Opinion
PD-0616-23
10-23-2024
LARRY GENE STRICKLAND II, Appellant v. THE STATE OF TEXAS, Appellee
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE 7TH COURT OF APPEALS HOOD COUNTY
McClure, J., delivered the opinion of the Court in which Keller, P.J., Hervey, Richardson, Yeary, Newell, Walker, and Slaughter, JJ., joined. Keel, J., concurred.
OPINION
McClure, J.
We granted four grounds of the State's petition for discretionary review: (1) When cumulation of sentences is ordered, should an objection be required to complain on appeal about a deficiency of proof supporting it or lack of specificity in the written order? (2) Was the evidence in this case adequate to connect appellant to a prior sentence? (3) When cumulation of sentences is ordered but there is some deficiency of proof in the record, should the remedy be remand for a new cumulation hearing? (4) When cumulation of sentences is ordered but there is some deficiency of specificity in the written order, should the remedy be remand for clarification? After examining the record and briefs and considering the arguments in the case, we conclude that our decision to grant review in grounds one and two was improvident. We therefore dismiss grounds one and two of the State's petition as improvidently granted.
In grounds three and four, the State asks us to consider the remedy when cumulation of sentences is ordered but there is some deficiency of proof in the record and deficiency of specificity in the written order. Appellant argues that if a cumulation order is deficient and the record shows the evidence was not sufficient to support cumulation, that is a judicial error that must result in the order being stricken. The State contends that the proper remedy is to remand the case to the trial judge so that the judge could obtain the information required to support the cumulation order.
We agree with the State. If a cumulation order is not sufficiently specific, a remand may be permitted to allow the trial court to remedy the order. We sustain grounds three and four of the State's petition, reverse the judgment of the Court of Appeals, and affirm the judgment of the trial court as reformed.
BACKGROUND
On March 16, 2021, Appellant pleaded guilty to possession of methamphetamine and was placed on deferred adjudication probation. On April 8, 2022, the State filed a motion to adjudicate. At a hearing on the motion, Appellant's probation officer testified, "It is our recommendation [that Appellant's probation be revoked] because he is in custody on other charges that happened pre-probation." Appellant's probation officer also agreed when the State asked her, "So do you believe that Mr. Strickland's current status or current incarceration in the Department of Criminal Justice Institutional Division would make it impossible for him to continue on probation?" The trial court adjudicated Appellant guilty and sentenced him to ten years' imprisonment.
After pronouncing Appellant's sentence, the trial court said: "In this Court's discretion, I will order that that sentence not begin until the sentences in Cause No. CR14643-and if that's not the correct number, the-the cause number involving the possession of child pornography-and those counts cease. So, I'm ordering that this sentence not begin until your prior prison sentences have ceased to operate and so this would be considered consecutive to those." Appellant objected and said there had been no request to stack his sentences. His objection was overruled. The judgment adjudicating guilt says Appellant's sentence shall run "consecutive with CR 14643 Count 1, CR 14643 Count 2, CR 14643 Count 3, and CR 14643 Count 4."
DIRECT APPEAL
On appeal, Appellant argued that the evidence supporting the trial court's decision to stack his sentences under Article 42.08(a) of the Code of Criminal Procedure was insufficient. The court of appeals agreed, noting that a record must contain some evidence connecting the defendant with the prior conviction to cumulate sentences containing the following information: the cause number, the court of conviction, the date of conviction, the term assessed, and the nature of the conviction. Strickland v. State, No. 07-22-00294-CR, 2023 WL 5192164 (Tex. App.-Amarillo Aug. 11, 2023) (mem. op., not designated for publication) (citing Moore v. State, 371 S.W.3d 221, 226 (Tex. Crim. App. 2012); Ward v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975)). In this case, because the cumulation order includes four counts in one cause number without any other details or special findings in the judgment providing further information, the court below found the evidence insufficient. After concluding that the cumulation order was not supported by the record, the court of appeals reformed the judgment adjudicating guilt to reflect "THIS SENTENCE SHALL RUN CONCURRENTLY."
For purposes of this opinion, "stacking" and cumulation will be used interchangeably.
STATE'S PETITION
The State's Prosecuting Attorney ("SPA") argues that the court of appeals erred in deleting the cumulation order. Instead, the SPA argues that when there is a lack of specificity of a prior conviction in a cumulation order, the remedy should be a remand to the trial court for further development. The State argues that the trial judge had the statutory authority to cumulate under Article 42.08(a), but entered an order that was unsupported by evidence in the record. Therefore, a remand is the appropriate remedy so that the judge could obtain the information required to support the cumulation order. The State continues that the requirement for order specificity is ultimately based on concern for the convenience of a third-party: prison authorities. Because the trial court has the authority to cumulate, a lack of specificity in the order should not nullify a trial court's discretion in cases in which the prior conviction could be confirmed with little effort and even when it was understood by the prison system. Therefore, according to the State, if more clarity is required, the remedy should be to reform the order to reflect the record of the proceedings and to include the requisite information for cumulation of the sentences.
APPELLANT'S RESPONSE
In contrast, Appellant argues that a remand to the trial court for clarification is not an appropriate remedy. Instead, the lack of sufficient specificity in cumulation orders should result in the negation of the trial court's decision to cumulate. Appellant relies on Beedy v. State, which states, "The deletion of an unlawful cumulation order is an efficient corrective action that removes the illegality from the judgment while leaving the remaining, lawful portions of the judgment intact." 250 S.W.3d 107, 114 (Tex. Crim. App. 2008). Appellant argues that an unlawful cumulation order is not reversible error, and thus, the Seventh Court of Appeals was correct in deleting the cumulation order since it was not supported by the evidence.
LAW
A trial court may, within its discretion, cumulate two or more sentences rather than run them concurrently. See Tex. Code Crim. Proc. art. 42.08. Article 42.08(b) provides: "If a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division of the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion of the sentence for the original offense." A cumulation order must be specific enough "to enable the prison authorities to know just how long to detain the prisoner under the sentence." Stokes v. State, 688 S.W.2d 539, 540 (Tex. Crim. App. 1985). A cumulation order that lacks specificity may be reformed on appeal if the record contains the necessary information to allow reformation. See Banks v. State, 708 S.W.2d 460, 461-62 (Tex. Crim. App. 1986) (stating that the sentencing proceeding contained the trial judge's oral sentence which met the five recommended elements for a cumulation order, so the proper remedy is to reform the judgment to reflect the sentence actually imposed by the trial court).
ANALYSIS
The issue of the propriety of cumulation has been before this Court before, but we have not reached the question presented in this case: When there is insufficient evidence to support a cumulation order, is the proper remedy remand or deletion?
The closest we have come to this issue was in Beedy v. State, in which this Court held that the trial judge did not have the authority to stack the deferred adjudication community supervision term onto his prison sentence. 250 S.W.3d 114 (Tex. Crim. App. 2008). In reaching this conclusion, this Court looked at Tex. Code Crim Pro. 44.29(b), which states:
If the court of appeals or the Court of Criminal Appeals awards a new trial to a defendant other than a defendant convicted of an offense under Section 19.03, Penal Code, only on the basis of an error or errors made in the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below, except that the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial under Subsection (b), Section 2, Article 37.07, of this code. If the defendant elects, the court shall empanel a jury for the sentencing stage of the trial in the same manner as a jury is empaneled by the court for other trials before the court. At the new trial, the court shall allow both the state and the defendant to introduce evidence to show the circumstances of the offense and other evidence as permitted by Section 3 of Article 37.07 of this code.
Tex. Code Crim. Proc. art. 44.29. Under this article, this Court ultimately determined that an unlawful cumulation order did not constitute reversible error. Id. at 115. However, because the trial judge did not have the authority to stack the deferred adjudication community supervision term onto Beedy's prison sentence under Article 42.08(a), the proper remedy for the unlawful cumulation order was to reform the judgment to delete the cumulation order.
Ultimately, the Beedy Court did not need to determine what the proper remedy would be when a lawful cumulation order lacked the requisite specificity. Which brings us to the case at hand. Here, the trial judge had the authority to cumulate at his discretion under Article 42.08(a) and entered a lawful cumulation order, but the order lacks the requisite specificity. In this circumstance, this Court has not foreclosed the possibility of remanding the case to the trial judge so the judge could obtain the information required to support the cumulation order. See, e.g., Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999). In fact, in dicta in Beedy, the Court wrote, "In upholding the court of appeals's decision to delete the cumulation order in this case, we do not mean to suggest that we would reach the same conclusion in a case where the trial judge had the authority to cumulate but entered, at his discretion under Article 42.08(a), Texas Code of Criminal Procedure, a cumulation order that lacked the requisite specificity." Beedy, 250 S.W.3d at 114. Similarly, in Morris v. State, 301 S.W.3d 281, 296 (Tex. Crim. App. 2009) and Sullivan v. State, 387 S.W.3d 649, 652 (Tex. Crim. App. 2013), this Court acknowledged the dicta from Beedy that if a cumulation order is not sufficiently specific, a remand may be permitted. Therefore, whether deletion of the order or a remand to the trial court for specificity seems to depend on whether the trial judge acted lawfully. Beedy, 250 S.W.3d at 113.
The Court applied this principle to the propriety of a restitution amount. In Barton v. State, Appellant appealed his restitution order, arguing that there was no factual basis in the record to support the amount of the trial court's award. Barton v. State, 21 S.W.3d 287 (Tex. Crim. App. 2000). The Court looked at the prior and current version of Article 44.29(a) and concluded that "reversible error" did not include restitution that was authorized and ordered but unsupported by the record. Barton, 21 S.W.3d at 289-90. Instead, the proper procedure was to abate the appeal and remand for a hearing to determine the correct restitution amount. Id. at 289-90. This Court held that the trial judge was authorized to order restitution, but the amount of restitution was unsupported by the record, so a remand for a restitution hearing was appropriate. Id. at 290.
"Where the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in case the new trial had been granted by the court below." See Tex. Crim. Proc. Code art. 44.29. This Court interpreted Article 44.29 to mean that any reversible error committed at either stage of trial required a new trial on the issue of both guilt/innocence and punishment, even if the error was confined to the punishment stage of the proceedings. In 1987, the Texas Legislature revised article 44.29 to require that the procedure employed on remand from a finding of reversible error be predicated on which phase of the proceedings the error occurred. The plain language of article 44.29 now tells us two things: (1) if an appellate court finds that there was [reversible] error committed at the guilt/innocence stage of the trial, the defendant is entitled to a new trial; (2) if an appellate court finds that there was [reversible] error committed at the punishment stage of the trial (except for convictions under Tex. Pen. Code § 19.03), the defendant is entitled to a new trial on punishment only.
Likewise, in Burt v. State, the Court addressed the following question: "When the record is clear that the trial judge orally made restitution a part of the sentence, but either the amount or the person(s) to whom it is owed is unclear, incorrect, or insufficient, should the restitution order be deleted or should the case be remanded to the trial court for a hearing on restitution?" 445 S.W.3d 752, 754 (Tex. Crim. App. 2014). Pointing to the distinction Beedy made between lawful and unlawful orders, the Court said that if the factual basis for restitution is insufficient, appellate courts should vacate and remand for a restitution hearing. Burt, 445 S.W.3d at 758, n. 27.
We hold that the remand principle should not be limited only to restitution cases. We agree with the State that this is not a true sufficiency review, and therefore, there is no reason to make an evidentiary deficiency permanently fatal to cumulation. This Court's continued practice of setting aside an unlawful cumulation order has based on the notion that an unlawful cumulation order does not constitute "reversible error" as provided in Article 44.29 of the Code of Criminal Procedure. This Court has held that "unauthorized" or "illegal" cumulation orders should be deleted, and in so doing, the Court has applied one part of Beedy's remedy principle. See Sullivan, 387 S.W.3d at 652 (finding part of the stacking order illegal and deleting sentence for one count from sequence of sentences); Morris, 301 S.W.3d at 296 (trial court didn't have authority to enter stacking order, and court of appeals' deletion of portion of order was appropriate). We now apply the other part of Beedy's remedy principle and order a remand where the cumulation order is proper, but the evidentiary basis of the cumulation order is lacking.
CONCLUSION
The trial judge had the authority to cumulate under Article 42.08(a) but entered an order that was unsupported by evidence in the record. It is appropriate to remand the case to the trial judge so that any judge can obtain the information required to support the cumulation order.