Jerry McCULLAR, Appellant, v. The STATE of Texas, Appellee. |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
David B. Lobingier, Fort Worth (court appointed on appeal), for appellant.
Tim Curry, Dist. Atty., C. Chris Marshall, David H. Montague, Pamela Moore and Randell Means, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
On July 6, 1981, appellant pled guilty to three separate indictments for theft, burglary and burglary of a habitation. Punishment was assessed at ten years in each case but imposition of sentences was suspended and appellant was placed on ten years probation. Probation in the three convictions was revoked on February 3, 1983, and the trial court sentenced appellant to ten years in the theft conviction, ten years in the burglary of habitation conviction cumulated with the theft sentence, and five years 1 in the burglary conviction, cumulated with the burglary of a habitation sentence.
The Court of Appeals affirmed the convictions but set aside the cumulation orders. See McCullar v. State, 660 S.W.2d 602 (Tex.App.--Fort Worth 1983). We granted the State's petition for discretionary review in order to examine the Court of Appeals' holding that the trial court's cumulation of the sentences was "fundamentally unfair."
When the trial judge accepted appellant's guilty pleas in the three causes, he stated the following:
(emphasis supplied.)
The Court of Appeals held that it was McCullar v. State, supra, 660 S.W.2d at 603.
We first note that appellant does not contend, nor does the record before us show, that the trial court made a "promise" to sentence appellant concurrently upon revocation as a part of a plea bargain or otherwise. Appellant did not object to the imposition of consecutive sentences at the revocation hearing, but raised the issue for the first time on appeal.
When sentence is imposed, it is within the discretion of the court whether to cumulate sentences or not. Art. 42.08, V.A.C.C.P. In the instant case, the trial court at most indicated when assessing punishment and granting probation that if the sentences were later to be imposed, they would be concurrent. The trial court's statement that the "punishments" run concurrently, made after appellant pled guilty, was superfluous since the imposition of sentence is suspended when probation is granted. Art. 42.12, Sec. 3, V.A.C.C.P. Sentence is not...
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Lackey v. State, No. 08-08-00012-CR (Tex. App. 12/16/2009)
...supervision is revoked, the court is still free later to impose consecutive sentences upon revocation. See McCullar v. State, 676 S.W.2d 587, 588 (Tex. Crim. App. 1984). Thus, although the trial court ordered that each of Appellant's probated sentences ran concurrently upon imposition of co......
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Sterling v. State
...granted probation. When sentence is imposed, the trial court may or may not cumulate sentences, in its discretion. McCullar v. State, 676 S.W.2d 587, 588 (Tex.Crim.App.1984); Tex.Code Crim.Proc.Ann. art. 42.08 (Vernon Supp.1990); see Ybanez v. State, 770 S.W.2d 106, 107 (Tex.App.--Corpus Ch......
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Cazarez v. State
..."conducted two separate plea proceedings, but one consolidated punishment hearing." 914 S.W.2d at 583 ; see also McCullar v. State , 676 S.W.2d 587, 588 (Tex. Crim. App. 1984) (noting that sentence is suspended when probation is granted and, upon revocation, court may dispose of case as if ......
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Punishment Phase
...probation is granted, the trial court is not prevented from cumulating the sentences when the probation is revoked. McCullar v. State, 676 S.W.2d 587 (Tex. Crim. App. 1984). The phrase “cease to operate” as used in Art. 42.08 means the date the prisoner has served the sentence day-for-day i......
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Punishment phase
...probation is granted, the trial court is not prevented from cumulating the sentences when the probation is revoked. McCullar v. State, 676 S.W.2d 587 (Tex. Crim. App. 1984). The phrase “cease to operate” as used in Art. 42.08 means the date the prisoner has served the sentence dayfor-day in......
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Punishment Phase
...probation is granted, the trial court is not prevented from cumulating the sentences when the probation is revoked. McCullar v. State, 676 S.W.2d 587 (Tex. Crim. App. 1984). The phrase “cease to operate” as used in Art. 42.08 means the date the prisoner has served the sentence day-for-day i......
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Punishment Phase
...probation is granted, the trial court is not prevented from cumulating the sentences when the probation is revoked. McCullar v. State, 676 S.W.2d 587 (Tex. Crim. App. 1984). The phrase “cease to operate” as used in Art. 42.08 means the date the prisoner has served the sentence day-for-day i......