David Anthony Holder v. The State of Texas--Appeal from 366th District Court of Collin County

11th Court of Appeals

Eastland, Texas

Opinion

David Anthony Holder

Appellant

Vs. No. 11-01-00363-CR B Appeal from Collin County

State of Texas

Appellee

The trial court entered a judgment adjudicating appellant guilty of the offense of aggravated assault (the aggravated assault offense) and assessed punishment at ten years confinement in the Institutional Division of the Texas Department of Criminal Justice. In its judgment, the trial court ordered that the 10 year sentence run consecutively with a 15 year sentence that appellant received for aggravated sexual assault of a child (the aggravated sexual assault offense) in another cause number.[1] We modify and affirm.

Background Facts

In 1999, the trial court placed appellant on deferred adjudication community supervision in this cause for a period of ten years. The grand jury later indicted appellant with the aggravated sexual assault offense. The State, based upon allegations independent of the aggravated sexual assault offense, filed a petition to enter a final adjudication of defendant=s guilt in this cause. The State later amended the petition to include allegations of the aggravated sexual assault offense. After the jury returned its verdict finding appellant guilty of the aggravated sexual assault offense, the trial court found appellant guilty of aggravated assault in this cause. The trial court also revoked appellant=s community supervision for a deadly conduct offense (the deadly conduct offense) in another cause.

The trial court pronounced the following sentences in open court: (1) 2 years confinement for the deadly conduct offense, with the sentence to run concurrently with the 10 year sentence for the aggravated assault offense; (2) 10 years confinement for the aggravated assault offense, with the sentence to run concurrently with the sentence for the deadly conduct offense; and (3) 15 years confinement for the aggravated sexual assault offense, with the sentence to run consecutively with the sentences for the other offenses.

The trial court entered judgments, dated August 29, 2001, in the three cause numbers. In its judgment in this cause, the trial court sentenced appellant to 10 years confinement and ordered the sentence to run concurrently with the 2 year sentence for the deadly conduct offense and consecutively with the 15 year sentence for the aggravated sexual assault offense. In its judgment in the aggravated sexual assault offense cause, the trial court sentenced appellant to 15 years confinement and ordered the sentence to run consecutively with the 10 year sentence in this cause.

Issue Presented

In his sole point of error, appellant complains that the trial court=s cumulation order is error because it is insufficient. Therefore, according to appellant, the cumulation order is void, and his sentence for the aggravated assault offense should run concurrently, instead of consecutively, with his sentence for the aggravated sexual assault offense.

The Cumulation Order

Appellant argues that the cumulation order in the judgment fails to comply with the requirements for a valid cumulation order. We disagree. The Court of Criminal Appeals has recommended that a cumulation order should contain the following: (1) the trial court number of the prior conviction; (2) the correct name of the court in which the prior conviction was entered; (3) the date of the prior conviction; (4) the term of years of the prior conviction; and (5) the nature of the prior conviction. Young v. State, 579 S.W.2d 10 (Tex.Cr.App.1979); Ex parte Davis, 506 S.W.2d 882, 883 (Tex.Cr.App.1974). These suggestions are not mandatory. See Williams v. State, 675 S.W.2d 754, 764 (Tex.Cr.App.1984). The issue is whether the trial court=s description of the prior convictions in the cumulation order is Asubstantially and sufficiently specific@ to give notice to the defendant and to the Department of Corrections Aexactly which sentences the instant sentence is cumulated with.@ Williams v. State, supra at 764. A[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.@ Williams v. State, supra at 764; see also Ex parte San Migel, 973 S.W.2d 310, 333 (Tex.Cr.App.1998); Hamm v. State, 513 S.W.2d 85, 87 (Tex.Cr.App.1974); Ex parte Davis, supra at 883; Hoitt v. State, 30 S.W.3d 670, 675 (Tex.App. - Texarkana 2000), pet=n ref=d, improvidently granted, 65 S.W.3d 59 (Tex.Cr.App.2001).

In this cause, the trial court=s judgment states as follows: ACONCURRENT UNLESS OTHERWISE SPECIFIED: SENTENCE TO RUN CONCURRENTLY WITH TWO YEAR SENTENCE IN CAUSE NO. 366-80518-99 [the deadly conduct offense] AND CONSECUTIVELY WITH FIFTEEN YEAR SENTENCE IN CAUSE NO. 366-80091-01 [the aggravated sexual assault offense].@ The trial court that entered the cumulation order in this cause is the same court that entered the sentence for the aggravated sexual assault offense. The trial court=s cumulation order in this cause refers to the aggravated sexual assault cause number. Therefore, the cumulation order is valid under the above authorities. We overrule appellant=s sole point of error.[2]

However, we agree with the State that the cumulation language in the trial court=s judgment in this cause is not necessary, and the judgment should be modified to avoid possible confusion. The trial court=s pronouncements of the sentences in open court establish that the trial court intended the 15 year sentence for the aggravated sexual assault offense to follow the 10 year sentence in this cause. Additionally, in its judgment in the aggravated sexual assault offense, the trial court provided that the 15 year sentence for the aggravated sexual assault offense is to begin when the 10 year sentence for the aggravated assault offense has ceased to operate. However, the cumulation language in the judgment in this cause might suggest that the 10 year sentence in this cause is to follow the 15 year sentence for the aggravated sexual assault offense. Because the 10 year sentence in this cause is the first sentence to be served, no cumulation order is required in the judgment in this cause. For the sentences to run consecutively, it is only necessary that the judgment in the aggravated sexual assault offense contain a valid cumulation order, which it does. The judgment in this cause should be clarified.

This Court=s Ruling

We modify the trial court=s judgment in this cause by deleting the following language on Page 1 of the judgment: ASENTENCE TO RUN CONCURRENTLY WITH TWO YEAR SENTENCE IN CAUSE NO. 366-80518-99 AND CONSECUTIVELY WITH FIFTEEN YEAR SENTENCE IN CAUSE NO. 366-80091-01.@ The language should be replaced with the following sentence: AThe sentence in Cause No. 366-80091-01 shall begin when the sentence in this cause has ceased to operate.@ We affirm the judgment as modified.

PER CURIAM

October 10, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]Appellant appeals from his conviction of the aggravated sexual assault offense in Cause No. 11-01-00364-CR. The trial court cause number for the aggravated sexual assault offense was 366-80091-01 in the 366th District Court of Collin County. Appellant also appeals from his conviction of an offense of deadly conduct in Cause No. 11-01-00362-CR. The trial court cause number for the deadly conduct offense was 366-80518-99 in the 366th District Court of Collin County. We address the issues raised by appellant in those appeals in separate opinions.

[2]In his appeal from the judgment in the aggravated sexual assault offense, appellant complains that the trial court=s cumulation order is insufficient. In a separate opinion, we have found that the cumulation order in that cause is valid. In its judgment in that cause, the trial court included all five of the Court of Criminal Appeals= recommendations for a cumulation order.