When appellant raises lack of adequate notice in a motion to revoke, he must file a motion to quash to preserve error.
How later courts described this case
- When appellant raises lack of adequate notice in a motion to revoke, he must file a motion to quash to preserve error.
- opinion on state’s motion for rehearing
- “The cumu-lation of sentences has been approved by this Court for eighty-two years.”
- on motion for rehearing
Written by the judges who cited it.
The opinion
VOLLERS, Judge,
concurring and dissenting.
The majority in this case confuses the distinction between “punishment” and “sentence” under Texas law. The “punishment” assessed by the trial court in this case was confinement for a term of four years in each case, to be served upon probation. The “sentence” was the court’s order determining when this punishment was to be served. The sentence pronounced in this case which required that one term be served after the other is completed does not increase the probationer’s punishment upon revocation of his punishment any more than it increases his punishment to sentence him to the penitentiary after he had been placed upon probation.
I certainly cannot agree to that Article 42.12 Section 8(a) V.A.C.C.P. is violated by the trial judge when a cumulation order is entered after he revokes probation and sentences the appellant. That section merely grants to the trial judge the authority to reduce the term in the penitentiary upon revocation of probation, and has nothing to do with the pronouncement of sentence. This case is properly controlled by Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974) where this Court held that where the sentence is imposed for the first time following revocation of probation the court was free to cumulate the sentence with prior outstanding sentences. The cumulation order in this cause is valid and the sentence in Cause number 10238W (our cause number 57,415) should not be reformed. I concur in the affirmance of both of these cases, but dissent to the action of the majority in reforming the sentence in Cause number 54,415.
Before the Court en banc.