             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                             NOS. PD-0847-15 and PD-0848-15

                               KOJUAN J. MILES, Appellant

                                                 v.

                                  THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FOURTEENTH COURT OF APPEALS
                             HARRIS COUNTY

      J OHNSON, J., delivered the opinion of the Court in which M EYERS, H ERVEY,
A LCALÁ, and R ICHARDSON, JJ., joined. K ELLER, P.J., filed a dissenting opinion in
which K EASLER, Y EARY, and N EWELL, JJ., joined.

                                         OPINION

       Appellant was convicted of the sexual assault and compelled prostitution of a fifteen-year-old

complainant. The jury assessed punishment at seven and twenty-three years’ incarceration

respectively. The trial court cumulated the sentences. On appeal, the court of appeals affirmed the

judgment in the sexual-assault case, but modified the judgment in the compelling-prostitution case

to delete the cumulation order and affirmed that judgment as modified. Miles v. State, 468 S.W.3d

719 (Tex. App.–Houston [14th Dist.] 2015).

       On direct appeal, appellant asserted that the trial court erred by ordering him to serve his
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sentences consecutively and contended that the cumulation statute does not authorize stacking a

sentence for compelling prostitution onto a sentence for sexual assault of a child when both offenses

arise out of the same criminal episode and are prosecuted in a single criminal action. Id. at 730.

After analyzing the plain language of the general cumulation statute, Section 3.03 of the Penal Code,

the court of appeals determined that “[t]he unambiguous language of Section 3.03(b) provides that

a sentence for compelling prostitution may not be stacked with a sentence for sexual assault of a

child when the offenses arise out of the same criminal episode and are prosecuted in a single criminal

action.” Id. at 736. The court of appeals held that the trial court erred in cumulating appellant’s

sentences and reformed the judgment of the trial court to delete the cumulation order. Id. We

granted the state’s petition for discretionary review, which disputed the deletion of the cumulation

order:1 “Did the court of appeals err in holding that Section 3.03(b) of the Texas Penal Code does

not allow the cumulation of sentences for two offenses listed within different paragraphs of

subsection (b) of the stacking statute?” We affirm the judgment of the court of appeals.

                                                       Analysis

         As did the court of appeals, we look at the literal text of the cumulation statute, Texas Penal

Code § 3.03, which provides that, when the accused is found guilty of more than one offense arising

out of the same criminal episode and prosecuted in a single criminal action, generally the sentences

shall run concurrently.             But Section 3.03(b) also sets out exceptions to the general

rule–circumstances in which sentences may be cumulated: the sentences may run concurrently or

consecutively if each sentence is for a conviction for the specified offenses that are listed in the



         1
            W e refused appellant’s pro se petition for discretionary review, which claimed that the trial court had abused
its discretion in excluding evidence that the defense offered at trial.
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several subsections. Miles v. State, 468 S.W.3d at 731-32.

        In its opinion, the court of appeals noted that subsection (b)(5)(A) of Section 3.03 provides

that “sentences may be stacked if each sentence is for an offense of human trafficking or compelling

prostitution, ‘regardless of whether the accused is convicted of violations of the same section more

than once or is convicted of violations of both sections.’” Id. at 733 (emphasis in original). It

determined that, “[i]f all offenses listed in subsection (b) could be stacked, the references to ‘both

sections’ in subsections (b)(1), (3), and (5) would be meaningless and irreconcilable.” Id. The court

of appeals concluded that subsections (b)(1), (3), and (5) “each list only two offenses, so the phrase

‘both sections’ necessarily indicates that the Legislature intended the stacking of only those two

offenses together.” Id. It also determined that, because subsections (b)(1), (2), (3), (5), and (6) each

include a paragraph (B) that refers to convictions obtained by plea agreements when the defendant

was charged with “more than one offense listed in Paragraph (A)[,]” “[t]he Legislature’s use of this

phrase in each paragraph (B) suggests that the Legislature intended only for offenses listed in the

companion paragraph (A) to be stacked together.” Id. (emphasis in original).

        The court of appeals noted that the legislature had amended subsection (b) in piecemeal

fashion to add specific offenses and categories of offenses, with some added to the already existing

paragraphs containing specific offenses, while some were added in completely new subsections. Id.

at 734. It also noted that “for some amendments, the Legislature created new subsections (b)(2)

through (b)(6), but for other amendments, the Legislature added offenses to preexisting subsections.”

Id. For example, the court of appeals pointed out that child pornography was added to a new

subsection (b)(3) at the same time the Legislature also added intoxication assault to the existing

subsection (b)(1). Id. It concluded that the only logical reason for placing one new offense in a
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preexisting subsection and another new offense in a new subsection “is that the Legislature did not

intend for intoxication assault to be stacked with child pornography.” Id. at 735. It notes that, had

the legislature intended for compelling prostitution to be included as one of the offenses against

children enumerated in subsection (b)(2) for which cumulation is authorized, the legislature could

have added it to subsection (b)(2), but instead “the Legislature grouped compelling prostitution

(against adults and children alike) with human trafficking in a new subsection (b)(5), declaring that

stacking was authorized for ‘both sections’–in the plea context, for ‘both sections’ listed in paragraph

(A).” Id. It concluded that “‘[b]oth sections’ unambiguously refers only to human trafficking and

compelling prostitution.”

        The state asserts that “[t]he statute’s plain language that the court of appeals found to be

compelling evidence of a legislative intent to restrict stacking to sentences only for offenses within

the same paragraph is actually the result of the unique nature in which the statute was amended over

a number of legislative sessions rather than an indication of the legislative intent the appellate court

attributed to the language.” State’s Brief at 2. It also asserts that “[t]he use of the word ‘or’ between

paragraphs (b)(5) and (b)(6), combined with several extratextual factors, signals a legislative intent

to permit stacking of sentences for any combination of offenses listed in subsection (b), regardless

of whether the offenses are listed in the same paragraph.” Id.

        Appellant argues that the court of appeals “did not err when it gave effect to each word and

phrase within Section 3.03(b), determining that Section 3.03(b) only permits the cumulation of

sentences for offenses grouped within the same category of offenses[.]” Appellant’s Brief at 1. He

reasons that “interpretation of Section 3.03(b) does not stop at the single conjunction word, ‘or,’ but

must give effect to ‘each word, phrase, clause, and sentence’ if reasonably possible.” Id., quoting
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Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2009). He also contends that “[p]ermitting

the judge to cumulate only sentences for offenses listed within the same category gives effect to each

word within the statute and is the only reasonable interpretation of Section 3.03(b).” Id. at 2.

        Appellant suggests alternative language that the Legislature could have used in drafting

Section 3.03(b) if it had intended to permit cumulation of sexual-assault and compelling-prostitution

convictions, such as a “laundry list” style of statute like Section 3g of Article 42.12 of the Code of

Criminal Procedure. Appellant also suggests that the Legislature could have worded Section 3.03(b)

similarly to Penal Code Section 32.51(a)(1), which defines “identifying information” for the offense

of fraudulent use of possession of identifying information, defining “identifying information in part

by using several separate lists of related types of information[.]” Appellant’s Brief at 11. He

maintains that, “[b]y organizing Section 3.03(b) in a fashion that suggests the interpretation that only

sentences for offenses in the same category of offenses may be cumulated, the layout and structure

of Section 3.03(b) are strong indicators of legislative intent.” Id. at 12.

        We have held that, when “the statute is clear and unambiguous, the Legislature must be

understood to mean what it has expressed, and it is not for the courts to add or subtract from such

a statute.” Parfait v. State, 120 S.W.3d 348, 350 (Tex. Crim. App. 2003); Boykin v. State, 818

S.W.2d 782, 785 (Tex. Crim. App. 1991). Thus, we assume that the legislature means what it said

and derive the statute’s meaning from the words that the legislature used.

        The legislature’s intent, whether apparent or invisible, is determined from the actual wording

of the statute. Because we agree with the court of appeals and the parties that the language of

Section 3.03 is clear and unambiguous and does not lead to absurd consequences, we need not delve
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into the extra-textual factors of legislative intent. Tapps v. State, 294 S.W.3d at 179.2 Miles v. State,

468 S.W.3d at 732-33, n.14.

        We agree with the court of appeals and hold that the plain language of Section 3.03(b)(5),

authorizing the cumulation of sentences for convictions under “both sections,” “unambiguously

refers only to human trafficking and compelling prostitution.” Miles, 468 S.W.3d at 735. Because

appellant’s convictions and sentences were for compelling prostitution and sexual assault, rather than

compelling prostitution and human trafficking, the unambiguous language of Section 3.03 dictates

that those sentences may not be stacked and “shall run concurrently.”

                                                  Conclusion

        While Section 3.03 does set out circumstances in which sentences for specific offenses “may

run . . . consecutively[,]” the offenses for which appellant was convicted and sentenced do not fall

within any of those circumstances. Thus, pursuant to Section 3.03, appellant’s sentences “shall run

concurrently,” and the court of appeals properly reformed the trial court’s judgment to delete the

cumulation order. Accordingly, we overrule the state’s ground for review and affirm the judgment

of the court of appeals.



Delivered: November 16, 2016
Publish




        2
             The court of appeals noted that, in support of the unavailability of extra-textual resources to assist
interpretation of the statute, both appellant and the state contended that the statute is unambiguous. However, when
advocates for contrary positions perceive the same language to have different meanings, such an assertion is a
puzzlement.
