Aubrey v. State
Aubrey v. State
Opinion of the Court
Clifford Ray Aubrey appeals the revocation of his probation and imposition of sentence in a burglary conviction. His only contention on appeal is that the sentence should be reformed to show that it runs concurrently with his sentence in a previous conviction.
On October 21, 1985, Aubrey was convicted in Lamar County of burglary and sentenced to five years’ confinement, probated. On October 27,1986, the State filed a motion to revoke the probation because Aubrey had committed aggravated robbery and had violated other conditions of his probation. On January 6, 1987, Aubrey was convicted in Lamar County of aggravated robbery and sentenced to thirty-five years’ confinement. On June 28, 1987, after Aubrey pleaded true to the allegations in the State’s motion to revoke, the court revoked his probation in the burglary conviction. In orally announcing judgment the trial court stated:
It is the sentence of the court that the defendant be confined for five years in the Texas Department of Corrections and that sentence shall commence when he has served his 35 year sentence in the other cause, which is 10260, State vs. Clifford Ray Aubrey in which the defendant was convicted of aggravated robbery.
Cause No. 10260 was the cause then being judged, not the previous conviction and thirty-five-year sentence, which was Cause No. 10719.
In the written judgment of revocation, the trial court provided that the sentence in the instant cause, No. 10260, would begin to run after the thirty-five-year sentence in Cause No. 10719 had been served. Aubrey contends that the written order of cumulation is void because it varies from the oral pronouncement, and the sentence in this cause should be reformed to show that the sentences will run concurrently. We disagree.
It is true that when the oral pronouncement does not mention cumulation, or when it states that the sentences will be concurrent, a cumulation order entered after the accused has begun serving the first sentence is void. Ex parte Voelkel, 517 S.W.2d 291 (Tex.Crim.App. 1975); Bullock v. State, 705 S.W.2d 814 (Tex.App.—Dallas 1986, no pet.); Henson v. State, 638 S.W.2d 504 (Tex.App.—Houston [1st Dist.] 1981, no pet.). That is not the case here, however. The oral pronouncement in this case expressly made Aubrey’s five-year sentence cumulative with his “35 year sentence in the other cause ... in which the defendant was convicted of aggravated
For the reasons stated, the judgment is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.