                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                              NOS. 2-08-320-CR
                                   2-08-321-CR


MARIO DEMETRIUS MASAKA                                          APPELLANT

                                        V.

THE STATE OF TEXAS                                                    STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In one point, Appellant Mario Demetrius Masaka complains that the trial

court abused its discretion when it ordered that the sentences in his two

aggravated sexual assault of a child convictions be served consecutively. We

affirm.


      1
          … See Tex. R. App. P. 47.4.
                      II. Factual and Procedural History

      As a juvenile, Masaka pleaded guilty pursuant to plea bargains in two

cases of aggravated sexual assault of a child; the juvenile court adjudged him

to have engaged in delinquent conduct, sentenced him to ten years’

confinement in each case, and suspended the sentences, placing him on ten

years’ community supervision, as recommended by the State in the plea bargain

agreements. See Tex. Fam. Code Ann. §§ 53.045, 54.04(q), 54.0405 (Vernon

2008). When Masaka turned eighteen, his cases were transferred from the

juvenile court to the district court. See id. § 54.051 (Vernon 2008).

      After the State filed petitions to revoke Masaka’s community supervision,

Masaka pleaded “true” to each of the alleged violations of his community

supervision: contact with children under seventeen years old without a

chaperone approved by the court or the supervision officer; possessing images

depicting adult nudity; missing one of his sex offender treatment dates; moving

and failing to notify his supervision officer within five days from his change of

address; and failing to pay his supervision and crimestoppers fees.

      Only Masaka and his father testified at the hearing. Masaka’s father

acknowledged that Masaka should suffer the consequences of his actions, but

he asked the court to refrain from giving his son the maximum punishment

available. Masaka testified that he had made mistakes, apologized to the court,

                                       2
gave explanations for the above violations, and asked the court for another

chance. On cross-examination, Masaka admitted that he had been charged

with committing aggravated sexual assault involving three complainants and

that, while on juvenile probation, he had committed a new offense against one

of the complainants.2 He admitted to touching the three complainants, in a

range of behaviors from exposure to fondling to penetration, and to exposing

his genitals to another twelve children.

      The trial court found each of the community supervision violations true

and sentenced him to ten years’ confinement in each case, to be served

consecutively. This appeal followed.

                         III. Consecutive Sentences

      Masaka complains that the trial court abused its discretion when it

ordered his sentences to be served consecutively.

A. Standard of Review

      The trial court has the discretion to determine whether the sentences

should run consecutively or concurrently. See Tex. Code Crim. Proc. Ann. art.

42.08(a) (Vernon 2006); Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim.



      2
       … Masaka testified that the new offense was “fondling of one of my
previous—revictimiz[ing] one of my previous victims.” He did not disagree with
the statement that he was a high risk for both boys and girls from ages three
to sixteen.

                                       3
App. 2008). A trial court abuses its discretion only when the decision lies

outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92,

101–02 (Tex. Crim. App. 1996), cert denied, 520 U.S. 1200 (1997).

Additionally,

      [s]ubject only to a very limited, “exceedingly rare,” and somewhat
      amorphous Eighth Amendment gross-disproportionality review, a
      punishment that falls within the legislatively prescribed range, and
      that is based upon the . . . trial court’s . . . informed normative
      judgment, is unassailable on appeal. The same thing is true for the
      discretionary decision whether to cumulate sentences.

Barrow v. State, 207 S.W.3d 377, 381 (Tex. Crim. App. 2006) (emphasis

added) (internal citation omitted).

B. Penal Code Section 3.03(b)(2)

      Masaka argues that the trial court abused its discretion because it violated

section 3.03(b)(2) of the penal code. He complains that his sentences should

not run consecutively because he “was placed on two probations containing the

same offense, as opposed to two offenses arising out of the same criminal

episode.”

      Section 3.03(b)(2) of the penal code provides:

      (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:

                                        4
                  (A) under . . . [section] 22.021 [aggravated sexual
            assault] 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; or

                  (B) for which a plea agreement was reached in a case
            in which the accused was charged with more than one
            offense listed in Paragraph (A) 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 charged
            with violations of the same section more than once or is
            charged with violations of more than one section[.]

Tex. Penal Code Ann. § 3.03(b)(2) (Vernon Supp. 2008).3 Section 3.01 defines

“criminal episode” as:

      [T]he commission of two or more offenses, regardless of whether
      the harm is directed toward or inflicted upon more than one person
      or item of property, under the following circumstances:

            (1) the offenses are committed pursuant to the same
            transaction or pursuant to two or more transactions that are
            connected or constitute a common scheme or plan; or

            (2) the offenses are the repeated commission of the same or
            similar offenses.



      3
        … Section 3.03(b) provides specific instances in which the trial court
may impose consecutive sentences even though the sentences were imposed
for offenses arising out of the same criminal episode and prosecuted in a single
proceeding.      See Malone v. State, 163 S.W.3d 785, 804 (Tex.
App.—Texarkana 2005, pet. ref’d) (holding that the trial court did not abuse its
discretion when it ordered defendant’s sentences for three offenses against the
same complainant—aggravated sexual assault of a child, sexual assault, and
indecency with a child—to run consecutively under section 3.03(b)).

                                       5
Id. § 3.01 (Vernon 2003).

      In support of his argument, Masaka asserts that “Paragraph One of each

of the State’s petitions alleged the same violation, and the paragraphs were

identical,” placing him on two probations containing the same offense. He

complains:

      Even though Section 3.03(b)(2) allows the Trial Court to order
      consecutive sentences if two cases arise out of the same criminal
      episode, both 42.08 and 3.03 are silent on whether a Trial Judge
      may order consecutive sentences for two cases arising out of the
      same criminal episode when one of those cases is contained within
      the other. A common sense examination of the clerk’s record and
      reporter’s record indicates that the Trial Court did not take into
      account the nature of [Masaka’s] original Juvenile Court
      Stipulation. [Emphasis added.]

He points out that the stipulation in the written plea bargain agreement only

contained one paragraph with regard to the particular complainant and

complained-of act at issue: that he caused a female child’s mouth to contact

his sexual organ on or about June 13, 2003. However, after reviewing the

sealed records, we disagree with Masaka’s interpretation of the record and

conclude that we need not address the specific, double-jeopardy-type argument

he raises in light of the facts contained within that record. See Tex. R. App.

P. 47.1.

      In the sealed juvenile proceeding records, each of the State’s petitions

originally contained a virtually identical first paragraph listing the same

                                      6
complainant (a female child) and act (causing her mouth to contact Masaka’s

sexual organ)4 —one petition alleged June 13, 2003, and the other alleged June

14, 2003. The State subsequently filed an amended petition in one of the two

cases. The amended petition changed the identity of the complainant to one

of the other two children Masaka admitted to touching during his revocation

hearing (a male child), and it changed the act to penetration of the child’s anus

by Masaka’s penis 5 on or about June 14, 2003.          Both convictions were

supported by the identical written plea bargain agreements filed in each case,

but those written plea bargain agreements contained stipulations of each child’s

testimony that supported the original and amended petitions. Therefore, the

trial court did not violate section 3.03(b)(2) when it ordered Masaka’s

sentences to be served consecutively because there were two offenses arising

out of the same criminal episode, not two probations containing the same

offense. See, e.g., Tran v. State, 221 S.W.3d 79, 89–90 (Tex. App.—Houston

[14th Dist.] 2005, pet. ref’d) (holding no abuse of discretion when trial court

cumulated defendant’s sentences for three separate counts of aggravated

sexual assault of the same child). We overrule Masaka’s sole point.



      4
      … See Tex. Penal Code Ann. § 22.021(a)(1)(B)(v), (a)(2)(B) (Vernon
Supp. 2008).
      5
          … See id. § 22.021(a)(1)(B)(i), (a)(2)(B).

                                          7
                             IV. Conclusion

     Having overruled Masaka’s sole point, we affirm the trial court’s

judgment.




                                       PER CURIAM


PANEL: MCCOY, LIVINGSTON, and DAUPHINOT, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 28, 2009




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