Full Opinion (html_with_citations)

             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-23-00037-CR
     ___________________________

   IFEANYICHUKWU OBI, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 396th District Court
         Tarrant County, Texas
       Trial Court No. 1658202D


 Before Birdwell, Womack, and Wallach, JJ.
 Memorandum Opinion by Justice Womack
                          MEMORANDUM OPINION

                                 I. INTRODUCTION

      Appellant Ifeanyichukwu Obi pled guilty to engaging in organized criminal

activity (Count One), theft of property greater than $300,000 (Count Two), money

laundering greater than $300,000 (Count Three), and exploitation of the elderly

(Counts Four and Five). The trial court accepted Obi’s pleas, and following a trial on

punishment, it convicted him and sentenced him to concurrent terms of twenty years’

confinement for Counts One, Two, and Three; and it deferred finding him guilty and

placed him on deferred adjudication community supervision for a period of ten years

for Counts Four and Five.1      Notably, the trial court’s judgments and orders of

deferred adjudication state that “Counts Four and Five shall begin when the judgment

      1
       The trial court’s oral pronouncement was somewhat unclear—particularly with
respect to when the period of deferred adjudication community supervision was to
begin. In this regard, the trial court stated:

      Okay. Upon your plea of guilty to Count[s] One, Two, and Three, I’m
      going to find you guilty, sentence you to 20 years in the penitentiary.

             On your plea of guilty to Counts Four and Five, I’m going to
      defer entering a finding of guilt and place you on probation for ten years.
      It is my hope that you don’t have to do all ten years so that you can get
      out and I can supervise you.

             ....

             Upon your release [from prison], then you’ll report - - if it’s still
      within the ten-year period, you’ll report to the adult probation office
      here in Tarrant County within 48 hours of your release to begin your
      conditions of probation.


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and sentence rendered in Count[]s One, Two[,] and Three . . . shall have ceased to

operate.”

      In his sole issue on appeal, Obi contends that the trial court erred by ordering

the terms of deferred adjudication community supervision imposed in Counts Four

and Five to run cumulatively to the prison sentences imposed in Counts One, Two,

and Three. We agree. We thus will modify the trial court’s judgments and orders of

deferred adjudication (1) to delete the portions requiring Obi’s deferred adjudication

community supervision to begin after the completion of the prison sentences imposed

in Counts One, Two, and Three and (2) to reflect that Obi’s deferred adjudication

community supervision is to run concurrently with the prison sentences imposed in

Counts One, Two, and Three. We affirm the trial court’s judgments and orders of

deferred adjudication as modified.

                                     II. DISCUSSION

      We review a trial court’s decision to cumulate sentences for an abuse of

discretion. Isadore v. State, No. 02-21-00198-CR,
2023 WL 3878448
, at *7 (Tex.

App.—Fort Worth June 8, 2023, pet. ref’d) (mem. op., not designated for

publication); Waddell v. State,
456 S.W.3d 366, 369
 (Tex. App.—Corpus Christi–

Edinburg 2015, no pet.). A trial court abuses its discretion if it imposes cumulative

sentences where the law requires concurrent sentences. Byrd v. State,
499 S.W.3d 443, 446
 (Tex. Crim. App. 2016). A claim for improper cumulation may be raised for the



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first time on appeal, and an improper cumulation order may be modified on appeal.

Ex parte Carter,
521 S.W.3d 344, 347
 (Tex. Crim. App. 2017).

      Cumulative sentencing is permitted only as provided by statute. Hamilton v.

State, No. 05-20-01119-CR,
2022 WL 2680611
, at *1 (Tex. App.—Dallas July 12,

2022, no pet.) (mem. op., not designated for publication); Bargas v. State,
252 S.W.3d 876, 902
 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). Pursuant to Article

42.08(a) of the Texas Code of Criminal Procedure, when a defendant has been

convicted in two or more cases, the trial court has discretion to order the judgment

and sentence imposed in the second conviction to either (1) begin to run after the

judgment and sentence imposed in the preceding conviction ceased to operate, or

(2) run concurrently with the judgment and sentence imposed in the preceding

conviction. Tex. Code Crim. Proc. Ann. art. 42.08(a). Pursuant to Section 3.03 of the

Texas Penal Code, if the convictions arise out of the “same criminal episode” and the

cases are tried together, the sentences must run concurrently unless the convictions

are for certain specified offenses and the trial court exercises its discretion to cumulate

the sentences. See
Tex. Penal Code Ann. § 3.03
(a), (b).

      Notably, an order of deferred adjudication community supervision may not be

cumulated onto sentences for a conviction. Hamilton,
2022 WL 2680611
, at *2 (citing

Hurley v. State,
130 S.W.3d 501, 507
 (Tex. App.—Dallas 2004, no pet.)). This is

because an order of deferred adjudication community supervision does not include an

adjudication of guilt and is thus not a “conviction” for purposes of Article 42.08(a)

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and Section 3.03. See Beedy v. State,
194 S.W.3d 595, 602
 (Tex. App.—Houston [1st

Dist.] 2006), aff’d,
250 S.W.3d 107, 113
 (Tex. Crim. App. 2008) (“We conclude that

appellant’s deferred[ ]adjudication community supervision was not a conviction for

purposes of [A]rticle 42.08 and [S]ection 3.03.”); Hurley,
130 S.W.3d at 507
 (“We

conclude Hurley’s deferred adjudication was not a conviction or finding of guilt for

purposes of [A]rticle 42.08 and [S]ection 3.03(b).”).        Because the trial court’s

judgments and orders of deferred adjudication required that Obi’s deferred

adjudication community supervision run consecutively to his prison sentences, we

hold that the trial court abused its discretion, and we sustain Obi’s sole issue. See

Hurley,
130 S.W.3d at 507
 (“[T]he trial court abused its discretion in ordering the

deferred adjudication to begin after Hurley served his sentence.”).

                                  III. CONCLUSION

      Having sustained Obi’s sole issue, we now turn to the proper remedy. “The

appropriate remedy for an unauthorized order cumulating sentences is to reform the

judgment and delete the cumulation order.” Hamilton,
2022 WL 2680611
, at *2; see

Beedy,
194 S.W.3d at 603
. Accordingly, we modify the trial court’s judgments and

orders of deferred adjudication (1) to delete the portions requiring Obi’s deferred

adjudication community supervision to begin after the completion of the prison

sentences imposed in Counts One, Two, and Three and (2) to reflect that Obi’s

deferred adjudication community supervision is to run concurrently with the prison

sentences imposed in Counts One, Two, and Three. We affirm the trial court’s

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judgments and orders of deferred adjudication as modified.2 See Ross v. State, No. 05-

14-00014-CR,
2014 WL 7399314
, at *2 (Tex. App.—Dallas Dec. 17, 2014, pet. ref’d)

(mem. op., not designated for publication) (“[W]e modify the order to reflect that the

period of deferred adjudication community supervision is to run concurrently with the

sentence in the burglary case.”); Beedy,
194 S.W.3d at 603
 (“We modify the trial court’s

judgment to delete that portion requiring appellant’s deferred[ ]adjudication


      2
        In its brief, the State likewise contends that the trial court’s judgments and
orders of deferred adjudication should be modified “to reflect [that] the deferred
adjudication in [C]ounts [F]our and [F]ive are to run concurrently with [C]ounts [O]ne
through [T]hree,” although the State offers a different rationale for that desired result.
The State contends that it is clear from the reporter’s record of Obi’s trial on
punishment that the trial court “intended for all five sentences to run concurrently,”
and, thus, the judgments and orders of deferred adjudication contain “clerical errors,
not judicial errors.” We have reviewed the reporter’s record of Obi’s trial on
punishment, and we find no such clarity regarding whether the trial court “intended
for all five sentences to run concurrently.” On the other hand, the judgments, the
orders of deferred adjudication, and a certificate of proceedings signed by the trial
court each indicate that the trial court intended for Obi’s deferred adjudication
community supervision to begin after his prison sentences have ceased. Generally,
when there is a variation between the oral pronouncement of a sentence and the
written judgment, the oral pronouncement controls. Coffey v. State,
979 S.W.2d 326, 328
 (Tex. Crim. App. 1998). But if the oral pronouncement is ambiguous—as it is
here—the court’s pronouncement and the written judgment should be read together
in an effort to resolve the ambiguity. Aguilar v. State,
202 S.W.3d 840, 843
 (Tex.
App.—Waco 2006, pet. ref’d); see Sparks v. State, No. 05-14-00629-CR,
2015 WL 2250242
, at *2 (Tex. App.—Dallas May 12, 2015, no pet.) (mem. op., not designated
for publication) (holding that although trial court mistakenly referenced wrong case in
imposing first of appellant’s two sentences, record as a whole showed trial court’s
intended sentences and resolved any ambiguity in court’s oral pronouncement).
Based on our review of the entire record, it appears that the trial court intended for
Obi’s deferred adjudication community supervision to begin after his prison sentences
have ceased. In any event, we have modified the judgments and the orders of
deferred adjudication as requested by both Obi and the State.


                                            6
community supervision to begin after appellant’s prison sentence is completed and to

decree, instead, that the community supervision and prison term run concurrently.”);

Hurley,
130 S.W.3d at 507
 (“We modify the trial court’s order deferring adjudication of

guilt to delete that portion requiring Hurley’s deferred adjudication community

supervision to begin after Hurley’s sentence for indecency with a child ceases to

operate.”); see also Beedy,
194 S.W.3d at 603
 (“Although at first blush, it seems unlikely

that a trial court would assess deferred[ ]adjudication community supervision that

could be served concurrently with prison time, it is possible that a trial court

could . . . assess deferred[ ]adjudication community supervision with the possibility

that it could be adjudicated and stacked at the slightest violation while the defendant

is in prison in order to assure good behavior in prison.”).

                                                       /s/ Dana Womack

                                                       Dana Womack
                                                       Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 21, 2023




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