                                    NO. 07-07-0325-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                     JULY 9, 2009
                           ______________________________

                      AMBROSIO VALERO DELEON, APPELLANT

                                              V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

               FROM THE 106TH DISTRICT COURT OF LYNN COUNTY;

          NO. 05-2773; HONORABLE CARTER T. SCHILDKNECHT, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                          OPINION


       Appellant Ambrosio DeLeon was prosecuted for offenses during a criminal episode

spanning eight years and comprising aggravated sexual assault, sexual assault, and

indecency with a child. After a jury finding of guilty, he received concurrent sentences of

imprisonment for offenses committed before September 1, 1997, and consecutive

sentences of imprisonment for offenses committed after that date. In a single issue,

appellant challenges the trial court’s application of sentencing rules. We will affirm the trial

court’s judgments.
                                      Background


      A twenty-count indictment charged appellant with indecency with a child, sexual

assault, and aggravated sexual assault. Appellant’s daughter was the victim of all the

offenses. She was born July 15, 1983, and the last offense charged occurred on or about

July 1, 2000. Trial resulted in appellant’s acquittal on two counts and a mistrial on the

remaining counts. On retrial, the jury convicted appellant of the sixteen counts tried and

for each assessed a sentence of confinement in prison.1          The court ordered that

appellant’s sentences in counts two through seven and nine through twelve run

concurrently. It imposed consecutive sentencing for counts fourteen through nineteen. It

cumulated the sentence of court fourteen so that service will not begin until appellant

discharges the sentences imposed in counts two through seven and nine through twelve.


      1
        The counts, offenses, “on or about” dates of offenses, and sentences of
imprisonment imposed on retrial are:

      Count two: Indecency with a child, August 1, 1992, 20 years;
      Count three: Indecency with a child, August 1, 1992, 20 years;
      Count four: Indecency with a child, August 1, 1992, 20 years;
      Count five: Indecency with a child, August 1, 1993, 20 years;
      Count six: Indecency with a child, August 1, 1993, 20 years;
      Count seven: Indecency with a child, August 1, 1996, 20 years;
      Count nine: Aggravated sexual assault of a Child, August 1, 1996, 99 years;
      Count ten: Indecency with a child, August 1, 1996, 20 years;
      Count eleven: Indecency with a child, August 1, 1996, 20 years;
      Count twelve: Indecency with a child, August 1, 1996, 20 years;

      Count fourteen: Sexual Assault, July 1, 2000, 20 years;
      Count fifteen: Sexual Assault, July 1, 2000, 20 years;
      Count sixteen: Indecency with a child, July 1, 2000, 20 years;
      Count seventeen: Indecency with a child, July 1, 2000, 20 years;
      Count eighteen: Indecency with a child, July 1, 2000, 20 years;
      Count nineteen: Indecency with a child, July 1, 2000, 20 years.


                                            2
Under the trial court’s judgment, therefore, the sentences for the six latter counts not only

run consecutively to each other but run consecutively to the concurrent sentences for the

ten earlier counts. The practical consequence is that the consecutive sentences will not

begin until appellant completes the 99-year sentence imposed for count nine.


                                           Issue


       Appellant’s single issue asks: “Can the trial court stack Counts with dates of

offenses prior to 9-1-97 (Counts 2-12) on top of the Counts with dates of offenses after 9-

1-[9]7 under Penal Code 3.03?”


                                        Discussion


       Generally, a defendant has no right to serve sentences imposed for different

offenses concurrently; rather, the decision to cumulate sentences lies within the discretion

of the trial court. Coleman v. State, 898 S.W.2d 327, 329 (Tex.App.–Tyler 1993) aff’d, 897

S.W.2d 319 (Tex.Crim.App. 1995); see Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon

2006). This discretion is absolute so long as cumulative sentencing is authorized by law.

Nicholas v. State, 56 S.W.3d 760, 764-65 (Tex.App.–Houston [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); accord Revels v. State, No. 05-07-01555-CR, 2008



                                             3
WL 5177374, at *8 (Tex.App.–Dallas Dec. 11, 2008, no pet. h.). See also Beedy v. State,

250 S.W.3d 107, 110 (Tex.Crim.App. 2008) (“when 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).


       But when multiple offenses arising out of the same criminal episode are

consolidated for a single trial,2 and the defendant is found guilty of more than one offense,

Penal Code section 3.03(a) provides a limit on the trial court’s discretion to cumulate the

sentences. Tex. Penal Code Ann. § 3.03(a) (Vernon Supp. 2008); see Millslagle v. State,

150 S.W.3d 781, 784 (Tex.App.–Austin 2004, pet. dismissed) (referring to § 3.03(a) as an

exception to the rule allowing trial court discretion). Until 1995, section 3.03 required

sentences for multiple offenses prosecuted in a single trial to run concurrently. Owens v.

State, 96 S.W.3d 668, 671 (Tex. App.–Austin 2003, no pet.). In that year, the legislature

amended section 3.03 to restore the trial court’s discretion to impose consecutive

sentences for multiple intoxication manslaughter convictions resulting from a single trial.

Act of May 26, 1995, 74th Leg., R.S., ch. 596, § 1, 3435, 3435 (current version at Tex.

Penal Code Ann. § 3.03(b)(1) (Vernon Supp. 2008)); Yvanez v. State, 991 S.W.2d 280

(Tex.Crim.App. 1999). And in 1997, the legislature further amended section 3.03 to add

some sexual offenses committed against a victim younger than seventeen to the list of


       2
       See Tex. Penal Code Ann. § 3.02(a) (Vernon 2003) (providing for consolidation);
Salazar v. State, 127 S.W.3d 355, 363-64 (Tex.App.–Houston [14th Dist.] 2004, pet.
refused) (applying section 3.02). “Criminal episode” is defined to include, inter alia, the
repeated commission of the same or similar offenses. Tex. Penal Code Ann. § 3.01
(Vernon 2003).

                                             4
offenses subject to consecutive sentencing when there are multiple convictions in a single

trial. Those offenses include indecency with a child, sexual assault, and aggravated sexual

assault. Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 2, 2250, 2251 (current version

at Tex. Penal Code Ann. § 3.03(b)(2)(A) (Vernon Supp. 2008));3 Owens, 96 S.W.3d at 671.

Thus, for offenses listed in section 3.03(b), the trial court in its discretion may rightly order

commencement of the second sentence after completion of the first sentence. See

Millslagle, 150 S.W.3d at 784-85 (describing § 3.03(b) as creating an exception to the

section 3.03(a) exception).


       This case presents the issue of the trial court’s discretion with regard to consecutive

sentencing when section 3.03(b) offenses committed after the effective date of the 1997

amendment are tried together with such offenses committed before the effective date.

Under the trial court’s judgment, none of appellant’s sentences for the six offenses

committed after September 1, 1997 will begin to run until he completes his sentences for



       3
           Penal Code section 3.03 states in pertinent part:

       (b) If the accused is found guilty of more than one offense arising out of
       the same criminal episode, the sentences may run concurrently or
       consecutively if each sentence is for a conviction of:

       ***
       (2) an offense:

       (A) under Section 21.11, 22.011, 22.021, 25.02, or 43.25 committed
       against a victim younger than 17 years of age at the time of the
       commission of the offense regardless of whether the accused is convicted
       of violations of the same section more than once or is convicted of
       violations of more than one section....

Tex. Penal Code Ann. § 3.03(b)(2)(A) (Vernon Supp. 2008).

                                               5
all ten offenses committed before that date. Appellant would have us hold that his

sentences for the six post-September 1, 1997 offenses may run consecutively with each

other, but they must begin immediately following trial. The State argues the trial court

acted within its discretion to postpone the beginning of service of those sentences until the

completion of the eight concurrent sentences for the earlier offenses.


       The parties do not cite nor do we find a decision that squarely addresses the issue

appellant presents.4 Appellant argues Ponce v. State, 89 S.W.3d. 110 (Tex.App.–Corpus

Christi 2002, no pet.), is instructive, but we disagree. In Ponce the defendant was

convicted on nine counts of aggravated sexual assault of a child, sexual assault of a child,

and indecency with a child. The offenses occurred between 1994 and 2001 and included

four counts of indecency with a child occurring before September 1, 1997. On the latter

four counts, the defendant was sentenced consecutively. Id. at 114. It was held the

appellant waived an issue complaining of improper cumulative sentencing for failure to

object in the trial court. Id. at 114-15. The appellate court, however, sustained the

appellant’s issue complaining that the cumulative sentencing scheme violated the

prohibition of ex post facto laws and modified the judgment by deleting the cumulation

order of the four counts whose underlying offenses occurred before September 1, 1997.



       4
        In Ex parte Bahena, 195 S.W.3d 704 (Tex.Crim.App. 2006) the question was
whether counsel rendered ineffective assistance by not contesting the stacking of two
sentences in two convictions for aggravated assault when the underlying offenses occurred
before and after September 1, 1997. Id. at 705, 706-07. The court of criminal appeals
found the question whether stacked sentences are authorized under such facts remains
unsettled, id. at 707, but found resolution of the question unnecessary to disposition of the
case before it.


                                             6
Id. at 121. Here, the court ordered appellant’s sentences for conduct predating September

1, 1997, run concurrently and his sentences for conduct occurring after September 1,

1997, run consecutively. Ponce is, therefore, inapposite.


       We think the answer to the question presented is found in the statutory language

establishing the effective date of the 1997 amendment to section 3.03. As the Court of

Criminal Appeals pointed out in Bahena, 195 S.W.3d at 705, the legislature used different

“effective date” language in the 1995 and 1997 amendments. The legislature made the

1995 amendment, permitting consecutive sentences for multiple intoxication manslaughter

convictions, applicable only if each offense joined for trial was committed on or after the

amendment’s effective date, September 1, 1995.5 The effective date language of the 1997

amendment does not contain such a provision. The 1997 statute simply stated that its

change in law applies only to “an offense committed on or after” its effective date,

September 1, 1997, and that offenses committed before that date are subject to the law

in effect when the offense was committed. Act of May 31, 1997, 75th Leg., R.S., ch. 667,

§§ 7, 8, 2250, 2252-53.


       Appellant would have the judgments reformed so that sentences for offenses

committed after September 1, 1997, although each running consecutively, begin to run


       5
          See Act of May 26, 1995, 74th Leg., R.S., ch. 596, § 2, 3435, 3435. Section 2(a)
of the Act reads, in pertinent part, “The change in law made by this Act applies to the
joinder of prosecutions of offenses arising out of a single criminal episode only if each
offense is committed on or after the effective date of this Act.” Section 2(b) further
provides, “The joinder of prosecutions for offenses arising out of a single criminal episode
if any of the offenses were committed before the effective date of this Act is covered by the
law in effect before the changes made by this Act, and the former law is continued in effect
for that purpose.”

                                             7
concurrently with the sentences for offenses committed before September 1, 1997. Thus

under appellant’s argument, if a case involved only two section 3.03(b) offenses, one

committed before September 1, 1997, the other after that date, concurrent sentencing

would be required. The result appellant seeks effectively reads into the 1997 legislation

a provision like the 1995 amendment, limiting its application to criminal episodes consisting

only of offenses committed after September 1, 1997.


       In construing a statute, we must give effect to the plain meaning of the text unless

the text is ambiguous or the plain meaning would lead to absurd results. Parfait v. State,

120 S.W.3d 348, 349 (Tex.Crim.App. 2003). A statute is ambiguous when it is capable of

being understood by reasonably well-informed persons in two or more different senses.

See Teleprofits of Tex., Inc. v. Sharp, 875 S.W.2d 748, 750 (Tex.App.–Austin 1994, no

writ) (citing 2A Norman J. Singer, Sutherland Statutory Construction § 45.02, at 6 (5th ed.

1992)). Appellant does not claim ambiguity in the statutory provisions, and we see none.

Nor do we see that giving effect to their plain meaning leads to absurd results. As

amended in 1997, section 3.03 required concurrent sentencing for appellant’s offenses

committed before September 1, 1997, and gave the trial court discretion to cumulate

sentences for his offenses committed after that date. The trial court ordered each

sentence for offenses committed before September 1, 1997, run concurrently. For the

violations of Penal Code sections 21.11, 22.011, and 22.021 by appellant against his

daughter occurring after September 1, 1997, and while his daughter was under age

seventeen, the court exercised the discretion granted by section 3.03(b)(2)(A) by imposing

consecutive sentences. The court’s cumulation order complies with the plain meaning of


                                             8
the statute. Nothing in the statutory language prohibits the manner in which the trial court

elected to cumulate appellant’s sentences for his post-September 1, 1997 offenses. See

Salazar v. State, 127 S.W.3d 355, 363-64 (Tex. App.–Houston [14th Dist.] 2004, pet.

refused) (applying plain language of section 3.03(b)); Nicholas, 56 S.W.3d at 764-65 (trial

court’s discretion absolute if cumulation authorized by law); Kuhn v. State, 45 S.W.3d 207,

209-10 (Tex.App.–Texarkana 2001, no pet.) (finding no legislative intent to prohibit

consecutive sentencing under circumstances there presented).


       Yvanez, 991 S.W.2d at 280, does not require a contrary conclusion. There, after

the appellant plead guilty to four counts of intoxication manslaughter and one of

intoxication assault, the jury sentenced him to confinement for forty years for each

intoxication manslaughter count and for ten years for the intoxication assault count. The

trial court ordered all the sentences to run concurrently except for that on the second count

of intoxication manslaughter, which it ordered to run consecutively to the other four counts.

The court of appeals modified the judgment to provide all five sentences would run

concurrently. Id. at 282. Disagreeing with the court of appeals, the Court of Criminal

Appeals held the trial court was within its discretion to order Yvanez to serve consecutive

sentences for any of the intoxication manslaughter offenses. The court held, however, the

trial court had no discretion to order an intoxication manslaughter sentence to run

consecutively to a sentence for intoxication assault. Id. at 282-83. It modified the trial

court’s judgment to provide the sentence for the second count of intoxication manslaughter

would run consecutively only to the three other intoxication manslaughter sentences.




                                             9
       The Court of Criminal Appeals modified the trial court’s judgment in Yvanez because

intoxication assault was not then an enumerated offense under section 3.03(b), and the

trial court’s cumulation of a sentence for intoxication manslaughter with one for intoxication

assault violated the language of section 3.03(b) that sentences may run consecutively if

“each sentence” is for a conviction of one of the enumerated offenses. 991 S.W.2d at 282-

83.6 By contrast, all of the offenses for which appellant was convicted were among the

enumerated offenses at the time of his sentencing.              Yvanez is for that reason

distinguishable.


       Without expressly assigning error, appellant argues the trial court’s sentencing

violates the constitutional prohibition of ex post facto laws. If appellant intended to raise

this claim as an issue on appeal it is not briefed according to the requirement of appellate

rule 38. Tex. R. App. P. 38.1(h). But even were the issue properly before us we could not

agree with appellant’s assertion.


       Both the United States and Texas Constitutions prohibit the State from applying an

ex post facto law. U.S. Const. art. I, § 10, cl. 1; Tex. Const. art. I, § 16. A reviewing court

interprets the prohibition in the Texas Constitution against ex post facto laws as

synonymous with the prohibition of the Untied States Constitution against such laws.

Grimes v. State, 807 S.W.2d 582, 586 (Tex.Crim.App. 1991). An ex post facto law (1)

punishes as a crime an act previously committed which was innocent when done, (2)

       6
         Section 3.03(b) was amended, effective September 1, 2005, to add intoxication
assault to the enumerated offenses. Act of May 23, 2005, 79th Leg., R.S., ch. 527, § 1,
3, & 4, 1429, 1429-30 (current version at Tex. Penal Code Ann. § 3.03(b)(1)(A) (Vernon
Supp. 2008)).

                                              10
changes the punishment and inflicts a greater punishment than the law attached to a

criminal offense when committed, or (3) deprives a person charged with a crime of any

defense available at the time the act was committed. Collins v. Youngblood, 497 U.S. 37,

42-43, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990); Ex parte Hallmark, 883 S.W.2d 672,

674 (Tex.Crim.App. 1994).          Appellant’s complaint implicates the second definition,

concerning punishment. A court engaged in such an ex post facto analysis is singularly

concerned with whether the statute in question assigns more severe criminal or penal

consequences to an act than did the law in place when the act occurred. Grimes, 807

S.W.2d at 587. The act at issue is the conduct leading to the current criminal charge.

Jordan v. State, 56 S.W.3d 326, 332 (Tex.App.–Houston [1st Dist.] 2001, pet. refused.).

       For offenses committed before September 1, 1997, the trial court ordered that each

of appellant’s resulting sentences run concurrently, as required by section 3.03(a). For

offenses committed after September 1, 1997, the court acted within the discretion granted

by section 3.03(b)(2)(A) by imposing consecutive sentencing. The court did not attach a

greater punishment to the conduct offenses of appellant than the statutory provision

existing when the conduct occurred. There was no ex post facto violation.

       Finding no abuse of discretion in the trial court’s sentencing of appellant, we

overrule appellant’s single issue on appeal. Having overruled appellant’s issue, we affirm

the judgment of the trial court.



                                                   James T. Campbell
                                                         Justice
Publish.


                                              11
