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vconunent on his failu~e to testih md that the instmction did not core theerror. COA relied o~~iMcCnrmn, 60511589 (CCA l980), to hold that a comnlentmade before the close of the defendant's case cannot be a comnentapplicable because tl~ey have to do wit11 enhancements. Tl~e majority justassomes, without any analysis or autl~o~it): that the sane principle mustapply in contest of stacked sentences.on the fdlure to test&! but also found this "established mle" did not annlv~ ~ ~ ~~ ~ ~~.rDissent by Johnson: The n~ajority's intekyretatiou is inconsistent with2to judges. PDR was gcu~ted to determine if COA was correct in restricting thestahlle. To readinto 42.08 the discretion for a trial court to dccideu~l~e~~such CoIllmeIlb to prosecuto~s and witnesses.Held: A statenlent can be a commellt on the defendant's failurethat particular defendant acquired a conviction is lndicrous. Tlus wouldallow the trial court to deternunc, wvilly-nilly, wv11e11 the conviction occurred.to testifv e en if made before he rests his ease. h1cCavon did not That goes agdnst the veq hmrt of our judicial system, equal justice undercreate a per se n11e that a comnent made before the close of a defenda~~t's tl~e lam It is not diIficult to imagine 11ow suc11 a system could be abused.case can never be a comment on the failure to testii, but mtl~er uras a factorto be co~isidered. 'liniing can be a factor in deter~nining wvhetl~er the COURT OF APPEALS HAD JURISDICTION TO ENERTAIN APPEAlcomncnt was n~auifestly intended to be a cormnent on the dcfentlant's mont REVOCATION OF DEFERRED: GARYJEFFERSON VJDAURRI U.silence, or was of sucli character that the julywould necessarily take it as State, No. 151-99, Appellant's PDR from Potter County;such, but is not by itself dispositiw. COA n~isconsln~ed the 11oldi11g in Reversed/Atnnned in part, 6120101; Offense: hdecency; Sentence: 12~IIcCnr~on by holding it did not apply to judges. Judgment is therefore vacat- yrs; COA: i%med (98W478 -Amarillo 1998); Opinion: Mep, joineded, and case is remanded for proceedings consistent with tlus opinion. by tlolland, mice, Holcon~b & Henne~ Sepalxte Concurring Opinions:Womack & Johnson; Dissent: Kelle~ joined by KenslerSTACKING PRIOR SEN'ENCE ONTO SUBSEQUBN'S SENENCEHELD PROPER: il.t4RYmT~PBTrIGRBWu. Stnte, Xo. 1417-99, Appellant pled guilty pursuant to a plea bargain and ~va initially placedState's PDR from Snud Couutl., Reversed, 6120101; Offense: hfurdcr; o~i deferred for 10 yrs, but after violating conditions of pl,obation, was adjn-Sentence: 75 )IS; COA: Reversed in pet (NP - vier 1999); Opi~uo~i: rlicated gniity after pleading "not tlW to the allegatio~is and sentenced toKeller, joined by ~olland, Won~ack, Hency & Holcomb; Dissent: Price, 12 11s confinement. Ile complained on appeal that he was erroneouslyjoined by hleyn, Jo11nso11 & Kesler; Dissent: Jolu~sondeprived of a punisl~ma~t hearing prior to sentencing. COA held thatbecause Appell71t filed a general notice of appeal, and lus complaint was ofIn 1995, Appellant was placed on 10 )IS probation for aggravated sexu- a IIOII-j~~risdictiol~al defect, it had no jorisdictiou to entertai~~ it and disdassault, uhich he um sewing uheu comicted of murder in i\ugust 1997 missed that portion of the appeal. COA also l~eld that error was w\raived whenand sentenced to 75 )~s. His probation on the sexual assault was re\70kcd AppcUmt failed to object UI the trial court. PDR uras gimted to dctemineand he wvas assessed a 10-yr sentence, wluc11 \\.as stacked onto the 75-yr w11eLcr TRAP 25.2(b)(3) limits the right to appeal, even tl~oirgh the defersentence.Houwer, on appeal, COA deleted the stacking order because the dant pleads not tnle to viola tin^ conrlitior~s of deferred, and if not, whetheraggmwted sexual assault conriction preceded the nn~rder conviction, rasoningthat TCCL' 42.08 precluded stacking a prniws sentence onto a subsequentone. State's PDR\\#as granted to second guess this 111ling.claim of denial of a separate uonishn~ent hearing becanse saidHeld: The trial court was authoi.ized to stack the aeeravated claim does not cl~allenge the con~~iction. but the process by whichsexilal assault onto the murder sentence. The Stahlte sa)5 that a he was sentenced, an issue unrelated to his conviction: thus, COA"judgn~cnt in a second and subsequent conviction may eitl~er be that the erred in finding it lacked jurisdiction to address the claim. CCA firstsentence in~posed or suspended s11aU begin uhen the judgn~ent and the sen- finds tl~ar it made no difference u'l~ether Appellant pled "m~e" or "not tn~e"tewe imposed or suspended in tl~e preceding co~~viction has ceased to to the allegatio~is that l ~e had violated deferred. There is nothing in the lanoperate"or that the sentences nay 111n concurrently After conducting an guage of the n11e hat indicates otbelvise, nor has CG\ e w said that aanalysis based 011 the stahlte and its prior case law, CCA concludes that trial defendant's plea concerning alleged violations of deferred inlpacts his rightcourt did not errwlm~ it stacked theprior sex offense onto the murder con- to appd. CCA tl~en refin~s precedent that holds a defendant is entitled toviclion. Althougl~ it may appear tliat COA's interpretation is correct, an a scpante punislm~ent l~eadng alter ~tvocation of deferred. Issn, 88211159alternative constr~~ction n~ore consistent with CCA's precedent is that for (CCA 1992). COA bad erroneo~~slyrelicd 011 IWson, 944/nl1 (CCA 1996),purpose of stacking, a case could be treated as a "conviction" at the time wl~icll~eld tl~at fonner TRAE' 40(b)(l), now Rule 25.2(b)(3), restricted anse~~tence is suspertded or at the time selilence is i~nposed. In Spe~~cer, appeal to those issues included UI the n11e wl~enever the defendant plcads50311557 (CCA 1974), the defendant uras placed on probation for burglaly, guilty or nolo and is sentenced in accord with a plea bargain. IIouHever,convicted of POh1, and then his probationuras revoked and stacked onto the Iktsoii has been uarroued by subsequent mes, most notably Pengin,marijuana sentence. CCA held this was permissible under a Drior wxion of 96711417 (M 1998) (defend:uit on deferred may appd an error ~II or&-the Stahlte: because the sentelm WLS iirrposedfor the Erst time following ihd plea proceeding w11e11 revoked), and :lInrrirel, 994fl658 (CCA 1999)tile revocation, trial coort had discretion to stack it onto tl~e prior sentence. (appeal from "regular" probation equated vivilb appeal from deferred andSubsequent cases are co~lsistent wit11 Speimr. Eg., Gordou, 57511529 (CCA jubseq~~elslt adjudication of guilt). 1Pnso1,r is disa~~owed to the extent it co11-1979) andiMcCulln,; 67611687 (CCA 1984). And, alt11ougl1 the statute has Oicts wit11 tl~ese later decisions, but reaffirn~ed for the proposition tht u41enbeen amended over the years, the material portions have reniained il~e State recomn~ends deferred, the tlial court upon re\zocation may assess~incl~anged. The logical conci~~sion, thel.elore, is that the legislature intend- my ~III~SIUIICII~ witlun tlie imge allowed by i;w Hourever, after saying allcd both suspended and imposed sentences to be treated as "con~ictions" for Ius, CCA then agreesuit11 COA tliat, because the right to apuriisl~n~eut hearpurposesof stackingin order to gix the trial court the mmin~un~ flesibiiiy ~ng is a statutory right \vIllich c;u~ be waived, Appellant 11ad to object in thepossible in sslack~g sentences. Trial court did not err, tlms, COA's judg~uent rial court or somehow bring tlus error to the trial court's attention. Seeis reversed, and trial coeiz's judgment is affirmed.CRAP 33.1. CCi rejects hppellant's contention that he had no time to makeDissent by Price: Wm statote clearlysa)s that o~ily a second or subse- UI objectioo because he was sentenced inn~~ediately after being adjudicatedquent conviction can be stacked on a prior ot~. The majority's opinioa pily he should 11aw filed a motion for new trid to bring the matter beforeekcti~~ely ulites this tenlporal requirement out of the statute by holding tllat he trid court. COKs indgn~ent is rreeelsed to the extent that it disinissed thea conviction can occur eitlw wl~en a sentence is in~poscd or wl~en sos- ~pped for \mnt of jurisdiction, but it's alternate holding that t\ppellantpenrled. hloreove5 tl~ cases cited do not u~terpret 42.08, ond are not hnivetl error is &md.40 VOICE FOR M E DEFENSE WWVJ.TCDLA.COM SEPTEMBER 2001