Brandon Christopher Head v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00317-CR
Brandon Christopher Head, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 2007-107, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING
MEMORANDUM OPINION
In 2007, appellant Brandon Christopher Head pleaded guilty to the offense of
burglary of a habitation. Punishment was assessed at eight years’ imprisonment, but the district court
suspended imposition of the sentence and placed Head on community supervision for eight years.
In 2009, the district court revoked Head’s community supervision and imposed the sentence that had
previously been suspended. Head later filed a motion for shock probation, which the district court
granted, placing Head back on community supervision.1 While Head was still on community
supervision for the 2007 offense, he was convicted in Hays County of three subsequent offenses
committed in 2011—aggravated robbery, unlawful use of a motor vehicle, and evading arrest. Based
1
See Tex. Code Crim. Proc. art. 42.12, § 6(a) (“Before the expiration of 180 days from
the date the execution of the sentence actually begins, the judge of the court that imposed such
sentence may . . . suspend further execution of the sentence and place the defendant on community
supervision . . . .”).
in part on Head’s commission of those offenses, the State filed a motion to revoke Head’s
community supervision for the 2007 offense. Following a hearing, the district court granted the
State’s motion and again revoked Head’s community supervision. Over Head’s objection, the
district court ordered that Head’s sentence for the 2007 offense be served consecutively following
Head’s sentence for the 2011 offense of aggravated robbery. In a single point of error on appeal,
Head argues that the district court erred by cumulating his previously suspended sentence for the
2007 offense with his current sentence for the 2011 offense. Under controlling precedent of the
Texas Court of Criminal Appeals, we agree.2
We review a trial court’s decision to cumulate, or “stack,” sentences for abuse of
discretion.3 In this context, we will find an abuse of discretion only if the trial court: (1) imposes
consecutive sentences where the law requires concurrent sentences; (2) imposes concurrent sentences
where the law requires consecutive ones; or (3) otherwise fails to observe the statutory requirements
2
In its brief, the State concedes error on this point and acknowledges the Court of Criminal
Appeals precedent but “urges this Honorable Court to reconsider the precedent.” However, “as
an intermediate appellate court, we must follow the binding precedent of the Court of Criminal
Appeals.” Gonzales v. State, 190 S.W.3d 125, 130 n.1 (Tex. App.—Houston [1st Dist.] 2005,
pet. ref’d); see also State v. Stevenson, 993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.)
(“Because a decision of the court of criminal appeals is binding precedent, we are compelled to
comply with its dictates.”).
3
See Banks v. State, 503 S.W.2d 582, 587 (Tex. Crim. App. 1974); Strahan v. State,
306 S.W.3d 342, 351 (Tex. App.—Fort Worth 2010, pet. ref’d); see also Tex. Code Crim. Proc.
art. 42.08(a) (“Except as provided by Sections (b) and (c) of this article, in the discretion of the court,
the judgment in the second and subsequent convictions may either be that the sentence imposed or
suspended shall begin when the judgment and the sentence imposed or suspended in the preceding
conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently
with the other case . . . .”).
2
pertaining to sentencing.4 “In short, so long as the law authorizes the imposition of cumulative
sentences, a trial judge has absolute discretion to stack sentences.”5
As a general rule, a trial court may stack a defendant’s sentences even if one of the
sentences was previously probated or suspended.6 However, there is a well-established exception
to this rule. The Court of Criminal Appeals has repeatedly held that a trial court may not stack a
previously suspended sentence when the defendant has already served a portion of that sentence,
because to do so would violate the defendant’s constitutional protection against being punished
twice for the same offense.7 This exception applies when the defendant is granted shock probation,
because in such a case, the defendant must actually serve a portion of his sentence before being
placed on community supervision.8 An attempted cumulation order in such a case “is null and void
and of no legal effect.”9
That is what occurred here. The record reflects that Head was on shock probation and
had already served a portion of his sentence for the 2007 offense when the district court ordered that
4
Revels v. State, 334 S.W.3d 46, 54 (Tex. App.—Dallas 2008, no pet.); Nicholas v. State,
56 S.W.3d 760, 765 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); see also Barrow v. State,
207 S.W.3d 377, 380-81 (Tex. Crim. App. 2006) (explaining discretionary nature of decision).
5
Nicholas, 56 S.W.3d at 765.
6
See Pettigrew v. State, 48 S.W.3d 769, 772-73 (Tex. Crim. App. 2001).
7
See 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); O’Hara v. State, 626 S.W.2d 32, 35 (Tex. Crim.
App. 1981); Ex parte Brown, 477 S.W.2d 552, 554 (Tex. Crim. App. 1972); Ex parte Reynolds,
462 S.W.2d 605, 608 (Tex. Crim. App. 1970).
8
See O’Hara, 626 S.W.2d at 35.
9
Id.
3
Head’s sentence for that offense be served consecutively following his sentence for the subsequent
offense. Based on the precedent summarized above, the district court had no authority to enter such
an order in this case.10 Therefore, on this record, we must conclude that the district court abused its
discretion in entering the cumulation order. We sustain Head’s sole point of error.
We modify the judgment revoking Head’s community supervision by deleting the
order cumulating Head’s sentences and providing instead that the sentences shall be served
concurrently.11 As modified, we affirm the district court’s judgment.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Rose
Modified and, as Modified, Affirmed
Filed: April 4, 2014
Do Not Publish
10
Id.
11
See Moore v. State, 371 S.W.3d 221, 229 (Tex. Crim. App. 2012); Robbins v. State,
914 S.W.2d 582, 584 (Tex. Crim. App. 1996); Beedy v. State, 194 S.W.3d 595, 603
(Tex. App.—Houston [1st Dist.] 2006), aff’d, 250 S.W.3d 107 (Tex. Crim. App. 2008).
4