                                      NUMBER 13-07-359-CR

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


SCOTT HELGERSON,                                                           Appellant,

                                                       v.

THE STATE OF TEXAS,                                                        Appellee.


  On appeal from the 347th District Court of Nueces County, Texas.


                                MEMORANDUM OPINION

                     Before Justices Yañez, Rodriguez, and Vela
                      Memorandum Opinion by Justice Yañez

      Appellant, Scott Helgerson, pleaded guilty to three counts of intoxication

manslaughter1 and one count of aggravated assault.2 A jury assessed punishment at



      1
          See T EX . P EN AL C OD E A N N . § 49.08 (Vernon Supp. 2007).

      2
          See id. § 22.02 (Vernon Supp. 2007).
twenty years’ imprisonment and a $10,000 fine on each count. The trial court ordered that

the sentences in counts one through three be served consecutively, and that the sentence

in the aggravated assault count be served concurrently with the other three counts.3 By

five issues, appellant challenges the trial court’s decision to cumulate his sentences (issues

one through four) and its refusal to allow him to discuss the consecutive sentencing statute

at voir dire (issue five). We affirm.

                                              I. Background

        In December 2007, appellant, then nineteen, was intoxicated when he intentionally

ran a stop sign and collided with the victims’ vehicle. As a result of the accident, three

family members (ten-year-old brother and sister twins and their twenty-four-year-old sister)

died. Another sibling was injured in the accident.

             II. Constitutional Challenges to Consecutive Sentencing Statute

        By his first issue, appellant contends his Sixth Amendment right to a jury was

violated by the judge cumulating his sentences. Appellant argues that based on the United

States Supreme Court’s decision in Apprendi v. New Jersey4 and subsequent cases,5 he

is entitled to have the jury decide whether his three sentences for intoxication

manslaughter should be served consecutively. By his second issue, appellant contends

the Texas consecutive sentencing scheme is so “arbitrary and capricious” that it violates



        3
            A fourth count, for intoxication assault, was abandoned by the State.

        4
          Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that “other than the fact of a prior
conviction, any fact that increases the penalty for a crim e beyond the prescribed statutory m axim um m ust
be subm itted to the jury and proved beyond a reasonable doubt”).

        5
            See Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. W ashington, 542 U.S. 296 (2004).

                                                       2
his right to due process under the federal and state constitutions. In his third issue,

appellant contends his right to be free of double jeopardy was violated. In his fourth issue,

appellant contends the consecutive sentencing statute violates his right to equal protection

under the federal constitution.

        The State responds that all of appellant’s constitutional challenges to the

consecutive sentencing statute have been rejected by Texas courts. We agree.

                                        A. Standard of Review

        When reviewing an attack on the constitutionality of a statute, the appellate court

begins with a presumption that the statute is valid and the legislature has not acted

unreasonably or arbitrarily.6 This presumption remains until the party challenging the

statute carries its burden to establish its unconstitutionality.7



                             1. Right to Jury Trial and Due Process

            In Barrow v. State, the court of criminal appeals rejected several of the arguments

appellant raises in the instant case.8 The Barrow court held that the Apprendi line of cases

does not “speak to a trial court’s authority to cumulate sentences when that authority is

provided by statute and is not based upon discrete fact-finding, but is wholly




        6
         Luquis v. State, 72 S.W .3d 355, 365 (Tex. Crim . App. 2002); Ex parte Granviel, 561 S.W .2d 503,
511 (Tex. Crim . App. 1978).

        7
         Luquis, 72 S.W .3d at 365 ; Granviel, 561 S.W .2d at 511; Ex parte Ports, 21 S.W .3d 444, 446
(Tex. App.–San Antonio 2000, pet. ref'd).


        8
            See Barrow v. State, 207 S.W .3d 377, 379-80 (Tex. Crim . App. 2006).

                                                      3
discretionary.”9 Thus, the court held that the cumulative sentencing statute “does not

violate the Sixth Amendment right to a jury trial.”10 The court also rejected the argument

that the statutory scheme, which permits a trial court to decide whether to cumulate

sentences, violates an appellant’s right to due process.11 We overrule appellant’s first two

issues.

                                              2. Double Jeopardy

        In his third issue, appellant contends his right to be free of double jeopardy was

violated.

        The protection against double jeopardy does not apply where separate and distinct

offenses occur during the same transaction.12 In Ex parte Rathmell, the court of criminal

appeals held that in prosecutions for involuntary manslaughter involving multiple deaths,

each individual death constitutes a complete and distinct offense.13 The court of criminal

appeals has “consistently held defendants, while operating a motor vehicle and committing

an unlawful act, may be convicted for each person injured and/or murdered, in violation of

a single statute.”14          The double jeopardy clause, therefore, does not bar multiple



        9
         Id. at 379; see Alameda v. State, 235 S.W .3d 218, 224 (Tex. Crim . App. 2007) (noting “the
Apprendi line of cases does not apply to a trial court’s decision to cum ulate jury-im posed sentences”).

        10
             Id. at 380.

        11
           See id. at 382 (“W e do not believe that the legislatively endowed, norm ative decision whether to
cum ulate sentences exceeds that level of discretion that the Suprem e Court has always recognized as
consistent with due process.”).

        12
             Phillips v. State, 787 S.W .2d 391, 394 (Tex. Crim . App. 1990).

        13
             Ex parte Rathmell, 717 S.W .2d 33, 35 (Tex. Crim . App. 1986) .

        14
             Phillips , 787 S.W .2d at 394.

                                                        4
convictions in situations where separate and distinct offenses occur during the same

transaction.15 We overrule appellant’s third issue.

                                            3. Equal Protection

        By his fourth issue, appellant contends that the statutory scheme permitting

cumulative sentencing for intoxication manslaughter and intoxication assault, in contrast

to other criminal offenses, violates his right to equal protection. We disagree.

        “Under the Equal Protection Clause, when a classification does not implicate a

fundamental right, or place a burden on a suspect class of persons, the proper standard

of review is to determine whether there is a rational basis for the different treatment, which

is to say, whether the classification bears a rational relationship to a legitimate state

interest.”16 The Austin Court of Appeals has rejected the claim that the exemption of

intoxication manslaughter under section 3.03(b) of the penal code violates the right to

equal protection.17 We agree with the reasoning of our sister courts in Austin and San

Antonio; we hold that the statute bears a rational relationship to a legitimate state interest

and does not violate the equal protection clause.18 We overrule appellant’s fourth issue.

                                      III. Limitation of Voir Dire

        By his fifth issue, appellant contends the trial court erred when it refused to permit


        15
             Rathmell, 717 S.W .2d at 36.

        16
           Papke v. State, 982 S.W .2d 464, 466 (Tex. App.–Austin 1998, pet. ref’d, untim ely filed) (citing
City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440 (1985)).



        17
             See id.

        18
         See id.; see also Perez v. State, Nos. 04-01-00552-CR, 04-01-00553-CR, 2003 Tex. App.
LEXIS 806, at *9 (Tex. App.–San Antonio Jan. 29, 2003, pet. ref’d) (m em . op.) (following Papke).

                                                      5
his counsel to discuss the consecutive sentencing statute to the voir dire panel. During voir

dire, in questioning the panel regarding the full range of punishment, defense counsel

explained that a sentence in excess of ten years could not be probated. In response to a

question, he noted that the ten years was “per count,” because there were “three separate

counts.” A prospective juror asked, “Is that concurrent?” The State objected, and the trial

court sustained the objection.

       Appellant argues that the limitation on discussing the consecutive sentencing statute

“impeded [his] voir dire and intelligent use of his strikes.” According to appellant, the error

“automatically establishes harm and is not subject to a harm analysis.”

       We are unpersuaded by appellant’s argument. In Barrow, the court of criminal

appeals noted:

       The Legislature was not required to provide the option to cumulate
       sentences at all. That the Legislature did so provide, but then reserved the
       cumulation aspect of punishment for the judge rather than the jury, does not
       change its essentially normative, non-fact-bound character.

                 ....

              . . . The Legislature has charged the trial court with the determination
       of whether to cumulate and the trial court is free to make this determination
       so long as the individual sentences are not elevated beyond their respective
       statutory maximums.19

       We also note that the Dallas Court of Appeals recently found that a trial court did

not err in denying an appellant’s request to instruct the jury that the trial court could

cumulate his sentences.20           The court noted that “[w]hether multiple sentences run


       19
            Barrow, 207 S.W .3d at 381-82 (em phasis added).

       20
          See Estrada v. State, Nos. 05-06-00394-CR, 05-06-00395-CR, 2007 Tex. App. LEXIS 3892, at
*9 (Tex. App.–Dallas May 18, 2007, no pet.) (not designated for publication).

                                                    6
concurrently or consecutively is a matter left to the trial court’s discretion,” and was thus

“not a matter that the trial court was required to submit to the jury.”21 We hold that because

the legislature has charged the trial court—not the jury—with the determination of whether

to cumulate sentences, the trial court did not err in denying appellant’s request to discuss

the cumulative sentencing statute with the jury panel on voir dire. We overrule appellant’s

fifth issue.

                                     IV. Conclusion

       We affirm the trial court’s judgment.




                                                   LINDA REYNA YAÑEZ,
                                                   Justice




Do not publish. TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed
this the 28th day of August, 2008.




       21
            Id.

                                               7
