Byrd, Thomas Leon

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0213-15
THOMAS LEON BYRD, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
MCLENNAN COUNTY
R ICHARDSON, J., delivered the opinion of the Court in which K ELLER, P.J., and
M EYERS, J OHNSON, K EASLER, A LCALA, Y EARY, and N EWELL, JJ. joined. H ERVEY, J.,
concurred in the result.
OPINION
In this case, we examine our decision in Ex Parte Wrigley1 to determine whether it
applies under these facts. In Wrigley, this Court was asked to resolve the “novel issue of
whether an original sentence is completed and a stacked sentence begins to run at the time
1
178 S.W.3d 828 (Tex. Crim. App. 2005).
Thomas Byrd — 2
the defendant makes parole on the original offense, if his parole is revoked before the trial
court sentences the defendant for the stacked offense.”2 In Wrigley, the defendant was in
prison serving a twenty-year sentence when he committed a second offense. He was paroled
on the first sentence while awaiting trial on the second offense. His parole on the first
offense was then revoked before the trial court sentenced the defendant for the second
offense. We held that the trial court could stack the second sentence on top of the first
sentence because the“original sentence [was] still in operation.”3 Under that scenario, the
defendant’s second sentence would not begin to run until the conclusion of the revoked first
sentence.
The facts here are similar to those in Wrigley except for one important twist—in this
case appellant was sentenced on the second offense before his parole on the first offense was
revoked.4 So, the question we must answer today is, if a defendant commits a second offense
while on parole for a first offense, is the trial court able to stack the second sentence on top
of the first sentence if the defendant’s parole on the first offense has not been revoked before
2
Id. at 829. We note that, under Texas Code of Criminal Procedure, Article 42.08(a), a trial
court has the discretion to order sentences for a defendant who has been convicted in two or more
cases to: (1) run concurrently, or (2) cumulate, or “stack,” the second and subsequent sentences. T EX.
C ODE C RIM. P ROC. art. 42.08(a). However, a trial court does not have that same discretion if a
defendant commits an offense while in prison. See T EX. C ODE C RIM. P ROC. art. 42.08(b).
3
178 S.W.3d at 831.
4
We also note that the judge in Wrigley did not have discretion to not stack the sentences
because Wrigley’s second offense was committed in prison. However, for the purposes of its
application to this case, that distinction is not relevant. The issue is when does the second sentence
begin to run.
Thomas Byrd — 3
he is sentenced on the second offense?
Following appellate court precedent, the Tenth Court of Appeals held that a trial court
may stack a new sentence on a prior sentence for which the defendant is on parole,
“irrespective of parole revocation.”5 To support its decision, the Tenth Court of Appeals
relies on Jimenez v. State6 (and cases citing to Jimenez v. State). Jimenez was a 1982 case
from the Fourth Court of Appeals, which was decided before the enactment of applicable
statutory law and, as explained herein, runs contrary to more recently decided precedent from
this Court.
To be consistent with our opinion in Wrigley, we hold that the timing of a defendant’s
parole revocation regarding the original offense affects whether a trial court has the ability
to stack a second sentence on top of that original offense pursuant to Article 42.08(a).7 In
this case, because there was no evidence that appellant’s parole had been revoked at the time
he was sentenced on his second offense, the trial court’s cumulation order was invalid. We
5
Byrd v. State, No. 10-13-00381-CR, 2015 WL 294674, *2 (Tex.App.—Waco 2015) (citing
McGown v. State, No. 10-12-00092-CR, 2013 WL 5494676, at *9 (Tex. App.–Waco Sept. 26, 2013,
pet. ref’d) (not designated for publication); Hill v. State, 213 S.W.3d 533, 538 (Tex. App.–Texarkana
2007, no pet.); Wilson v. State, 854 S.W.2d 270, 273 (Tex. App. – Amarillo 1993, pet. ref’d); Jimenez
v. State, 634 S.W.2d 879, 881-82 (Tex. App. –San Antonio 1982, pet. ref’d); and Sanchez v. State, No.
02-11-00018-CR, 2012 WL 171295, at *2-3 (Tex. App. – Fort Worth Jan. 19, 2012, no pet.) (not
designated for publication)).
6
634 S.W.2d 879 (Tex. App.—San Antonio 1982, pet. ref’d).
7
We are mindful that the parole revocation time line and hearing are within the Parole Board’s
discretion and jurisdiction and that the trial court has jurisdiction over only the new offense.
Nevertheless, as explained herein, the timing of the revocation impacts the trial court’s ability to stack
the second sentence on top of the first sentence.
Thomas Byrd — 4
modify the judgment of the court of appeals accordingly and reform the trial court judgments
to delete the cumulation order. As modified, the judgment of the court of appeals is
affirmed.
BACKGROUND
In May of 2012, when appellant, Thomas Leon Byrd, was on parole for a fifteen-year-
sentence on a 2008 drug conviction, he committed the offenses of possession of cocaine,
possession of methamphetamine, and evading arrest or detention.8 According to the record
before us, on October 1, 2013, appellant was convicted of these three offenses and sentenced
to eighty years, twenty years, and twenty years, respectively. All three judgments in this case
(one for each count), reflect that the “Date Sentence [is] to Commence” is on the date of the
judgment—“10/1/2013.” However, these three judgments also order that the sentences are
to “run consecutively and shall begin only when the judgment and sentence in the following
case has ceased to operate: 2007-1823-C1.” Cause 2007-1823-C1 is the 2008 conviction for
which appellant was on parole at the time he committed these three offenses.
There is no evidence in the record that appellant’s parole had been revoked. In fact,
after the trial court pronounced appellant’s sentences on the three offenses and remanded
appellant to the custody of the Sheriff of McLennan County, the State requested that the
sentences “run consecutive to his parole.”
8
It is undisputed by the parties that appellant was on parole for the 2008 fifteen-year sentence
at the time that he committed these offenses in May of 2012.
Thomas Byrd — 5
One of the issues appellant raised on direct appeal was that, because there was no
evidence that his parole had been revoked yet, the trial court’s cumulation order
impermissibly ordered appellant’s sentences to run consecutive to some future sentence. The
Tenth Court of Appeals rejected this argument, held that parole revocation was not necessary,
and affirmed appellant’s conviction and consecutive sentences.9
We granted appellant’s petition for discretionary review to decide whether a trial court
may order a sentence to run consecutive to a future parole revocation. We hold that it may
not.
ANALYSIS
A. Article 42.08 - A Trial Court’s Authority To Stack Sentences
Article 42.08 of the Code of Criminal Procedure governs the manner in which trial
courts are to order consecutive sentences.
(a) When the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the same
manner as if there had been but one conviction. 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 or cases . . . .
(b) If a defendant is sentenced for an offense committed while the
9
Byrd, 2015 WL 294674 at *2.
Thomas Byrd — 6
defendant was an inmate in the Texas Department of Criminal Justice
and serving a sentence for an offense other than a state jail felony and
the defendant has not completed the sentence he was serving at the time
of the offense, the judge shall order the sentence for the subsequent
offense to commence immediately on completion of the sentence for
the original offense.
(c) If a defendant has been convicted in two or more cases and the court
suspends the imposition of the sentence in one of the cases, the court
may not order a sentence of confinement to commence on the
completion of a suspended sentence for an offense.10
We review a trial court’s decision under Article 42.08(a) for an abuse of discretion.
“Normally, the trial judge has absolute discretion to cumulate sentences,” so long as the law
authorizes the imposition of cumulative sentences.11 A trial court abuses its discretion if it
imposes consecutive sentences where the law requires concurrent sentences.
B. Section 508.150(b) – The Meaning of “Cease To Operate”
Article 42.08, subsection (a), gives a trial court judge discretion to order a defendant’s
sentence to begin after a preceding conviction’s sentence has “ceased to operate.” To
determine the meaning of the phrase, “cease to operate,” we first look for guidance in Section
508.150(b) of the Texas Government Code:
(b) For the purposes of Article 42.08, Code of Criminal Procedure, the
judgment and sentence of an inmate sentenced for a felony, other than
the last sentence in a series of consecutive sentences, cease to operate:
10
T EX. C ODE C RIM. P ROC. art. 42.08.
11
Smith v. State, 575 S.W.2d 41, 41 (Tex. Crim. App. 1979) (citing T EX. C ODE C RIM. P ROC.
art. 42.08 (1965)).
Thomas Byrd — 7
(1) when the actual calendar time served by the inmate equals the
sentence imposed by the court; or
(2) on the date a parole panel designates as the date the inmate
would have been eligible for release on parole if the inmate had
been sentenced to serve a single sentence.12
Citing to Ex parte Kuester,13 appellant argues that his 2008 sentence had already
“ceased to operate” when he was released on parole. In Kuester, the applicant was initially
sentenced to a ten-year prison term for burglary of a building. While in the custody of TDCJ,
he struck a correctional officer and was convicted of aggravated assault. The trial court
sentenced Kuester to a four-year prison term on the aggravated assault charge and ordered
that it would not begin to run until Kuester’s ten-year sentence had “ceased to operate.” This
Court decided that “the phrase ‘completion of the sentence’ [in Art. 42.08(b) has] the same
meaning as ‘cease to operate’ [in Art. 42.08(a)] . . . . So a sentence is ‘completed,’ for
purposes of Art. 42.08(b), when it is served out in full day-for-day, or when a parole panel
approves the inmate for parole release.”14 We explained that
[Article 42.08’s] placement [in the Code of Criminal Procedure] and its
language are both some support for the view that the first sentence should not
have to be served in full, day-for-day, in order for the second sentence to
begin. Rather, the parole laws should apply to stacked sentences as they do to
12
T EX. G OV’T. C ODE § 508.150 (replacing Art. 42.18 § 8(d)(2)).
13
21 S.W.3d 264 (Tex. Crim. App. 2000) (en banc) (disapproved on other grounds Ex parte
Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003)).
14
Id. at 271.
 Thomas Byrd — 8
all other sentences, and the second sentence should begin when the inmate
makes parole on the first sentence.” 15
Our analysis in Kuester of how Article 42.08 and Section 508.150 are to be read together
leads to the conclusion that a sentence “ceases to operate” when a defendant “makes parole.”
Appellant would have us stop there.
However, our decision in Ex parte Wrigley16 clarifies that a defendant who had been
on parole can still be considered to have not “made parole” if his parole is revoked. While
in prison on a twenty-year sentence for possession of a controlled substance, Wrigley
assaulted another prisoner. Wrigley was paroled on the original twenty-year sentence while
the new case was pending and then pled guilty to the aggravated assault offense. His parole
on the original twenty-year sentence was revoked, then he was sentenced to seven years for
the aggravated assault. The trial court ordered that the seven-year sentence was to run
consecutively with the original twenty-year sentence. Wrigley contended that the seven-year
sentence, which was to be stacked onto the twenty-year sentence, began to run on the date
he was paroled on the original offense, even if his parole was revoked before the court
sentenced him for the seven-year sentence. We disagreed with Wrigley’s argument, holding
that, “[a] defendant has not completed the original sentence under Article 42.08(b), if at the
time of sentencing for the stacked offense, the defendant has not served the original sentence
15
Id. at 270.
16
178 S.W.3d 828 (Tex. Crim. App. 2005).
Thomas Byrd — 9
in full, day-for-day, until discharge, or he has not made parole on the original offense.” 17 We
further explained that,
a defendant has not ‘made parole’ on the original offense, if his parole is
revoked prior to being sentenced for the stacked offense, because his original
sentence is still in operation, as he is serving his remaining sentence.
We therefore hold that, under Article 42.08(b), a stacked sentence does not
begin to run on the date the defendant makes parole on the original offense if
his parole is revoked before the trial court sentences the defendant for the
stacked offense. Consequently, [Wrigley’s] seven-year, stacked sentence for
the aggravated assault did not begin to run on November 12, 1993, the date he
made parole on the original possession offense, because his parole was
revoked before the trial court sentenced him for the stacked offense.” 18
Our reasoning in Wrigley hinged entirely on the fact that, even though Wrigley was
released on parole on the first offense, his parole was revoked before he was sentenced on
the second offense. Therefore, at the time Wrigley was sentenced for the second offense, he
had not “made parole.” Wrigley’s first sentence was “still in operation”—it had not ceased
to operate.
The Tenth Court of Appeals considered neither Kuester’s nor Wrigley’s application
to the facts in this case. However, our reasoning in those cases must be applied here.
Without any evidence in the record that appellant’s parole on the 2008 offense was revoked
prior to being sentenced for this offense, we conclude that appellant had “made parole” on
17
Id. at 831. We know from Ex parte Kuester that “completing the original sentence under
Article 42.08(b)” means the same as “ceases to operate” under Article 42.08(a).
18
Id.
Thomas Byrd — 10
that original offense at the time of sentencing in this case. Therefore, for the purpose of
Article 42.08(a)’s and Section 508.150(b)(2)’s application to these facts, appellant’s 2008
sentence had already “ceased to operate” when he was sentenced in this case.19 This means
that there was no earlier sentence still in operation upon which to stack these sentences. The
cumulation orders are invalid.
C. Jimenez v. State—A House of Cards
The intermediate appellate court cases that have addressed this issue do not persuade
us to hold otherwise. Every one of them is based on the 1982 Fourth Court of Appeals
decision in Jimenez v. State,20 (or they are based on cases that are based on Jimenez), and not
19
We qualify our holding, inasmuch as it applies only to whether the 2008 sentence ceased to
operate under Article 42.08(a) vis a vis the sentences in this case. If appellant’s parole on the 2008
offense has been subsequently revoked, that fifteen-year sentence would still be in operation with
regard to any future offenses.
20
Jimenez v. State, 634 S.W.2d 879 (Tex. App.—San Antonio 1982, pet. ref’d). See Carpenter
v. State, 828 S.W.2d 441, 442 (Tex. App.— Austin 1992, no pet.) (citing Jimenez); Wilson v. State,
854 S.W.2d 270, 273 (Tex. App.—Amarillo 1993, pet. ref’d) (“Appellant candidly admits the court’s
action was in keeping with Jimenez had he been on parole. . . . [We choose] to follow the Jimenez
holding.”); Richards v. State, No. 01-01-00933-CR, 2002 WL 31122180, at *4 (Tex. App.—Houston
[1st Dist.] 2002) (citing Wilson, Carpenter, and Jimenez); Miller v. State, No. 13-03-703-CR, 2004
WL 5050898, at *2 (Tex. App.—Corpus Christi 2004, no pet.) (following Jimenez, holding that,
“regardless of the outcome of the subsequent parole proceedings, the sentence in this case will become
effective when the sentence in the previous case ceases to operate.”); Hill v. State, 213 S.W.3d 533,
538 (Tex. App.—Texarkana 2007, no pet.) (“A trial court has the authority to stack a new sentence
onto a prior sentence for which the defendant is then on parole.” and citing Wilson, Carpenter, and
Jimenez); McGown v. State, No. 10-12-00092-CR, 2013 WL 5494676, at *9 (Tex. App.—Waco Sept.
26, 2013, pet. ref’d) (mem. op., not designated for publication) (citing Hill, Wilson, and Jimenez and
affirming the trial court’s stacking of sentences because it was within its discretion for a defendant
convicted in two or more cases); Mason v. State, No. 10-13-00368-CR, 2014 WL 5093999, at *8 (Tex.
App.—Waco 2014, pet. ref’d) (“A trial court has the authority under this article to stack a new
sentence onto a prior sentence for which the defendant is then on parole.”) (first citing Hill, 213
Thomas Byrd — 11
on more recently enacted statutory authority or precedent set by this Court.
In Jimenez, the appellant argued that, because of his parole status at the time of his
trial for attempted capital murder, the trial court lacked authority to cumulate his sentences.
The San Antonio Court of Appeals disagreed, holding that, even though the defendant was
on parole with regard to a prior murder offense when he was convicted of attempted capital
murder, the trial court had the authority to order that the sentence for the attempted capital
murder be served consecutively to the sentence for the prior offense—“regardless of the
outcome of subsequent parole proceedings, the sentence in this case will become effective
when the sentence in cause number 65573 ceases to operate.”21 The Jimenez court reasoned
that, “[w]hen appellant was placed on parole status for that conviction, he was not discharged
from the judgment and sentence. . . . Release from prison for rehabilitation purposes does not
mean release from the operation of the judgment and sentence in that cause.” 22
Significantly, when Jimenez was decided in 1982, there was no statutory interpretation
of the term “cease to operate.” Section 508.150 was enacted in September of 1997. Its
predecessor can be found in Article 42.18 of the Code of Criminal Procedure, but the
statutory language setting out the meaning of “cease to operate” did not appear in Article
S.W.3d at 538; then citing Wilson, 854 S.W.2d at 273; and then citing Jimenez, 634 S.W.2d at 881-
82).
21
Jimenez, 634 S.W.2d at 882.
22
Id. at 881.
 Thomas Byrd — 12
42.18 until 1987.23
Since Jimenez, and since the enactment of Section 508.150, this Court has addressed
the meaning of the term “cease to operate.” As illustrated by our decisions in Kuester and
Wrigley, a defendant does not need to discharge his judgment and sentence in order for it to
have ceased to operate for purposes of Article 42.08.
D. The Absurd
Stacking a prison sentence on top of a paroled sentence that has not yet been revoked
has the potential of creating a situation similar to the prohibited practice of stacking a
sentence of confinement on top of a sentence that has been probated.24 We question what
would have happened if the Board of Pardons and Paroles had decided not to revoke
appellant’s parole. Although an extremely unlikely scenario, given appellant’s criminal
history, it is nevertheless a theoretical possibility. Appellant’s judgments in this case order
that he be “remanded to the custody of the Sheriff of this county.” However, this immediate
order of confinement would be inconsistent with the cumulation order if these sentences were
not to begin running until after appellant’s time on parole is either completed or revoked.
Without there being a parole revocation before sentencing, would appellant have to be
23
Act of 1987, 70th Leg., ch. 42 (H.B. 51), § 1, repealed by Act of 1997, 75 th Leg., ch. 165
(S.B. 898) § 12.22.
24
T EX. C ODE C RIM. P ROC . art. 42.08(c) provides that a “court may not order a sentence of
confinement to commence on the completion of a suspended sentence.”
Thomas Byrd — 13
released until some unknown future date when either his parole is revoked or the fifteen-year
sentence is up? This scenario was obviously not the intent behind the judgments’ cumulation
order. We set out a similarly absurd example in Kuester:
One possibility is that an inmate makes parole on his first sentence. He has not
discharged his first sentence, so his second sentence cannot yet begin. His
second sentence will not begin until his first sentence has discharged, that is,
until his parole is complete. The inmate may spend twenty or thirty years on
parole, living and working in the community, a rehabilitated and contributing
member of society. When at last his parole is complete and his sentence
discharges, he must then be returned to prison to begin serving his second
sentence. Or, in the case of a particularly long initial sentence, he will remain
on parole his entire life, dying before he ever begins serving his second
sentence. We believe that construing Art. 42.08(b) in this manner leads to an
absurd result that the Legislature could not possibly have intended.25
And, in a similar vein, in Ex parte Millard,26 we further explained how cumulation works
when two sentences are stacked and the first sentence is thereafter paroled:
We concluded that an inmate serving stacked sentences begins serving his
second sentence when his first sentence ceases to operate, which means the
date it is served out in full day-for-day or the date when a parole panel
approves the inmate for parole release. We explained [in Kuester] that, when
the first sentence ceases to operate and the second sentence begins, the inmate
continues to serve the first sentence while he serves the second sentence. In
passing, we stated that when an inmate begins serving the second sentence, he
is “paroled,” so to speak, on his first sentence. Of course, the inmate does not
literally parole his first sentence since he is not released from the custody of
TDCJ. On the contrary, the statute makes clear that an inmate may not be
25
21 S.W.3d at 267.
26
48 S.W.3d 190, 193 (Tex. Crim. App. 2001) (disapproved on other grounds by Ex parte
Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003) (en banc)).
Thomas Byrd — 14
released to parole on the first sentence until he is eligible for parole on the
second sentence.27
This logic would not work if a defendant’s second sentence of confinement is allowed
to be stacked on top of an already-paroled sentence because, technically, the defendant would
still be “out” on parole on that first sentence even after being sentenced in a subsequent case.
In other words, under which sentence would he be confined after he is sentenced if he is on
parole for the first sentence, and the second sentence is ordered to begin at some future date
after the paroled sentence is either revoked or completed? We cannot render a decision in
this case that has the potential, albeit remote, to be misapplied in such a literal and
unintended manner.
E. The State’s Burden
The State claims that it did not have the burden to prove that appellant’s 2008 paroled
sentence had been revoked—only that appellant was convicted for the 2008 offense, and he
is the same person who was convicted for the 2008 offense. The State cites to our decision
in Barela v. State for support.28 The State’s reliance on Barela is misplaced. The facts in
Barela are distinguishable, as is the legal issue involved. This Court’s decision in Turner v.
State more accurately defines the State’s burden: “Since no evidence of the prior conviction
from another court was offered and it was improper for the trial judge to take judicial notice
27
Id. at 193-94 (emphasis added).
28
Barela v. State, 180 S.W.3d 145, 147 (Tex. Crim. App. 2005) (en banc).
Thomas Byrd — 15
thereof, if he did, the cumulation order found in the formal sentence in the instant case is
invalid.”29 Thus, where a defendant has been sentenced on multiple cases, if the State
requests that the court cumulate those sentences under Article 42.08, then the State has the
burden to present evidence to support the proper cumulation of the sentences. In this case,
consistent with our decision in Wrigley, that would include proof that appellant’s parole on
the 2008 sentence had been revoked prior to sentencing on this charge.30 The burden did not
shift to appellant to prove the invalidity of the cumulation order by showing that his parole
had not been revoked.
CONCLUSION
We hold that, for purposes of Article 42.08, the timing of a defendant’s parole
revocation for the original offense matters. If parole is revoked on a defendant’s first offense
before that defendant is sentenced on the second offense, then, in accordance with Wrigley,
the second sentence may be stacked on top of the first sentence. However, if parole is not
revoked on a defendant’s first offense before that defendant is sentenced for the second
offense, then the second sentence may not be stacked on top of that first sentence. For the
purposes of Article 42.08 and in relation to the second offense, that defendant had “made
29
Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987) (en banc).
30
The State’s argument suggesting that appellant had the burden of proving revocation is
inconsistent with its tacit admission that parole had not yet been revoked, as the prosecutor requested
that the sentences “run consecutive to his parole.”
Thomas Byrd — 16
parole” on the first offense, and thus his first sentence had already ceased to operate. We
disapprove of all intermediate appellate court holdings to the contrary.
Because there was no evidence that appellant’s parole had been revoked at the time
he was sentenced on his second offense, the trial court’s cumulation order was invalid. Each
of the trial court’s judgments is reformed to delete the cumulation order.31 As modified, the
judgment of the court of appeals is affirmed.
DELIVERED: September 14, 2016
PUBLISH
31
Sullivan v. State, 387 S.W.3d 649, 653 (Tex. Crim. App. 2013) (citing Morris v. State, 301
S.W.3d 281, 294 (Tex. Crim. App. 2009) (“When part of a cumulation order is illegal, the remedy is
to delete the illegal portion.”). With no sentence in operation upon which the trial court could stack
these sentences, they would begin on the day of the judgments and run concurrently with each other.
Moore v. State, 371 S.W.3d 221, 228 (Tex. Crim. App. 2012) (citing Ex parte Reynolds, 462 S.W.2d
605, 606 n. 1 (Tex. Crim. App. 1970) (“We have long held that ‘[w]here the court does not order that
two or more sentences in different prosecutions shall be cumulative as permitted by Article 42.08 [ ],
the terms of imprisonment automatically run concurrently.’”)).