A question has come up in a trial -- so urgent advice is needed. Defendant tried in County B and sentenced to 20 years for Agg. Sexual Assault of a Child. Defendant files notice of appeal on that case. Defendant is now on trial in County W for the same offense. He's technically probation eligible because the County B conviction isn't final, but can the judge here stack a probation (in the unlikely event it's awarded)on top of the 20 year sentence in County B? Since defendant won't be eligible for parole in County B for at least 10 years, and also because that sentence isn't final, can the probation, if any, be stacked? Please feel free to call or e-mail if you think it would be quicker to respond that way.

YES, you can stack a probation on a prison sentence. See article 42.08, CCP. No, it doesn't matter if the prior sentence is on appeal. See Rivera v. State, 885 S.W.2d 581 (Tex. App. El Paso 1994).

Why didn't you just walk down the hall and ask John?

Because I was in Baltimore training prosecutors and police officers to take confessions like we do in Texas.

And you must not disturb the boss while he is teaching, and especially if he does not believe in cell phones.

Or he is eating crabs at nice restaurants.

Never mind, the jury gave the defendant 150 years.(That's five 50 year sentences with 3 of them stacked!) Not my case, so I can't take credit, the credit goes to my illustrious co-workers.

Any chance that John can start bringing some Williamson County jurors to less fortunate counties to teach other jurors good sentencing practices?

I'll second that...

1999 defendent was sentenced out of Kerr County to 5 years TDC, probated for 5 years.

Yesterday he was convicted of DWI 2nd (Grayson) and sentenced to 1 year jail time + $4K fine.

The judge denied motion to stack our one year onto the 5 stating that he could not stack because def. had not been physically sentenced to jail in the '99 case. It seems as though he had the discretion to go either way since the '99 case was adjudicated, with def. sentenced to the 5 years jail time that was then probated.

Fortunately, there IS a motion to revoke there, and Kerr has the 2003 file. That judge also has the discretion to stack and may very well do so if he revokes instead of renewing the probation, but under 42.08, it looks like our judge also had the option to stack instead of running them concurrent, but he disagreed. Would really like to find some case law addressing this.

[This message was edited by Waco on 11-20-03 at .]