Opinion
NO. 09-11-00416-CR
01-04-2012
ROBERT RAY BISHOP, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 09-05676
MEMORANDUM OPINION
Appellant Robert Ray Bishop appeals from the trial court's revocation of his community supervision and adjudication of guilt. Bishop pled guilty to the offense of indecency with a child. The trial court found the evidence sufficient to find Bishop guilty, but deferred finding him guilty. The trial court placed Bishop on community supervision for five years and assessed a fine of $500. The State subsequently filed a motion to revoke Bishop's unadjudicated community supervision. Bishop pled "true" to two violations of the terms of his community supervision. The trial court found that Bishop violated the terms of the community supervision order, revoked Bishop's community supervision, and imposed a sentence of ten years of confinement. The trial court ordered that this sentence shall run consecutively and shall begin only when the judgment and Cause Number 6534 in Newton County, Texas has ceased to operate.
In his sole issue, Bishop argues that the trial court erred in cumulating the sentences in this case. A defendant must be eligible for cumulative sentencing before a judge can exercise his discretion to cumulate sentences. Miller v. State, 33 S.W.3d 257, 261 (Tex. Crim. App. 2000). A defendant is eligible for cumulation if the defendant has "been convicted in two or more cases[.]" Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2011). Absent a prior conviction, the trial judge lacks discretion or authority to cumulate the sentences. Miller, 33 S.W.3d at 261. For the trial court to order a sentence to run consecutively to a sentence received by the defendant in a previous case, at the time of sentencing there must be evidence in the record that the defendant actually was convicted in the previous case. Id.; see also Bullard v. State, 50 S.W. 348, 349 (Tex. Crim. App. 1899). For cumulation purposes, a conviction occurs when a sentence is either imposed or suspended. Barela v. State, 180 S.W.3d 145, 148 (Tex. Crim. App. 2005). An unlawful cumulation order does not constitute reversible error. Beedy v. State, 250 S.W.3d 107, 113 (Tex. Crim. App. 2008). The appropriate remedy for an unlawful cumulation order is to delete the unlawful cumulation order. Id. In this case, at the sentencing hearing, the following exchange occurred:
[THE COURT]: And this case will run consecutive to any other cases you get. So, whatever happens there -- has the case up in Newton been disposed of?The trial court's written cumulation order provides that the sentence shall begin only when the judgment and sentence in Cause Number 6534 in Newton County, Texas has ceased to operate. However, there is no evidence in the appellate record to indicate whether Bishop's sentence in the Newton County case had either been imposed or suspended at the time the trial court ordered the Jefferson County sentence to be stacked. Moreover, the trial court's statement in the record suggests that the court anticipated a future conviction out of Newton County. In its brief, the State agrees that the trial court erred in cumulating the sentence in this case upon the anticipated sentence in Newton County.
[PROSECUTOR]: No, sir. I have spoken with them and I will let them know the feelings the Court has to that. I think it may change their opinions.
[THE COURT]: Yeah. Whatever you get in Newton is going to be stacked up on top of this. The more time we can get keep you away from our 12 year olds, the better off we are.
We reform the trial court's judgment to delete the cumulation order, and as modified that judgment is affirmed.
AFFIRMED AS MODIFIED.
CHARLES KREGER
Justice
Do not publish Before Gaultney, Kreger, and Horton, JJ.
See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd).