      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-04-00398-CR



                                    Francisco Garza, Appellant

                                                  v.

                                   The State of Texas, Appellee




 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 03-648-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                             MEMORANDUM OPINION


               In this case, we decide whether a district court’s decision to cumulate sentences

violates a defendant’s right to trial by jury. We affirm the order of the district court.


                                         BACKGROUND

               Appellant Francisco Garza was tried on three counts of sexual assault of a child, a

second degree felony. Garza plead not guilty to all counts, but the jury found him guilty on all three

counts.

               The indictment contained an enhancement paragraph alleging that Garza had

previously been convicted of a felony. This prior conviction enhanced the punishment range to that

of a first degree felony (five to 99 years or life in prison and an optional maximum fine of $10,000).

See Tex. Pen. Code Ann. § 12.32 (West 2003). Garza pleaded true before the jury to this
enhancement paragraph. The jury found it to be true and sentenced Garza to confinement for 25

years in prison and a $500 fine for count one, 10 years in prison for count two, and 10 years in prison

for count three. Garza requested that the jury decide whether the sentences should be cumulated, but

the district court denied this motion. Instead, the district court ordered the sentences to be served

consecutively.


                                           DISCUSSION

                 Garza brings two issues on appeal. First, he argues that the court’s decision to

cumulate his sentences violates his Sixth Amendment right to trial by jury because the issue of

cumulation should have been submitted to the jury. Second, he contends that the court’s decision

to cumulate his sentences violated his right to a trial by jury under Article I, Section 15 of the Texas

Constitution.


Preservation of error

                 As a threshold matter, the State argues that Garza has failed to preserve error

regarding his Sixth Amendment claim by failing to make a timely, specific objection and obtain a

ruling from the court. See Tex. R. App. P. 33.1. We disagree. Under Texas law, the right to trial

by jury can be extinguished only by express waiver. See Saldano v. State, 70 S.W.3d 873, 888 (Tex.

Crim. App. 2002); Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993), overruled on

other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). If there is no such waiver,

error can be urged on appeal whether or not it was first urged in the district court. Marin, 851

S.W.2d at 280. Because he can give up his right to trial by jury only by express waiver, and he did




                                                   2
not expressly waive that right, Garza is allowed to urge error on appeal. We overrule the State’s

contention that error was not preserved.

               Additionally, the State argues that Garza waived review of his Texas constitutional

issue because he has failed to provide separate research and arguments on that issue. We agree.

Garza has provided argument and authority under only the United States Constitution, and has,

therefore, forfeited consideration of the Texas constitutional issue. See Shuffield v. State, 189

S.W.3d 782, 788 (Tex. Crim. App. Feb. 15, 2006) (citing Heitman v. State, 815 S.W.2d 681, 690

(Tex. Crim. App. 1991)). Because Garza has waived review of his Texas constitutional claim, we

will analyze only his Sixth Amendment claim.1


Standard of review

               Texas statutes give a trial court discretion to order that a defendant’s sentences run

consecutively under most circumstances, including those shown here. See Tex. Code of Crim. Proc.

Ann. art. 42.08(a) (West Supp. 2005); Tex. Pen. Code Ann. § 3.03 (West Supp. 2005). Therefore,

we review a decision regarding consecutive sentences under an abuse of discretion standard. See

Marci v. State, 12 S.W.3d 505, 511 (Tex. App.—San Antonio 1999, pet. ref’d). An abuse of

discretion will generally be found only if the trial court imposes consecutive sentences where the law

requires concurrent sentences, if the court imposes concurrent sentences where the law requires

consecutive sentences, or if the court otherwise fails to observe the statutory sentencing




       1
           Even if Garza had preserved his Texas constitutional claim of right to jury trial, our
analysis of that issue would be identical to our analysis of the Sixth Amendment issue, as he assumes
that the two provisions are coextensive.

                                                  3
requirements. Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.—Houston [14th Dist.] 2001, pet.

ref’d).

                The issue presented also requires us to interpret the Sixth Amendment, a question of

law. We review constitutional issues de novo. See Lilly v. Virginia, 527 U.S. 116, 137, 119 S. Ct.

1887, 144 L. Ed. 2d 117 (1999); Campos v. State, 186 S.W.3d 93, 96 (Tex. App.—Houston [1st

Dist.] 2005, no pet.); Davis v. State, 169 S.W.3d 660, 665 (Tex. App.—Austin 2005, pet. granted);

Wilson v. State, 151 S.W.3d 694, 697 (Tex. App.—Fort Worth 2004, pet. ref’d); Muttoni v. State,

25 S.W.3d 300, 304 (Tex. App.—Austin 2000, no pet.).


Sixth Amendment

                Garza argues that the district court’s decision to cumulate his sentences violated his

Sixth Amendment right to a trial by jury, as construed in Apprendi v. New Jersey, 530 U.S. 466

(2000). In Apprendi, the Supreme Court considered the constitutionality of a New Jersey hate crime

statute. The statute at issue allowed a jury to convict a defendant of the second-degree offense of

unlawful possession of a prohibited weapon; after a later and separate proceeding, the statute then

permitted the trial court to impose punishment identical to that which New Jersey provides for a

crime of the first degree based on the judge’s findings, that by a preponderance of the evidence, the

crime was motivated by racial bias. Id. at 491. The Supreme Court held the statute to be

unconstitutional, stating that “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Id. at 490. Texas courts have since adopted the rule set out in

Apprendi. See Ex parte Boyd, 58 S.W.3d 134, 136 (Tex. Crim. App. 2001).

                                                   4
               Garza’s reliance on Apprendi and its progeny is misplaced for two reasons. First, in

Apprendi, the Court was concerned with a trial court’s finding of facts, other than prior convictions,

that increased the penalty for a crime beyond the statutory maximum. In this case, the district court

did not do so. Garza pleaded true to the enhancement paragraph, and the enhancement paragraph

was also found to be true by the jury. The jury, not the district court, found the facts that increased

the penalty range. Furthermore, even if it could be argued that the district court acted as fact-finder

on the enhancement paragraph, it found only that Garza had a prior conviction, which is clearly

permitted by the rule of Apprendi.

               Second, Apprendi applies only to a sentence imposed beyond the statutory maximum

for a crime. Apprendi, 530 U.S. at 490. The statutory maximum for Apprendi purposes is the

maximum sentence a judge can impose based on the facts reflected in the jury verdict or as admitted

by the defendant. Blakely v. Washington, 542 U.S. 296, 303 (2004). The jury verdict in this case

found Garza guilty of three counts of sexual assault of a child, a second degree felony. The jury also

found true the enhancement paragraph. Under Texas law, if a person convicted of a second-degree

felony has previously been convicted of a felony, he shall be punished for a first-degree felony. Tex.

Pen. Code Ann. § 12.42(b) (West 2003). The punishment for a first degree felony is imprisonment

for life or for any term not less than 5 years or more than 99 years, plus a fine not to exceed $10,000.

Id. § 12.32. In this case, the sentence imposed for each count was well within the statutory

maximum. For this reason, Apprendi does not apply.

               The contention that a trial court’s cumulation of sentences by a trial court violates the

Sixth Amendment was recently rejected by the Waco Court of Appeals. See Marrow v. State, 169



                                                   5
S.W.3d 328 (Tex. App.—Waco 2005, pet. ref’d). In Marrow, the court noted that several federal

appellate courts have rejected the idea that Apprendi is violated when a trial court orders cumulation

of sentences if each individual sentence lies within the statutory range of punishment, even if the

cumulative sentence exceeds the statutory maximum for any single offense.2 Id. at 330-31. For

example, in United States v. McWaine, the Fifth Circuit held that Apprendi is not violated when the

total punishment for a crime exceeds the highest statutory maximum on a particular count, so long

as the punishment assessed for each single count does not exceed the statutory maximum. 290 F.3d

269, 276 (5th Cir. 2002); see also United States v. Davis, 329 F.3d 1250, 1253-55 (11th Cir. 2003);

United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001).

               As noted above, Garza’s punishment for each count was assessed well within the

prescribed statutory maximum. Additionally, the cumulation of his sentences does not yield a

punishment in excess of the statutory maximum for any of the counts. If the holding in Apprendi

allows for cumulation in which the total exceeds the statutory maximum for a single count, certainly

it allows for cumulation in which the total does not exceed the statutory maximum. See Millslagle

v. State, 150 S.W.3d 781, 785 (Tex. App.—Austin 2004, pet. dism’d).

               The district court did not find any facts that increased the penalty for any of his crimes

beyond the statutory maximum, and the cumulation of his sentences did not extend his punishment

outside the statutory maximum for any of his crimes. Therefore, Garza’s first point of error is

overruled.




       2
          Texas courts have also reached this conclusion, but only in unpublished opinions. Marrow
v. State, 169 S.W.3d 328, 331 (Tex. App.—Waco 2005, pet. ref’d).

                                                   6
                                          CONCLUSION

               Because we have overruled Garza’s first issue and he has forfeited consideration of

his second issue, we affirm the order of the district court.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: June 23, 2006

Do Not Publish




                                                  7
