Apland, Dustin Michael ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,070-01
EX PARTE DUSTIN MICHAEL APLAND, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 42,377-B-H-1 IN THE 124TH DISTRICT COURT
FROM GREGG COUNTY
Per curiam. KEASLER , J., filed a dissenting opinion in which KELLER , P.J., and HERVEY ,
J., joined.
OPINION
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of unauthorized use
of a motor vehicle. He waived appeal.
The trial court sentenced Applicant to seven years in prison for this Gregg County UUMV
conviction. The trial court cumulated (i.e., “stacked”) the seven-year sentence with a sentence that
was yet to be imposed in Upsher County in a different UUMV prosecution. See TEX . CODE CRIM .
PROC. art. 42.08(a). Applicant was later sentenced to one year in the State Jail for that Upsher County
case, and Texas prison officials are cumulating the two sentences. Applicant complains that such
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cumulation is not authorized by the Code of Criminal Procedure, however, “because a sentence
cannot be cumulated to a sentence to be imposed in a future case.” The State agrees, writing in its
answer as follows:
The State concedes that the order for consecutive sentences in this case was wrong.
Article 42.08 (a) states, “[I]n the discretion of the court, the judgment in the second
and subsequent convictions may either be” run consecutively or concurrently.
[Emphasis in original.] Because [Applicant] had yet to be convicted in Upshur
County at the time of this [Gregg County conviction], the Upshur County cases could
not form the basis of the order for this case to run consecutively to the Upshur
County case.
The trial court recommends granting relief by reforming the judgment to eliminate the order
requiring consecutive sentences.
The State’s concession and the trial court’s recommendation are supported by the habeas
record and applicable law. See TEX . CODE CRIM . PROC. art. 42.08(a); see also Licon v. State, No. 13-
11-00651-CR (Tex. App.—Corpus Christi Jul. 12, 2012); Davis v. State, Nos. 09-11-00173-CR and
09-11-00174-CR (Tex. App.—Beaumont Oct. 5, 2011); Bollman v. State, 02-08-00061-CR (Tex.
App.—Fort Worth Jan. 22, 2009). Relief is granted. This Court holds that the judgment in Cause
No. 42,377-B in the 124th District Court of Gregg County is reformed by eliminating the trial court’s
order requiring consecutive sentences.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Pardons and Paroles Division.
Delivered: December 10, 2014
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