Rubio v. State

Full title: JOE FRANK RUBIO, AKA JOSEPH RUBIO, AKA JOE RUBIO, AKA FRANK RUBIO…

Court: Court of Appeals of Texas, Eighth District, El Paso

Date published: May 20, 2004

No. 08-03-00051-CR (Tex. App. May. 20, 2004)

Opinion

No. 08-03-00051-CR

May 20, 2004. DO NOT PUBLISH.

Appeal from the 210th District Court of El Paso County, Texas, (TC# 20000D03932).

Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.

MEMORANDUM OPINION

SUSAN LARSEN, Justice.

Joe Frank Rubio appeals the sentence he received following revocation of his probation on several theft convictions. The State confesses error as to Rubio's first issue. Finding the cumulation order contained in the judgment was void, we reform the sentence and affirm.

Facts

Rubio was charged with and entered guilty pleas to a number of theft charges. He pleaded guilty to theft by check in Cause 20000D03932 ("3932") on October 19, 2000, and the trial court placed him on community supervision. His probation was revoked in proceedings we will discuss herein. 3932 is the case currently on appeal. Rubio also pleaded guilty to another theft charge in Cause 20000D01249 ("1249") and received deferred adjudication probation in that case. The State brought a motion to adjudicate guilt in 1249, and motions to revoke probation in 1249, 3932, and two other theft cases where Rubio had also received probation. Hearing on the State's motions was held September 20, 2002. The trial court adjudicated Rubio guilty in 1249, and granted the motion to revoke in that case. Rubio's sister appeared at the September 2002 hearing and requested an opportunity to help her brother by paying some of the restitution he owed for the various thefts. She acknowledged she was not planning to pay any of the $11,900 owed in 1249, however, and the trial court proceeded to revoke Rubio's probation in that case. He set punishment in that case at 22 months in a state jail facility. The trial court then proceeded to revoke Rubio's probation in the three remaining theft cases, but abated sentencing in that cause so that Rubio's sister could attempt to make restitution. After making this ruling, the trial court commented:

And the question naturally will be whether I stack them or make them concurrent. So if this restitution is not made, I anticipate, most likely, I will stack one on top of the other, on top of the other. If the restitution is made, I'll run them concurrent. Thank you. I'll give them four weeks to get this done. He'll be in jail four more weeks waiting for this to be done.

It is undisputed that Rubio began serving his 22-month sentence on 1249 immediately following the September 2002 hearing. On December 13, 2002, the revocation hearing resumed. There, the trial court again orally revoked Rubio's probation in the three non-deferred adjudication cases and sentenced him to 20 months in a state jail facility in each of those cases (including 3932, the case at bar) to be served concurrently. Also during the December hearing, the trial court sentenced Rubio to two years in 1249, despite its having already imposed a 22-month sentence in September, and ordered that the sentence in 1249 be served consecutively to appellant's 20-month sentence in this case. Rubio has appealed the sentence as thus imposed.

Standard of review

Questions regarding the legality of a sentence are questions of law, and we review them under a de novo standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).

Cumulation order is void

In his first issue, Rubio urges that the cumulation order entered in 3932 (the instant appeal) is void because it is based on a void judgment, that is, the December 13, 2002 judgment rendered in 1249. This is so, Rubio claims, because the December judgment in 1249, after the trial court had adjudicated and sentenced Rubio several months earlier in the same case, voided the cumulation order here. The State confesses error in this regard, and we agree the cumulation order is void. The Texas Code of Criminal Procedure sets forth the circumstances by which a trial court may order sentences to run consecutively. Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2004). When a trial court wishes to stack sentences, it must make such an order at the time and place that sentence is orally pronounced. Ex parte Madding, 70 S.W.3d 131, 136 (Tex.Crim. App. 2002). Once a defendant is removed from the courtroom after sentencing, he or she begins serving the sentence. Id. at 135. Here, the trial court had pronounced sentence in 1249 and Rubio had commenced serving that sentence months before the "new" sentence was imposed and the order cumulating the sentences pronounced. We therefore conclude that the trial court's second pronouncement of sentence in 1249 on December 13, 2002 was without effect, particularly as the trial court had lost plenary power over that case. Thus, the trial court could not stack that sentence with the sentence ordered in this case, 3932. Sentences that are not authorized by law are void and a defect that renders a sentence void may be raised at any time. Heath v. State, 817 S.W.2d 335, 336 (Tex.Crim.App. 1991), overruled on other grounds, Ex parte Williams, 65 S.W.3d 656, 658 (Tex.Crim.App. 2001). The first issue on appeal is sustained.

Conclusion

Because we sustain Rubio's first issue, we need not reach the second issue on appeal. For the reasons stated above, we reform the judgment to delete the trial court's order that cause number 20000D01249 be served consecutively to the sentence in this case, cause number 20000D03932. As reformed, we affirm the conviction.