Moore, Jammie Lee ( 2012 )


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  •              IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    NO. PD-0965-11
    JAMMIE LEE MOORE, Appellant
    v.
    THE STATE OF TEXAS
    ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
    FROM THE SEVENTH COURT OF APPEALS
    POTTER COUNTY
    K ELLER, P.J., filed a dissenting opinion.
    Appellant failed to object to the trial court’s decision to cumulate sentences. As the court
    of appeals explained: “[T]here has been a complete procedural default on any issue related to the trial
    court’s cumulative sentence order.”1 In an attempt to get around this obvious procedural default,
    appellant framed his claim as one of evidentiary insufficiency.2
    1
    Moore v. State, 
    339 S.W.3d 365
    , 368 (Tex. App.–Amarillo 2011).
    2
    See 
    id. (“[U]pon closer
    reading, it becomes apparent that appellant has taken that approach
    for one reason only . . . to circumvent the consequences of failing to object to the trial court’s action
    in cumulating the sentences.”).
    MOORE — 2
    The Court errs to accept appellant’s characterization of the claim as one of evidentiary
    insufficiency. Evidence to support a cumulation order might be legally insufficient when the State
    fails to provide evidence of a prior conviction or of a fact necessary to authorize cumulative
    sentences.3
    But in the present case, there was sufficient evidence from which the trial judge could order
    cumulative sentences. There is no dispute that there was evidence of the prior conviction, and the
    trial judge had the authority to cumulate sentences in his discretion under Article 42.08(a).4 If the
    trial judge believed that he was required to cumulate, then he was in error in so believing, and to the
    extent the trial judge committed an error of law, appellant was required to object.5
    I respectfully dissent.
    Filed: June 20, 2012
    Publish
    3
    See TEX . PENAL CODE § 3.03(b)(2)(exception to mandatory concurrent sentencing for
    certain types of offenses if committed against a victim younger than seventeen years of age).
    4
    See TEX . CODE CRIM . PROC. art. 42.08(a).
    5
    See TEX . R. APP . P. 33.1. The issue appellant raises now would be better raised as an
    ineffective assistance of counsel claim in a habeas proceeding regarding his attorney’s failure to
    object to the cumulation of sentences. In such a proceeding, the record could be expanded to include
    the attorney’s reasons (if any) for failing to object, the trial judge’s reason for cumulating sentences,
    and whether or not the trial judge would have cumulated sentences if he had realized that he was not
    required to do so.
    

Document Info

Docket Number: PD-0965-11

Filed Date: 6/20/2012

Precedential Status: Precedential

Modified Date: 9/16/2015