Mario Ybarra v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

OPINION
No. 04-03-00461-CR
Mario YBARRA,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-5516W
Honorable Mary Rom n, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 26, 2004

AFFIRMED

Appellant Mario Ybarra was charged by information with the offense of theft in the amount of $20,000 to $100,000. He was charged with another, separate count of theft during the same time period. (1) Ybarra pled guilty to both charges. On January 12, 2001, the trial court assessed Ybarra's punishment for his first conviction at four years and a $1000 fine. On the same day, the trial court also assessed punishment for the second conviction, sentencing Ybarra to ten years' imprisonment, probated for a period of ten years. It is the second conviction which is the subject of this appeal.

Following Ybarra's completion of his four-year sentence, the State filed a motion to revoke his community supervision, citing several violations. The State's motion was granted on a plea of true by Ybarra. He was sentenced to serve ten years' confinement, beginning from the date of revocation. Ybarra now appeals in a single issue.

Discussion

In his sole issue, Ybarra contends the trial court abused its discretion by deviating from its original written judgments in both the present case, 2000-CR-5516W, and in the case involving his previous conviction, 1999-CR-2498. Specifically, Ybarra asserts the trial court erred in failing to properly reflect concurrent sentences in the judgment which revoked his community supervision. Consequently, he argues that his ten year sentence should begin to run from the date of his original plea, January 9, 2001, rather than the date of the revocation, June 6, 2003. (2)

Under the Texas Code of Criminal Procedure, when a defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been one conviction. Tex. Code Crim. Proc. Ann. art. 42.08(a)(Vernon 2003). The trial court has the discretion to impose either concurrent or cumulative sentences. Id.; Stokes v. State, 688 S.W.2d 539, 540 (Tex. Crim. App. 1985). Although the statute speaks in terms of "pronouncement" of sentence, it is implicit that a cumulation order must be in writing; otherwise, the sentences will be read as concurrent. Perez v. State, 831 S.W.2d 884, 886 (Tex. App.--Houston [14th Dist.] 1992, no writ). The recommended elements of a cumulation order are: (1) the cause number of the prior conviction; (2) the correct name of the court where the prior conviction was taken; (3) the date of the prior conviction; (4) the term of years of the prior conviction; and (5) the nature of the prior conviction. Stokes, 688 S.W.2d at 540. Inclusion of all five elements, however, is not mandatory. Id. A cumulation order rendered by the same court that rendered the previous conviction is valid even if it only recites the cause number of that conviction. See Ex Parte Davis, 506 S.W.2d 882, 884 (Tex. Crim. App. 1974); Edwards v. State, 106 S.W.3d 833, 845 (Tex. App.--Dallas 2004, pet. ref'd).

In the case at hand, Ybarra argues the absence of a written cumulation order mandates that his sentences run concurrently. He also argues that the trial judge's oral pronouncement imposing cumulative sentences is not sufficient under the Code of Criminal Procedure. However, Ybarra fails to mention in his brief that cumulative sentences were not only orally imposed, but were also a written condition of his plea bargain with the State. Ybarra's plea bargain reads, "This suspended sentence [in cause number 2000-CR-5516W is] to be cumulative to [cause number] 99-CR-2498 as allowed by [Texas Code of Criminal Procedure article] 42.08(a)."

A plea agreement, once accepted by the trial court, is binding upon the defendant. See Zapata v. State, 121 S.W.3d 66, 69 (Tex. App.--San Antonio 2004, pet. ref'd). A defendant bound by the terms of a plea bargain agreement is not permitted to take actions inconsistent with the agreement. Id. It is evident that the intent of the trial court was to stack Ybarra's sentences. While Ybarra is correct in asserting that an oral pronouncement, alone, is insufficient to accomplish the imposition of cumulative sentences, he neglects to acknowledge that such a pronouncement, taken in conjunction with a binding plea agreement is sufficient to impose consecutive sentences.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

Do Not Publish

1. Cause number 1999-CR-2498

2. Including time spent in custody prior to his sentencing, Ybarra had served a total of approximately four years in prison prior to the revocation of his community supervision. On appeal, he asks this Court to consider this four year term as time served on the allegedly concurrent ten-year sentence. He also asks this Court to reform the judgment to reflect his four years in prison, leaving a six-year sentence to be completed.