Opinion
05-22-01269-CR
01-29-2024
DEONTRE BREON SPEARS, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F18-71689-N
Before Justices Carlyle, Goldstein, and Breedlove, J.
MEMORANDUM OPINION
CORY L. CARLYLE JUSTICE.
In 2021, a grand jury indicted Deontre Breon Spears for aggravated robbery in four cases that were ultimately tried together: F21-58256-N; F21-58257-N; F21-58258-N; and F21-58259-N. At the time, Mr. Spears was on deferred adjudication community supervision for theft in F15-70646-N and possession with intent to deliver a controlled substance in F18-71689-N. The State moved to adjudicate guilt in the theft and drug cases based on the new robberies. The State also moved to cumulate Mr. Spears's sentences in the new robbery cases. See Tex. Code Crim. Proc. art. 42.08.
In October 2022, a jury convicted Mr. Spears on all of the aggravated robbery charges and assessed punishment. Consistent with the jury's verdict, the trial court sentenced Mr. Spears to five years' confinement in cause number F21-58256-N and ten years' confinement-suspended with community supervision-in cause numbers F21-58257-N, F21-58258-N, and F21-58259-N.
A few weeks later, the trial court held a hearing on the State's pending motions to adjudicate and cumulate Mr. Spears's sentences. During the hearing, the State asked that Mr. Spears receive the maximum twenty-year sentence on the drug case and that the court "stack it in addition to the 5 years that he received on F21-58256." The State explained how its request for stacking would work: "Once the defendant [is] done serving his 5 years on the aggravated robberies, then the [sentence for the drug case] would start."
The court also explained to Mr. Spears at the hearing that, because he received sentences of five years' confinement in the one aggravated robbery case and ten years' probation in the other cases, if "you get 20 years here today" and "that's stacked, that would be 25." Mr. Spears acknowledged he understood, and his counsel also expressed her understanding that, if the court chose to cumulate the sentences and Mr. Spears got the maximum twenty-year sentence in the drug case, "he'll be in jail for 25 years."
After hearing the parties' sentencing arguments, the trial court adjudicated Mr. Spears guilty in the theft case and sentenced him to fourteen months' confinement, consistent with his plea agreement in that case. In the drug case, the court adjudicated Mr. Spears guilty and sentenced him to fifteen years' confinement. In addition, the court stated: "I do grant the motion to stack under 42.08 of the Texas Code of Criminal Procedure. Mr. Spears, all of your cases will run cumulatively because of that motion . . . ."
Despite that, the court's judgment in the drug case states only that Mr. Spears's fifteen-year sentence shall run "CONSECUTIVELY (see below)," with nothing else in the judgment addressing how the sentence would run. And although the court entered a separate order granting the State's amended motion to cumulate sentences, that order failed to provide details as to how any sentences would run.
Mr. Spears appeals from the trial court's judgment in the drug case, arguing that its cumulation order lacks sufficient specificity to enforce. We review for abuse of discretion. See Revels v. State, 334 S.W.3d 46, 53-54 (Tex. App.-Dallas 2008, no pet.).
Subject to certain statutory exceptions, a trial court has discretion to run a sentence consecutively or concurrently with another sentence imposed for a preceding conviction. See Tex. Code Crim. Proc. art. 42.08. But an order to cumulate must be specific enough to allow the Texas Department of Criminal Justice to determine the prior conviction and sentence with which the newer conviction and sentence will be cumulated. Revels v. State, 334 S.W.3d 46, 54 (Tex. App.-Dallas 2008, no pet.). Thus, the order should typically include the following information about the prior conviction and sentence: (1) the correct name of the convicting court; (2) the trial court cause number; (3) the date of conviction; (4) the nature of the conviction; and (5) the term of years imposed. Id.
Here, Mr. Spears and the State agree that the trial court's cumulation order lacks sufficient specificity. Mr. Spears contends we should reform the judgment to delete the cumulation order and order that his fifteen-year sentence run concurrently with his other sentences. The State argues that we should reform the judgment to reflect the trial court's intent to stack the fifteen-year sentence on top of the five-year sentence Mr. Spears received for aggravated robbery in cause number F21-58256-N. We agree with the State.
When a cumulation order is unlawful because the trial court lacked authority to cumulate the sentences as ordered, the proper remedy is to reform the judgment to delete any unlawful portions of the cumulation order and to affirm the judgment as modified. See Morris v. State, 301 S.W.3d 281, 296 (Tex. Crim. App. 2009). If, however, the trial court had authority to cumulate the sentences but merely failed to provide a sufficiently specific order, it is appropriate to reform the judgment to include the required specificity as long as the record contains the missing information and establishes the trial court's intent in cumulating the sentences. See Revels, 334 S.W.3d at 56.
In this case, the record is clear that the trial court intended Mr. Spears's fifteen-year drug sentence to begin after he finished serving the five-year sentence he received for aggravated robbery in cause number F21-58256-N. That is what the State requested at the hearing, and both Mr. Spears and the court made statements reflecting their understanding that granting the State's request to cumulate would result in the drug sentence being stacked on top of the five-year aggravated robbery sentence.
The trial court was mistaken if it also intended to stack the suspended sentences and community supervision imposed in the remaining aggravated robbery cases on top of the fifteen-year sentence imposed in the drug case. The court sentenced Mr. Spears in the aggravated robbery cases weeks before it adjudicated the drug case without ordering that the aggravated robbery sentences would run consecutively. And, as the State correctly notes, the trial court had no authority to retroactively alter the aggravated robbery sentences to order that they run consecutively to a sentence imposed for a subsequent conviction. See Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002) (a court cannot alter a previously announced sentence to have it run consecutively to another sentence).
The State also argues that the trial court lacked authority to order that any of the aggravated robbery sentences would run consecutively because the underlying offenses were part of the same criminal episode and were prosecuted in a single criminal action. See Tex. Penal Code § 3.03(a). We need not determine the extent to which the trial court could have ordered consecutive sentences in any of the aggravated robbery cases because it is not necessary to our disposition of this appeal.
The judgment in the theft case also reflects 510 days of time served credited against Mr. Spears's fourteen-month sentence in that case, and it states that the trial court ordered that the fourteen-month sentence would run concurrently. Thus, we agree with the State both that Mr. Spears has already discharged his fourteen-month theft sentence and that the trial court did not intend to stack the fifteen-year drug sentence on top of the fourteen-month theft sentence. Interpreting the cumulation order that way would result in it having no practical effect, and we presume the court intended its cumulation order to have some effect. Consequently, we agree with the State that stacking the fifteen-year drug sentence on top of the five-year aggravated robbery sentence in cause number F21-58256-N is the only permissible cumulation order the trial court could have issued consistent with the intent it demonstrated.
We modify the trial court's judgment in the drug case to add the following statement:
The Court ORDERS that the sentence for this conviction shall run consecutively and begin only after completion of the Defendant's sentence of five years' confinement imposed October 21, 2022, for aggravated robbery, in cause number F21-58256-N in the District Court for the 195th Judicial District, Dallas County, Texas.
As modified, we affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to add the following statement:
The Court ORDERS that the sentence for this conviction shall run consecutively and begin only after completion of the Defendant's sentence of five years' confinement imposed October 21, 2022, for aggravated robbery, in cause number F21-58256-N in the District Court for the 195th Judicial District, Dallas County, Texas.
As REFORMED, the judgment is AFFIRMED.