Byrd, Thomas Leon
2016 Tex. Crim. App. LEXIS 1047
| Tex. Crim. App. | 2016Background
- Byrd was on parole from a 2008 fifteen-year sentence when he committed three offenses in May 2012 and was convicted and sentenced on October 1, 2013.
- The trial court’s judgments set sentence commencement as the judgment date but ordered the three new sentences to run consecutively and to begin only when the 2008 sentence (cause 2007-1823-C1) "ceased to operate."
- The record contains no evidence that Byrd’s parole on the 2008 sentence had been revoked before he was sentenced on the new offenses; the prosecutor requested the sentences run "consecutive to his parole."
- On direct appeal the Tenth Court of Appeals affirmed, holding parole revocation was not required to stack a new sentence onto a paroled sentence (relying on Jimenez and related authorities).
- The Court of Criminal Appeals granted review to decide whether a trial court may order a sentence to run consecutive to a prior sentence when the defendant is on parole and the prior parole has not yet been revoked.
- The CCA held the cumulation order invalid because, absent evidence that the prior parole had been revoked before sentencing, the prior sentence had "ceased to operate" (i.e., defendant had "made parole") and therefore a later sentence could not be stacked on it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a trial court may order a new sentence to run consecutive to a prior sentence when the defendant is on parole and the prior parole has not been revoked before sentencing | State: trial court need not prove parole revocation; cumulation may be ordered irrespective of revocation | Byrd: cumulation invalid because no evidence parole was revoked; prior sentence had ceased to operate | Held: Cumulation invalid absent evidence of parole revocation before sentencing; timing of revocation matters |
| Meaning of "cease to operate" under Art. 42.08(a) | State: sentence remains "in operation" despite parole status; court may stack | Byrd: "cease to operate" includes making parole under §508.150(b) so prior sentence had ceased | Held: "Cease to operate" includes making parole; if parole not revoked before sentencing the prior sentence had ceased to operate |
| Burden of proof to support cumulation order | State: burden not on State to show revocation; conviction proof suffices | Byrd: State must prove facts supporting cumulation (including revocation) | Held: State bears burden to present evidence supporting cumulation (including proof of revocation when relied upon) |
| Precedent controlling over Jimenez and similar intermediate appellate cases | State: Jimenez and follow-on cases permit stacking despite parole status | Byrd: Jimenez predates statutory definition and later CCA decisions; should be disapproved | Held: Jimenez-based holdings disapproved as inconsistent with later statutes/CCA decisions (Kuester, Wrigley); CCA controls |
Key Cases Cited
- Ex parte Wrigley, 178 S.W.3d 828 (Tex. Crim. App. 2005) (held a stacked sentence does not begin to run from parole date if parole was revoked before sentencing)
- Ex parte Kuester, 21 S.W.3d 264 (Tex. Crim. App. 2000) (construed "cease to operate" to include making parole)
- Jimenez v. State, 634 S.W.2d 879 (Tex. App.—San Antonio 1982) (held trial court could stack onto a paroled sentence; predates statutory definition)
- Ex parte Millard, 48 S.W.3d 190 (Tex. Crim. App. 2001) (discussed cumulation mechanics when first sentence is paroled)