Jimmy Barrera Garcia v. State

Opinion filed November 2, 2006

Opinion filed November 2, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00068-CR

                                                     __________

                               JIMMY BARRERA GARCIA, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 244th District Court

                                                           Ector County, Texas

                                                 Trial Court Cause No. C-31,497

                                                                   O P I N I O N

Jimmy Barrera Garcia appeals from the trial court=s revocation of his community supervision.  Specifically, he challenges the trial court=s order that he serve the sentence for this case after the completion of his federal sentence.   We affirm.

Background Facts

Appellant pleaded guilty to the first degree felony of possession of cocaine with the intent to deliver.  The trial court sentenced appellant to ten years in the Texas Department of Criminal Justice, Institutional Division.  The trial court  suspended the sentence and placed appellant on community supervision for a period of ten years.  The State later filed a motion to revoke appellant=s community supervision.  Appellant pleaded true to the violations listed in the motion, and the trial court assessed his punishment at ten years confinement in the Texas Department of Criminal Justice, Institutional Division.  Hours before the revocation hearing, appellant pleaded guilty to an offense in the United States District Court for the Western District of Texas, and the federal court convicted him of possession with intent to distribute 500 grams or more of cocaine.  The federal court sentenced him to 120 months confinement in the Bureau of Federal Prisons.  In this cause, the  trial court ordered the state sentence to run consecutive to the federal sentence.

Issue on Appeal

Appellant contends that the trial court violated the Due Process Clause and the Double Jeopardy Clause of the United States Constitution and the Texas Constitution by ordering his revocation sentence to run consecutively with the sentence in the federal conviction.

Discussion

Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2006) allows a trial court in its discretion to cumulate sentences when the defendant is convicted of two or more offenses.  Whether the punishment will run concurrently or cumulatively rests within the sound discretion of the trial court.  Article 42.08(a); Rodriguez v. State, 552 S.W.2d 451, 456 (Tex. Crim. App. 1977). However, a cumulation order may not be entered if the defendant has begun to serve one of the sentences.  Ex parte Madding, 70 S.W.3d 131 (Tex. Crim. App. 2002).  A defendant=s sentence begins to run on the day that it is pronounced.  Id. at 134-35.  Stacking sentences after the defendant has started serving one sentence violates the constitutional protection from double jeopardy because it punishes the defendant twice for the same offense.  Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004); Ex parte Barley, 842 S.W.2d 694, 695 (Tex. Crim. App. 1992).

Under Article 42.08 and for purposes of stacking, a case can be treated as a conviction at the time the trial court suspends the sentence or at the time the trial court imposes the sentence.  Pettigrew v. State, 48 S.W.3d 769, 771 (Tex. Crim. App. 2001). 

[W]hen community supervision is revoked, the trial court would have the discretion to treat the case as a conviction at the time of community supervision and stack a subsequently committed offense onto the revoked offense, or the trial court could treat the case as a conviction upon revocation and stack the revocation sentence onto the sentence for the new offense, if the revocation occurred after the conviction for the new offense.

Id.  Thus, Article 42.08 provides the trial court with the maximum flexibility possible in stacking sentences. Id. at 773.

Appellant argues that he had already begun serving his sentence before the trial court orally announced the sentences to run consecutively because he was given 134 days credit.  To support his argument, appellant cites Ex parte Barley, 842 S.W.2d at 694.  In Barley, the defendant was sent to the Texas Department of Criminal Justice, Institutional Division, under the Special Alternative Incarceration Program (boot camp). The defendant completed the program, and the trial court placed him on probation.  Id. at 694-95.  The trial court later revoked his probation and, at that time, cumulated his sentences. Barley had already served a portion of his sentence before the trial court suspended his sentence. The Court of Criminal Appeals held that Article 42.08 allows a trial court to cumulate sentences but does not allow cumulation if the defendant is placed on probation after boot camp and subsequently has his probation revoked.  Id. at 695.

In this case, appellant received credit for the time he served while waiting for trial.  Appellant could not have begun serving his sentence until the trial court orally pronounced the sentence.  See Ex parte Madding, 70 S.W.3d at 134-35.  The trial court pronounced appellant=s sentence on the same day it ordered the sentences to be cumulative.  Appellant had not served any portion of his sentence when the trial court entered the cumulation order.  The trial court did not abuse its discretion in stacking appellant=s revocation sentence onto his federal sentence. We overrule appellant=s issue on appeal.

We affirm the judgment of the trial court.

RICK STRANGE

JUSTICE

November 2, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.