NO. 1417-99







KELLER, P.J., delivered the opinion of the Court in which HOLLAND, WOMACK, HERVEY, and HOLCOMB, J.J., joined. PRICE, J., filed a dissenting opinion in which MEYERS, JOHNSON, and KEASLER, J.J., joined. JOHNSON, J., filed a dissenting opinion.


In October of 1995, appellant was convicted of aggravated sexual assault. Punishment was assessed at ten years and appellant was placed on community supervision (probation) for ten years. Appellant later committed a murder and, in August of 1997, was sentenced to seventy-five years imprisonment for that crime. The trial court then revoked appellant's community supervision, sentenced him to ten years imprisonment on the aggravated sexual assault offense, and stacked the ten year sentence onto appellant's seventy-five year murder sentence.

Before the Court of Appeals, appellant complained, among other things, that the trial court erred in stacking the aggravated sexual assault sentence onto the murder sentence because the aggravated sexual assault conviction preceded the murder conviction. The Court of Appeals agreed and deleted the trial court's cumulation order. (1) We will reverse.

A trial court has the discretion to stack sentences under certain circumstances:

Except as provided by Sections (b) and (c) of this article, 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, and sentence and execution shall be accordingly; provided, however, that the cumulative total of suspended sentences in felony cases shall not exceed 10 years.... (2)

Reading the language of the statute, the Court of Appeals held that the statute authorizes the stacking of a sentence for a subsequent conviction onto the sentence of a previous conviction but does not authorize the inverse scenario: that is, a trial court cannot stack the sentence of a previous conviction onto the sentence of a subsequent conviction. (3) And the Court of Appeals emphasized that the ability to stack was determined by the order of the convictions, not the order of the sentences. (4) The Court of Appeals concluded that the aggravated sexual assault sentence could not be stacked upon the murder sentence because, even though the aggravated sexual assault sentence was imposed subsequent to the murder sentence, the aggravated sexual assault conviction preceded the murder conviction. (5) The Court of Appeals reasoned that granting community supervision suspended imposition of the sentence but did not suspend entry of the conviction. (6)

At first glance, some language in the statute might appear to favor the Court of Appeals's construction. The statute refers to a "sentence imposed or suspended." Given that language, one might conclude that a "conviction" occurs even when a sentence is suspended, and so the offense with the probated sentence would necessarily constitute the first "conviction." However, there is an alternative interpretation of the language that is more consistent with our prior caselaw: that, for the purpose of stacking, a case could be treated as a "conviction" at the time sentence is suspended or at the time sentence is imposed. In other words, when community supervision is revoked, the trial court would have the discretion to treat the case as a conviction at the time of community supervision and stack a subsequently committed offense onto the revoked offense, or the trial court could treat the case as a conviction upon revocation and stack the revocation sentence onto the sentence for the new offense, if the revocation occurred after the conviction for the new offense.

This latter interpretation is made more plausible by the fact that we are not writing on a clean slate. In Spencer v. State, we held stacking to be permissible in a scenario identical in all relevant respects to the present case. (7) On May 15, 1970, Spencer was convicted of burglary and placed on probation for five years. (8) He was subsequently convicted of possession of marijuana, which conviction was affirmed on February 16, 1973. (9) The trial court revoked Spencer's probation on the burglary charge on April 5, 1973 and, at that time, stacked the burglary sentence onto the marijuana sentence. (10) In rejecting appellant's claim that the stacking order was improper, we explained:

In his last ground of error appellant urges that "the trial court erred in ordering the sentence for burglary cumulative with appellant's sentence for possession of marijuana," since the burglary conviction occurred prior to appellant's conviction for possession of marihuana. We do not agree. Since as in the instant case the sentence was imposed for the first time following appellant's revocation, the court was free to cumulate the sentence with prior outstanding sentences. See Article 42.08, Vernon's Ann.C.C.P; Ex Parte March, 423 S.W.2d 916 (Tex. Crim. App. 1968). (11)

Spencer was later followed in Gordon v. State, (12) and Gordon was followed in McCullar v. State. (13) At the time of the trials in these cases, the stacking statute provided:

When the same defendant has been convicted in two or more cases and the punishment assessed in each case is confinement in an institution operated by the Department of Corrections or the jail for a term of imprisonment, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction, except that in the discretion of the court, the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly. (14) The holding in Spencer and its progeny is consistent with other caselaw holding that, in some situations, the word "conviction" in a statute means a "final" conviction (15) and, in some situations, probation is not considered to be a final conviction. (16)

The "sentence imposed or suspended" language in Article 42.08 occurred later through amendment. That amendatory language appears very clearly designed 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 period of community supervision -- an option that had not been present in the prior version of the statute. (17) The amendatory language does not appear to be designed to restrict in any manner the trial court's discretion to stack sentences. Had the Legislature intended to impose restrictions, it could have done so in much clearer language than in the present case. "[W]e should be especially reluctant to change a longstanding interpretation of the law on what is, at best, an ambiguous textual basis, when there appear to be other, more obvious explanations for the statutory change." (18)

And, while the statute in question has subsequently been amended to allow the stacking of periods of community supervision and to prevent concurrent sentences in certain circumstances, the structure of the statutory language as it relates to the stacking of prison sentences -- including its focus on the order of convictions -- has remained essentially the same. (19) To the extent that the material portions of the statute have remained unchanged, we presume that the Legislature intended that the judicial interpretation of the previous version of the statute continue to apply. (20) The logical conclusion, then, is to hold that the Legislature intended both suspended and imposed sentences to be treated as "convictions" for the purpose of stacking in order to give the trial court the maximum flexibility possible in stacking sentences. We hold that the trial court was authorized to stack the aggravated sexual assault sentence onto the murder sentence.

The Court of Appeals's judgment deleting the cumulation order is reversed and the judgment of the trial court is affirmed in all respects.

KELLER, Presiding Judge

DATE DELIVERED: June 20, 2001


1. Pettigrew v. State, 1999 W.L. 345456, *2-*3 (Tex. App.--Tyler 1999). The Court of Appeals affirmed the trial court's judgment in all other respects. Id. at *3.

2. Texas Code of Criminal Procedure, Article 42.08(a).

3. Pettigrew, 1999 W.L. at *2-*3.

4. Id.

5. Id. at *3.

6. Id. at *2.

7. Spencer v. State, 503 S.W.2d 557, 561-562 (Tex. Crim. App. 1974).

8. Id. at 558.

9. Id. at 559.

10. Id. at 561-562.

11. Spencer, 503 S.W.2d at 561-562.

12. Gordon v. State, 575 S.W.2d 529, 535 (Tex. Crim. App. 1979, en banc)(on rehearing). The original panel opinion had overruled Spencer but was overturned on rehearing. See Gordon, 575 S.W.2d at 531-534, 531 n. 2.

13. McCullar v. State, 676 S.W.2d 587, 588 (Tex. Crim. App. 1984).

14. Texas Code of Criminal Procedure, Article 42.08 (1965)(emphasis added).

15. Arbuckle v. State, 105 S.W.2d 219, 219-220 (Tex. Crim. App. 1937); Russell v. State, 790 S.W.2d 655, 657 (Tex. Crim. App. 1990).

16. Ex Parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992)(probation does not constitute a final conviction for purpose of enhancement).

17. See Green v. State, 706 S.W.2d 653 (Tex. Crim. App. 1986); State ex rel. Thomas v. Banner, 724 S.W.2d 81, 84 (Tex. Crim. App. 1987).

18. Mims v. State, 3 S.W.3d 923, 927 (Tex. Crim. App. 1999)

19. In addition to relying upon Article 42.08, Spencer also relied upon March. In March, we distinguished between suspending the execution of the sentence and suspending the imposition of the sentence. 423 S.W.2d at 917-918. Under the former type of suspension, sentence was imposed but its execution was suspended; upon revocation the execution of the sentence was automatic. Id. at 917. With the latter type of suspension, sentence was not imposed until after revocation. Id. We held that cumulation of sentence was prohibited if the former method of suspension was used but was allowed if the trial court had used the latter method. Id. After 1965, only the latter method of suspending sentences was authorized. Id.

20. "When the Legislature meets, after a particular statute has been judicially construed, without changing that statute, we presume the Legislature intended the same construction should continue to be applied to that statute." State v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 1997)(quoting Marin v. State, 891 S.W.2d 267, 271-272 (Tex. Crim. App. 1994).