PD-0616-23 12/13/2023
1. “When cumulation of sentences is ordered, should objection be required to complain on appeal about a deficiency of proof supporting it or lack of specificity in the written order?”
2. “Was the evidence in this case adequate to connect appellant to a prior sentence?”
3. “When cumulation of sentences is ordered but there is some deficiency of proof in the record, should the remedy be remand for a new cumulation hearing?”
4. “When cumulation of sentences is ordered but there is some deficiency of specificity in the written order, should the remedy be remand for clarification?”
After Strickland was convicted for possession of methamphetamine, the trial court ordered that his sentence be cumulated with sentences “in Cause No. CR14643 – and if that’s not the correct number, the – the cause number involving the possession of child pornography[.]” The record showed Strickland was incarcerated in TDCJ at the time. Strickland did not object to the order or the judgment, which said without further elaboration, “THIS SENTENCE SHALL RUN: consecutive with CR14643 Count 1, CR 14643 Count 2, CR14643 Count 3, and CR14643 Count 4.”
On appeal, the court of appeals struck the cumulation order. It relied on cases from the Court of Criminal Appeals (CCA) that require evidence in the record connecting a defendant to a prior conviction and an order that is sufficiently specific to allow the Texas Department of Criminal Justice (TDCJ) to know what convictions operate in what sequence. See, e.g., Moore v. State, 371 S.W.3d 221 (Tex. Crim. App. 2012) (evidence); Ex parte Lewis, 414 S.W.2d 682 (Tex. Crim. App. 1967) (specificity). The court of appeals held that none of the evidence was sufficient to support the order and that it could not take judicial notice that would support the exception for when the same trial court sentences a defendant on the prior and current cases.
The State challenges both the state of the law generally and its application in this case. Because the statute giving the trial court authority to cumulate sentences has no requirement for proof or specificity, it is wrong for courts to impose any. This is especially so when the trial court’s decision is described by the CCA as “wholly discretionary” and “unassailable on appeal,” Barrow v. State, 207 S.W.3d 377, 379, 381 (Tex. Crim. App. 2006), and the need for specificity has always been solely for TDCJ’s benefit. In both cases, there is no reason to relieve a defendant of the obligation to object if there is a problem because a defendant’s criminal history and incarceration status is as known to him as it is anyone. On the merits, this case can be resolved by resort to the Texas Appeals Management and eFiling System (TAMES), which quickly reveals that Strickland has the prior convictions the trial court said he did and that they were pronounced by the same trial court. If resort to the court system’s own public portal is not permitted, the record—viewed cumulatively—adequately identifies Strickland’s prior convictions under more recent CCA cases. Finally, any failure of proof or specificity in the judgment should be remedied by remand and/or nunc pro tunc, not by retroactively depriving the trial court of the statutory authority it clearly intended to exercise.
