Vincent Pope aka Kevin Williams v. The State of Texas--Appeal from 180th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-222-CR

VINCENT POPE AKA KEVIN WILLIAMS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 180th District Court

Harris County, Texas

Trial Court # 561,161

O P I N I O N

This is an appeal by Appellant Pope from his convictions for murder and attempted murder, both enhanced by two prior felony convictions. The jury assessed Appellant's punishment at confinement for life in the Texas Department of Criminal Justice and a $10,000 fine in each case. The trial court further found that Appellant used a deadly weapon in the commissions of both offenses.

Lawanda Hagan, an 18-year-old high school student, had dated Appellant for two months when she decided to break up the relationship. On April 9, 1990, Lawanda ran up to Billy Wheeler in front of his home crying for help, stating that Appellant got her from her mom's home at gunpoint. Appellant was present with a gun in his hand. Wheeler told Appellant to put his gun in his pocket and asked his wife to drive Lawanda home. Appellant then shot Wheeler; shot and killed Lawanda; and then shot Wheeler again and ran away. Wheeler was severely wounded but survived.

Appellant was convicted for the murder of Lawanda, for attempted murder of Wheeler, and was assessed life in prison and a fine of $10,000 in each count. The State filed a motion to cumulate the sentences imposed with the sentence imposed by the State of Indiana in cause 49- G04-9005-CF060368, in which case Appellant was sentenced to 45 years for rape.

The trial court granted the State's motion and cumulated Appellant's Texas sentences with the Indiana sentence.

Appellant sole point of error is: "The trial court erred in cumulating Appellant's sentences in Texas with his conviction in the State of Indiana."

Cumulative sentencing is not permitted absent statutory authority. Prince v. State, 44 Tex. 480, 483-84 (1876). However, the Legislature enacted Article 42.08 of the Texas Code of Criminal Procedure, which was last amended effective September 1, 1989, and which provides in pertinent part:

"When the same 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 but one conviction. Except as provided in Sections b and c [here inapplicable], in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed . . . shall begin when the judgment and sentence imposed . . . in the preceding conviction shall cease to operate, or that the sentence imposed . . . shall run concurrently with the other case or cases, and sentence and execution shall be accordingly . . . ."

Fewell v. State, (Tex. App. Houston [14th Dist.] 1985) 687 S.W.2d 807, interpreting Article 42.08 of the Texas Code of Criminal Procedure, prior to amendment and changes in such article made by the Legislature in 1985, 1987, and 1989, held that a trial court was not permitted to "stack" a defendant's state sentence on top of a federal sentence.

As noted, the Legislature amended Article 42.08, after the Fewell decision in 1985, 1987 and 1989, changing the language on which Fewell based its decision. Hernandez v. State, (Tex. App. Dallas 1988) 748 S.W.2d 324, held that Texas convictions may be stacked under Article 42.08 with convictions from sister states. Cook v. State, (Tex. App. Dallas 1991) 824 S.W.2d 634, held that the Legislature in revising and amending Article 42.08 intended to allow the cumulation of Texas sentences with federal sentences.

We hold that the trial court did not err in cumulating Appellant's state sentences in this case with his sentence in the prior Indiana case.

Appellant's point is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 28, 1994

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