Billy Joe Carmon v. The State of Texas--Appeal from 8th District Court of Delta County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00023-CR
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BILLY JOE CARMON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Delta County, Texas
Trial Court No. 6671
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

In six cases in which he was charged with sexual assault of a child, Billy Joe Carmon, Jr., pled guilty and elected to have a jury assess his punishment. The jury recommended sentences of ten years' imprisonment in each case. (1) After the State requested that the sentences be "stacked," the trial court ordered the sentences in five of the cases to run concurrently and one to run consecutive to those sentences. (2)

We affirm Carmon's conviction and sentence because the sentence cumulation order is valid.

Carmon alleges the trial court's cumulation order was error. Carmon cites one case for this argument, Baker v. State. (3) That case does not apply.

Unless an exception applies, the Texas Penal Code provides that, when a defendant is convicted of more than one offense arising out of the same criminal episode and the cases are pled or tried together in a single criminal action, a sentence must be pronounced for each offense and the sentences must run concurrently. See Tex. Penal Code Ann. 3.03(a) (Vernon Supp. 2006). But, where the defendant is convicted of violating one of a few enumerated statutes, notably including Section 22.011 of the Texas Penal Code--criminalizing sexual assault--the trial court may order the sentences to run either concurrently or consecutively. (4) Finding that none of the exceptions found in the statute applied, the appellate court in Baker held that the trial court had erred in ordering Baker's sentences to run consecutively. Baker, 107 S.W.3d at 673.

Carmon's situation is markedly different. Carmon was found guilty in all six cases of sexual assault of a child. Sexual assault of a child is addressed by Section 22.011(a)(2) of the Texas Penal Code. The indictments, although alleging offense dates from June 1, 2003, to March 1, 2005, all allege the same victim, pseudonymed "Courage." As used in Section 3.03 of the Texas Penal Code, a "single criminal action" refers to a single trial or plea proceeding; as such, a defendant is prosecuted in a "single criminal action" when allegations and evidence of more than one offense arising out of the same criminal episode are presented in a single trial or plea proceeding. Malone v. State, 163 S.W.3d 785, 804 (Tex. App.--Texarkana 2005, pet. ref'd). "Criminal episode" includes "the repeated commission of the same or similar offenses." Tex. Penal Code Ann. 3.01(2) (Vernon Supp. 2006). (5) Carmon's convictions are clearly subject to the provisions of Section 3.03 and susceptible to cumulation. We overrule Carmon's first point of error.

Carmon attempts to set out two other points of error, also complaining of the cumulative sentencing. But, in each case, he fails to set out anything other than a mere conclusory argument. As such, we must overrule his other two points of error.

Carmon's second point of error complains the trial court's cumulation order somehow deprived Carmon of due process of law. Here, Carmon describes the interchange between the State and the trial court after receiving the jury's verdicts, which recommended a sentence of ten years on each charge. Carmon claims on appeal this was error, as the trial court's order "gave the defendant a different verdict than the jury intended, and also took away the defendant[']s rights [sic] to have a jury set his punishment." Carmon provides no analysis or authority to support his claims. We find this point to be inadequately briefed and overrule it. See Tex. R. App. P. 38.1(h); Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992). (6)

Carmon's third, and final, point of error claims the trial court's cumulation order "took away from the Defendant the right to have a jury set his punishment and gave that right to the desires of the prosecutor." (7) Carmon does not explain how--when the State asked the trial court to cumulate the sentences and the trial court did that with one of the charges--such a situation amounted to "the prosecution . . . determin[ing] who will pass sentence on a defendant." The only case cited in this section of Carmon's brief is Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) (en banc). Without providing us a pinpoint cite, Carmon cites Narvaiz generally for the proposition that "[i]f the facts show the proceeding is a criminal action based on charges arising out of the same criminal episode, the trial court may not order consecutive sentences." Narvaiz was sentenced to death for capital murder: killing his ex-girlfriend and three of her siblings in a single transaction. See id. at 419. From our reading of Narvaiz, that case involves only one sentence and there is no mention of "stacking" or ordering sentences to run consecutively. The only areas of Narvaiz we find applicable are the court's overruling of several points of error as inadequately briefed. Id. at 429, 431, 433.

 

We overrule this point of error as inadequately briefed, and affirm the trial court's judgment and sentence.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: January 29, 2007

Date Decided: January 30, 2007

 

Do Not Publish

1. Trial court numbers 6675 and 6676 (our cause numbers 06-06-00027-CR and 06-06-00028-CR) each contained two counts of sexual assault of a child, with a sentence of ten years' imprisonment received for each count.

2. The trial court ordered the sentence in trial court number 6671 (our cause number 06-06-00023-CR) to run consecutive with sentences imposed in trial court numbers 6672, 6673, 6674, 6675, and 6676 (our cause numbers 06-06-00024-CR, 06-06-00025-CR, 06-06-00026-CR, 06-06-00027-CR, 06-06-00028-CR, respectively).

3. 107 S.W.3d 671 (Tex. App.--San Antonio 2003, no pet.).

4. Section 3.03 reads as follows:

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 . . . an offense . . . under Section 21.11 [indecency with a child], 22.011 [sexual assault], 22.021 [aggravated sexual assault], 25.02 [prohibited sexual conduct], or 43.25 [sexual performance by a child] 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. Penal Code Ann. 3.03(b)(2)(A) (Vernon Supp. 2006).

5. Passages of time do not preclude multiple offenses from being a single criminal episode. See Hernandez v. State, 938 S.W.2d 503, 508-09 (Tex. App.--Waco 1997, pet. ref'd) (April 16 cocaine sale and September 22 marihuana sale merely repetitious commissions of same offense); Guidry v. State, 909 S.W.2d 584, 585 (Tex. App.--Corpus Christi 1995, pet. ref'd) (Section 3.01(2) of Texas Penal Code does not impose time differential between commission of same or similar offenses).

6. Further, the "discretionary decision whether to cumulate individual sentences no more violates due process than does the decision, by judge or jury, of what particular sentence to impose within the statutorily prescribed range of punishment." Barrow v. State, No. PD-0194-05, 2006 Tex. Crim. App. LEXIS 2230, at *11 (Tex. Crim. App. Nov. 15, 2006). "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." Id. at *12.

7. Carmon also contends, "[i]t is the right of any defendant under the laws of the United States and the State of Texas to choose who will set his punishment in a criminal trial." This is not correct: "It is well established that the constitutional right to a jury trial does not encompass the right to have the jury assess punishment. Texas is one of the few states that allow defendants the privilege, by statute, of opting for jury assessment of punishment." Barrow, 2006 Tex. Crim. App. LEXIS 2230, at *7 (citations omitted).