Moore v. State, 339 S.W.3d 365

Moore was convicted of possession of four to 200 grams of methamphetamine and sentenced to 50 years in ID-TDCJ, enhanced by two prior felonies.
Sentence in this case was cumulated with a prior drug-free zone conviction under § 481.134(h).
During punishment, a TDCJ witness testified Moore belonged to the Aryan Brotherhood of Texas; Moore’s disassociation efforts were unsuccessful.
Defense asked for a jury instruction that punishment would be served consecutively; trial court denied.
The State later reminded the court that cumulative sentencing was mandatory under § 481.134(h); the court pronounced the cumulative sentence.
Appellant appeals on four issues, including cumulation, jury instruction, gang evidence, and attorney-fee costs; the court affirms in part and modifies to strike attorney-fee repayment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Cumulative sentencing legality	Moore contends cumulation was improper due to evidentiary issues.	State maintains mandatory cumulation under § 481.134(h) applies and is non-discretionary.	Issue overruled; mandatory cumulation valid
Consecutive sentencing instruction	Jury should have been instructed sentences run consecutively.	Refusal to give instruction was proper under law.	Issue overruled; instruction not required
Gang-membership evidence	Evidence of gang membership should have been limited to rep/character; failure to limit was error.	No error given lack of timely objection and lack of limiting instruction; no egregious harm shown.	Issue overruled; no egregious harm; waiver/harmless
Attorney fees and court costs	Attorney-fee reimbursement must be expressly pronounced; costs order flawed; ability to pay must be shown.	Standard procedures suffice; evidence of ability to pay required.	Issue sustained; delete repayment of appointed-attorney fees from judgment

Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) (preservation and enforcement of attorney-fee repayment orders)
Mayer v. State, 274 S.W.3d 898 (Tex. App.—Amarillo 2008) (striking improper attorney-fee costs from judgment)
Williams v. State, 273 S.W.3d 200 (Tex. Crim. App. 2008) (limiting instructions for punishment evidence not required when not requested)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (egregious harm standard for trial-error review)
Dawson v. Delaware, 503 U.S. 159 (U.S. 1992) (gang-evidence relevance in punishment phase; distinguishable facts)
Haliburton v. State, 578 S.W.2d 726 (Tex. Crim. App. 1979) (whether jury should be informed about concurrent vs. consecutive sentences)
Levy v. State, 860 S.W.2d 211 (Tex. App.—Texarkana 1993) (refusal to answer about concurrent vs. consecutive sentences not error)
Stewart v. State, 221 S.W.3d 306 (Tex. App.—Fort Worth 2007) (refusal to advise consecutive sentencing not error)
Clay v. State, 102 S.W.3d 794 (Tex. App.—Texarkana 2003) (whether to give consecutive-sentencing instruction inapplicable)
Thompson v. State, 236 S.W.3d 787 (Tex. Crim. App. 2007) (plain meaning of statute governs sentencing decisions)
Williams v. State, 253 S.W.3d 673 (Tex. Crim. App. 2008) (drug-free zone cumulation contexts)