PD-0213-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/28/2015 8:57:11 AM
July 28, 2015 Accepted 7/28/2015 10:09:55 AM
ABEL ACOSTA
NO. PD-0213-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
THOMAS LEON BYRD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
REPLY BRIEF FOR APPELLANT
On Discretionary Review From the
Waco Court of Appeals
Cause No. 10-13-00381-CR
E. Alan Bennett
State Bar #02140700
Counsel for Appellant
Sheehy, Lovelace & Mayfield, P.C.
510 N. Valley Mills Dr., Ste. 500
Waco, Texas 76710
Telephone: (254) 772-8022
Telecopier: (254) 772-9297
Email: abennett@slmpc.com
Table of Contents
Table of Contents ................................................................................................ 2
Index of Authorities ............................................................................................ 3
Issue Presented .................................................................................................... 4
Summary of the Argument ................................................................................ 4
Argument ............................................................................................................. 5
Whether a trial court may order a sentence to run consecutively with a
future parole revocation. ................................................................................. 5
Prayer ................................................................................................................... 8
Certificate of Compliance ................................................................................... 9
Certificate of Service ........................................................................................... 9
Appellant’s Reply Brief Page 2
Index of Authorities
Texas Cases
Barela v. State, 180 S.W.3d 145 (Tex. Crim. App. 2005) .................................... 5
Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008) ..................................... 7
Bollman v. State, No. 02-08-00061-CR, 2009 WL 161032 (Tex. App.—Fort
Worth Jan. 22, 2009, no pet.) (per curiam) (mem. op., not designated for
publication) .......................................................................................................... 6
Sullivan v. State, 387 S.W.3d 649 (Tex. Crim. App. 2013) ................................. 7
Appellant’s Reply Brief Page 3
Issue Presented
Whether a trial court may order a sentence to run consecutively with
a future parole revocation.
Summary of the Argument
In this Reply Brief, Appellant responds to the State’s assertion that
Appellant’s argument that a sentence may not be ordered to run
consecutively with a future (or unproved) parole revocation “is directly
contrary to this Court’s decision in Barela.” (State’s Brief at 5) The State is
incorrect.
Appellant’s Reply Brief Page 4
Argument
Whether a trial court may order a sentence to run consecutively with a
future parole revocation.
The State relies on Barela v. State, 180 S.W.3d 145 (Tex. Crim. App.
2005), to assert that only a prior conviction is required for cumulation of
sentences, even if the defendant has not yet been sentenced in the case giving
rise to the prior conviction. With all due respect to the State, this assertion
does not resolve the issue presented by Appellant. In equating this “prior
conviction” requirement to parole revocation proceedings, Appellant
contends that the State must prove that the defendant’s parole has been
revoked before the court can order a sentence to run consecutively with a
sentence for which the defendant was on parole at the time of the offense.
Here, the State did not even prove that revocation proceedings had been
instituted against Appellant.
The State Must Prove a “Conviction”
In Barela, this Court held that the State “must” provide evidence of the
prior conviction to support a cumulation order. Barela, 180 S.W.3d at 148.
Appellant contends by analogy that, if the State seeks to obtain a cumulation
order for a prior conviction for which the defendant was on parole at the
Appellant’s Reply Brief Page 5
time of the offense, the State “must” prove: (1) parole revocation proceedings
were commenced against the defendant; and (2) his parole was revoked.
Otherwise, the defendant has not been “convicted” in his parole revocation
proceeding.
Absent Such Proof, Cumulation is Unauthorized
If the State fails to establish these two facts with respect to a defendant
on parole, then a trial court’s cumulation order effectively orders the
sentence to run consecutively with some future sentence or, if parole is not
revoked, some non-existent sentence.
Article 42.08 does not authorize a trial court to order a sentence to run
consecutively with a sentence that the defendant may begin serving at some
unknown point in the future if convicted in some pending case. Bollman v.
State, No. 02-08-00061-CR, 2009 WL 161032, at *5 (Tex. App.—Fort Worth
Jan. 22, 2009, no pet.) (per curiam) (mem. op., not designated for
publication).
By the same token, the statute does not authorize cumulative sentences
where there is a pending parole revocation proceeding because the
defendant’s parole has not been (and may not be) revoked.
Appellant’s Reply Brief Page 6
Here, the State made no effort to prove whether parole revocation
proceedings were even instituted against Appellant, much less whether his
parole was revoked.
For these reasons, Appellant continues to assert that the trial court
abused its discretion by ordering consecutive sentences that were not
authorized by law.
Therefore, Appellant asks that the Court reform the judgment of the
trial court by deleting the unauthorized cumulation order and affirm the
judgment as modified. See TEX. R. APP. P. 43.2(b); Sullivan v. State, 387 S.W.3d
649, 653 (Tex. Crim. App. 2013); Beedy v. State, 250 S.W.3d 107, 113 (Tex.
Crim. App. 2008).
Appellant’s Reply Brief Page 7
Prayer
WHEREFORE, PREMISES CONSIDERED, Appellant Thomas Leon
Byrd asks the Court to: (1) reform the judgment of the trial court by deleting
the cumulation order and affirm the judgment as modified; and (2) grant
such other and further relief to which Appellant may show himself justly
entitled.
Respectfully submitted,
/s/ Alan Bennett
E. Alan Bennett
SBOT #02140700
Counsel for Appellant
Sheehy, Lovelace & Mayfield, P.C.
510 N. Valley Mills Dr., Ste. 500
Waco, Texas 76710
Telephone: (254) 772-8022
Fax: (254) 772-9297
Email: abennett@slmpc.com
Appellant’s Reply Brief Page 8
Certificate of Compliance
The undersigned hereby certifies, pursuant to Rule of Appellate
Procedure 9.4(i)(3), that this computer-generated document contains 889
words.
/s/ Alan Bennett
E. Alan Bennett
Certificate of Service
The undersigned hereby certifies that a true and correct copy of this
reply brief was served by email on July 28, 2015 to: (1) counsel for the State,
Sterling Harmon, sterling.harmon@co.mclennan.tx.us; and (2) the State
Prosecuting Attorney, Lisa McMinn, Lisa.McMinn@SPA.texas.gov.
/s/ Alan Bennett
E. Alan Bennett
Appellant’s Reply Brief Page 9