Opinion filed July 3, 2014




                                     In The


        Eleventh Court of Appeals
                                ______________

                  Nos. 11-12-00222-CR & 11-12-00223-CR
                                ______________

            EDWARD FERNANDEZ MEDRANO, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 238th District Court
                             Midland County, Texas
                   Trial Court Cause Nos. CR35988 & CR36058


                      MEMORANDUM OPINION
       Edward Fernandez Medrano appeals the trial court’s order cumulating his
sentences in four convictions for indecency with a child by exposure under TEX.
PENAL CODE ANN. § 21.11 (West 2011). We affirm.
       The grand jury returned two indictments against Medrano.          The first
indictment, captioned “INDECENCY WITH A CHILD BY EXPOSURE,” alleged
that Medrano exposed a part of his genitals to G.R., a child younger than seventeen
years of age, with the intent to arouse and gratify his sexual desire. The second
indictment, captioned “INDECENT EXPOSURE TO A CHILD,” alleged, in
Count One, that Medrano exposed a part of his genitals to C.M., a child younger
than seventeen years of age, with the intent to arouse and gratify his sexual desire.
Counts Two and Three of the indictment were identical to Count One of the
indictment except for the name of the child. The parties agreed to consolidate the
cases for trial.
       The agreed motion to consolidate stated that Medrano was charged with the
offense of indecency with a child in cause number CR35988 and in cause number
CR36058. The motion also stated that the offenses alleged were the repeated
commission of the same or similar offenses and that the offenses were committed
pursuant to the same transaction or pursuant to two or more transactions that were
connected or constituted a common scheme or plan. The trial court granted the
motion and the cases proceeded to trial.
       The jury found Medrano guilty as charged in each indictment and assessed
his punishment at confinement for three years for the first indictment, two years for
the first count in the second indictment, three years for the second count in the
second indictment, and two years for the third count in the second indictment. The
trial court sentenced Medrano in accordance with the jury’s verdict as to the first
indictment and as to the first and second counts in the second indictment.
However, the trial court suspended the imposition of Medrano’s sentence as to the
third count in the second indictment and placed Medrano on community
supervision for a period of ten years.
       The State filed a motion under Section 3.03 of the Penal Code in which it
sought to cumulate the four sentences assessed against Medrano. PENAL § 3.03
(West Supp. 2013). The trial court found that each of the four offenses of which
the jury convicted Medrano was for indecency with a child under Section 21.11
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and that the victim in each case was a child younger than seventeen years of age.
The trial court ordered that Medrano’s sentences run consecutively in the following
order: three years for the first indictment, three years for count two in the second
indictment, two years for count one in the second indictment, followed by the two-
year sentence for which Medrano was placed on community supervision for ten
years as to count three of the second indictment.
      In one issue, Medrano alleges that the trial court erred when it ordered his
sentences to run consecutively. Medrano specifically contends that, because the
second indictment’s caption read “INDECENT EXPOSURE TO A CHILD,” he
was convicted under Section 21.08 and not under Section 21.11. Id. §§ 21.08,
21.11. Therefore, he argues, Section 3.03 did not authorize the trial court to
cumulate his sentences.       Medrano agrees that he was convicted under
Section 21.11 for the charge alleged in the first indictment, captioned
“INDECENCY WITH A CHILD BY EXPOSURE.”
      Section 3.03 provides that, if a defendant is found guilty of more than one
offense arising out of the same criminal episode, the sentences may run
consecutively if the sentence is for a conviction of an offense under Section 21.11
and is committed against a victim younger than seventeen years of age.           Id.
§ 3.03(b)(2)(A). Section 3.03 does not list Section 21.08 as one of the offenses in
which a trial court may order a defendant’s sentences to run consecutively. Id.
§ 3.03.   “Criminal episode” is defined as “the commission of two or more
offenses” that are “committed pursuant to the same transaction or pursuant to two
or more transactions that are connected or constitute a common scheme or plan” or
offenses that are “the repeated commission of the same or similar offenses.” Id.
§ 3.01.
      Section 21.11 is titled “Indecency With a Child” and provides that a person
commits the offense of indecency with a child if the person, knowing that the child
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is present, exposes his anus or any part of his genitals with the intent to arouse or
gratify the sexual desire of any person, and the child is younger than seventeen
years of age. Id. § 21.11(a)(2)(A). Section 21.08 is titled “Indecent Exposure” and
provides that “[a] person commits an offense if he exposes his anus or any part of
his genitals with intent to arouse or gratify the sexual desire of any person, and he
is reckless about whether another is present who will be offended or alarmed by his
act.” Id. § 21.08(a).
      The State contends that Medrano has waived his argument because he did
not object to the trial court’s imposition of his sentences. We cannot verify this
contention because a reporter’s record was not filed in this case due to Medrano’s
failure to pay the reporter’s fee.1               Thus, we will assume that Medrano has
preserved his argument for our review. We note that the Texas Rules of Appellate
Procedure permit us to decide an appellant’s issue without a reporter’s record if the
issue does not require a reporter’s record for our decision. TEX. R. APP. P. 37.3(c).
After reviewing the parties’ arguments and the clerk’s record, we are confident that
we can decide Medrano’s sole issue on appeal without the benefit of a reporter’s
record.
      The question here is whether Medrano was convicted of the charges alleged
in the second indictment under Section 21.08 or Section 21.11. Although the
second indictment’s caption was “INDECENT EXPOSURE TO A CHILD,” not
“INDECENCY WITH A CHILD BY EXPOSURE” as in the first indictment, the
body of the second indictment tracked the language of Section 21.11 and the
language charging Medrano in the first indictment. Both indictments alleged that
Medrano:
      [D]id then and there with the intent to arouse and gratify the sexual
      desire of the said EDWARD FERNANDEZ MEDRANO expose a

      1
          The record does not contain a finding of indigency.

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      part of the genitals of the said EDWARD FERNANDEZ MEDRANO
      to [child], a child younger than 17 years of age and not the spouse of
      the said EDWARD FERNANDEZ MEDRANO, knowing that the
      said [child] was then and there present[.]

      In addition, the jury was instructed that Medrano stood charged with one
count of indecency with a child by exposure in cause number CR35988 and with
three counts of indecency with a child by exposure in cause number CR36058.
The jury found Medrano guilty of the offense of indecency with a child by
exposure in each of the four counts as alleged in the indictments. The trial court’s
charge to the jury on punishment also listed the four offenses as indecency with a
child by exposure.     Furthermore, the judgments indicate that Medrano was
convicted of one count of indecency with a child in cause number CR35988 and
three counts of indecency with a child in cause number CR36058. The trial court,
in cumulating Medrano’s sentences, also found that Medrano had been convicted
of four counts of indecency with a child by exposure under Section 21.11.
Moreover, the parties stated in their agreed motion that Medrano was charged with
indecency with a child in cause numbers CR35988 and CR36058. The parties also
agreed that the offenses alleged in the indictments arose out of the same criminal
episode in that the offenses were the repeated commission of the same or similar
offenses and that the offenses were committed pursuant to the same transaction or
pursuant to two or more transactions that were connected or constituted a common
scheme or plan.
      We hold that the record shows that Medrano was tried and convicted of four
counts of indecency with a child by exposure under Section 21.11. The record also
shows that Medrano agreed that the alleged offenses were part of the same criminal
episode. Therefore, the trial court did not err when it ordered Medrano’s sentences



                                         5
to run consecutively as permitted under Section 3.03. Medrano’s sole issue on
appeal is overruled.
      We affirm the judgments of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


July 3, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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