Marvin Wade v. Brent Button ( 1998 )

Marvin Wade, et al. v. Brent Button, et al.

  IN THE

TENTH COURT OF APPEALS

No. 10-98-249-CV

     MARVIN WADE, ET AL.,

                                                                              Appellants

     v.

     BRENT BUTTON, ET AL.,

                                                                              Appellees

From the 66th District Court

Hill County, Texas

Trial Court # 35452

MEMORANDUM OPINION

      Appellant Wade filed a law suit in which Appellee Michael Cosby was named a defendant. A summary judgment was granted in Cosby’s favor on March 20, 1998. Apparently, it was not severed from the claims against the remaining defendants. On August 11, 1998, a summary judgment was granted, purporting to resolve the case in its entirety. Wade filed a notice of appeal from the “final judgment.” Cosby has filed a motion to dismiss in which he states that Wade’s appeal is not intended to appeal the interlocutory summary judgment against him, but rather intends only to appeal the final judgment as it pertains to parties to the second summary judgment. Cosby asserts that Wade does not object and has informed him that he never intended Cosby to be a party to this appeal.

      We have waited two weeks and have not received a response from Wade. Accordingly, we dismiss the appeal to the extent it may be considered to challenge the summary judgment rendered in favor of Cosby. The remainder of Wade’s claims will be addressed according to the usual appellate timetable. See Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 823 (Tex. 1985). All costs of court expended by Cosby on appeal are hereby taxed against Appellant Wade.

                                                                                 PER CURIAM

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

Dismissed

Opinion delivered and filed December 23, 1998

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en a motor vehicle without a driver's license and insurance, had failed to make payments to the probation office, and had failed to perform community service. Then the trial court took judicial notice of the evidence in the deadly conduct case and found true the allegations in the possession of cocaine case, and thereupon revoked the probations in both cases and sentenced Appellant to ten years confinement in the deadly conduct case and ten years in the possession of cocaine case with the ten years in the possession of cocaine case to begin to be served after the sentence in the deadly conduct case had ceased to operate.

      Appellant comes to this court on three points of error, in all of which points he complains of the trial court's ordering the possession of cocaine case to be consecutive with the sentence in the deadly conduct case. Appellant contends that the two sentences should have been made to run concurrently.

      His first point asserts this order of the court was error because it violated the plea-bargain agreement entered into when Appellant pled guilty. In his second point he argues that the order was erroneous because a portion of the sentence in the deadly conduct sentence had already been served. In his third and final point he says the trial court's order was erroneous because same was not sufficient. We overrule all of Appellant's points and contentions and affirm the trial court's judgments.

      We revert to Appellant's first point. His plea of guilty in the deadly conduct case, as well as in the possession of cocaine case, was preceded by a plea-bargain agreement in which he contends that there was an agreement that at revocation of probation that the sentences in both cases would run concurrently. Because of this, he says the trial court erred in cumulating these two sentences. We do not agree.

      In the first place there is nothing in the plea-bargain agreement in either case nor in the record as a whole to show that having Appellant's sentences running concurrently at a future revocation was a part of either of such plea-bargain agreements. It is clear that each plea-bargain agreement provided that the two probations are to run concurrently with each other. There is nothing in either plea-bargain agreement wherein it is provided that the sentences in both cases would run concurrently in the event the probations are revoked in the future.

      If a plea-bargain agreement fails to address certain matters, the party to the agreement has no right to demand performance of terms not appearing in the agreement or record. Mills v. State, 799 S.W.2d 447 (Tex. App.—Corpus Christi 1990, pet. ref'd); Ex parte Williams, 758 S.W.2d 785, 786 (Tex. Crim. App. 1988).

      When sentence is imposed, it is within the discretion of the court whether to cumulate sentences or not. Tex. Code Crim. Proc. Ann. art. 42.08. Sentence is not imposed until probation is revoked in which case the court may proceed to dispose of the case as if there had been no probation. McCullar v. State, 676 S.W.2d 587 (Tex. Crim. App. 1984).

      Moreover, Appellant did not object to the imposition of consecutive sentences at the revocation hearing to preserve any error and has thereby waived same. Tex. R. App. P. 52(a).

      The fact that the probationary periods were running concurrently does not affect whether the final sentences are to run consecutively. Burns v. State, 835 S.W.2d 733, 737 (Tex. App.—Corpus Christi 1992, pet. ref'd).

      In the case at bar, the trial court did not violate the plea agreement but exercised its discretion to cumulate Appellant's sentences at the proper time, namely, after revocation of Appellant's probation. A trial court's discretion must be exercised at the time sentence is pronounced and imposed. Ex parte Vasquez, 712 S.W.2d 754 (Tex. Crim. App. 1986). Appellant's first point of error is overruled.

      By Appellant's second point of error he contends the trial court erred in causing the sentence in the possession of cocaine case to be served consecutively with the sentence assessed in the deadly conduct case due to the fact that a portion of the sentence in the deadly conduct case had already been served. He points out the rule that once a portion of a sentence has been served, there can be no valid order to cumulate sentences, citing O'Hara v. State, 626 S.W.2d 32 (Tex. Crim. App. 1982).

      We agree that O'Hara states the above rule, but this rule does not apply in the case at bar. Here, Appellant was ordered to serve thirty days in jail as a part of his probation in the deadly conduct case. At that time no sentence had been imposed. When a court suspends a sentence and instead places a defendant on probation, no sentence has been imposed. Burns v. State, 835 S.W.2d 733, 737 (Tex. App.—Corpus Christi 1992, pet. ref'd). When the probation is revoked, the sentence is imposed for the first time. Id.. at 737.

      Appellant is correct in saying that a court may not impose a cumulation order to an already-imposed sentence for which Appellant has already suffered a part of his punishment, yet in our case jail time as a condition of probation took place before any sentence has been imposed. Appellant cites O'Hara which holds that a cumulation order would not be permitted when the defendant had his shock probation revoked, because in the case of shock probation, the sentence had already been imposed and a part of the sentence had already been served. Shock probation merely suspends the execution of a sentence rather than the imposition of a sentence, the latter being the situation in the case at bar.

      Here, Appellant's thirty days served in jail as a condition of his probation occurred before his sentence had been imposed and while his sentences were suspended on probation; therefore, Appellant's second point of error is without merit and we overrule same.

      By his third and final point of error Appellant asserts that the complained-of cumulaton order of the trial court is erroneous because the order of the court is not sufficient. We overrule this point of error.

      Appellant merely states in his brief that the order was defective without providing any case law or any other reason to explain why this order was defective.

      The pertinent portion of the nunc pro tunc sentence order in Cause No. 23,905-272 (the deadly conduct case) reads as follows:

It is the order of the court that Jerome Allen Searcy, who has been adjudged guilty of the felony offense of deadly conduct and whose punishment has been assessed by the Court at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of ten (10) years be and is hereby sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of ten (10) years in accordance with the laws governing the Institutional Division of the Texas Department of Criminal Justice. The sentence in No. 24,148-272 in the 272nd Judicial District Court of Brazos County, Texas, for the offense of Possession of a Controlled Substance for which this Court sentenced the defendant to ten (10) years in the Institutional Division of the Texas Department of Criminal Justice on August 8, 1996, shall begin when the judgment and the sentence imposed in Cause No. 23,905-272 in the 272nd Judicial District Court of Brazos County, Texas, for the offense of Deadly Conduct for which this Court sentenced the defendant to ten years in the Institutional Division of the Texas Department of Criminal Justice on August 8, 1996, has ceased to operate.

      Likewise, the pertinent portion of the nunc pro tunc sentence order in Cause No. 24,148-272 (the possession of cocaine case) is couched in similar language to that recited above, and provides that the sentence in the possession of cocaine case will begin to run when the sentence in the deadly conduct case ceases to operate.

      In Ward v. State, 523 S.W.2d 681 (Tex. Crim. App. 1975), our Court of Criminal Appeals set out five recommended elements of a cumulation order:

            (1)  the trial court number of the prior conviction;

            (2)  the correct name of the court where the prior 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. Also see Williams v. State, 675 S.W.2d 754 (Tex. Crim. App. 1984).

      The cumulation order in each case meets all of the above requirements listed by the Court of Criminal Appeals.

      Finally, Appellant argues that even if the nunc pro tunc judgments signed by the trial court are correct, they are null and void because once a sentence is imposed, the court is without authority to alter that sentence. We do not agree. See Madrigal Rodriguez v. State, 749 S.W.2d 576, 580 (Tex. App.—Corpus Christi 1988, pet ref’d), holding that the courts of appeals and the Court of Criminal Appeals have the authority to reform and correct cumulation orders when the necessary data is contained in the record, citing Banks v. State, 708 S.W.2d 460 (Tex. Crim. App. 1986). In our case, no information was necessary since the nunc pro tunc sentences were sufficient. Appellant’s third point of error is overruled.

      The judgments of the trial court are affirmed.

                                                                               JOHN A. JAMES, JR.

                                                                               Justice (Retired)

Before Chief Justice Davis,

      Justice Vance and

      Justice James (Retired)

Affirmed

Opinion delivered and filed August 1, 1997

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