IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS, Appellee
FROM THE TENTH COURT OF APPEALS
ELLIS COUNTY
O P I N I O N
I respectfully dissent from the majority's holding that a trial judge has discretion to cumulate jury-determined sentences under Texas Penal Code Section 3.03. Unlike Article 42.08 of the Code of Criminal Procedure, the language of 3.03(b) does not explicitly vest the trial court with the right to decide whether sentences will run consecutively or concurrently. Rather, Section 3.03 provides that when an accused is found guilty of more than one offense arising out of the same criminal episode, and the offenses are violations of Section 22.011 of the Penal Code committed against a victim younger than 17 years old, the sentences may run consecutively or concurrently. The statute does not address who makes the decision, or if the grant of discretion to the trial judge is proper if the jury is the finder of fact at punishment.
The issue in this case is one unique to the Texas bifurcated trial system. We have long held that neither the Texas nor the Federal Constitutional right to a trial by jury include the right to have the jury assess punishment. See e.g., Ex parte Moser, 602 S.W.2d 530, 533 (Tex. Crim. App. 1980). However, a defendant in Texas receives more protection than provided by the Sixth Amendment in that he has the statutory choice of having his punishment assessed by a jury of his peers in addition to his constitutionally guaranteed right to a jury trial. Allowing the trial judge to cumulate the jury-determined sentences is contrary to this choice of having a jury of peers assess punishment rather than a judge.
The majority states that the legislature assigned the decision to cumulate to the trial court in both Section 3.03 of the Penal Code and Article 42.08 of the Code of Criminal Procedure. However, as already discussed, Section 3.03 does not address who is to make the decision. Article 42.08 provides that when the same defendant has been convicted in two or more cases, the judgment in the second and subsequent convictions may, at the discretion of the trial court, run either concurrently or consecutively with the other sentences. The Article also provides that the court must order that sentences for offenses committed while the defendant is an inmate in the Texas Department of Criminal Justice will run consecutively with the current sentence.
Article 42.08 applies in two types of situations: those in which the defendant is being tried for several crimes in one trial; and those in which the defendant is convicted a second time while still serving his sentence from a previous conviction. When the convictions result from separate trials, it makes sense for the judge to determine whether or not to cumulate the sentences. In those situations, only the judge has access to all the facts relevant to the cumulation decision, because neither jury was the fact-finder for both cases. However, when the two cases are tried together, if the defendant has elected jury punishment, the jury does have all the facts relevant to sentencing and should be permitted to determine the cumulation issue, just as they decide all other punishment issues.
Because I disagree with the majority holding that the trial judge has discretion to cumulate jury-determined sentences under Section 3.03, I respectfully dissent.
Meyers, J.
Filed: November 15, 2006
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