Opinion filed September 4, 2014
In The
Eleventh Court of Appeals
__________
No. 11-13-00146-CR
__________
JACKIE ALLEN YARBROUGH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 220th District Court
Comanche County, Texas
Trial Court Cause No. CR03544
MEMORANDUM OPINION
The jury convicted Jackie Allen Yarbrough of the offense of delivery of less
than one gram of methamphetamine. 1 The jury found two enhancement
paragraphs to be “true” and assessed Appellant’s punishment at confinement for a
term of twenty years and a $10,000 fine.2 The trial court sentenced Appellant and
ordered his sentence to commence only upon the completion of his sentence in
1
TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(a), (b) (West 2010); TEX. PENAL
CODE ANN. § 12.35(c)(2)(A) (West Supp. 2013).
2
PENAL §12.33 (West 2011), § 12.42(a).
Cause No. W-CRB-15,966. In a single issue on appeal, Appellant contends that
the trial court erred when it ordered his sentence in this case to run consecutively to
his sentence in Cause No. W-CRB-15,966. 3 We affirm.
I. Standard of Review
In reviewing a trial court’s sentencing determination, “a great deal of
discretion is allowed the sentencing judge.” Jackson v. State, 680 S.W.2d 809, 814
(Tex. Crim. App. 1984); see also Pettigrew v. State, 48 S.W.3d 769, 770 (Tex.
Crim. App. 2001). “[T]he Texas Legislature has assigned the decision to
cumulate, vel non, in Section 3.03 of the Penal Code and Article 42.08 of the Code
of Criminal Procedure, to the trial court.” Barrow v. State, 207 S.W.3d 377, 380
(Tex. Crim. App. 2006). Normally, a trial court has absolute discretion to
cumulate sentences, and a criminal defendant has no right to a concurrent sentence.
Quintana v. State, 777 S.W.2d 474, 480 (Tex. App.—Corpus Christi 1989, pet.
ref’d). An abuse of discretion generally will be found only if the trial court
imposes consecutive sentences where the law requires concurrent sentences, or
vice versa, or where the court otherwise fails to observe the statutory requirements
pertaining to sentencing. Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d).
II. Analysis
Appellant argues in his sole issue on appeal that the trial court erred when it
ordered his sentence in this case to run consecutively to his sentence in Cause
No. W-CRB-15,966. 4 Appellant contends that, because he was not an inmate at
3
Appellant was convicted in Cause No. W-CRB-15,966 for “Theft by Repetition” in the 238th
Judicial District Court of Midland County, Texas.
4
In addition to the brief filed by his attorney, Appellant has filed a pro se brief. Because
Appellant is currently represented by counsel, we do not consider his pro se brief. See Ex parte Taylor,
36 S.W.3d 883, 887 (Tex. Crim. App. 2001) (holding that an appellant is not entitled to “hybrid
2
the time the offense was committed, the trial court’s action was not authorized by
Article 42.08(b) of the Texas Code Criminal Procedure. TEX. CODE CRIM. PROC.
ANN. art. 42.08(b) (West Supp. 2013).5 The State agrees with Appellant’s
contention that Article 42.08(b) does not apply to this case. Instead, the State
argues that the trial court’s decision was authorized by Article 42.08(a), which
allows a trial court to cumulate the sentences of two or more convictions. CRIM.
PROC. art. 42.08(a); see Nicholas, 56 S.W.3d at 764.
The record shows that, at the time of trial, Appellant was on parole for three
convictions entered in Midland County. The trial court ordered Appellant’s
sentence in this case to commence upon the completion of the last of the three
sentences imposed for the convictions in Midland County. Although the trial court
referenced Article 42.08(b) prior to making its decision, the court did not
specifically state that it based its decision on that section of the statute.
We find that the trial court did not abuse its discretion when it ordered
Appellant’s sentence in this case to run consecutively to the sentence in Cause
No. W-CRB-15,966. Because Appellant was on parole for the Midland
convictions at the time of trial, Article 42.08(a) authorized the trial court’s
decision. CRIM. PROC. art 42.08(a); see Wilson v. State, 854 S.W.2d 270, 273
(Tex. App.—Amarillo 1993, pet. ref’d) (finding that trial court’s decision to order
sentence to run consecutively to prior sentence was not an abuse of discretion,
even if defendant was on parole for the first offense when sentence was imposed
for the second offense); Jimenez v. State, 634 S.W.2d 879, 882 (Tex. App.—San
Antonio 1982, pet. ref’d) (holding that trial court had authority to order
representation”); Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995) (finding that the
appellant’s supplemental brief presented nothing for review).
5
Article 42.08(b) of the Texas Code of Criminal Procedure mandates consecutive sentences
where an inmate is convicted of an offense and has not completed the sentence he was serving at the time
of the subsequent offense.
3
defendant’s sentence to run consecutively to his previous conviction for which he
was on parole at the time of trial). We overrule Appellant’s sole issue.
III. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
September 4, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
4