









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0194-05


BOBBY GLENN BARROW, Appellant

v.


THE STATE OF TEXAS, Appellee




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH  COURT OF APPEALS

ELLIS  COUNTY



 Meyers, J., filed a dissenting opinion.

O P I N I O N


 
	I respectfully dissent from the majority's holding that a trial judge has discretion to
cumulate jury-determined sentences under Texas Penal Code Section 3.03.  Unlike
Article 42.08 of the Code of Criminal Procedure, the language of 3.03(b) does not
explicitly vest the trial court with the right to decide whether sentences will run
consecutively or concurrently.  Rather, Section 3.03 provides that when an accused is
found guilty of more than one offense arising out of the same criminal episode, and the
offenses are violations of Section 22.011 of the Penal Code committed against a victim
younger than 17 years old, the sentences may run consecutively or concurrently.  The
statute does not address who makes the decision, or if the grant of discretion to the trial
judge is proper if the jury is the finder of fact at punishment.
	  The issue in this case is one unique to the Texas bifurcated trial system.  We have
long held that neither the Texas nor the Federal Constitutional right to a trial by jury
include the right to have the jury assess punishment.  See e.g., Ex parte Moser, 602
S.W.2d 530, 533 (Tex. Crim. App. 1980).  However, a defendant in Texas receives more
protection than provided by the Sixth Amendment in that he has the statutory choice of
having his punishment assessed by a jury of his peers in addition to his constitutionally
guaranteed right to a jury trial.  Allowing the trial judge to cumulate the jury-determined
sentences is contrary to this choice of having a jury of peers assess punishment rather than
a judge. 
	The majority states that the legislature assigned the decision to cumulate to the trial
court in both Section 3.03 of the Penal Code and Article 42.08 of the Code of Criminal
Procedure.  However, as already discussed, Section 3.03 does not address who is to make
the decision.  Article 42.08 provides that when the same defendant has been convicted in
two or more cases, the judgment in the second and subsequent convictions may, at the
discretion of the trial court, run either concurrently or consecutively with the other
sentences.  The Article also provides that the court must order that sentences for offenses
committed while the defendant is an inmate in the Texas Department of Criminal Justice
will run consecutively with the current sentence.  
	Article 42.08 applies in two types of situations: those in which the defendant is
being tried for several crimes in one trial; and those in which the defendant is convicted a
second time while still serving his sentence from a previous conviction.  When the
convictions result from separate trials, it makes sense for the judge to determine whether
or not to cumulate the sentences.  In those situations, only the judge has access to all the
facts relevant to the cumulation decision, because neither jury was the fact-finder for both
cases.  However, when the two cases are tried together, if the defendant has elected jury
punishment, the jury does have all the facts relevant to sentencing and should be
permitted to determine the cumulation issue, just as they decide all other punishment
issues. 
	Because I disagree with the majority holding that the trial judge has discretion to
cumulate jury-determined sentences under Section 3.03, I respectfully dissent.

								Meyers, J.
Filed:	November 15, 2006
Publish
 
