Gordon v. State

it in objected at the time nor raised neither Instead, appellate he raises it for brief. rehearing. on motion Un-

the first time V.A.C.C.P.,

der Article this Court has of error grounds to review by the “defendant’s brief

raised in our unassigned error which

court”

opinion be reviewed in the interest “should justice.” Given decision to

acquiesce premature sentencing, until after our

decision not raise issue down,

original opinion was handed

fact defect renders the sentence void, we conclude that consid-

voidable not not be in the

eration of issue would justice. v. Housewright

interest of (Tex.Cr.App.1978) (opinion

573 S.W.2d submission). rehearing

The motion for is overruled.

ROBERTS, Judge, dissenting. dissenting in my

For reasons stated Housewright

opinion in 573 S.W.2d I dissent. If a mo- filed, timely

tion for trial is new

should not be until the motion expressly overruled following

hearing by operation or overruled of law. Shields, 670,

See pronounce- Since the untimely sentence in this case was premature, I would appeal. dismiss the GORDON, Appellant,

Robert Texas, Appellee. STATE 57414,

Nos. 57415. Texas, Appeals Criminal

Court of 3.

Panel No.

Sept. 1978.

Opinion On State's Motion

Rehearing Jan. 13,1977, June

On filed a State motion to revoke in both of the cases. Each motion alleged, part, appellant that the had vio- lated a condition of his in that: Worth, ap- Fort for Kearney, Jeffrey A. GORDON, said ROBERT “[T]he pellant. aforesaid, County of Tarrant and State Collins, Atty., Marvin Curry, Dist. Tim June, day on or about the 8th of did III, Chaney R. and Stephen Joseph Drago, unlawfully, then and there intentionally Howell, Attys., Dist. Fort Asst. Candyce W. knowingly operate, and without the ef- Worth, State. owner, Leroy Rog- fective consent of the ers, vehicle, motor-propelled one to-wit: ROBERTS, and VOL- PHILLIPS Before automobile, against peace dignity and LERS, JJ. of State.” 27, 1977, July 26 and hearing On was OPINION held on the motions. At the State’s close of ROBERTS, Judge. hearing, the trial found that the of the appeals from orders These are appellant had violated condition of each revoking court probations by unlawfully, of his intentional- (our No. No. 10085 Cause cases. two [Cause ly knowingly operating automobile (our Cause No. 57.414) No. 10238 and Cause Leroy consent of Rog- without the effective No. 3 57.415) District Court in Criminal ers, owner, alleged as in the motion to judge found The trial County.] Tarrant judge sentenced revoke. The trial a condition had violated pellant years’ to four confinement in each and sentenced probations, of his of each punish- ordered that but further years’ con- case to four in each (our No. 10238W Cause ment in Cause No. Department of Cor- the Texas finement 57,415)would begin not until in Cause rections. (our No. 10085 Cause and sentence in Cause 57,415) reflects No. Cause No. operate. ceased to No. had punish- judge ordered that hearing re- evidence adduced at No. No. 10238W Cause in Cause 8,1977, evening of June at that on the veals 57.415) until would m., p. Gary Utley, 9:30 approximately No. 10085 Cause Pontiac in Fort Bill McDavid manager at operate.1 had ceased No. Worth, like a vehicle what sounded heard allega- contends that the east end of the running into a chain at were motion to revoke in the State’s tions time, he heard a At the same car lot. fundamentally defective stealing the car.” guy’s “The yell, customer sentences. not cumulate the could El Camino be- saw a 1975 Chevrolet Utley blocking the exit chain ing driven over a 12, 1977, appellant pleaded May On his car and Utley ran to the car lot. from unauthorized use the offense of guilty approximately El Camino pursued in Cause No. 10085 vehicle motor time, he saw driver. At that six blocks. to the offense of El Camino pursuing the $10,- stopped Utley then and under property over $200 theft When he re- car lot. returned to the 10238W in Cause lot, Miller of Officer Dan to the car assessed a four- turned 57.415). ar- Department had Worth Police the Fort in each case. One term probationary year Utley investigate the incident. rived to each of the conditions Miller broad- happened and explained of- what he “a. was that probations [c]ommit description of the El Camino any cast a this State or laws of against the fense police radio. plate number over license the United States.” State other Ann.C.C.P. thereafter, day June, 1977, Chesshire Shortly about the 8th Officers did then car, Owen, each in a police unlawfully, marked and there intentionally and. Thompson, motorcycle, police knowingly operate, Officer without the effective high speed the El Camino and a owner, located consent of the Leroy units, in- police chase ensued. Additional vehicle, motor-propelled to-wit: automo- police helicopter, Ches- cluding assisted bile, against peace dignity and shire, During the Thompson. and Owen State.” chase, driving the appellant saw the Owen In each the trial judge’s order revok- El Camino. ing probation relied on the para- second driven to Eventually, the El Camino was graph allegations. of the State’s In neither pas- Templeton. appellant The and 314 file a quash did motion to around got out and started to run senger the ground on the basis of on upon relied Templeton. located at 314 the house appeal. the two pursue continued to Thompson State, 545 Garner S.W.2d 179 men, motorcycle on later on first we stated: foot, men. eventually caught he both allegations in a motion to “[WJhile away from broke do require revoke the same entry into attempted to Thompson gain of an particularity indictment or informa- time, Templeton. at 314 the house At that tion, in the allegations all fairness toas apprehended the appellant. Chesshire violation of fully should be first contention motion, clearly set in the forth allegations motions that the State’s in the that so the defendant and his counsel fundamentally to were revoke defective might be informed as to that which allege pro- to what failing condition of he will called to (Citations defend.” allegedly bations violated. omitted) for revo- In each the State’s motions We hold given fair alleged: cation going notice that the State was attempt to Defendant, GORDON, “the ROBERT prove to the appellant had violated was ordered the Court to commit condition “a” of his probationary terms. against offense the laws of this State Furthermore, in the absence aof any other State or the States. United - any motion quash, to error was waived. Defendant, GORDON, in ROBERT State, (Tex.Cr. Johnson v. S.W.2d County of Tarrant and of Tex- State Barrow v. App.1973). Cf. as, June, on or about the day 8th (Tex.Cr.App.1974). Appellant’s first did then and there inten- knowingly and contention is without merit. tionally appropriate property, other than to-wit: property, real one automobile second contention $200, more, the value of less than but of first parently impression for this $10,000. owner, from the Leroy trial to Court: Does a have the the effective the own- without consent of order a cumulation of sentences when er with intent deprive the owner and neither property; of the suspending imposi- judgment placing TWO: and it further tion of sentence and “COUNT defendant presented in and to the order de- placing said Court nor GORDON, County probation provides said ROBERT fendant on for a cumula- aforesaid, of Tarrant and State on or tion of the sentences?2 (Tex.Cr. probationary term, appel 2. In the defendant’s App.1974), possession the defendant of bur was convicted lant was convicted offense of glary commit The trial The State intent theft. marihuana. filed a motion judge suspended imposition revoke and the revoked the defend probation. During placed the defendant on on the ant’s basis of the marihuana Crawford, In Ex 36 Tex.Cr.R. inquiry begins with Our (1896), 36 S.W. 92 this Court held that Ann.C.C.P., which states: . where a cumulation order was attached to “When the same defendant a part and made of the sentence rather cases, and the in two or more convicted judgment proper, than the cumulation case is con- punishment assessed in each void; order was not that the sentence is in operated by finement in institution case; judgment in fact the final jail or the Department of Corrections while a cumulation order could be imprisonment, a term of sentence, both the there each shall be and sentence necessity is no that the order be manner as if there had case in the same both the and the sentence. conviction, except that in been but one Therefore, this Court held that a cumula- court, judgment proper. the tion order in a sentence is the discretion of the subsequent second and convictions in the felony probation grant- In cases where shall may punishment either be that the ed, proba- there is no sentence until after when the and sentence revoked, all, imposi- tion is if at because the preceding suspended. the conviction has ceased- Article 42.- tion of sentence is Ann.C.C.P.; Teel v. Vernon’s run operate, punishment or that the shall Therefore, (Tex.Cr.App.1968). S.W.2d cases, concurrently with the other case or not judge present trial in the case could sentence and execution shall be ac- into the have the cumulation order cordingly.” probations sentence until that where a trial It is well established However, this does not were revoked. that two sentences in judge does order judge mean could not have that the trial prosecutions shall be cumula- two different cumulation order into properly placed the tive, imprisonment automati- the terms of probation granting Reynolds, Ex cally concurrently; run granting probation.3 order Thus, (Tex.Cr.App.1970). Thus, the that must be underlying issue argues judg- since the judge resolved is when does a trial have to placing probation him on did not ments order the where punishment cumulation of were to be indicate that the sentences he has suspended imposition of sentence cumulative, attempted cumulation after felony proba- the defendant on words, revocation was ineffective. In other judge must the trial However, However, judge Spencer the trial ordered conviction. neither nor Ex Parte burglary cumulatively expressly judg sentence for to run March considered whether the possession suspending imposition sentence for with of sentence placing (and the defendant on marihuana. placing probation) the order the defendant on Court, speaking through Presiding Judge This is, had to reflect the cumulation order. That Onion, stated: directly neither case addressed when a trial the instant case “Since as in the sentence judge punish has to order the cumulation of imposed following ap- for the first time suspended imposition ment where he has revocation, pellant’s the court was free to place felony sentence and the defendant on prior outstanding the sentence with cumulate probation. Moreover, the did not Court con 42.08, See Article Vernon’s Ann. sentences. 42.12, 8(a), sider the effect of Article Section C.C.P.; March, parte S.W.2d 916 Ann.C.C.P., light Vernon’s either case. Therefore, Appellant’s disposition present our our hold Spencer contention is without merit.” last ings Ex Parte March are over State, supra at 562. they ruled to the extent are conflict with March, (Tex.Cr. In Ex Parte 423 S.W.2d 916 present decision. App.1968), the im this held that where Court Davis, (Tex.Cr. In Ex Parte suspended position the sen of sentence is App.1976), we held that where a cumulation imposed revoca for the first time tence granting proba order is found in an order judge probation, is free to tion judgment granting tion and not also in the prior outstanding cumulate probation, the cumulation order was not effec sentences. tive. grants felony 8(a), Section Vernon’s order cumulation Ann.C. C.P., specifically empower does not a trial include such order in probation and punishment (and judge to increase the originally in the judgment granting probationer. assessed Nor do we construe probation), on placing language 8(a), of Article Section can he until he revokes wait Vernon’s is re- “[i]f formally sentences defendant? Ann.C.C.P.— voked, the proceed dispose court may complicated This issue is rendered more the case as if there had been probation” earlier; under our hold- what we noted language —as empowering Crawford, ing supra, a cumula- Ex Parte probationer’s punishment upon increase if it is in either tion order will effective revocation of his Thus, the sentence. if enters a obvious of Ex Parte Crawford extension proba- cumulation order when he judge’s that the trial ac- would be to hold probation, punishment tioner’s in the present proper. in the case was tion probated effectively case would be in- However, two additional factors distin- due creased to the cumulation order. For guish felony probation the situation where example, judgments the situation where from placing reflect First, granted. probation is not Article 42.- that the was assessed two four- Ann.C.C.P., aby is violated year probationary terms. In the absence of a judge if cumulation order is entered order, four-year a cumulation those two probation. 42.12, he when revokes Article probationary were to be con- terms served 8(a), states, in Section Vernon’s Ann.C.C.P. 42.08, currently. Article Vernon’s Ann.C. part, that: C.P.; However, Reynolds, supra. Ex Parte probation revoked, “If is may the court trial judge probation- when the revoked the proceed dispose to of case is if there terms, ary he that punishment ordered probation, had been no if it determines 57,415) in No. 10238W Cause No. that society the best interests of would not until the probationer by would be served a shorter in sentence Cause No. 10085 Cause No. term imprisonment, of reduce term 57,414) Thus, had operate. ceased to imprisonment originally any assessed to punishment, upon revocation of term of imprisonment not less than the fact probation, eight his was in increased to prescribed such, minimum years. offense As action judge’s in probationer which a was cumulation order entering convicted.” violated Article 42.12, 8(a), Vernon’s Ann.C.C.P.4 Section Thus, 8(a), Section Ann.C.C.P., empowers judge Second, a trial re- to we that probationer believe a punishment duce the originally assessed should be entitled to know the extent of his if probationer upon revocation of time punishment at the he is the best interests of society proba- Cf. Article Vernon’s Ann. thereby. pro- tioner would be served C.C.P. Unless a cumulation order is realize, course, 4. We there order that are situa- situations where cumulation does incarceration, tions en- where a cumulation order could be not increase the factual term of argument applicable. tered was revoked which the above is course, punishment. judge’s would not an involve increase where a trial Of cumulation example, punishment if the trial does order increase after revoca judge appellant’s punishment tion, presented: had reduced is an additional issue whether years punishment each case to two and then entered an after revocation of increase punishment process punishment Cause No. due violates under North Pearce, 10238W would not be- Carolina 395 U.S. 89 S.Ct. gin until the (1969). and sentence in Cause 23 L.Ed.2d 656 Cf. Bouie v. had ceased to (Tex.Cr.App.1978); Lechuga S.W.2d State, operate, punishment no increase in the Cause No. 10238W Cause No. would have resulted. VOLLERS, is Judge, concurring nounced at time and dis- senting. granting in the judgment pro- and included bation, probationer could have no notice The majority in this case confuses the be if punishment

that his will cumulated “punishment” distinction between and “sen- revoked, his and when is and thus tence” “punish- under Texas law. The be the full he could not aware of extent ment” by assessed the trial court in this him. punishment Knowledge assessed was confinement term of four years upon proba- in each to punishment be served will be cumulated tion. The “sentence” was court’s order constitute, may at least for revocation some determining when punishment this was to probationers, positive an additional incen- served. in this within proba- tive to live the conditions of required case which term be served Moreover, we hold that it is undesir- after the other completed does not in- able, matter of policy, “surprise” as a probationer’s crease the punishment upon probationer upon revocation with the of his punishment any revocation more than knowledge punishment being that his was punishment it increases sentence him by increased above that which assessed to the penitentiary after had been jury judge or trial or even years months upon probation. earlier.5 certainly I agree cannot to that Article persuade factors These additional us that 8(a) 42.12 Section V.A.C.C.P. violated general rule of Ex Parte Caldwel judge when a cumulation order is l — that a cumulation order effective re entered after he and sen- gardless of whether it is contained in the appellant. tences the merely That section inapplicable sentence —is grants to the trial authority to judge grants felony probation. where a trial reduce the term in the penitentiary upon We time for proper hold that a trial probation, has nothing in a to order cumulation case where do pronouncement with the of sentence. is grants felony probation proba properly This is controlled Spencer State, v. (Tex.Cr.App.1974) tion is that unless cumula 503 S.W.2d 557 where this Court held that where the sen- judg tion order is reflected in at least the imposed tence is for the time following first granting probation, the cumulation the court was free order is ineffective. prior cumulate the sentence with out- In the cumulation order standing sentences. The cumulation is in in contained the sentence Cause in this cause is valid the sentence in 57,415). No. 10238W Cause No. There- Cause number 10238W cause number fore, the cumulation recitals sentence 57,415) I should be reformed. concur in No. 10238W Cause No. Cause cases, of both these affirmance but are ineffective are therefore ordered dissent the majority action of deleted therefrom.6 reforming sentence in Cause number 54,415. we have reviewed the Finally, allegations find them

pro se and we to be Before the Court en banc. without merit. OPINION ON STATE’S MOTION The sentence in No. 10238W FOR REHEARING judg- and the Cause No. reformed DOUGLAS, Judge. The judgment ment therein is affirmed. Court, 10085 rules, After the under its or rehearing, dered a filed affirmed. the State a motion (Tex.Cr.App.1978); Reynolds, 5. Cf. McNew v. State 6. Under our decision in Ex Parte 56,669 15, (delivered February 1978). supra, concurrently. Walker the sentences will run v. 557 S.W.2d 785 rehearing. granted, rehearing for The declar- part original opinion RAMEY, Appellant, Ronald Alan cumulation order and re- ing the invalid forming the sentence is set aside Texas, Appellee. STATE

judgments including the cumulation orders No. 55682. affirmed. are now Texas, Appeals Court of Criminal have The issue is: Does a trial Panel No. 2. revoking to cumulate sentences after case? 6, Dec. 1978. question answered Banc Rehearing En Denied Jan. .2d 557 S.W as in the where this Court wrote: “Since case the imposed

instant sentence was following appellant’s time revoca

the first

tion, the court was free to cumulate the prior outstanding sentences.” present ease was im

In the

posed after the revocation of no difference

It makes that Article

V.A.C.C.P., provide does not

cumulation sentences because Article 42.-

08, V.A.C.C.P., provides for their cumula-

The cumulation of sentences

approved by eighty-two this Court for parte Crawford, Ex

years. See 36 Tex. (1896); parte

Cr.R. S.W. 92

March, (Tex.Cr.App.1968); Davis, parte (Tex.

and Ex S.W .2d opinion

Cr.App.1976). sub give does not

mission sufficient reasons to

change nullify the rule and

supra. reasons, above both as sentences

originally are affirmed. JJ., PHILLIPS, dissent.

ROBERTS

CLINTON, J., participating. Jr., Houston,

Donald W. pellant. Vance, Dist. Atty.,

Carol S. Alvin M. Ti- Freís, tus and Jack C. Asst. Attys., Dist. Houston, for the State. ODOM, DALLY,

Before PHILLIPS and JJ.

Case Details

Case Name: Gordon v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 10, 1979

Citation: 575 S.W.2d 529

Docket Number: 57414, 57415

Court Abbreviation: Tex. Crim. App.