Manuel Lalinde v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-03-00045-CR
Manuel LALINDE, SR.,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-3771-A
Honorable Mary Rom n, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 5, 2004

AFFIRMED

A jury found appellant, Manuel Lalinde, Sr., guilty of two counts of aggravated sexual assault of a child and two counts of indecency with a child by sexual contact. Punishment was assessed at imprisonment for 15 years and 30 years for the two aggravated sexual assault charges, and 10 years each for the two indecency charges. The court ordered the sentences to be served consecutively. On appeal, Lalinde claims the trial court denied him his state and federal constitutional rights to confront the child witness and committed harmful error in admitting hearsay testimony. Lalinde also challenges the factual sufficiency of the evidence and claims the trial court erred in denying his motion for directed verdict on two of the counts. He also complains of the court's decision to impose consecutive sentences on the individual counts. We affirm the trial court's judgment.

Factual Background

M.L. is the child of Manuel Lalinde, Sr., and Rebecca Lalinde. He was born in 1996 and spent much of his time alternating between the care of his parents and his aunt and uncle, Laura and Charles Funderburk. In August 2000, per the recommendation of a Child Protective Services worker, Lalinde signed a voluntary placement agreement giving Charles and Laura custody of M.L. Soon after Laura and Charles took custody of M.L., M.L. began seeing a therapist, Colette Wright, for his aggressive behavior.

While living with the Funderburks, M.L. exhibited sexually inappropriate behavior. He attempted to undo Laura's pants explaining that he wanted to "suck her down there" because that's what his mommy would do to him. On another occasion, M.L. explained to Charles before going to bed that it was time to "jack off" as his father had taught him. M.L. also told Charles that his dad had tried to put his "pee-pee in his butt" and that it hurt so bad he began screaming and his dad stopped. After learning of these incidents, Laura called the police and M.L. was taken for a sexual assault exam.

The State prosecuted Lalinde on two counts of aggravated sexual assault and two counts of indecency with a child by contact. Brief captions of the counts are as follows:

Count I: On or about July 1, 2000, Manuel Lalinde, Sr., intentionally and knowingly caused the sexual organ of M.L. to contact and penetrate the mouth of Manuel Lalinde, Sr.

Count II: On or about July 1, 2000, Manuel Lalinde, Sr., intentionally and knowingly contacted and penetrated M.L.'s anus with his sexual organ.

Count III: On or about July 1, 2000, Manuel Lalinde, Sr., intentionally and knowingly engaged in sexual contact with M.L. by touching part of M.L.'s genitals with the intent to arouse and gratify the sexual desire of Manuel Lalinde, Sr.

Count IV: On or about July 1, 2000, Manuel Lalinde, Sr., intentionally and knowingly engaged in sexual contact with M.L. by touching M.L.'s anus with the intent to arouse and gratify the sexual desire of Manuel Lalinde, Sr.

The jury found Lalinde guilty on all four counts and assessed punishment at confinement in the Texas Department of Criminal Justice. The judge ordered the sentences on the individual counts to run consecutively, for a total of sixty-five years.

Right to Confrontation of the Child Witness

On appeal, Lalinde claims his state and federal constitutional rights to confront and cross examine his accuser were violated because the trial court allowed the child victim to testify via closed circuit television. The Sixth Amendment right to confrontation under the United States Constitution ensures the "'reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.'" Lively v. State, 968 S.W.2d 363, 366 (Tex. Crim. App. 1998) (quoting Maryland v. Craig, 497 U.S. 836, 845 (1990)). The Confrontation Clause indicates a preference for face-to-face confrontation, but sometimes public policy considerations and the necessities of the case outweigh this preference. Marx v. State, 987 S.W.2d 577, 580 (Tex. Crim. App. 1999). Generally, the right to confront one's accuser may be met without a face-to-face confrontation "only when denial of such confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured." Id. The State is justified in using a special procedure to allow a child to testify without confronting the defendant face-to-face, if there is an adequate showing of necessity to protect the child from the trauma of testifying. Lively, 968 S.W.2d at 366. The requisite necessity must be determined on a case-by-case basis where the trial court finds the following:

(1) the use of the procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) the child witness would be traumatized by the presence of the defendant; and (3) the trauma would be more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify.

Id.

If the court makes these three findings, then testifying via closed circuit television does not violate the Confrontation Clause as long as the reliability of the testimony is ensured "'by subjecting it to rigorous adversarial testing and thereby preserv[ing] the essence of effective confrontation.'" Gonzales v. State, 818 S.W.2d 756, 762 (Tex. Crim. App. 1991) (quoting Maryland v. Craig, 497 U.S. 836, 857 (1990)).

The requisite reliability of the child witness' testimony may be assured absent a face-to-face encounter through the combined effect of the witness' testimony under oath (or other admonishment, appropriate to the child's age and maturity, to testify truthfully), subject to cross-examination, and the factfinder's ability to observe the witness' demeanor, even if only on a video monitor.

Marx, 987 S.W.2d at 580 (citing Maryland v. Craig, 497 U.S. 836, 857-59 (1990)).

Nearly a decade before the United States Supreme Court's decision in Craig, the Texas Legislature enacted Article 38.071 of the Texas Code of Criminal Procedure, (1) which also allows alternative forms for a child sexual abuse victim to testify. Lively v. State, 940 S.W.2d 380, 386 (Tex. App.--San Antonio 1997), aff'd, Lively v. State, 968 S.W.2d 363 (Tex. Crim. App. 1998). This statute permits a child to testify via closed circuit television and outlines the procedures to be taken in arranging the child's testimony. Tex Code Crim. Proc. Ann. art. 38.071, 3 (Vernon Supp. 2004). In determining whether to permit testimony via closed circuit television, the court should consider the child's age, the child's relationship with the defendant, and whether the child would suffer undue psychological or physical harm in confronting the defendant. Id. at 8(a) (Vernon Supp. 2004).

In the instant case during a pre-trial hearing on the State's motion to proceed with closed circuit television equipment, Lalinde's counsel argued that the predicates for testimony via closed circuit television had not been met since the therapist who testified was not an expert. At trial, Lalinde's counsel again objected before M.L. testified via closed circuit television, reiterating that the State had not met its predicate. He restated his argument that the therapist was not qualified as an expert to testify to the factors the court would use in making its findings under article 38.071 of the Texas Code of Criminal Procedure. The trial court overruled the objection and M.L. testified via closed circuit television.

The State argues that Lalinde did not preserve error on this issue since his objection at trial (predicate) differed from his objection on appeal (violations of both the United States and Texas Constitutions). The State also claims Lalinde's appellate point is multifarious. We disagree with the State's contentions and reach the merits on this issue.

In support of its motion to proceed with closed circuit television, the State presented M.L.'s therapist, Colette Wright. Wright is a licensed master social worker and is certified as an advanced clinical practitioner. She specializes in working with abused and neglected children. Wright testified about the requisite necessity for M.L.'s testimony to be conducted via closed circuit television. Wright explained that M.L. has a high level of anxiety and is hyper vigilant that someone might hurt him, especially his parents. She also stated that M.L. expressed fear when discussing the past sexual abuse since his parents had told him that he would go to jail if he talked about it. Wright informed the court that after a few months of therapy, M.L. felt comfortable enough with her to discuss his past sexual abuse. Wright testified that M.L.'s behavior and aggression had improved, but he would likely regress if he had to confront his parents. She further stated that whenever she mentioned going to court, M.L. lamented that he did not want to die. Wright explicitly stated that she did not believe that mere attendance in court would cause M.L to regress. Rather, she stated that he would likely regress because of his fear of being in his parents' presence.

Lalinde argues that the trial court did not properly conduct the federal constitutional balancing test under Craig, but only made the statutory findings under Article 38.071 basing them upon insufficient evidence. We disagree. The trial judge made explicit and implicit findings regarding the requisite necessity and reliability under Craig and under Texas law. "Nothing in Maryland v. Craig requires that a trial court make explicit, as opposed to implicit, findings regarding the necessity of a special procedure to protect a child witness in a child abuse case." Lively, 968 S.W.2d at 367. First, the court noted that M.L. is younger than thirteen years old as section 1 of Article 38.071 requires and that the defendants had been charged with aggravated sexual assault and indecency with a child, which are offenses to which Article 38.071 applies. Pursuant to the criteria established by Craig and adopted by the Texas Court of Criminal Appeals, the court found that M.L. was unable to testify in the defendants' presence and would be traumatized if required to testify in their physical presence in the courtroom. In addition, the trial judge stated the closed circuit television procedure was necessary to protect the welfare of M.L.

Lalinde also argues the trial court's findings concerning traumatic effects on the child were based on insufficient evidence. A "trial court's findings will be upheld when they are supported by the evidence,"and they will be disturbed only when there has been a clear abuse of that discretion established by the record. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). Since Wright's testimony supported the trial court's findings, the court did not abuse its discretion.

Further, the requisite reliability of M.L.'s testimony was also met when the child testified via closed circuit television. At the beginning of M.L.'s testimony the trial court discussed the importance of telling the truth. Lalinde argues that M.L. never understood the solemnity and consequences involved in this proceeding since M.L. called an attorney Bugs Bunny and made other silly statements. However, the trial judge asked M.L. if he knew what the truth was by giving him an example and then asked him if he knew the consequences of not telling the truth. M.L. responded affirmatively. The trial court implicitly found that M.L.'s understanding of the proceeding met the requisite reliability, thus there was no abuse of discretion in allowing him to continue. The trial judge's finding of M.L.'s understanding of the proceeding would be disturbed only if a clear abuse of discretion has been established by the record, and such is not the case here. See id. In addition, the defendants' attorneys both cross-examined M.L., and the jury was able to observe M.L. testify through the video monitor. Thus, according to the standards recognized by the Texas Court of Criminal Appeals, this closed circuit television procedure with M.L. met the requisite reliability.

Finally, Lalinde contends that Article 38.071 of the Texas Code of Criminal Procedure is an unconstitutional violation of the right to confront witnesses provided by Article I, Section 10 of the Texas Constitution. However, the Texas Court of Criminal Appeals has noted that the "State Constitution has never required that the accused and the witnesses against him come 'face-to-face' in the trial court in all situations." Gonzales, 818 S.W.2d at 763. Face-to-face confrontation is not the only method to guarantee the right to confrontation under Article I, Section 10 of the Texas Constitution. Id. at 764. Rather, the right to confrontation must be weighed against policy considerations. Id. A Craig analysis is applied to determine if the Texas constitutional right to confrontation has been violated. Id. We have determined that the Craig factors were met, that Article 38.071 is not unconstitutional as Lalinde suggests, and that allowing M.L. to testify via closed circuit television did not violate Lalinde's federal or state constitutional rights of confrontation. Lalinde's first issue is overruled.

Hearsay Testimony From Child's Therapist

Lalinde argues that Wright's testimony repeating that M.L. told her that his father anally penetrated him and that it hurt him was objectionable hearsay. Twice the State attempted to elicit testimony from Wright concerning past sexual abuse between M.L. and his father, and both times Lalinde's counsel objected to hearsay and the judge sustained his objections. During recross, counsel asked Wright if she was aware of any medical evidence of anal penetration and she said no. Following in redirect, the State asked Wright about the alleged anal penetration again:

Q. Mr. Montgomery [defense counsel] was saying that this child talked about being anally penetrated by his father.

A. Uh-huh.

Q. Did this child actually describe pain in relation to that as well?

A. I believe - let me look on my notes. I think he said that it hurt; he did not ask him to do it. But let me make sure.

Q. So if -

Defense Counsel: Your Honor, I object to the testimony as hearsay. I did not reference any statement the child made to Mrs. Wright. I referenced statements that the Funderburks made to Mrs. Wright in the course of her taking a history. But I did not talk about anything the child purportedly said to Mrs. Wright.

The Court: That's overruled.

. . .

Q. Well, is it true that the child said it hurt really bad?

A. Uh-huh. Yes.

Q. And that putting his pee-pee, meaning Mr. Lalinde, Senior putting his pee-pee in my butt, it hurt really bad?

A. Yes. That's correct.

The State argues this testimony relates to statements made for purposes of medical treatment or diagnosis and thus is an exception to hearsay under Texas Rule of Evidence 803(4). Alternatively, the State claims the testimony is not hearsay under Texas Rule of Evidence 801(e)(1)(B) because it is a prior consistent statement. To the contrary, Lalinde argues not only was it error to admit this testimony, but it was harmful error contributing to his conviction.

Even if we assume the trial court erroneously admitted this testimony, the error is harmless since "it is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection." Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). Before Wright testified, both Charles Funderburk and M.L. testified without objection about M.L.'s claim that Lalinde anally assaulted M.L., and that it hurt so badly that M.L. screamed. Wright merely repeated information that Charles Funderburk and M.L. had both already stated when testifying; therefore, any possible hearsay error was harmless. We will not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have "fair assurance that the error did not influence the jury or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see Tex. R. App. P. 44.2(b). We overrule Lalinde's second issue. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding "any error in admitting the evidence was harmless in light of other properly admitted evidence proving the same fact."); Moore v. State, 82 S.W.3d 399, 405 (Tex. App.--Austin 2002, pet. ref'd) (holding error in admitting testimony was harmless when both victim and appellant testified to the same incident).

Denial of Directed Verdict

In his third issue, Lalinde contends the trial court erred in denying his request for a directed verdict on Counts I and III. A complaint about the denial of a directed verdict is treated as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). When reviewing the legal sufficiency of the evidence, the appellate court must view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998); Johnson v. State, 103 S.W.3d 463, 464 (Tex. App.-San Antonio 2003, no pet.). "A determination that the evidence is 'legally insufficient' means that the case should never have been submitted to the jury." Clewis v. State, 922 S.W.2d 126, 132-33 (Tex. Crim. App. 1996).

Count I of the indictment alleged that Lalinde committed aggravated sexual assault when he caused the sexual organ of M.L. to contact and penetrate Lalinde's mouth. Shirley Menard, a pediatric nurse practitioner at the Alamo Children's Advocacy Center, testified pertaining to the allegations in Count I as follows:

Q. Okay. So, Doctor Menard, [M.L.] told you he was there because my mom was sucking my pee-pee?

A. That's correct.

Q. Okay. Were you able to talk to him a little bit further than that?

A. A little bit. States this happened, quotation marks, when my daddy did it, too, end quotation marks. Quotation marks, my mom was doing that to the gang members, end quotation marks. . . . At about that point, this child became very, very active. He started going from place to place in the room. He started being very aggressive with toys, totally distracted, and really was not able to give me a whole lot more.

This testimony from Menard that "my daddy did it, too" is evidence of the oral penetration allegation in Count I. "The jury is the sole judge of the weight of the evidence and may choose to believe all, some, or none of it." Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). The jury chose to believe Menard's testimony, and thus found Lalinde guilty of Count I. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found that the allegations in the first count were true. Accordingly, Lalinde's motion for directed verdict on Count I was properly denied.

A directed verdict on Count III was also properly denied. Count III alleged that Lalinde touched part of M.L.'s genitals with the intent to arouse and gratify the sexual desire of Lalinde. Although there does not appear to be any direct evidence of this allegation, "[c]ircumstantial evidence is no less trustworthy or probative than direct evidence." Jiminez v. State, 953 S.W.2d 293, 297 (Tex. App.--Austin 1997, pet. ref'd). The same standard of review applies to both direct and circumstantial evidence, thus we still look at the evidence in the light most favorable to the verdict. See Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd). The jury heard testimony that M.L. had learned how to "jack off" from his father in addition to testimony concerning M.L.'s behavioral and aggression problems as indicators of sexual abuse. Thus, the jury could rationally infer that Lalinde touched part of M.L.'s genitals. (2) Therefore, the evidence is legally sufficient and Lalinde's motion for directed verdict on Count III was properly denied. Lalinde's third issue is overruled.

Factual Sufficiency of the Evidence

In his fourth issue, Lalinde argues globally that the verdict is against the great weight and preponderance of the evidence and is clearly unjust. In reviewing the factual sufficiency of the evidence, the court of appeals must view "all the evidence without the prism of 'in the light most favorable to the prosecution.' ... [and] set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis, 922 S.W.2d at 129 (quoting Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd, untimely filed)). However, an appellate court must defer to a jury's findings and cannot reverse just because it disagrees with their findings. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). A finding of factual insufficiency may be made only where it is necessary to prevent a manifest injustice, and even then a detailed explanation of the finding must be provided. Id.; Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). After a neutral review of all of the evidence, both for and against the finding, the appellate court must determine if "the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11. (3)

Laura and Charles Funderburk testified about various episodes when M.L. exhibited inappropriate sexual behavior and when M.L. recounted times of abuse at the hands of his parents. M.L. rubbed himself against Laura in a sexually inappropriate manner; he tried to undo Laura's pants in order to "suck her down there;" and he was found on top of his two-year old cousin with her legs spread open. Charles testified about the time M.L. stated it was time to "jack off" as his dad had taught him. In addition to these incidents, Charles and Laura explained that M.L. is aggressive, angry, and verbally and physically abusive at times. He has also urinated and defecated in his room on his toys. Not only has M.L. been bold and aggressive, but he has also been quite vulnerable in sharing his fear of returning to his parents. Both Wright and Menard indicated that M.L.'s conduct was consistent with his allegations of abuse.

In regards to both the assault charges and the contact charges, the jury chose to believe the testimony presented by the witnesses. Menard's testimony provided direct evidence that M.L. told her about the allegations of oral penetration and contact with M.L.'s genitals. M.L. himself testified about the allegations of anal penetration. The "testimony of a sexual assault victim [such as M.L.] alone is sufficient evidence of penetration to support a conviction, even if the victim is a child." See Tear v. State, 74 S.W.3d 555, 560 (Tex. App.--Dallas 2002, pet. ref'd); Hellums v. State, 831 S.W.2d 545, 547 ( Tex. App.--Austin 1992, no pet.); Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2004). It was the jury's choice to determine what weight to give to a six-year-old child's testimony. See Smith v. State, 961 S.W.2d 501, 504 (Tex. App.--San Antonio 1997, no pet.). In addition, Charles Funderburk and M.L.'s therapist testified that M.L. also told them about the anal penetration and that it hurt so bad he was screaming and his dad stopped.

Lalinde argues that M.L. was mimicking this behavior from his own observation versus recounting personal experiences. Throughout the trial there were discussions that M.L. watched pornography and witnessed some intimate adult moments when he was with his parents. "However, neither the jury nor the reviewing court is required to exclude all reasonable alternate hypotheses in resolving a case." Smith, 961 S.W.2d at 504. Thus, viewing all of the evidence in a neutral light, and giving deference to the jury's findings, any rational juror could have found that Lalinde engaged in both sexual assault and sexual contact. The verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Lalinde's fourth issue is overruled.

Consecutive Sentencing

In his fifth issue, Lalinde argues the trial court erred in granting the State's request to cumulate the individual sentences because some of the counts of the indictment were lesser included offenses of other counts. Pursuant to section 3.03 of the Texas Penal Code, (4) the trial court has the discretion to impose consecutive sentences for offenses of aggravated sexual assault and indecency with a child. Owens v. State, 96 S.W.3d 668, 671 (Tex. App.--Austin 2003, no pet.). However, Lalinde contends that section 3.03 is not applicable when there are lesser included offenses such as indecency with a child, since that would violate the state and federal prohibitions against double jeopardy by imposing a double sentence.

The Court of Criminal Appeals has held that indecency with a child can be a lesser included offense of aggravated sexual assault. Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998). Whether indecency with a child is a lesser-included offense of aggravated sexual assault depends on the facts of each case. DeMoss v. State, 12 S.W.3d 553, 560 (Tex. App.--San Antonio 1999, pet. ref'd). For example, if the "evidence reveals that the defendant committed separate criminal acts during the same occurrence that would support conviction of each offense" then the offense would not be an offense and a lesser-included offense, but rather two separate offenses. Id. Clearly, if there is sufficient evidence of aggravated sexual assault such as oral and anal penetration, the elements for indecency with a child are met just up to the moment of actual penetration during that occurrence. See Cunningham v. State, 726 S.W.2d 151, 155 (Tex. Crim. App. 1987). Once the elements of aggravated sexual assault are met (i.e. penetration), indecency with a child by sexual contact may be considered to be a lesser-included offense of that particular aggravated sexual assault. See DeMoss, 12 S.W.3d at 561.

The evidence in the current case is factually sufficient to support the conviction for two counts of indecency with a child by sexual contact as separate offenses from aggravated sexual assault. The evidence reveals that M.L. complained that his parents "would" engage in certain sexual behavior, indicating on-going activity rather than one or two isolated events. The trial court did not abuse its discretion in ordering consecutive sentencing. Lalinde's fifth issue is overruled.

Conclusion

We overrule Lalinde's issues and affirm the judgment of the trial court in all regards.

Catherine Stone, Justice

Do Not Publish

1. Sec. 1. This article applies only to a hearing or proceeding in which the court determines that a child younger than 13 years of age would be unavailable to testify in the presence of the defendant about an offense defined by any of the following sections of the Penal Code:

(5) Section 21.11 (Indecency with a Child);

(8) Section 22.021 (Aggravated Sexual Assault);

Tex Code Crim. Proc. Ann. art. 38.071, 1 (Vernon Supp. 2004).

2. Sexual contact "if committed with the intent to arouse or gratify the sexual desire of any person" is defined as "(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person." Tex. Pen. Code 21.11(c) (Vernon 2003).

3. We note that, in an unpublished opinion, the court of criminal appeals recently emphasized "the necessity for appellate courts to consider the burden of proof at trial when reviewing the factual sufficiency of the evidence." Zuniga v. State, No. 539-02, 2004 WL 840786, *7 (Tex. Crim. App. April 21, 2004) (not released for publication). Further, when analyzing contrary proof, the court clarified Johnson stating "that contrary evidence does not have to outweigh evidence of guilt; it has to be only enough to provide a reasonable doubt." Id. at *6.

4. (a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.

(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:

(A) under Section 21.11, 22.011, 22.021 . . .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.

Tex. Pen. Code Ann. 3.03 (Vernon 2003).