Williams v. State

OPINION ON STATE’S MOTION FOR REHEARING

THOMAS G. DAVIS, Judge.

After finding appellant guilty of the offense of aggravated robbery, the jury assessed punishment at 99 years.

On original submission we affirmed appellant’s conviction, but set aside the trial court’s order which cumulated the instant sentence with other sentences being served by appellant. We held that the trial court’s sentence which ordered the sentence of 99 years “be stacked on” appellant’s other sentences was “not adequate to direct clearly and unequivocally officials of the Texas Department of Corrections that appellant is to be confined pursuant to the instant sentence when and only when others have ceased to operate ...” We stated it is mandatory under Art. 42.01, V.A.C. C.P.1 that the trial judge “recite in the judgment his determination that the instant *762punishment shall begin when the judgment and sentence have ceased to operate in another described cause, and preferably in this language which is taken from Art. 42.08,” V.A.C.C.P.,2 and that “this language should be repeated in the sentence which ... orders the judgment into execution.”

In its motion for rehearing, the State asserts that the words “stacked on” in the sentence adequately reflect the trial court’s decision that the instant sentence be consecutive to or cumulated with appellant’s prior sentences. The State also maintains this Court was incorrect in stating that the trial court’s cumulation order must be recited in the judgment and sentence.

The trial court initially sentenced appellant on July 16, 1979, and such sentence purported to cumulate appellant’s sentence as follows:

“Said sentence [of 99 years] is to be stacked on the sentences currently being served by defendant, which are: Cause 70073, Tarrant County, three (3) years; Cause Number E8430JI, Dallas County, life; Cause number E8428JI Dallas County, life; Cause Number E8618JI, Dallas County, life; and Cause Number E8545JI, Dallas County, 25 years.” (Emphasis added.)

Appellant filed his appellate brief in the trial court pursuant to former Art. 40.09(9), V.A.C.C.P., on November 30, 1979. Appellant’s third ground of error in the brief alleged that the cumulation order quoted above is insufficient because it “fails to specify the courts in which the previous convictions were obtained.” In response to this challenge, the trial court held a hearing on January 11, 19803 and pronounced an “amended sentence,” which provides in pertinent part as follows:

“Said sentence [of 99 years] is to be stacked on the sentences currently being served by defendant, which are: Cause No. 70073, Criminal District Court # 1 in Tarrant County, Texas, three (3) years; Cause Numbers E8430JI, life, Cause number E8428JI, life; Cause Number E8618JI, life and E8545JI, 25 years, all in Criminal District Court number 2 of Dallas County, Texas.”

Appellant objected to the resentencing, and submitted a supplemental brief to this Court challenging the validity of the amended sentence. We did not reach appellant’s contentions on original submission because we found the cumulation order to be void due to the use of the words “stacked on.”

Addressing the State’s contentions first, we find that we incorrectly set aside the cumulation order on original submission.

While the term “stacked” is not used in the statute, it has a well-known usage as synonymous with “cumulative” or “consecutive” when used in the context of criminal sentencing. Indeed, members of this Court have used the same term in this manner in opinions; see e.g. Goodwill v. State, 639 S.W.2d 697, 698 (Tex.Cr.App.1982) (dissenting opinion); Yuncevich v. State, 626 S.W.2d 784 (Tex.Cr.App.1982), at note 2; Ex parte Davis, 506 S.W.2d 882 (Tex.Cr.App.1974); Ex parte Reynolds, 462 S.W.2d 605 (Tex.Cr.App.1970), at note 2; as have members of the Courts of Appeals; see e.g. Grant v. State, 635 S.W.2d 933 (Tex.App.— Amarillo 1982, no review hist.); Nunn v. State, 625 S.W.2d 790 (Tex.App.— Fort Worth 1981, no review hist.).

In Grant v. State, supra, the court addressed and rejected a similar challenge to the use of the words “stacked on” in sentencing:

*763“The second question presented is whether the use of the language ‘stacked’ and ‘stacked on’ is sufficient to show clearly the court’s intent to cumulate service of this sentence and to clearly and unequivocally tell the Texas Department of Corrections how long to detain appellant. We think the language used is sufficient to accomplish both of these purposes. “Words defined in dictionaries and with meanings so well understood by a person of ordinary intelligence are not impermis-sibly vague and indefinite, (citations omitted) Webster’s Third New International Dictionary (3rd ed. 1976), defines ‘stack’ as ‘to pile up.’ The same dictionary defines ‘on,’ when used as an adverb, as ‘in or into the position of being in contact with the upper surface of something or of being supported from beneath by the upper surface.
“When these definitions are applied and the terms considered in their context, we think the cumulation portion of the sentence adequately definite to show the court’s intent to cumulate appellant’s sentences. It is also sufficient on its face to convey to the Texas Department of Corrections, ... how long to detain appellant.” 635 S.W.2d at 936.

Although the better practice in cumulat-ing sentences is to track the statutory language set out in Art. 42.08, supra, we hold that the use of the words “stacked on” in the instant sentence is sufficient to direct the Texas Department of Corrections that appellant is to be confined pursuant to the instant sentence when the judgments and sentences in the preceding convictions have ceased to operate.

The State’s second contention on rehearing is that we incorrectly stated on original submission that the trial court's order cumulating sentences must be recited in both the judgment and the sentence.4 The State correctly points out that the instant case arose prior to the legislative amendments unifying the judgment and sentence.5 Under the statute applicable to the instant case, we have held that while a cumulation order may be placed in both the judgment and sentence, a cumulation order placed only in the sentence is valid. Ex parte Crawford, 36 S.W. 92, 36 Tex.Cr.R. 180 (1896). Crawford has been consistently followed by this Court. See e.g. Johnston v. State, 168 Tex.Cr.R. 79, 323 S.W.2d 449 (1959); Gordon v. State, 575 S.W.2d 529 (Tex.Cr.App.1979). Therefore, the cu-mulation order in the instant case is not invalid because it is recited only in the sentence and not in the judgment.

We now turn to appellant’s contentions raised on original submission, but not addressed. Appellant first asserts the trial court was “without power” to enter the amended sentence cumulating the sentences because the first sentence is insufficient to cumulate the sentences. If the first cumulation order is invalid, appellant contends that the imposition of cumulated sentences in an amended sentence is impermissible, since we have held that a court may not add a cumulation order onto a sentence after the defendant has suffered punishment under the sentence originally imposed concurrently. See e.g. Ex Parte Voelkel, 517 S.W.2d 291 (Tex.Cr.App.1975); Ex parte Reynolds, 462 S.W.2d 605 (Tex.Cr.App.1971).

In Ward v. State, 523 S.W.2d 681 (Tex.Cr.App.1975), we set out five recommended elements of a cumulation order:

*764“(1) the trial court number of the prior conviction;
“(2) the correct name of the court where the prior conviction was taken;
“(3) the date of the prior conviction;
“(4) the term of years of the prior conviction; and
“(5) the nature of the prior conviction.”

523 S.W.2d at 682; see also Ex parte Lewis, 414 S.W.2d 682 (Tex.Cr.App.1967); Ex parte Hamilton, 163 Tex.Cr.R. 283, 290 S.W.2d 673 (1956).

The trial court’s original cumulation order in the instant case provides but two of the five recommended elements: The cause numbers of the prior convictions, and the terms of years assessed in the prior convictions. Although the order designates the counties in which the prior convictions were had, it does not give the names of the courts within such counties.

The trial court’s amended cumulation order provides three of the five recommended elements, failing to include the dates of the prior convictions and the nature of the pri- or convictions.

The stated rationale for the five recommended elements of a cumulation order set out above is that:

“A sentence is a final judgment and should be sufficient on its face to effect its purpose without resort to evidence in aid thereof. It should further convey to the authorities at the Texas Department of Corrections or any County jail clear and unequivocal orders of the trial court so that they may know definitely how long to detain the convict or prisoner.” Ex parte Lewis, supra, 414 S.W.2d at 683.

It is well settled, however, that the inclusion of all elements recommended above is not mandatory:

“Despite the lack of some of the specific and definite recitals recommended, this Court has upheld cumulated sentences which were substantially and sufficiently specific to authorize the punishment sought to be imposed.” Id.

See also Ex parte Davis, 506 S.W.2d 882 (Tex.Cr.App.1974). Thus although we have generally held that cumulation orders which recite only one of the above elements (the trial court cause number) are insufficient, see e.g. Ex parte Ashe, 641 S.W.2d 243 (Tex.Cr.App.1982); Diaz v. State, 608 S.W.2d 686 (Tex.Cr.App.1980); “this Court has held cumulation orders valid when such orders contained two, rather than three or more, details of the prior conviction.” Ex parte March, 423 S.W.2d 916, 918 (Tex.Cr.App.1968) and cases cited therein. Failure to include the correct name of the trial court of the prior convictions is not fatal if, in addition to the cause number, other descriptive elements are present. See Ward v. State, supra. Cumulation orders which merely set out the cause number and the correct name of the trial court of the prior conviction have been upheld by this Court. See e.g. Ex parte Pruitt, 385 S.W.2d 384 (Tex.Cr.App.1964); Ex parte Isom, 168 Tex.Cr.R. 434, 331 S.W.2d 753 (1959); Ex parte Bell, 160 Tex.Cr.R. 490, 272 S.W.2d 530 (1954). Finally, a cumulation order which refers only to a prior cause number is sufficient if the order is entered in the same court as the sentence to which it is made cumulative. Ex parte Davis, supra; Ex parte March, supra; Ex parte Lewis, supra.

The rule emerging from these cases is that a cumulation order will be upheld so long as the trial court’s description of prior convictions is “substantially and sufficiently specific,” Lewis, supra, to give notice both to the defendant and to the Department of Corrections exactly which sentences the instant sentence is cumulated with.

We hold that the trial court’s original sentence in the instant case, which sets out the county of the prior sentences, the trial court cause numbers, and the terms of years assessed, is substantially and sufficiently specific, and therefore, the cumulation order is valid. Since we uphold the trial court’s original sentence cumulat-ing punishments, we need not decide *765whether the trial court’s amended sentence is valid.6

Accordingly, the State’s motion for rehearing is granted, and the judgment and sentence as originally pronounced are affirmed.

ONION, P.J., concurs.

CLINTON and TEAGUE, JJ., dissent.

. Former Art. 42.01, Sec. 10, applicable to the instant cause provides in pertinent part:

"Sec. 1. A ‘judgment’ is the declaration of the court entered of record, showing:
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"10. That the defendant be punished as has been determined."

. Art. 42.08 provides in pertinent part as follows:

“When the same defendant has been convicted in two or more cases, ... in the discretion of the court, the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly.” (Emphasis added.)

. The appellate record was filed in this Court on May 1, 1980. See Art. 44.11, V.A.C.C.P.; Art. 42.06, V.A.C.C.P.

. In the instant case, contrary to our statement on original submission, the trial court’s order cumulating the sentences is not recited in the judgment, but merely in the sentence, quoted above.

. Former Art. 42.02, V.A.C.C.P., applicable to this case, provides in pertinent part as follows:

"A ‘sentence’ is the order of the court in a felony or misdemeanor case made in the presence of the defendant ... and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law."

Current Art. 42.02, V.A.C.C.P., effective Sept. 1, 1981, provides:

"The sentence is that part of the judgment or order revoking a probated sentence, that orders that the punishment be carried into execution in the manner prescribed by law.”

. We note the trial court was authorized under Art. 42.06, V.A.C.C.P., to pronounce a sentence nunc pro tunc prior to the filing of the appellate record with this Court. See Art. 44.11, V.A.C.C.P.; see also Resnick v. State, 574 S.W.2d 558 (Tex.Cr.App.1978); Perkins v. State, 505 S.W.2d 563 (Tex.Cr.App.1974). The trial court’s "amended sentence" in the instant case appears to be in effect a nunc pro tunc sentence.

A trial court may correct a cumulation order nunc pro tunc. See Ex parte Patterson, 139 Tex.Cr.R. 489, 141 S.W.2d 319 (1940). It would seem that the addition of descriptive details of the prior offenses inadvertently omitted from the trial court's valid first cumulation order, is "clerical” in nature and thus proper under Art. 42.06, supra.