Gary Lynn Moore v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 19, 2024
• Docket: 07-24-00118-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00118-CR

GARY LYNN MOORE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 320th District Court Potter County, Texas Trial Court No. 081313-D-CR, Honorable Steven Denny, Presiding

August 19, 2024 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Gary Lynn Moore, appeals his conviction for the offense of possession

of a Penalty Group One controlled substance in an amount of one gram or more but less

than four grams1 and sentence of life imprisonment and a $2,500 fine. We reform the

judgment to remove the order that the sentence run consecutively and affirm the judgment

as reformed.

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c). BACKGROUND

As Appellant does not challenge the sufficiency of the evidence to support his

conviction, we will only address those facts that provide the context for Appellant’s issues.

Pursuant to a plea bargain agreement, Appellant pleaded guilty to the offense of

possession of a controlled substance in an amount of one gram or more but less than

four grams on February 18, 2022. The terms of the plea bargain, which were accepted

by the trial court, deferred adjudication of Appellant’s guilt and placed him on community

supervision for a period of ten years. In September of 2023, the State filed a motion to

adjudicate Appellant’s guilt, which alleged that Appellant had committed the criminal

offenses of evading arrest or detention while using a motor vehicle, 2 tampering with or

fabricating physical evidence with intent to impair,3 and possession of a Penalty Group

One controlled substance in an amount of four or more grams but less than 200 grams. 4

At the hearing on the motion, the State waived the possession allegation.

Appellant pleaded true to the evading allegation and not true to the tampering allegation.

The State offered evidence to prove the evading and tampering allegations as well as the

enhancement allegations of three prior felony drug convictions. At the close of the hearing

on the motion to proceed, the trial court found the evading and tampering allegations true,

found the enhancement allegations true, and sentenced Appellant to life imprisonment

and a $2,500 fine. The trial court also stated that, “Inasmuch as I’m allowed to make

2 See TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A).

3 See TEX. PENAL CODE ANN. § 37.09(d)(1).

4 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d).

2 this—required to be served consecutively under 42a.085 (sic), I do require it to be served

consecutively if that is permissible under that statute.” The judgment orders that “this

sentence shall run: consecutively.” From this judgment, Appellant timely appealed.

By his appeal, Appellant presents three issues. By his first issue, Appellant

contends that the trial court abused its discretion by ordering Appellant’s sentence to be

served consecutively with any prior sentence. In a related issue, Appellant next contends

that the trial court’s cumulation order is void due to insufficient specificity identifying any

previous conviction. We will address Appellant’s first two issues together. By his third

issue, Appellant contends that Appellant’s life sentence constitutes cruel and unusual

punishment.

CUMULATION ORDER

As noted above, both of Appellant’s first two issues challenge the trial court’s

cumulation order. The State concedes that the trial court’s cumulation order is invalid

and, therefore, the judgment should be reformed to remove the cumulation order.

A trial court’s decision to cumulate, or “stack,” sentences is reviewed under an

abuse of discretion standard. Byrd v. State, 499 S.W.3d 443, 446 (Tex. Crim. App. 2016).

“[A]n abuse of discretion in the context of cumulation of a defendant’s sentences will be

found only if the trial court imposes consecutive sentences where the law requires

concurrent sentences, where the court imposes concurrent sentences but the law

requires consecutive ones, or where the court otherwise fails to observe the statutory

5 It appears that the trial court was referring to Texas Code of Criminal Procedure art. 42.08.

3 requirements pertaining to sentencing.” Revels v. State, 334 S.W.3d 46, 54 (Tex. App.—

Dallas 2008, no pet.). An order in a judgment that cumulates sentences “should be

sufficiently specific to allow the Texas Department of Criminal Justice—Institutional

Division (TDCJ-ID)[] to identify the prior with which the newer conviction is cumulated.”

Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998) (orig. proceeding).

Ordinarily, a cumulation order must include five details: (1) the trial court cause number

of the prior conviction, (2) the correct name of the court where the conviction was taken,

(3) the date of the prior conviction, (4) the term of years of the prior conviction, and (5)

the nature of the prior conviction. Revels, 334 S.W.3d at 54. While not all of these details

must be included, the Texas Court of Criminal Appeals has held that cumulation orders

which recite only one of these details (the trial court cause number) are insufficient.

Williams v. State, 675 S.W.2d 754, 764 (Tex. Crim. App. 1984) (op. on reh’g). Courts of

appeals have the authority to reform and correct cumulation orders when the necessary

data is contained in the record. Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App.

1986).

In the present case, the cumulation order does not include any of the five details

that should be included. See Revels, 334 S.W.3d at 54. In its oral pronouncement of its

order to cumulate sentences, the trial court simply stated, “Inasmuch as I’m allowed to

make this—required to be served consecutively under [article 42.08], I do require it to be

served consecutively if that is permissible under that statute.” The trial court did not

identify any prior sentence with which the present sentence should be cumulated.

Likewise, the judgment simply states that “this sentence shall run: consecutively.”

Further, nothing in the record identifies a prior sentence with which the present sentence

4 could be cumulated. Because neither the cumulation order nor the record specify with

which sentence the present sentence should be cumulated, we must conclude that the

cumulation order is insufficient. Williams, 675 S.W.2d at 764.

Because the judgment’s cumulation order does not specify with which sentence it

is to be cumulated and the record does not reflect a prior sentence that would be eligible

for cumulation, the cumulation order is invalid. Byrd, 499 S.W.3d at 451. Consequently,

we reform the judgment in this case to delete the cumulation order. We sustain

Appellant’s first two issues.

CRUEL AND UNUSUAL PUNISHMENT

By his third issue, Appellant contends that the trial court’s life sentence constitutes

cruel and unusual punishment. The State responds contending that Appellant failed to

preserve this issue for appellate review.

Without an objection presented to the trial court, a claim that a sentence constitutes

cruel and unusual punishment is forfeited. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.

Crim. App. 1996) (en banc); Gunnels v. State, No. 07-23-00111-CR, 2024 Tex. App.

LEXIS 5368, at *10 (Tex. App.—Amarillo July 30, 2024, no pet. h.) (mem. op., not

designated for publication).

In the present case, Appellant did not complain to the trial court that his sentence

was cruel and unusual when it was announced or in a timely filed motion for new trial.

Thus, Appellant has not preserved this complaint for appellate review. We overrule

Appellant’s third issue.

5 CONCLUSION

For the foregoing reasons, we reform the judgment to remove the cumulation order

and affirm the judgment as reformed.

Judy C. Parker Justice

Do not publish.