Opinion
NO. 09-11-00167-CR
05-16-2012
CHARLIE JULIAN FOSHEE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 07-01615
MEMORANDUM OPINION
Charlie Julian Foshee appeals from the trial court's assessment of a 20-year sentence. Raising one appellate issue, Foshee contends that the trial court's cumulation order and judgment are void. We modify the judgment and affirm it as modified.
Charlie Julian Foshee is also known as Charley Foshee.
Pursuant to a plea agreement, Foshee pled guilty to the offense of aggravated assault with a deadly weapon. The trial court found the evidence sufficient to find Foshee guilty, but deferred finding him guilty. The trial court placed Foshee on community supervision for ten years. The State subsequently filed a motion to revoke Foshee's unadjudicated community supervision. Foshee pled "true" to four violations of the terms of his community supervision. The trial court found Foshee violated the terms of the community supervision order, revoked Foshee's community supervision, and found him guilty of aggravated assault with a deadly weapon and sentenced him to 20 years of confinement.
The trial court's judgment states that this sentence "shall run consecutively and shall begin only when the judgment and sentence in all other cases has ceased to operate."
A trial court generally has the discretion to cumulate or stack sentences. Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2011). A defendant must be eligible for cumulative sentencing before a judge can exercise this discretion. 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). 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). An appellate court may reform a cumulation order if the appellate record contains the necessary data and evidence. See Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986).
The State contends that we should reform the written cumulation order to comply with the oral pronouncement of sentence, which according to the State "was for the sentence in this case to run consecutive to the 18-year sentence for the charge of indecency with a child, a lesser included offense of aggravated sexual assault of a child, handed down to Appellant on November 2, 2010, out of Cherokee County, Texas." At the sentencing hearing, the trial judge pronounced sentencing as follows: "I assess your punishment at 20 years' confinement in the Institutional Division. You are going to get credit by law for whatever time you are entitled to and this case will run consecutive to his -- as many of your cases as I can possibly make it run consecutive to."
We review the record considered by the trial court to determine if there is sufficient data to allow us to reform the trial court's cumulation order. Count 5 in the State's motion to revoke alleges, "[Foshee] committed the offense of Indecency With a Child, on or about November 2, 2009, in Cherokee County, Texas, and was finally convicted of said offense on November 2, 2010[.]" At the hearing, Foshee pled true to this violation. Foshee then told the trial court that he received an 18-year sentence for this conviction. Based on the information before the trial court, we find we have sufficient data to allow us to reform the cumulation order. Therefore, we modify the trial court's judgment so that Foshee's punishment of 20 years' confinement, by virtue of his conviction for aggravated assault, shall begin when the judgment and 18-year sentence against Foshee from Cherokee County, Texas, for his November 2, 2010 conviction for indecency with a child shall have ceased to operate. We affirm the trial court's judgment as modified.
AFFIRMED AS MODIFIED.
CHARLES KREGER
Justice
Do not publish Before McKeithen, C.J., Gaultney and Kreger, JJ.