Ross, Bernard Kay, PD-0062-15

Bernard Kay Ross pleaded guilty to robbery and received 10 years deferred adjudication; the trial court orally ordered that this probation would begin after Ross serves a 10-year prison sentence imposed in a companion burglary case (i.e., the court "stacked" the deferred supervision on the prison term).
The trial-court docket entry for the robbery case reflected: "This prob will begin AFTER Def serves time on Cause F12-57536."
Ross appealed, arguing the trial court lacked authority to stack a term of deferred adjudication community supervision on a prison sentence because deferred adjudication is not a “conviction” for purposes of the stacking statute.
The Dallas Court of Appeals agreed with Ross, modified the deferred-adjudication order to run concurrently with the burglary sentence, and affirmed as modified. The court followed its precedent in Hurley v. State.
The State sought discretionary review, arguing the appellate court’s decision conflicts with other courts of appeals (notably Ex parte Garza) and that stacking was permissible because only one sentence had been imposed when the court deferred adjudication.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Ross)	Held
Whether a trial court may order a term of deferred adjudication community supervision to begin after a previously imposed prison sentence (i.e., "stacking" a deferred-adjudication term onto a prison term).	Trial court may stack: because deferred adjudication means no sentence has been imposed in the second case, there is only one sentence at the time and the court can later order the deferred term to commence after the earlier sentence ends.	Deferred adjudication is not a "conviction" or a sentence for purposes of art. 42.08, so the court lacks authority to stack the deferred term onto an earlier sentence; stacking requires convictions/sentences in both cases.	Court of Appeals: Held for Ross — deferred adjudication is not a conviction under art. 42.08, so stacking a deferred-adjudication term to begin after a prior sentence was an abuse of discretion; modified order to make supervision concurrent.

Hurley v. State, 130 S.W.3d 501 (Tex. App.--Dallas 2004) (deferred adjudication is not a conviction for purposes of article 42.08; court may not order deferred supervision to begin after prior sentence)
Beedy v. State, 250 S.W.3d 107 (Tex. Crim. App. 2008) (addressed remedy for improper cumulation and affirmed modification of cumulation order)
Ex parte Garza, 192 S.W.3d 658 (Tex. App.--Corpus Christi 2006) (reached contrary conclusion to Hurley: court may order deferred supervision to begin after prior sentence where only one sentence existed at time of deferral)
McNew v. State, 608 S.W.2d 166 (Tex. Crim. App. 1978) (definition and effect of adjudication/conviction where proceedings are deferred)
Nicholas v. State, 56 S.W.3d 760 (Tex. App.--Houston [14th Dist.] 2001) (standards for review of cumulation decisions)