Court of Criminal Appeals of Texas, 2012

Moore, Jammie Lee

Court of Criminal Appeals of Texas · Decided June 20, 2012

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0965-11

JAMMIE LEE MOORE, Appellant v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

POTTER COUNTY

K ELLER, P.J., filed a dissenting opinion.

Appellant failed to object to the trial court’s decision to cumulate sentences. As the court of appeals explained: “[T]here has been a complete procedural default on any issue related to the trial court’s cumulative sentence order.”1 In an attempt to get around this obvious procedural default, appellant framed his claim as one of evidentiary insufficiency.2

MOORE — 2 The Court errs to accept appellant’s characterization of the claim as one of evidentiary insufficiency. Evidence to support a cumulation order might be legally insufficient when the State fails to provide evidence of a prior conviction or of a fact necessary to authorize cumulative sentences.3

But in the present case, there was sufficient evidence from which the trial judge could order cumulative sentences. There is no dispute that there was evidence of the prior conviction, and the trial judge had the authority to cumulate sentences in his discretion under Article 42.08(a).4 If the trial judge believed that he was required to cumulate, then he was in error in so believing, and to the extent the trial judge committed an error of law, appellant was required to object.5 I respectfully dissent.

Filed: June 20, 2012

Publish

1 Moore v. State, 339 S.W.3d 365, 368 (Tex. App.–Amarillo 2011). 2 See id. (“[U]pon closer reading, it becomes apparent that appellant has taken that approach for one reason only . . . to circumvent the consequences of failing to object to the trial court’s action in cumulating the sentences.”). 3 See TEX . PENAL CODE § 3.03(b)(2)(exception to mandatory concurrent sentencing for certain types of offenses if committed against a victim younger than seventeen years of age). 4 See TEX . CODE CRIM . PROC. art. 42.08(a). 5 See TEX . R. APP . P. 33.1. The issue appellant raises now would be better raised as an ineffective assistance of counsel claim in a habeas proceeding regarding his attorney’s failure to object to the cumulation of sentences. In such a proceeding, the record could be expanded to include the attorney’s reasons (if any) for failing to object, the trial judge’s reason for cumulating sentences, and whether or not the trial judge would have cumulated sentences if he had realized that he was not required to do so.

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