Ross, Bernard Kay

• Court: Texas Supreme Court
• Decided: January 21, 2015
• Docket: PD-0062-15
• Status: Published

Opinion

PD-0062-15 January 21, 2015

PD No. __________

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

BERNARD KAY ROSS, APPELLANT

vs.

THE STATE OF TEXAS, APPELLEE

Seeking discretionary review of an opinion of the Fifth District Court of Appeals In Cause No. 05-14-00014-CR On appeal from the 203rd Judicial District Court of Dallas County, Texas In Cause No. F13-24874-P

STATE’S PETITION FOR DISCRETIONARY REVIEW

Counsel of Record:

SUSAN HAWK KAREN R. WISE CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO. 21810200 FRANK CROWLEY COURTS BUILDING 133 N. RIVERFRONT BLVD., LB-19 DALLAS, TEXAS 75207-4399 (214) 653-3637

Attorneys for the State of Texas TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT ...............................................1

STATEMENT OF THE CASE ..................................................................................1

STATEMENT OF PROCEDURAL HISTORY........................................................2

QUESTION PRESENTED FOR REVIEW ..............................................................2

ARGUMENT .............................................................................................................2

PRAYER ....................................................................................................................8

CERTIFICATE OF SERVICE ..................................................................................9

ii INDEX OF AUTHORITIES

Cases

Beedy v. State, 194 S.W.3d 595 (Tex. App. – Houston [1st Dist.] 2006), aff’d on other grounds, Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008) .............................................. 6

McNew v. State, 608 S.W.2d 166 (Tex. Crim. App. 1978) ........................................................................ 6

Ex parte Garza, 192 S.W.3d 658 (Tex. App. – Corpus Christi 2006, no pet.) .................................. 6, 7, 8

Hurley v. State, 130 S.W.3d 501 (Tex. App. – Dallas 2004, no pet.) ........................................... 5, 6, 7, 8

Nicholas v. State, 56 S.W.3d 760 (Tex. App. – Houston [14th Dist.] 2001, pet. ref'd) ............................... 5

Ross v. State, No. 05-14-00014-CR, 2014 Tex. App. LEXIS 13479 (Tex. App. – Dallas Dec. 17, 2014) (not designated for publication) ........................................................................ 2, 3

Statutes

Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2013) ............................................ 5

Rules

Tex. R. App. P. 66.3(a) ........................................................................................................ 3

iii TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State of Texas submits this Petition for Discretionary Review of the

decision of the Court of Appeals for the Fifth District of Texas at Dallas,

modifying the trial court’s decision on Appellant’s deferred adjudication order,

which was appealed from the 203rd Judicial District Court of Dallas County, Texas,

in Trial Cause No. F13-24874-P (Appeal Cause No. 05-14-00014-CR).

STATEMENT REGARDING ORAL ARGUMENT

The issues raised in the State’s Petition for Discretionary Review are not

complex and the pertinent underlying facts are apparent in a small portion of the

record. Thus, the issues in this case can be decided on the briefs submitted by the

parties. The State does not request oral argument if this Petition for Discretionary

Review is granted, although the State will argue its case if this Honorable Court

desires.

STATEMENT OF THE CASE

Appellant pled guilty to robbery and was placed on deferred adjudication

community supervision for 10 years. (CR2: 15). The trial court ordered that

Appellant’s term of community supervision would be stacked onto his prison

sentence in his companion burglary case. (CR2: 4; RR3: 27-29).

1 STATEMENT OF PROCEDURAL HISTORY

On April 4, 2014, Appellant filed a brief raising six points of error on direct

appeal of his conviction. The State filed its response to Appellant’s brief on June

2, 2014. Both parties presented oral argument to the Court of Appeals on

November 12, 2014. On December 17, 2014, the Dallas Court of Appeals issued

an unpublished opinion modifying the trial court’s decision on Appellant’s

deferred adjudication order by deleting the stacking order. Ross v. State, No. 05-

14-00014-CR, 2014 Tex. App. LEXIS 13479 (Tex. App. – Dallas Dec. 17, 2014)

(not designated for publication). This Petition for Discretionary Review is timely

if filed on or before January 16, 2015.

QUESTION PRESENTED FOR REVIEW

Did the Court of Appeals err in determining that the trial court improperly

stacked Appellant’s term of deferred adjudication community supervision in this

case on his prison sentence in another case?

ARGUMENT

THE COURT OF APPEALS ERRED BY DELETING THE TRIAL COURT’S ORDER STACKING APPELLANT’S TERM OF DEFERRED COMMUNITY SUPERVISION IN THE INSTANT CASE ON HIS PRISON SENTENCE IN ANOTHER CASE.

2 In his brief on direct appeal, Appellant claimed the trial court erred in

stacking his term of deferred adjudication community supervision in the instant

robbery case on his prison sentence in his burglary case. The Dallas Court of

Appeals determined the issue in Appellant’s favor and modified his deferred

adjudication order to reflect that his period of community supervision is to run

concurrently with his sentence in the burglary case. Ross v. State, No. 05-14-

00014-CR, 2014 Tex. App. LEXIS 13479 (Tex. App. – Dallas Dec. 17, 2014) (not

designated for publication).1 The State will demonstrate that this Court’s review of

the decision of the Court of Appeals is appropriate under Tex. R. App. P. 66.3(a)

because the Court of Appeals’ decision conflicts with another Court of Appeals’

decision on the same issue.

RELEVANT FACTS

At the conclusion of the hearing on the revocation of Appellant’s probation

in Cause No. F12-57536 (the burglary case) and consideration of the new charges

in Cause No. F13-24874 (the instant robbery case), the court stated the following:

THE COURT: You know what, Mr. Bernard, I am just disgusted with you. And I -- you know, I could imagine myself being out there and someone like you and some other person coming up and doing this. And here’s what really perturbs the Court is that I tried to help you. I cut your fines and your court costs and I did everything I

1 Appellant’s robbery and burglary cases were considered in the same appeal. Because the deletion of the stacking order involves only the robbery case, this Petition for Discretionary Review is being filed only in the robbery case. 3 possibly could. And to be real honest with you, I’m going to tell you this, you should get 20 years right this minute, that’s what you should get. But due to your age, I’m going to give you a chance. And in Cause Number F12-57536, I am going to grant the State’s motion to revoke your probation. I’m going to assess your punishment in that case at ten years confinement in the state jail -- in the Texas Department of Criminal Justice. And your back time will be granted. And all cost will run currently with your time. And I’m going to place on here that you should enter the SAFPF program while you are in prison, because it would be advisable for you while you are serving your time. And hopefully you will probably do four -- at least four or five years. Then in Cause Number F13-24874, I am going to not find you guilty of this offense, however, I am going to place you on ten years deferred probation. So when you get out of prison, whatever time you have left -- look at you. Do you want -- do you want me to give you 40 right now? Because I sure as hell will. I will give you 20 on each case and stack them, because I am tired of this bullshit. So you’re lucky you’re not getting 40 right now. Wise ass out there. I don’t give a damn if it is a fake gun. No, she didn’t know it was a fake gun. So when you get out of prison, you’re going back on probation for ten years, and if you didn’t do the SAFPF program and – I’m going to send you to SAFPF at the beginning of that probation. I’ve got zero tolerance on that case. And you will -- you will have -- you will be on probation for that case and then, sir, -- look at me. If you mess up on that case, I can still give you 20. So you’re going to either learn as a young man to get your act together or just spend the rest of your life in prison hanging out with that guy smoking whatever crap you guys were smoking. I’m sick of it and the community is sick of it. And you can tell those people in jail, yes, Judge Hawthorne will help you, and she’ll do everything for you, but then when you don’t do it – you’re lucky you’re not getting 40. Do you have any questions, sir? Yes.

THE DEFENDANT: Why wouldn’t I just get ten and ten and run concurrent?

4 THE COURT: Because you’re not the Judge, and I’m making the decision, that’s why. Do you have another question?

THE DEFENDANT: No, Your Honor.

(RR3: 27-29) (Emphasis added). The court then sentenced Appellant to prison

time in Cause No. F12-57536. (RR3: 29). The court’s docket sheet in Cause No.

F13-24874-P states, “This prob [probation] will begin AFTER Def serves time on

Cause F 12-57536[.]” (CR2: 4).

SENTENCES WERE PROPERLY CUMULATED

The Code of Criminal Procedure gives trial courts the discretion to cumulate

sentences for two or more separate convictions, or to have such sentences run

concurrently. Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2013)

provides the following:

[I]n the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases….

A trial court’s decision to cumulate sentences is reviewed for an abuse of

discretion. Nicholas v. State, 56 S.W.3d 760,765 (Tex. App. – Houston [14th

Dist.] 2001, pet. ref'd).

In the instant case, the Dallas Court of Appeals followed its earlier decision

in Hurley v. State, 130 S.W.3d 501,503 (Tex. App. – Dallas 2004, no pet.), in

5 which the Court considered whether a deferred adjudication community

supervision could be stacked on a prison sentence and decided that it could not be

stacked. Hurley argued that because he was placed on deferred adjudication, he

was not convicted in that case, and the trial court lacked authority to stack his

community supervision onto his prison sentence. Id. at 504. The Dallas Court of

Appeals determined that a “conviction” always involves an adjudication of guilt

and, therefore, a court’s action in deferring the proceedings without an adjudication

of guilt is not a “conviction.” Id. at 505 (citing McNew v. State, 608 S.W.2d

166,171 (Tex. Crim. App. 1978)). Because Hurley’s deferred adjudication

community supervision was not a conviction for purposes of article 42.08, the

Court of Appeals concluded that the trial court abused its discretion in ordering the

deferred adjudication to begin after Hurley served his prison sentence. Id. at 507.

The decision of the Dallas Court of Appeals in Hurley was followed by the First

Court of Appeals in Beedy v. State, 194 S.W.3d 595,601 (Tex. App. – Houston [1st

Dist.] 2006), aff’d on other grounds, Beedy v. State, 250 S.W.3d 107 (Tex. Crim.

App. 2008).2

The Corpus Christi Court of Appeals, however, has reached a conflicting

decision under the same facts considered in Hurley. In Ex parte Garza, 192

2 In affirming Beedy, the issue before this Court appears to have been only which remedy (reforming the judgment or remanding for a new punishment hearing) was proper. 6 S.W.3d 658,660 (Tex. App. – Corpus Christi 2006, no pet.), the trial court ordered

that Garza’s ten years of community supervision for attempted indecency be

deferred and take effect after he was released from prison for felony DWI.

Thereafter, when Garza was released from prison, the trial court entered an order

that he begin to serve ten years of community supervision for attempted indecency

with a child. Id. Garza cited the Dallas Court’s opinion in Hurley to argue that the

trial court could not stack the deferred adjudication without a conviction on the

prison sentence. Garza, 192 S.W.3d at 661. The Corpus Christi Court of Appeals

rejected that argument as follows:

However, the conclusion reached in Hurley does not apply here. It is well established that a defendant placed on deferred adjudication, in addition to not yet being convicted, also has not yet had a sentence imposed. See Davis v. State, 968 S.W.2d 368, 371 (Tex. Crim. App. 1998); see also Donovan v. State, 68 S.W.3d 633, 636 (Tex. Crim. App. 2002). Article 42.08 explicitly requires a second “sentence” that begins when the preceding sentence “ceases to operate” for there to be stacking of sentences. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (Vernon Supp. 2005). A trial court cannot be in violation of a sentence-stacking statute if there is only one sentence involved. See id. In this case, there was neither a conviction nor a sentence imposed by the court for the second case at the time Garza was given deferred adjudication. The conviction and sentencing in the second case were imposed after Garza was released from imprisonment for the first case, thus giving the trial court the authority at that point to order the commencement of Garza’s sentence of community supervision.

Because we conclude that this is not a case of illegal sentence stacking, we overrule Garza’s first issue.

Garza, 192 S.W.3d at 661-662 (Emphasis in original).

7 The State requests that this Court consider the conflict among the Courts of

Appeals and overrule the decision in Hurley and the instant case for the same

reasons given in Garza. As in Garza, there was only one sentence imposed in the

instant case. The trial court sentenced Appellant to prison time in the burglary

case, Cause No. F12-57536, but deferred adjudication and did not pronounce

sentence in the instant case, Cause No. F13-24874. Because there is only one

sentence involved, the trial court cannot be in violation of article 42.08, which

provides for the stacking of two sentences.

The State submits that the Dallas Court of Appeals should have concluded

that the trial court can properly stack Appellant’s term of deferred adjudication

community supervision onto his prison sentence in his burglary case. Therefore,

the Court of Appeals should not have modified his deferred adjudication order to

reflect that his period of community supervision is to run concurrently with his

sentence in the burglary case. To correct this error by the Dallas Court of Appeals,

this Court should grant the State’s Petition for Discretionary Review and affirm the

trial court’s decision regarding the order to stack his term of community

supervision onto his prison time.

PRAYER

For all the foregoing reasons, the State prays that this Honorable Court will

grant this petition for discretionary review, and upon review of the opinion in this

8 cause, reverse the decision of the Court of Appeals for the Fifth District of Texas at

Dallas to modify his deferred adjudication order to reflect that his period of

community supervision is to run concurrently with his burglary sentence.

Respectfully submitted,

_________________________ SUSAN HAWK KAREN R. WISE Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 21810200 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 (214) 653-3637 (214) 653-3643 fax

CERTIFICATE OF SERVICE AND WORD-COUNT COMPLIANCE

I hereby certify that a true copy of the foregoing PDR was served on Riann C. Moore, attorney for Appellant, Dallas County Public Defender’s Office, 133 N. Riverfront Blvd., LB 2, Dallas, Texas 75207-4399, by hand delivery and electronic communication through eFile.txcourts.gov to Riann.Moore@dallascounty.org, on January ____, 2015. I further certify that this document contains 2,594 words, inclusive of all contents.

I hereby certify that a true copy of the foregoing PDR was served on Lisa C. McMinn, State Prosecuting Attorney, by electronic communication through eFile.txcourts.gov to information@spa.texas.gov on January ____, 2015.

___________________________ KAREN R. WISE

9 APPENDIX

10 Page 1

BERNARD KAY ROSS, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-14-00014-CR, No. 05-14-00015-CR

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2014 Tex. App. LEXIS 13479

December 17, 2014, Opinion Filed

NOTICE: PLEASE CONSULT THE TEXAS RULES Sentences OF APPELLATE PROCEDURE FOR CITATION OF Criminal Law & Procedure > Sentencing > Consecutive UNPUBLISHED OPINIONS. Sentences Criminal Law & Procedure > Sentencing > Multiple PRIOR HISTORY: [*1] On Appeal from the 203rd Convictions Judicial District Court Dallas County, Texas. Trial Court Criminal Law & Procedure > Preliminary Proceedings Cause Nos. F13-24874-P and F12-57536-P. > Pretrial Diversion > Appellate Review & Judicial Discretion CASE SUMMARY: [HN1] An appellate court reviews a trial court's decision to cumulate sentences for an abuse of discretion. Cumulative sentencing is permitted only as provided by OVERVIEW: ISSUE: Whether a trial court could stack statute. Tex. Code Crim. Proc. Ann. art. 42.08 (Supp. a term of deferred adjudication community supervision 2014) provides that when a defendant has been convicted onto a prison sentence. HOLDINGS: [1]-It was error for in two or more cases, a trial court has discretion to order a trial court to stack defendant's term of deferred the judgment and sentence imposed in the second adjudication community supervision onto his prison conviction either 1) to begin to run after the judgment and sentence, under Tex. Code Crim. Proc. Ann. art. 42.08(a) sentence imposed in the preceding conviction has ceased (Supp. 2014), because the deferred adjudication did not to operate, or 2) to run concurrently with the judgment include an adjudication of guilt, so it was not a conviction and sentence imposed in the preceding conviction. Tex. for purposes of the statute. Code Crim. Proc. Ann. art. 42.08(a) (Supp. 2014). Because it does not include an adjudication of guilt, a OUTCOME: Judgment affirmed as modified. deferred adjudication order is not a conviction for purposes of Tex. Code Crim. Proc. Ann. art. 42.08 (Supp. LexisNexis(R) Headnotes 2014). Under the statute, a trial court does not have discretion to stack two sentences until a defendant has been convicted of two or more offenses and sentences are imposed or suspended in those cases. Accordingly, a trial Criminal Law & Procedure > Sentencing > Appeals > court abuses its discretion in ordering a deferred Standards of Review > Abuse of Discretion adjudication to begin after a defendant serves his or her Criminal Law & Procedure > Sentencing > Concurrent prison sentence. Page 2 2014 Tex. App. LEXIS 13479, *1

COUNSEL: For Appellants: Riann Moore, Katherine begin after appellant served his prison sentence, stating, Drew, Lynn Richardson, Dallas, TX. "So when you get out of prison, you're going back on probation for ten years." For Appellees: Karen Wise, Craig Watkins, Dallas, TX. In his first point of error, appellant contends the trial JUDGES: Before Justices FitzGerald, Lang, and Brown. court erred in stacking his term of deferred adjudication Opinion by Justice Brown. community supervision onto his prison sentence. We agree. OPINION BY: ADA BROWN [HN1] We review a trial court's decision to cumulate OPINION sentences for an abuse of discretion. Hurley v. State, 130 S.W.3d 501, 503 (Tex. App.--Dallas 2004, no pet.). Cumulative sentencing is permitted only as provided by MEMORANDUM OPINION statute. Id. Article 42.08 of the code of criminal procedure provides that when a defendant has been Opinion by Justice Brown convicted in two or more cases, the trial court has discretion [*3] to order the judgment and sentence Bernard Kay Ross appeals from an order of deferred imposed in the second conviction either 1) to begin to run adjudication for robbery and a conviction for burglary. At after the judgment and sentence imposed in the preceding issue is whether a trial court can stack a term of deferred conviction has ceased to operate, or 2) to run adjudication community supervision onto a prison concurrently with the judgment and sentence imposed in sentence. This Court has already determined this issue in the preceding conviction. Id.; see TEX. CODE CRIM. appellant's favor. We modify the order of deferred PROC. ANN. art. 42.08(a) (West Supp. 2014). In Hurley, adjudication to reflect that the period of community we held that, because it does not include an adjudication supervision is to run concurrently with the burglary of guilt, a deferred adjudication order is not a conviction sentence. We further modify the order and also the for purposes of article 42.08. Hurley, 130 S.W.3d at 505; judgment of conviction to make other revisions the see Beedy v. State, 194 S.W.3d 595, 602 (Tex. parties agree upon. As modified, we affirm the trial App.--Houston [1st Dist.] 2006), aff'd, 250 S.W.3d 107 court's order and judgment. (Tex. Crim. App. 2008).2 Under the statute, the trial court In 2012, appellant was indicted for burglary of a does not have discretion to stack two sentences until a habitation. He pleaded guilty pursuant to a plea bargain defendant has been convicted of two or more offenses agreement and was placed on deferred adjudication and sentences are imposed or suspended in those cases. community supervision for six years and fined $2,500. In Hurley, 130 S.W.3d at 506. Accordingly, we concluded 2013, appellant was indicted for robbery.1 Based on this the trial court abused its discretion in ordering the new offense, among other things, the State moved to deferred adjudication to begin after the defendant served revoke appellant's community [*2] supervision. his prison sentence. Id. at 507. We reach the same conclusion in this case. 1 Appellant was indicted for aggravated robbery, but the trial court later granted the State's motion 2 In Beedy, the court of criminal appeals to reduce the charge to robbery. addressed only the issue of what the appropriate remedy was for an improper cumulation order -- On November 1, 2013, appellant pleaded guilty to deletion of the improper cumulation order or robbery and true to the allegations in the State's motion to remand for resentencing. Beedy, 250 S.W.3d at revoke. The court revoked appellant's community 109. The court determined the proper remedy was supervision, adjudicated appellant guilty of burglary, and to delete the cumulation order. Id. at 115. assessed punishment for that offense at ten years' confinement. The court also deferred finding appellant The State urges [*4] us to reconsider this issue in guilty of robbery and placed him on deferred adjudication light of Ex parte Garza, 192 S.W.3d 658 (Tex. community supervision for ten years. The court orally App.--Corpus Christi 2006, no pet.). The court of appeals pronounced that the term of deferred adjudication would in that habeas case did not disagree with Hurley but instead found the conclusion we reached did not apply. Id Page 3 2014 Tex. App. LEXIS 13479, *4

. at 661. It seemed to draw a distinction based on the fact attorney for the State was Stephanie Mitchell; and 3) the that Garza had already been released from prison and, "Terms of Plea Bargain" are none. We modify the upon his release, the court had entered a new order that judgment in cause number F12-57536-P to reflect that: 1) he begin to serve his deferred adjudication community the attorney for the State was Stephanie Mitchell; 2) the supervision. Id. at 660-62. It ruled that a trial court "Terms of Plea Bargain" are none; and 3) appellant shall cannot be in violation of a sentence stacking statute if attend SAFPF. We order the trial court to enter a new there is only one sentence involved. Id. at 662. We do not order of deferred adjudication and a new judgment of find Garza persuasive and will follow the precedent of conviction to reflect these modifications. As modified, this Court. we affirm the trial court's order of deferred adjudication and its judgment of conviction. Although the trial court orally pronounced that the term of community supervision would begin to run after /Ada Brown/ appellant served his prison term, its order of deferred adjudication is silent on whether the period of community ADA BROWN supervision is to run concurrently or consecutively with JUSTICE the prison sentence. Nevertheless, to be clear, we modify the order to reflect that the period of deferred Do Not Publish adjudication community supervision is to run TEX. R. APP. P. 47. concurrently with the sentence in the burglary case. We sustain appellant's first point of error. JUDGMENT

In points two through six, appellant contends we Based on the Court's opinion of this date, the trial need to make other [*5] modifications to the order of court's order of deferred adjudication is MODIFIED as deferred adjudication, as well as the judgment in the follows: burglary case, to correct various errors. Specifically, he contends the order and judgment both erroneously The period of community supervision is to run indicate there was a plea bargain agreement, when his concurrently with the sentence in cause number pleas of guilty and true were open pleas. He also F12-57536-P. contends the documents incorrectly reflect that the State's attorney was Herschel Wood, when the reporter's records The attorney for the State was Stephanie Mitchell. show it was Stephanie Mitchell. Finally, appellant The "Terms of Plea Bargain" are none. contends the judgment of conviction does not reflect the court's oral order that he attend the Substance Abuse We ORDER the trial court to enter a new order of Felony Punishment Facility (SAFPF) drug program while deferred adjudication to reflect these modifications. As in prison.3 The State agrees these modifications should be MODIFIED, the order is AFFIRMED. made. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.--Dallas 1991, pet. ref'd) (appellate court has power Judgment entered this 17th day of December, 2014. to correct and reform judgment of court below to make record speak truth when it has information to do so). We JUDGMENT sustain points of error two through six. Based on the Court's opinion of [*7] this date, the 3 The trial court stated, "And I'm going to place judgment of the trial court is MODIFIED as follows: on here that you should enter the SAFPF program while you are in prison, because it would be The attorney for the State was Stephanie advisable for you while you are serving your Mitchell. time." The "Terms of Plea Bargain" are We modify the order of deferred adjudication in none. cause number F13-24874-P to reflect that: 1) the period of community supervision is to [*6] run concurrently The defendant shall attend SAFPF. with the sentence in cause number F12-57536-P; 2) the Page 4 2014 Tex. App. LEXIS 13479, *7

As MODIFIED, the judgment is Judgment entered this 17th day of December, 2014. AFFIRMED.