Kennith Lorentz, Sr. v. State ( 2006 )

OPINION HEADING PER CUR

                NO. 12-06-00037-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KENNITH LORENTZ, SR., §                      APPEAL FROM THE 159TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant, Kennith Lorentz, Sr., was charged by indictment of one count of aggravated sexual assault of a child and a second count of sexual assault of a child.  The jury found Appellant guilty on count I of the lesser included offense of sexual assault of a child and guilty as charged on count II.  The jury assessed Appellant’s punishment on count I at imprisonment for ten years and on count II at imprisonment for ten years with a recommendation for community supervision.  The trial judge ordered that the sentences run consecutively.

            Appellant presents one issue in which he contends the trial judge improperly stacked Appellant’s sentences.  We modify both judgments to provide that the sentence for count II shall begin when the sentence in count I has ceased to operate and affirm the judgments as modified.

The Judgments

            In assessing Appellant’s sentence, the trial judge specified, “This sentence for count I shall run first and the sentence for count II of the indictment shall begin after the defendant’s release from confinement from the institutional division or from the defendant’s release from parole, whichever is later.”  The judgment and sentence for count I in pertinent part reads as follows:

This sentence FOR COUNT I shall run FIRST, AND THE SENTENCE FOR COUNT II OF THE INDICTMENT SHALL BEGIN AFTER THE DEFENDANT’S RELEASE FROM CONFINEMENT FROM THE INSTITUTIONAL DIVISION OR FROM THE DEFENDANT’S RELEASE FROM PAROLE, WHICHEVER IS LATER.

The judgment and sentence as it pertains to count II also clearly states the trial judge’s intent that Appellant not be permitted to begin serving his sentence of community supervision for count II while still on parole from the sentence in count I.  It recites the following:

This sentence shall run CUMULATIVELY WITH THE SENTENCE FOR COUNT I AND THE SENTENCE FOR COUNT II IS TO BEGIN AFTER THE DEFENDANT’S RELEASE FROM INCARCERATION FROM CONFINEMENT FROM THE INSTITUTIONAL DIVISION, OR FROM THE DEFENDANT’S RELEASE FROM PAROLE, WHICHEVER IS LATER.

Discussion

            Citing Green v. State, 706 S.W.2d 653 (Tex. Crim. App. 1986), Appellant first contends that a probated sentence cannot be cumulated with a judgment imposing a prison sentence.  Since Green was decided, however, Article 42.08 of the Texas Code of Criminal Procedure has been amended “to broaden a trial court’s ability to stack sentences by affording the option of stacking periods of community supervision, or stacking a prison term and a period of community supervision....” Pettigrew v. State, 48 S.W.3d 769, 772 (Tex. Crim. App. 2001); see also Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Pamph. Supp. 2005).  

            Alternatively, Appellant maintains that the sentence imposed for count II should commence when the judgment and sentence imposed in the preceding conviction (count I) has ceased to operate.  Article 42.08(a) provides as follows:

Except as provided by Sections (b) and (c) of this article [requiring cumulation for offenses committed by prison inmates and prohibiting a prison sentence from being stacked on a probated sentence], in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases ....

Id.  The Texas Government Code defines “ceased to operate.”

(b) For the purposes of Article 42.08, Code of Criminal Procedure, the judgment and sentence of an inmate sentenced for a felony, other than the last sentence in a series of consecutive sentences, cease to operate:

(1)           when the actual calendar time served by the inmate equals the sentence imposed by the court; or

(2)           on the date a parole panel designates as the date the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence.

Tex. Gov’t Code Ann. § 508.150(b) (Vernon 2004).

            In Ex parte Kuester, Kuester was serving a ten year sentence for burglary.  While in prison, he was convicted of striking a correctional officer.  The trial court sentenced Kuester to a four year term in prison and ordered that the four year term not begin to run until Kuester’s ten year sentence “ceased to operate.”  Ex parte Kuester, 21 S.W.3d 264, 265 (Tex. Crim. App. 2000).  The court of criminal appeals concluded that “cease to operate” means the date the prisoner has served the sentence day for day in [the Texas Department of Corrections–Institutional Division] or the date a parole panel has designated that the prisoner would have been released on parole if he had been sentenced to serve only one sentence.”  Id. at 270.  The court reasoned “the parole laws should apply to stacked sentences as they do to all other sentences, and the second sentence should begin when the inmate makes parole on the first sentence.”  Id. at 271; see also Ex parte Cowan, 171 S.W.3d 890, 892 (Tex. Crim. App. 2005).

            Although both Kuester and Cowan dealt with stacked prison terms, we perceive no logical basis for a different result in a case stacking a prison term and a period of community supervision.  We conclude that the sentence imposed is contrary to the applicable statutes and case law.

Disposition

            The judgment and sentence is modified to order that the sentence of community supervision imposed for count II shall begin when the judgment and sentence imposed for count I has ceased to operate.  As modified, the judgment is affirmed. 

                                                                                  BILL BASS   

                                                                                      Justice

Opinion delivered July 31, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)