Bernard Kay Ross v. State ( 2014 )

MODIFY and AFFIRM; and Opinion Filed December 17, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00014-CR
No. 05-14-00015-CR
BERNARD KAY ROSS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F13-24874-P and F12-57536-P
MEMORANDUM OPINION
Before Justices FitzGerald, Lang, and Brown
Opinion by Justice Brown
Bernard Kay Ross appeals from an order of deferred adjudication for robbery and a
conviction for burglary. At issue is whether a trial court can stack a term of deferred
adjudication community supervision onto a prison sentence. This Court has already determined
this issue in appellant’s favor. We modify the order of deferred adjudication to reflect that the
period of community supervision is to run concurrently with the burglary sentence. We further
modify the order and also the judgment of conviction to make other revisions the parties agree
upon. As modified, we affirm the trial court’s order and judgment.
In 2012, appellant was indicted for burglary of a habitation. He pleaded guilty pursuant
to a plea bargain agreement and was placed on deferred adjudication community supervision for
six years and fined $2,500. In 2013, appellant was indicted for robbery. 1 Based on this new
offense, among other things, the State moved to revoke appellant’s community supervision.
On November 1, 2013, appellant pleaded guilty to robbery and true to the allegations in
the State’s motion to revoke. The court revoked appellant’s community supervision, adjudicated
appellant guilty of burglary, and assessed punishment for that offense at ten years’ confinement.
The court also deferred finding appellant guilty of robbery and placed him on deferred
adjudication community supervision for ten years. The court orally pronounced that the term of
deferred adjudication would begin after appellant served his prison sentence, stating, “So when
you get out of prison, you’re going back on probation for ten years.”
In his first point of error, appellant contends the trial court erred in stacking his term of
deferred adjudication community supervision onto his prison sentence. We agree.
We review a trial court’s decision to cumulate 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 statute. Id. Article 42.08 of the code of criminal procedure
provides that when a defendant has been convicted in two or more cases, the trial court has
discretion to order the judgment and sentence imposed in the second conviction either 1) to begin
to run after the judgment and sentence imposed in the preceding conviction has ceased to
operate, or 2) to run concurrently with the judgment and sentence imposed in the preceding
conviction. Id.; see TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West Supp. 2014). In Hurley,
we held that, because it does not include an adjudication of guilt, a deferred adjudication order is
not a conviction for purposes of article 42.08. Hurley, 130 S.W.3d at 505; see Beedy v. State,
194 S.W.3d 595, 602 (Tex. App.—Houston [1st Dist.] 2006), aff’d, 250 S.W.3d 107 (Tex. Crim.
1
Appellant was indicted for aggravated robbery, but the trial court later granted the State’s motion to reduce the charge to robbery.
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App. 2008). 2 Under the statute, the 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. Hurley, 130 S.W.3d at 506. Accordingly, we concluded the trial court
abused its discretion in ordering the deferred adjudication to begin after the defendant served his
prison sentence. Id. at 507. We reach the same conclusion in this case.
The State urges us to reconsider this issue in light of Ex parte Garza, 192 S.W.3d 658
(Tex. App.—Corpus Christi 2006, no pet.). The court of appeals in that habeas case did not
disagree with Hurley but instead found the conclusion we reached did not apply. Id. at 661. It
seemed to draw a distinction based on the fact that Garza had already been released from prison
and, upon his release, the court had entered a new order that he begin to serve his deferred
adjudication community supervision. Id. at 660–62. It ruled that a trial court cannot be in
violation of a sentence stacking statute if there is only one sentence involved. Id. at 662. We do
not find Garza persuasive and will follow the precedent of this Court.
Although the trial court orally pronounced that the term of community supervision would
begin to run after appellant served his prison term, its order of deferred adjudication is silent on
whether the period of community supervision is to run concurrently or consecutively with the
prison sentence. Nevertheless, to be clear, we modify the order to reflect that the period of
deferred adjudication community supervision is to run concurrently with the sentence in the
burglary case. We sustain appellant’s first point of error.
In points two through six, appellant contends we need to make other modifications to the
order of deferred adjudication, as well as the judgment in the burglary case, to correct various
errors. Specifically, he contends the order and judgment both erroneously indicate there was a
2
In Beedy, the court of criminal appeals addressed only the issue of what the appropriate remedy was for an improper cumulation order —
deletion of the improper cumulation order or remand for resentencing. Beedy, 250 S.W.3d at 109. The court determined the proper remedy was
to delete the cumulation order. Id. at 115.
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plea bargain agreement, when his pleas of guilty and true were open pleas. He also contends the
documents incorrectly reflect that the State’s attorney was Herschel Wood, when the reporter’s
records show it was Stephanie Mitchell. Finally, appellant contends the judgment of conviction
does not reflect the court’s oral order that he attend the Substance Abuse Felony Punishment
Facility (SAFPF) drug program while in prison. 3 The State agrees these modifications should be
made. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d)
(appellate court has power to correct and reform judgment of court below to make record speak
truth when it has information to do so). We sustain points of error two through six.
We modify the order of deferred adjudication in cause number F13-24874-P to reflect
that: 1) the period of community supervision is to run concurrently with the sentence in cause
number F12-57536-P; 2) the attorney for the State was Stephanie Mitchell; and 3) the “Terms of
Plea Bargain” are none. We modify the judgment in cause number F12-57536-P to reflect that:
1) the attorney for the State was Stephanie Mitchell; 2) the “Terms of Plea Bargain” are none;
and 3) appellant shall attend SAFPF. We order the trial court to enter a new order of deferred
adjudication and a new judgment of conviction to reflect these modifications. As modified, we
affirm the trial court’s order of deferred adjudication and its judgment of conviction.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.
140014F.U05
3
The trial court stated, “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.”
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BERNARD KAY ROSS, Appellant On Appeal from the 203rd Judicial District
Court, Dallas County, Texas
No. 05-14-00014-CR V. Trial Court Cause No. F13-24874-P.
Opinion delivered by Justice Brown. Justices
THE STATE OF TEXAS, Appellee FitzGerald and Lang participating.
Based on the Court’s opinion of this date, the trial court’s order of deferred adjudication
is MODIFIED as follows:
The period of community supervision is to run concurrently with the sentence in cause
number F12-57536-P.
The attorney for the State was Stephanie Mitchell.
The “Terms of Plea Bargain” are none.
We ORDER the trial court to enter a new order of deferred adjudication to reflect these
modifications. As MODIFIED, the order is AFFIRMED.
Judgment entered this 17th day of December, 2014.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BERNARD KAY ROSS, Appellant On Appeal from the 203rd Judicial District
Court, Dallas County, Texas
No. 05-14-00015-CR V. Trial Court Cause No. F12-57536-P.
Opinion delivered by Justice Brown. Justices
THE STATE OF TEXAS, Appellee FitzGerald and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The attorney for the State was Stephanie Mitchell.
The “Terms of Plea Bargain” are none.
The defendant shall attend SAFPF.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 17th day of December, 2014.
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