PRESIDING JUDGE KELLER delivered the opinion of the court, in which JUDGES MEYERS, JOHNSON, KEASLER, ALCALA, RICHARDSON, YEARY, and NEWELL joined. JUDGE HERVEY did not participate.
The appellant was convicted of aggravated robbery, with a sentence of life in prison, and possession of heroin, with a sentence of sixty years’ incarceration. The trial court issued an order stacking the two sentences so that they ran consecutively. The appellant subsequently appealed the aggravated robbery conviction and the appeals court reversed and remanded for a new sentencing hearing. The appellant again received a life sentence but the trial court did not issue a new order stacking the sentence with the sixty-year sentence associated with the possession of heroin conviction. After the new sentence, the Texas Department of Criminal Justice treated the sentences for the aggravated robbery and possession of heroin convictions as if they were still stacked.
Issue: Does reversal and remand for a new sentencing hearing operate to remove the sentence from its place in a stacking order?
The court answered in the affirmative. In examining the case law, the court looked to Alsup and Nickerson. In Alsup, the court held that a mere appeal did not deprive the court of the power to impose consecutive sentences via a stacking order. On the other hand, in Nickerson, the court ruled that the granting of a new trial returned the case to its pre-trial state, meaning that no conviction existed. The court reasoned that the case at hand fell between the extremes of Alsup and Nickerson because remand for new sentencing does more than filing a notice of appeal and less than the granting of a new trial to disturb the case.
The court then looked to the statute and determined that the judgment does not “cease to operate” upon remand for a new sentencing hearing but only upon completion of the sentence or the action of the parole panel. But the court concluded that Nickerson correctly showed that the order of conviction for stacking purposes is disturbed when a judgment ceases to exist. Likewise, the court reasoned that the judgment included the sentence and that a remand for new sentencing results in the judgment no longer existing. The court then pointed out that if the sentences maintained their position in the stacking order, the new sentence could result in an incarceration sentence stacked on a community supervision sentence, a result contrary to statutory law.
In light of the court’s statutory interpretation, case analysis, and the legislature’s desire to grant maximum flexibility in the stacking of sentences, the court granted relief, ruling that a sentence reversed on appeal is removed from its place in the stacking order and, in absence of a new stacking order, the two sentences at hand run concurrently.