Christopher Earl Lacy v. State

Affirmed and Memorandum Opinion filed October 10, 2006 Affirmed and Memorandum Opinion filed October 10, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00775-CR NO. 14-05-00776-CR NO. 14-05-00777-CR NO. 14-05-00778-CR ____________ CHRISTOPHER EARL LACY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause Nos. 1005035, 1005034, 996267, 996266 M E M O R A N D U M   O P I N I O N Appellant Christopher Earl Lacy appeals his convictions for aggravated kidnapping and aggravated sexual assault of a child under the age of fourteen. See Tex. Penal Code Ann. '' 20.04, 22.021 (Vernon 2003). In a single issue, appellant complains the trial court violated his Sixth Amendment right to a jury trial and Fourteenth Amendment right to due process by cumulating his sentences to exceed the statutory maximum without a jury=s fact finding beyond a reasonable doubt. We affirm. I. Factual and Procedural Background A jury convicted appellant of aggravated kidnapping and of three separate offenses of aggravated sexual assault of a child under the age of fourteen. See Tex. Penal Code Ann. '' 20.04, 22.021. The court then heard punishment evidence for the convicted offenses, each of which constituted a first degree felony carrying a maximum punishment of ninety-nine years= confinement. See id. ' 12.32(a) (Vernon 2003). Thereafter, the trial court sentenced appellant to fifty years= confinement for each offense. The court ordered the fifty-year aggravated kidnapping sentence and the first fifty-year aggravated sexual assault sentence to run concurrently and stacked the remaining two fifty-year sexual assault sentences. In other words, two of the sexual assault sentences were ordered to run consecutively and begin after appellant served the first two concurrent sentences. Therefore, the court effectively sentenced appellant to 150 years= confinement. Appellant now appeals the trial court=s sentence, claiming that cumulating his aggravated sexual assault sentences to exceed the statutory maximum without a jury finding violates Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). II. Standard of Review Article 42.08 of the Code of Criminal Procedure grants the trial court broad discretion to cumulate sentences for two or more convictions. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2006); Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (citing Smith v. State, 575 S.W.2d 41, 41 (Tex. Crim. App. [Panel Op.] 1979)). Accordingly, we review a trial court=s cumulation order under an abuse of discretion standard. Harvey v. State, 821 S.W.2d 389, 392 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d). AA trial court abuses its discretion when it applies an erroneous legal standard or when no reasonable view of the record supports the trial court=s conclusion under the correct law and facts viewed in the light most favorable to its legal conclusion.@ Nicholas, 56 S.W.3d at 764 (citing DuBose v. State, 915 S.W.2d 493, 497B98 (Tex. Crim. App. 1996)). AAs a practical matter, however, an abuse of discretion generally will be found only if the trial court imposes consecutive sentences where the law requires concurrent sentences, where the court imposes concurrent sentences but the law requires consecutive ones, or where the court otherwise fails to observe the statutory requirements pertaining to sentencing.@ Id. at 765. ASo long as the law authorizes the imposition of cumulative sentences, a trial judge has absolute discretion to stack sentences.@ Id. III. Analysis Appellant contends the trial court violated Apprendi, where the Supreme Court held, AOther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.@ 530 U.S. at 490. Specifically, he claims the trial court made a preliminary, implicit fact finding that he committed the aggravated sexual assaults as part of the Asame criminal episode,@ which thereby authorized the court to stack the sentences for these offenses. See Tex. Penal Code Ann. '' 3.01, 3.03(b)(2)(A) (Vernon Supp. 2006). Thus, appellant argues, because the Asame criminal episode@ finding and corresponding cumulation order propelled his cumulated sentence beyond the statutory maximum for the individual offenses, he had a right under Apprendi to have a jury make such finding beyond a reasonable doubt. Initially we address whether appellant failed to preserve error for our review. Generally, a party must raise error in the trial court and obtain an adverse ruling to preserve the error for appellate review. Tex. R. App. P. 33.1. Further, a complaint on appeal must comport with the complaint at trial. Id.; Routier v. State, 112 S.W.3d 554, 586 (Tex. Crim. App. 2003). Appellant made no objections to the trial court=s cumulation order during sentencing; therefore, he waived his Apprendi complaint.[1] Even had appellant preserved error, his reliance on Apprendi is misplaced for several reasons. First, appellant incorrectly alleges the trial court made an Apprendi-type fact finding; he arrives at such conclusion by misconstruing the Penal Code=s parameters regarding cumulation orders. Under Texas law, a trial court generally has absolute discretion to cumulate sentences. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2006); Smith v. State, 575 S.W.2d 41, 41 (Tex. Crim. App. [Panel Op.] 1979); Nicholas, 56 S.W.3d at 764. However, Texas Penal Code section 3.03(a) limits such discretion, providing that A[w]hen 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.@ Tex. Penal Code Ann. ' 3.03(a) (emphasis added). Notwithstanding section 3.03(a)=s limitation, section 3.03(b)(2)(A) enumerates specific offensesCincluding aggravated sexual assault of a child under the age of seventeenCfor which a trial court is not limited in its discretion to cumulate sentences for offenses arising out of the same criminal episode.[2] See id. '' 3.03(b)(2)(A), 22.021. Thus, whether the offenses in section 3.03(b)(2)(A) derive from the same criminal episode does not affect the trial court=s discretion to cumulate sentences for such offenses. Millslagle v. State, 150 S.W.3d 781, 785 (Tex. App.CAustin 2004, pet. dism=d); Leal v. State, No. 01-05-00715-CR, 2006 WL 1275909, at *7 (Tex. App.CHouston [1st Dist.] May 11, 2006, pet. filed) (not designated for publication). As such, contrary to appellant=s assertion, the trial court=s authority to cumulate the aggravated sexual assault sentences did not hinge on an implicit finding of fact that the offenses arose out of the same criminal episode. Second, appellant mistakenly analogizes Apprendi by mischaracterizing the effect of the trial court=s cumulation order as having increased punishment Abeyond the prescribed statutory maximum.@ See Apprendi, 530 U.S. at 490. AThe focus in Apprendi . . . is on whether the trial court, instead of the jury, has made a fact finding that causes the sentence imposed to exceed the statutory maximum for a single count.@ Baylor v. State, 195 S.W.3d 157, 160 (Tex. App.CSan Antonio 2006, no pet.) (citing United States v. McWaine, 290 F.3d 269, 276 (5th Cir. 2002)); see, e.g., Ex parte Boyd, 58 S.W.3d 134, 136 (Tex. Crim. App. 2001) (finding Apprendi violation where trial court, during sentencing for single aggravated assault charge, made affirmative finding that defendant chose victim because of bias or prejudice, which, per statute, increased range of penalties from those for second-degree felony to first-degree felony). However, both federal and state courts have consistently found no Apprendi violation where Aa trial court orders the cumulation of sentences which individually lie within the statutory range of punishment but for which the cumulative total exceeds the prescribed statutory maximum for any single offense.@ Baylor, 195 S.W.3d at 160 (emphasis added); see, e.g., United States v. McWaine, 290 F.3d 269, 276 (5th Cir. 2002); Tyson v. State, 172 S.W.3d 172, 176B77 (Tex. App.CFort Worth 2005, pet. ref=d); Marrow v. State, 169 S.W.3d 328, 330B31 (Tex. App.CWaco 2005, pet. ref=d); see also Leal, 2006 WL 1275909, at *8; Garza, 2006 WL 1707965, at *1; Jaramillo v. State, No. 04‑01‑00846‑CR, 2003 WL 21395548, at *1B2 (Tex. App.CSan Antonio June 18, 2003, pet. ref=d) (not designated for publication). Here, the trial court did not impose punishment beyond the statutory range for any of appellant=s convicted offenses; rather, the court remained well within the ninety-nine-year statutory maximum in assessing punishment at fifty years for each offense. The court, in its discretion, merely instructed whether appellant would serve the sentences concurrently or consecutively. See Tex. Code Crim. Proc. Ann. art. 42.08; Branson v. State, 525 S.W.2d 187, 189 (Tex. Crim. App. 1975). Accordingly, that appellant=s cumulative jail time exceeds the statutory maximum of ninety-nine years for each of his individual offenses does constitute an Apprendi violation. Finally, even had the trial court=s finding of a Asame criminal episode@ somehow increased appellant=s punishment beyond the statutory range for his convicted offenses, the State did not deny his right to have a jury make such determinations in violation of Apprendi. See Apprendi, 530 U.S. at 490. Generally, defendants may request the jury to assess punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, ' (2)(b) (Vernon 2005) (A[W]here the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the . . . jury . . . .@). However, defendants may waive such right, if done so knowingly, intelligently, voluntarily, and expressly. See id. art. 1.13B.15 (Vernon 2005). See generally Guillett v. State, 677 S.W.2d 46, 49 (Tex. Crim. App. 1984). Before trial, appellant elected to have the trial court assess punishment and thereby affirmatively waived his right to a jury during punishment. Consequently, because appellant expressly designated the trial court as fact-finder during punishment, his contention that, under Apprendi, a jury should have made fact findings during punishment lacks merit. See Harris v. State, No. 08-01-00426-CR, 2003 WL 1386946, at *3 (Tex. App.CEl Paso Mar. 20, 2003, pet. ref=d) (not designated for publication) (holding Apprendi did not apply where appellant elected trial court to assess punishment); Heathcock v. State, No. 14-02-00899-CR, 2003 WL 21710468, at *2 n.1 (Tex. App.CHouston [14th Dist.] July 24, 2003, pet. ref=d) (not designated for publication) (distinguishing appellant=s case from Apprendi on grounds appellant chose to forgo right to jury during punishment phase of trial); cf. Blakely v. Washington, 542 U.S. 296, 310 (2004) (A[A] defendant who stands trial may consent to judicial factfinding as to sentence enhancements . . . .@); United States v. Milam, 443 F.3d 382, 387 (4th Cir. 2006) (AIf the defendant expressly waives his Sixth Amendment rights, consents to factfinding by the court, or admits the fact otherwise committed to the jury, the Sixth Amendment protections are avoided.@). We conclude that appellant failed to preserve his Apprendi complaint for our review by failing to object at the trial court. Had appellant preserved his complaint, we further conclude that his reliance on Apprendi is misplaced. We overrule appellant=s sole issue and affirm the trial court=s judgment. /s/ Leslie Brock Yates Justice Judgment rendered and Memorandum Opinion filed October 10, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] We note that the intermediate courts appear split over whether a defendant waives an Apprendi complaint by failing to raise an objection in the trial court. Compare Massoth v. State, No. 14-03-00605-CR, 2004 WL 1381027, at *2 (Tex. App.CHouston [14th Dist.] June 22, 2004, pet. ref=d) (not designated for publication) (holding that appellant waived Apprendi complaint because objection made no references to Apprendi or its substance and thus gave trial court no opportunity to rule on such complaint), White v. State, No. 2‑02‑143‑CR, 2003 WL 865351, at *3 (Tex. App.CFort Worth Mar. 6, 2003, pet. ref=d) (not designated for publication) (same), Turner v. State, No. 05-04-00282-CR, 2004 WL 2802507, at *1B2 (Tex. App.CDallas Nov. 30, 2004, pet. ref=d) (not designated for publication) (holding that appellant waived Apprendi complaint by failing to object in trial court), and Macias v. State, No. 08-02-00533-CR, 2004 WL 1485758, at *3 (Tex. App.CEl Paso June 30, 2004, no pet.) (not designated for publication) (same), with Marrow v. State, 169 S.W.3d 328, 330 (Tex. App.CWaco 2005, pet. ref=d) (holding general objection sufficient to preserve Apprendi complaint because right to jury trial cannot be forfeited absent express waiver), and Garza v. State, No. 03‑04‑00398‑CR, 2006 WL 1707965, at *1 (Tex. App.CAustin June 23, 2006, no pet.) (not designated for publication) (same). [2] The trial court is, however, limited in its ability to stack a sentence for aggravated kidnapping. See Tex. Penal Code Ann. ' 3.03(a), (b), 20.04. See generally Patterson v. State, 152 S.W.3d 88, 91 (Tex. Crim. App. 2004). The trial court initially stacked all four sentences but later amended the stacking order to specify that the sentence for aggravated kidnapping was to run concurrently with the first aggravated sexual assault sentence.