IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
EFRAIN ALAMEDA, Appellant
v.
THE STATE OF TEXAS
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
Holcomb, J., filed a dissenting opinion.
I respectfully dissent from the majority's holding that it was within the trial judge's discretion to order cumulation of the two 30-year sentences determined by the jury in this case.
In making this determination, the majority relies on our recent decision in Barrow v. State, 207 S.W.3d 377 (Tex. Crim. App. 2006), and goes so far as to hold that "the [Apprendi v. New Jersey, 530 U.S. 466 (2000)] line of cases does not [even] apply to a trial court's decision to cumulate jury-imposed sentences." I respectfully disagree. Indeed, for the reasons discussed below, I believe that Barrow itself might have been wrongly decided. (1)
Applicability of the Apprendi line of cases
In Barrow, this Court stated that
these cases [Apprendi and its progeny] hold that a trial court is prohibited from unilaterally increasing individual sentences on the basis of facts that were not resolved by the jury. Thus, Apprendi and its progeny clearly deal with the upper-end extension of individual sentences, when that extension is contingent upon findings of fact that were never submitted to the jury. These decisions do not, however, speak to a trial court's authority to cumulate sentences when that authority is provided by statute and is not based upon discrete fact-finding, but is wholly discretionary.
Barrow, 207 S.W.3d at 379 (emphasis in original).
In other words, Barrow dictates that the Apprendi line of decisions is applicable only in cases where a trial court has (1) unilaterally increased (2) individual sentences (3) on the basis of facts that were not resolved by the jury; but that it is not applicable in cases where the trial court's authority to cumulate sentences (1) is provided by a statute, (2) is not based upon discrete fact-finding, but (3) is "wholly discretionary." I respectfully disagree with such a narrow reading of Apprendi and its progeny.
It is true that in the Apprendi line of cases, the trial court had unilaterally increased individual sentences on the basis of facts not found by the jury. See e.g., Apprendi, supra (trial court imposed enhanced sentence on its separate finding that the crime had been motivated by racial bias); Ring v. Arizona, 536 U.S. 584 (2002) (trial court entered "Special Verdict," increasing Ring's sentence from life to death, based on its separate finding of aggravating factors justifying the imposition of death under the Arizona statute); Blakely v. Washington, 542 U.S. 296 (2004) (trial court imposed an "exceptional" sentence after making a judicial determination that the defendant had acted with "deliberate cruelty"); and United States v. Booker, 543 U.S. 220 (2005) (trial court required by the Federal Sentencing Guidelines to impose an enhanced sentence based on judicial determination of facts not submitted to the jury). However, the United States Supreme Court did not restrict its decision to these particular circumstances. As that Court clearly articulated, "the relevant inquiry is one not of form, but of effect -- does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Apprendi, 530 U.S. at 494 (emphasis added). See also Ring, 536 U.S. at 604 ("the relevant inquiry is one not of form, but of effect") (emphasis added).
The use of the words "required finding" in Apprendi might tempt the majority in the present case to reiterate the aforementioned Barrow holding that the Apprendi line of cases only "deal[s] with the upper-end extension of individual sentences, when that extension is contingent upon findings of fact that were never submitted to the jury," but that "[t]hese decisions do not . . . speak to a trial court's authority to cumulate sentences when that authority is provided by statute and is not based upon discrete fact-finding, but is wholly discretionary." Barrow, 207 S.W.3d at 379. But in so doing, the majority in this case would be emphasizing "form" over "effect," the very practice that the Apprendi line of cases discouraged, as shown in the above-cited quote. Moreover, the prohibited "effect" is quite clear in both Barrow and the present case. Thus, in Barrow, the jury had assessed the defendant's punishment at 15 years' imprisonment for count one and 20 years' imprisonment for count two. Since under the prevailing statute, Article 42.08 of the Texas Code of Criminal Procedure, (2) the jury is not required to indicate whether it expected those sentences to run concurrently or consecutively, there is no way to know whether it intended the defendant to spend a total of 20 years (if the sentences ran concurrently) or 35 years (if the sentences ran consecutively) in prison. Thus, if the jury had in fact determined that the appropriate punishment for Barrow was a total of 20 years' imprisonment, the judge's decision to cumulate the two sentences, resulting in a total of 35 years' imprisonment, in "effect" increased the jury-assessed sentence by fifteen years. And the fact that the judge based this decision without any additional fact-finding, or any input from the jury on this question, makes such just the kind of arbitrary decision-making that Apprendi and its progeny condemned. See, e.g., Booker, 543 U.S. at 238-39 ("The Framers of the Constitution understood the threat of 'judicial despotism' that could arise from 'arbitrary punishments upon arbitrary convictions' without the benefit of a jury in criminal cases.") (emphasis added).
Similarly, in the present case, the jury assessed punishment at 30 years for each of the two counts on which appellant was convicted; and, without any additional fact-finding nor input from the jury, the trial court cumulated that punishment to 60 years. Thus, again, if the jury, in assessing punishment, had in fact intended those sentences to run concurrently, the trial court in "effect" doubled the intended punishment, simply and solely because it was empowered to do so under Article 42.08. (3) In other words, the judge's decision to cumulate, which Barrow called "wholly discretionary," (4) is in fact wholly arbitrary, violating the constitutional mandate of Apprendi and its progeny, as well as all the sources cited therein.
Finally, the fact that the "trial court's authority to cumulate sentences . . . is provided by statute" (5) is of no constitutional significance, considering the United States Supreme Court did not hesitate to invalidate statutes providing similar authority to trial courts, in the Apprendi line of cases. See, e.g., Apprendi, 530 U.S. at 497 ("The New Jersey ["hate crime" statute] challenged in this case is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system"); Ring, supra, (invalidating the Arizona statutory scheme allowing the judge to sentence the defendant to death, upon the judge's independent determination of one or more aggravating factors enumerated in the statute); Blakely, supra (invalidating the Washington statute that authorized the trial court to impose an "exceptional" sentence, after making a judicial determination that the defendant had acted with "deliberate cruelty").
The Jury Assessment of Punishment
As this Court stated in Barrow:
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. Even so, it is left to the trial court to determine whether multiple sentences will run consecutively or concurrently. As the court of appeals pointed out, the Texas Legislature has assigned the decision to cumulate, vel non, in Section 3.03 of the Penal Code and Article 42.08 of the Code of Criminal Procedure, to the trial court. It is also clear from these provisions that the decision whether to cumulate does not turn on any discrete or particular findings of fact on the judge's part. Instead, cumulating is purely a normative decision, much like the decision of what particular sentence to impose within the range of punishment authorized by the jury's verdict. As such, it does not infringe upon the Sixth Amendment guarantee of a jury trial.
Barrow, 207 S.W.3d at 380.
I do not dispute whether "[i]t is well established that the constitutional right to a jury trial does not encompass the right to have the jury assess punishment." Id. It should be noted, however, that Barrow cited no authority to support its proposition that Texas allows defendants only a privilege, not a right, to opt for jury assessment of punishment. On the contrary, in the section just preceding the one cited by Barrow to show that "Texas is one of the few states that allow defendants" to opt for jury-assessed punishment, id. at 380 (citing 43 G. Dix & R. Dawson, Texas Practice: Criminal Practice and Procedure § 38.12 at 656 (2d ed. 2001)), clearly states that Texas in fact provides the defendant with a right, not just a privilege, to such option. See 43 G. Dix & R. Dawson, supra, § 38.11 at 656 ("Texas law provides the defendant with a right to jury sentencing. The right is purely statutory.")(emphasis added). Having made the decision to vest the defendant with such a right, Texas should have also ensured that the right would be absolute. Yet, by simultaneously vesting the trial judge with the authority to decide whether to cumulate the jury-assessed sentences, without any input from the jury on this critical decision, thwarts its own laudable objective. In other words, Texas giveth, but then Texas taketh away. The result is not only unconscionable but in fact unconstitutional, as illustrated by Barrow and the case before us now.
As we discussed in the previous section, the jury assessed Barrow's punishment at 15 and 20 years' imprisonment. It was the trial court's decision to cumulate those sentences, turning it into one long sentence of 35 years' imprisonment. Even though Texas law might have authorized the judge to do so, the practical "effect" (as emphasized by the Apprendi line of cases) is that the judge might well have increased Barrow's punishment by 15 years, if the jury had determined those two sentences with the expectation that they would be ordered to run only concurrently. Indeed, the jury might well have assessed Barrow's punishment at only 12 years' imprisonment, on each of the two counts, had they known that the judge would cumulate the two sentences. But the practical "effect," once again, is that Texas law - in spite of its claims to the contrary - gives the jury only a minor role in assessing punishment, while reserving the right for the judge to double that assessment, for any or no reason whatsoever. The constitutional danger of such unchecked discretion is clear when one stops to consider that, under the present statutory scheme, it would be perfectly legal for a judge to order two 30-year sentences to run consecutively if the defendant were black, but only concurrently if the defendant were white, without needing to even explain his reasons for the disparate decisions. Such is precisely the kind of "discretion" prohibited by Apprendi and its progeny. (6)
The Texas Law
As cited in the previous section, the Barrow Court stated that
the Texas Legislature has assigned the decision to cumulate, vel non, in Section 3.03 of the Penal Code and Article 42.08 of the Code of Criminal Procedure, to the trial court. It is also clear from these provisions that the decision whether to cumulate does not turn on any discrete or particular findings of fact on the judge's part. Instead, cumulating is purely a normative decision, much like the decision of what particular sentence to impose within the range of punishment authorized by the jury's verdict. As such, it does not infringe upon the Sixth Amendment guarantee of a jury trial.
Barrow, 207 S.W.3d at 380.
As we discussed in the previous section, however, Texas law vests the criminal defendants with a right, not merely a privilege, to have the jury assess their punishment. (7) The decision whether or not to cumulate a defendant's sentences has a significant bearing on that right, inasmuch as the cumulation can potentially double the punishment assessed by the jury. The fact that a statutory provision would allow a judge to order such a potentially substantial increase in the jury-assessed punishment, without even requiring the judge to make any fact-finding and thus at least objectively justify the increase, encourages precisely the kind of arbitrary decision-making that the Apprendi line of cases prohibited.
Moreover, it is not even clear whether the statutory law actually vests the trial judge with such absolute discretion. The Texas Penal Code § 3.03 states:
§ 3.03. Sentences for Offenses Arising Out of Same Criminal Episode
(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:
[certain enumerated offenses, including § 22.021, Aggravated Sexual Assault, at issue in both Barrow and the present case].
(Emphasis added. )
Thus, as the dissent in Barrow itself correctly pointed out:
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.
Id. at 382 (Meyers, J., dissenting) (emphasis in original).
As the dissent further clarified:
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, [as in Barrow and the present case,] 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.
Id. at 382-83.
With all due respect, I find the Barrow dissent's reasoning to be far more persuasive than that of its majority.
Conclusion
For all the above reasons, I believe that the majority's reliance on Barrow to dispose of the present case is sadly misplaced. Barrow should be overruled, not followed. Since Texas has given criminal defendants the right to opt for jury-assessed punishment, it should make that allowance wholeheartedly, without in any way diluting that right by simultaneously giving the trial judge the absolute and unchecked discretion to double, and possibly even triple, the punishment that the jury might have actually intended. Since the majority's construction of the Texas statutory scheme would authorize such an arbitrary result, thus violating both the United States Constitution, under Apprendi and its progeny, and the statutory right of the defendant to have jury assess punishment, under the applicable Texas law, I respectfully dissent.
FILED: JUNE 27, 2007
PUBLISH
1. In the interest of full disclosure, I admit that I had joined the majority in Barrow. But like Justice Scalia, who declared that he had "acquired new wisdom"since his prior inconsistent position in Walton v. Arizona, 497 U.S. 639 (1990) on this same issue of cumulating sentences, Ring v. Arizona, 536 U.S. 584, 611 (2002), I too acknowledge that I have gained new insight since Barrow; and like Justice Scalia, I too was persuaded to reconsider my position because of the greater clarity with which the issue has been presented in this case. See Ring, 536 U.S. at 611 ("In Walton, to tell the truth, the Sixth Amendment claim was not put with the clarity it obtained in [Almendarez-Torres v. United States, 523 U.S. 224 (1998)] and Apprendi.").
2. All future references to articles refer to the Texas Code of Criminal Procedure, unless otherwise specified.
3. See, e.g., Apprendi, 530 U.S. at 495 ("But it can hardly be said that the potential doubling of one's sentence - from 10 years to 20 - has no more than a nominal effect. Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here is unquestionably of constitutional significance.") (emphasis added).
4. 207 S.W.3d at 379 ("[t]hese decisions do not . . . speak to a trial court's authority to cumulate
sentences when that authority is provided by statute and is not based upon discrete fact-finding, but is
wholly discretionary.").
5. Id.
6. See, e.g., Booker, 543 U.S. at 238-39 ("The Framers of the Constitution understood the
threat of 'judicial despotism' that could arise from 'arbitrary punishments upon arbitrary convictions'
without the benefit of a jury in criminal cases.") (emphasis added).
7. See 43 G. Dix & R. Dawson, supra, § 38.11 at 656 ("Texas law provides the defendant with
a right to jury sentencing. The right is purely statutory.")(emphasis added).