

NOS. 07-08-0502-CR, 07-08-0503-CR; 07-08-504-CR;
 
07-08-0505-CR;
07-08-0506-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL B
 

JULY
15, 2010
 

 
ALFREDO SOLIS, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 251ST DISTRICT COURT OF POTTER
COUNTY;
 
NO. 57,754-C, 57,761-C, 57,762-C, 57,763-C, 57,764-C;
 
 HONORABLE ANA ESTEVEZ, JUDGE

 

 
Before QUINN,
C.J., and CAMPBELL and HANCOCK, JJ.
 
 
MEMORANDUM OPINION
 
Appellant Alfredo Solis appeals ten
convictions for aggravated sexual assault of a child, sexual assault of a
child, and indecency with a child by sexual contact.  Through one issue, he argues the trial court
abused its discretion by ordering the jury-imposed sentences for three of the
convictions to run consecutively.  We
disagree, and will affirm.
 
Background
Indictments filed in five cases
alleged appellant committed multiple sexual offenses against one child, his
stepdaughter.  The cases were
consolidated for trial.  
At trial appellant plead guilty to
each of the indicted offenses.  After the
State presented evidence, the court instructed the jury to return a verdict of
guilty on each count.  The jury entered
verdicts accordingly.  Appellant elected
assessment of punishment by the jury. 
During its deliberation on punishment, the foreman sent the court a note
inquiring:
“1)       If given probation on one count of the lessor (sic) charges, does that ensure that if the
defendant gets out he for sure will be on probation?
2)         If not does probation have to be given
on all charges.(sic)”
The court responded with a
supplemental charge instructing the jury to continue its deliberations.  The jury returned verdicts assessing two
fifty-year sentences for aggravated sexual assault of a child,[1]
two twenty-year sentences for sexual assault of a child,[2]
five twenty-year sentences for indecency with a child by sexual contact,[3]
and one nine-year probated sentence for indecency with a child by sexual
contact. 
The State moved for consecutive
sentencing and Athat [appellant=s] probation term not begin until he
is paroled on the last sentence prior to that.@  Appellant objected to
stacked sentences.  After the trial court
made some comments, apparently based on the jury’s note, concerning the jury’s
wishes regarding appellant’s eventual possible release from confinement, and
further argument from counsel, the court “stacked” one of the fifty-year
sentences, one of the twenty-year sentences and the probated sentence.  It ordered the remaining sentences run
concurrently.  The effect of the court’s
sentencing was seventy years confinement followed by nine years probation.  Appellant timely filed notice of appeal.
Issue
Appellant raises one issue on appeal:
Where a defendant in his mid-50s opts for jury sentencing, and where the
trial court concludes from the punishment verdicts that the jury intended the
defendant to be released at some time in the future, is the trial court
entitled to frustrate that intention by cumulating the sentences of
imprisonment to make release much less likely?[4]
Discussion
Statute authorizes a trial court to
cumulate sentences imposed for certain offenses arising out of the same
criminal episode and prosecuted in a single criminal action.  Tex. Penal Code Ann. § 3.03
(Vernon Supp. 2009).  Those
offenses include indecency with a child, and aggravated sexual assault and
sexual assault of a child younger than seventeen.  Tex. Penal Code Ann. §§ 3.03(b)(2)(A); 21.11; 22.011; 22.021 (Vernon Supp. 2009); see DeLeon
v. State, 294 S.W.3d 742 (Tex.App.—Amarillo 2009, pet. refused) (applying statute).
The Court
of Criminal Appeals has indicated that a trial court’s decision to cumulate
sentences constitutes an abuse of discretion only when cumulation
is not permitted by statute.  See Beedy v. State, 250 S.W.3d 107, 110 (Tex.Crim.App. 2008) (Awhen a trial judge
lawfully exercises the option to cumulate, that decision is unassailable on
appeal@); Barrow v.
State, 207 S.W.3d 377, 380-81 (Tex.Crim.App.
2006) (discussing trial court=s discretionary
decision whether to cumulate sentences). 
Accord Nicholas v. State, 56 S.W.3d 760, 764-65 (Tex.App.BHouston
[14th Dist.] 2001, pet. refused) (noting, as a practical matter, an abuse of
discretion occurs in sentencing for multiple offenses only if the trial court
imposes consecutive sentences where the law requires concurrent sentences,
where the court imposes concurrent sentences but the law requires consecutive
ones, or where the court otherwise fails to observe the statutory requirements
pertaining to sentencing); Revels v. State, No. 05-07-01555-CR, 2008
Tex. App. Lexis 9197, at *18 (Tex.App.BDallas
Dec. 11, 2008, no pet.).
Appellant does not
contend the trial court’s cumulation order in this
case contravened the statute.  The trial court did not alter the
individual sentences imposed by the jury, and none exceed the statutory
range.  All the sentences were subject to
cumulation. 
Tex. Penal Code Ann. ' 3.03(b)(2)(B)
(Vernon Supp. 2009).
Nonetheless,
appellant contends the order was an abuse of discretion because of the peculiar
circumstances.  He points to the trial
court’s comment, which he contends indicates the court understood the jury
intended that appellant eventually be eligible for release from
imprisonment.  He then argues that, despite
its understanding of the jury’s intention, the trial court ordered cumulation of sentences, making his eventual eligibility
for release much less likely.  This
action, appellant posits, must constitute an abuse of discretion.
Effectively,
appellant’s argument is an iteration of the position rejected by the Court of
Criminal Appeals in Barrow.  207 S.W.3d at 381-82.  There, Judge Meyers, in dissent, took the
position that allowing the trial judge to cumulate jury-determined sentences
contradicts a Texas defendant’s statutory right to have punishment assessed by
the jury.  Id. at 382.  Addressing constitutional challenges to
judge-ordered cumulation, the majority opinion
pointed out that, by statute, Texas permits a defendant to opt for
jury-assessed punishment but the Legislature also has assigned the decision
whether to cumulate sentences to the trial court.  Id. at 380.  
Because the jury
simply has no role in the decision whether sentences are to be served
consecutively or concurrently when statute permits, and the decision is left to
the discretion of the trial court, Barrow,
207 S.W.3d at 380,[5]
we are unable to agree that the jury’s intentions regarding appellant’s
eventual eligibility for release could operate to limit the trial court’s
discretion to order cumulation.[6]
 
We accordingly overrule appellant=s issue and affirm the judgments of
the trial court.
 
                                                                                                James
T. Campbell
                                                                                                            Justice
Do not publish.  




[1]  Tex. Penal Code Ann. ' 22.021(a)(2)(B)
(Vernon Supp. 2009).


[2] 
Tex. Penal Code Ann. ' 22.011(a)(2)
(Vernon Supp. 2009).


[3] 
Tex. Penal Code Ann. ' 21.11(a)(1)
(Vernon Supp. 2009).


[4] The State contends appellant’s issue was not
preserved for our review.  See Tex. R. App. P. 33.1; Pena v.
State, 285 S.W.3d 459, 462-464 (Tex.Crim.App.
2009) (discussing preservation of error). 
Although the State’s argument has some merit, we find appellant’s
objection to the imposition of cumulative sentencing for the fifty-and
twenty-year sentences was conveyed to the trial court, and was overruled by the
court’s sentencing decision, so as to preserve the complained-of error for our
review.


[5]
Cf. Gordon v. State, 633 S.W.2d 872, 879 n.16 (Tex.Crim.App. 1982) (citing
O=Bryan v. State, 591 S.W.2d 464, 476, 478 (Tex.Crim.App. 1979) (AThe duration of confinement following its assessment of
punishment is not a legitimate concern of a jury@).  


[6] Although we need not address it, we agree with the
State also that the jury foreman’s note is subject to more than one
interpretation as an indicator of the jury’s thinking regarding appellant’s
eventual release from confinement. 


