Nguyen, Tha Dang

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-0260-11 & PD 0261-11

THA DANG NGUYEN, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY

C OCHRAN, J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, J OHNSON, H ERVEY and A LCALA, JJ., joined. K ELLER, P.J., and K EASLER,
J., concurred.

OPINION

We granted the State’s petition for discretionary review to decide if Texas Penal Code

Section 3.03(b)(2)(B) authorizes a trial judge to order consecutive sentences when a

defendant is originally charged with multiple sexual offenses but pleads guilty, pursuant to

a plea bargain, to multiple nonsexual offenses.1 Both appellant and the State offer plausible,

1
The State’s three grounds for review are as follows:
1. The court of appeals erred in concluding that TEX . PENAL CODE ANN . § 3.03(b)(2)(B) did
 Nguyen Page 2

but conflicting, interpretations of the statute’s text. Because we find that the statutory

language is ambiguous, we turn to its legislative history. This history shows that the

legislature enacted this provision to ensure that defendants who, pursuant to a plea bargain,

are placed on deferred adjudication for certain specified sex offenses are subject to the same

requirements, disabilities, and punishments that had previously been applied only to those

formally “convicted” of a sex offense. We therefore affirm the judgment of the court of

appeals, although for a different reason than that relied upon by the lower court.2

I. Background.

The State filed two separate indictments charging appellant with aggravated sexual

assault and sexual assault of two of his daughters. After plea negotiations, the prosecutor

added a handwritten injury-to-a-child count to each indictment. Appellant pled guilty to the

two counts of injury to a child, which is not a sex offense.3 The trial judge deferred

adjudication and placed appellant on community supervision for five years. The conditions

not authorize the trial court to order appellant’s sentences to run consecutively.
2. The court of appeals erred in concluding that sentence cumulation under TEX . PENAL
CODE ANN . § 3.03(b)(2)(B) requires the cumulation to be part of the plea-bargain
agreement because the language of § 3.03(b)(2)(B) imposes no such requirement.
3. The court of appeals erred in concluding that allowing cumulation of appellant’s
sentences under TEX . PENAL CODE ANN . § 3.03(b)(2)(B), without a plea agreement
providing for such cumulation, would violate due process.
2
Nguyen v. State, Nos. 02-09-00443-CR & 02-09-00444-CR, 2010 WL 5395820 (Tex.
App.– Fort Worth Dec. 30, 2010) (not designated for publication) (concluding that due process
principles prohibited consecutive sentences when defendant pled guilty to two counts of injury to
a child).
3
“Sexual offenses” for purposes of consecutive sentencing are listed in TEX . PENAL CODE
3.03(b)(2)(A), and include both aggravated sexual assault of a child and sexual assault of a child.
 Nguyen Page 3

of his community supervision included a ban on contact between appellant and his daughters.

Five months later, the State filed a motion to revoke community supervision, alleging

that appellant had contacted his daughters in violation of his community-supervision terms.

The evidence at the revocation hearing showed that appellant, who had been a Buddhist

monk, performed a funeral ceremony at a temple several months after he pled guilty. His

ex-wife and daughters attended that ceremony. After the ceremony, the family asked one of

the daughter’s teachers to take a photograph of the family, including appellant, his ex-wife,

his two daughters, and his youngest son.

One daughter testified that she thought her father was only prohibited from having

“harmful contact” with her and her sister,4 not from contacting them at all. She said that she

and her sister had contact with appellant at least once a week since his community

supervision began, but she and her mother took the photograph to the probation officer

because her mother was angry that appellant had been seeing another woman. The trial judge

revoked appellant’s community supervision based upon the violation of the “no contact”

order and sentenced him to “10 years’ confinement in each of the two cases, and the Court

orders that these cases run consecutively. . . . It is the specific order of this court that you

serve two 10-year sentences, one after the other, totaling 20 years.”

On appeal, appellant argued that the trial court erred in finding a community-

4
When the trial judge asked one daughter if appellant had ever molested her, she testified
that he had done so from when she was in the fourth grade until she was in tenth grade: “He took
his finger and went down there.”
 Nguyen Page 4

supervision violation based on contact that was facilitated by appellant’s ex-wife and in

ordering that the sentences run consecutively. The court of appeals noted a problem with

finding a violation based on contact that was initiated by appellant’s ex-wife and brought to

the State’s attention only after she became angry, but it found the evidence sufficient to show

a probation violation.5 However, the court of appeals held that the trial judge had erred in

ordering consecutive sentences because “[d]ue process prohibits punishing a person for an

offense of which he was not convicted and of which he may have been acquitted or for which

he may never have been prosecuted.”6 Since appellant had not bargained for consecutive

sentences, the Court held that nonconsensual consecutive sentences based on nonsexual

offenses violated federal constitutional due process.7 The court of appeals reformed the

judgment to order the two ten-year sentences to be served concurrently. Two judges

concurred without written opinion.

5
Nguyen, 2010 WL 5395820 at *1 (concluding that the evidence that appellant’s ex-wife
“actively participated in creating opportunities for contact between Appellant and the girls” did
not render the evidence of appellant’s violations insufficient).
6
Id. at *4. The court stated,
We hold that the plain reading of the statute reveals that section 3.03(b)(2)(B)
permits the State and a defendant to agree, pursuant to a plea bargain agreement,
to allow a defendant to plead to a non-sexual offense against a child and, at the
same time, agree that the sentences may be stacked. Due process prohibits
punishing a person for an offense of which he was not convicted and for which he
may have been acquitted or for which he may never have been prosecuted.
Interpreting the statute to allow a due process violation would be absurd.
Id. (footnotes omitted).
7
Id.
 Nguyen Page 5

II. The Statute and the Parties’ Contentions.

Section 3.03(b)(2)(B) of the Penal Code authorizes consecutive sentences when the

State charges a defendant with multiple sex crimes arising from the same criminal episode.

Before 1997, the Penal Code authorized trial judges to order consecutive sentences only

when the defendant committed several intoxication manslaughter offenses in the same

criminal episode.8 In the 1997 session, the Texas Legislature added provisions authorizing

trial judges to order consecutive sentences for certain specified sex offenses.9 The 1997 Act

revised Section 3.03(b)(2) to read as follows:

(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) [of online solicitation of a minor, continuous sexual abuse of a child,
indecency with a minor, sexual assault, aggravated sexual assault, prohibited
sexual conduct (incest), or sexual performance of 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

8
TEX . PENAL CODE §3.03(b)(1) (Vernon’s 1995). Section 3.03 then read:

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:
(1) an offense under Section 49.08 [involuntary manslaughter]; or
(2) an offense for which a plea agreement was reached in a case in which the accused was
charged with more than one offense under Section 49.08.
9
Act of May 31, 1997, 75th Leg., R.S., ch. 667 § 2, eff. Sept. 1, 1997 (“1997 Act”).
 Nguyen Page 6

same section more than once or is convicted of violations of both sections
(B) for which a plea agreement was reached in a case in which the accused
was charged with more than one offense listed in Paragraph (A) 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 charged with violations of the
same section more than once or is charged with violations of more than one
section.10

At issue in this case is the meaning of the italicized words in the statute.11 Do those words

refer to a plea bargain for sex offenses (appellant’s interpretation) or for a plea bargain for

non-sexual offenses as long as the defendant was originally charged with more than one sex

offense (the State’s interpretation)?

A. The State’s Interpretation.

The State claims that the statute is unambiguous on its face and argues that its plain

language permits the trial judge to impose consecutive sentences for multiple nonsexual

offenses if the Defendant was originally charged with qualifying sexual offenses but a plea

agreement for nonsexual offenses was reached.

The State relies primarily on the reasoning in Sikes v. State,12 an unpublished

memorandum decision from the Austin Court of Appeals. In Sikes, the defendant pled guilty

10
TEX . PENAL CODE §3.03(b) (emphasis added).
11
We note that the italicized language used in (B)–“for which a plea agreement was
reached in a case in which the accused was charged with more than one offense”–was carried
over verbatim from the earlier version of the statute dealing with consecutive sentences for plea
bargains for multiple intoxication manslaughter offenses. TEX . PENAL CODE § 3.03(b)(2)
(Vernon’s 1995) (quoted in full in note 8 supra).
12
No. 03-06-00608-CR, 2007 WL 4269815 (Tex. App.–Austin Dec. 5, 2007, no pet.) (not
designated for publication).
 Nguyen Page 7

to two counts: indecency with a child by contact and attempted indecency with a child by

contact, for which he was sentenced to five years in prison and ten years of community

supervision.13 The trial judge had carefully explained that, according to the explicit terms of

the plea agreement, Sikes was required to serve the entire five years on the first count before

the clock on his ten years of community supervision would begin ticking.14 Based on this

reasoning, the Sikes Court concluded that Sikes’s “guilty pleas were in accordance with the

plea agreement” that called for consecutive sentences, and the defendant had obtained a “most

favorable” plea agreement.15 The court also noted that “[a] careful reading of section

3.03(b)(2)(B) shows that it is applicable when the defendant is merely charged with more than

one [sex] offense. . . . The key word is charged, not convicted.”16 We note that the Sikes

opinion was unpublished, that it rejected an argument that Sikes’s judgment was legally

“void,” and that Sikes had expressly agreed to consecutive sentences as a part of his plea

agreement.

Besides relying on Sikes, the State argues the logic of the statutory language,

By its express language, subsection (b)(2)(B) applies to a defendant who

13
Id. at *1.
14
The Sikes court recognized that, under our precedent, an attempted offense–such as
“attempted indecency with a child by contact”–does not qualify for consecutive sentences under
Section 3.03(b). Id. at *3 (citing Parfait v. State, 120 S.W.3d 348 (Tex. Crim. App. 2003)).
15
Id. at *3-4.
16
Id. at *3. Indeed, that language is crucial because it could mean: (1) charged with a sex
offense but convicted of an entirely different, non-sex offense; or (2) charged with a sex offense
but placed on deferred adjudication for that sex offense without formal conviction.
 Nguyen Page 8

was charged with an enumerated offense (e.g.. aggravated sexual assault or
sexual assault committed against a child younger than age seventeen) and was
convicted of an offense for which a plea agreement was reached. Id. If these
requirements are met, then the sentence may run either concurrently or
consecutively.17

The literal language of the statute could be interpreted in this manner, but such an

interpretation leads to strange results and would punish those who are never convicted of any

sexual offenses more severely than those who have been formally convicted of a qualifying

sexual offense and an attempted sexual offense.18

B. Appellant’s Interpretation.

Appellant argues that nonsexual offenses do not qualify for consecutive sentences

under Penal Code 3.03(b)(2)(A); therefore, the statute does not authorize consecutive

sentences for any nonsexual convictions, regardless of whether the conviction was obtained

through a plea agreement in which the defendant had originally been charged with a sexual

offense. He insists that the sexual-offense charges disappeared when the prosecutor added

17
State’s Brief at 9.
18
We have previously held that Section 3.03(b)(2) does not authorize the trial judge to
order consecutive sentences when the defendant was formally convicted by a jury of attempted
aggravated sexual assault of a child and indecency with a child because the statute does not
explicitly include attempted sexual offenses in its list. Parfait v. State, 120 S.W.3d 348, 350
(Tex. Crim. App. 2003). It would seem peculiar indeed that consecutive sentences for formal
convictions for two child sexual offenses, one of which is an attempted sexual offense, is
prohibited, but consecutive sentences for two nonsexual offenses could be served consecutively
if they were the result of a plea bargain in which the defendant had originally been charged with
sexual offenses. In both situations, the defendant is charged with multiple qualifying sexual
offenses, but not found guilty of multiple qualifying sexual offenses. But we need not address
the “absurd results” prong of Boykin because we resolve the question by analyzing the legislative
history of the statute.
 Nguyen Page 9

counts for nonsexual offenses in the indictment and the parties reached a plea agreement on

those nonsexual offenses alone.

Appellant contends that, regardless of whether a defendant consents to consecutive

sentences in a plea agreement, Sections 3.03(b)(2)(A) and 3.03(b)(2)(B) authorize consecutive

sentences only when those sentences are for qualifying sex offenses. Under appellant’s

reasoning, the legislature intended to extend the authority to impose consecutive sentences

beyond formal “convictions” for sex offenses to include deferred-adjudication plea

agreements for sex offenses. Appellant reasons that the “charged with” language means that

“the plea agreement” refers to the “more than one” sexual offenses that the State has charged

the defendant with committing. Under his logic, the statute’s language does not indicate a

legislative intent to sever the plea agreement from the sexual-offense charges.

C. General Principles of Statutory Interpretation.

Statutory interpretation is a question of law that we review de novo.19 In interpreting

statutes, we seek to actualize the legislature’s collective intent.20 In doing so, “we necessarily

focus our attention on the literal text of the statute in question and attempt to discern the fair,

objective meaning of that text at the time of its enactment.” 21 If the plain language is clear

and unambiguous, our analysis ends because “the Legislature must be understood to mean

19
Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008).
20
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
21
Id.
 Nguyen Page 10

what it has expressed, and it is not for the courts to add or subtract from such a statute.”22

We give effect to the results of that unambiguous language unless doing so results in absurd

consequences.23 But when two alternative, plausible explanations of the “plain language” of

a statute so conflict as to make the statute’s language ambiguous, we may consult extra-textual

factors, such as the legislative history of the statute, to resolve the ambiguity.24

Distilled to its essence, the State’s argument is that “[i]t is the mere accusation” of

sexual offenses that allows consecutive sentences.25 Appellant’s counter argument is that any

consecutive sentence must result from a plea bargain to sexual offenses.26 Both the State and

appellant present plausible interpretations of the statute, so we look to the legislative history

to effectuate the collective intent of the legislature.

22
Id. (internal quotation marks omitted).
23
Id. at 785–86.
24
See Shipp v. State, 331 S.W.3d 433, 439 (Tex. Crim. App. 2011) (“Given the ambiguity
we perceive in the statutory language, and in order to make sure we do not defeat the legislative
purpose, we think it acceptable to consult extra-textual factors. One extra-textual factor we may
consider is legislative history.”) (footnotes omitted); Mahaffey v. State, 316 S.W.3d 633, 637-38
(Tex. Crim. App. 2010); see generally TEX . GOV ’T CODE § 311.023 (“In construing a statute,
whether or not the statute is considered ambiguous on its face, a court may consider among other
matters the . . . legislative history[.]”).
25
Nguyen, 2010 WL 5395820 at *4.
26
Id. at *3. As appellant put it in his Brief, “He plea bargained for two lesser, non-
stackable charges and the State chose not to prosecute the greater, stackable charges. The simple
truth is that the trial court stacked the unstackable and the Court of Appeals correctly knocked it
down.” Appellant’s Reply Brief at 8.
 Nguyen Page 11

III. Legislative History of the 1997 Changes to Section 3.03.

The 1997 legislature, in part of an omnibus bill, amended Penal Code Section 3.03 by

adding subsections (b)(2) (A) & (B) while making numerous other changes to the criminal law

concerning sex offenses. The entire omnibus bill adding the new subsection is titled,

AN ACT relating to the civil and criminal consequences of a grant of deferred
adjudication for a sexual offense or a sexually assaultive offense and to the
prosecution of certain defendants charged with or convicted of those offenses.27

The original Senate Bill, SB 381, did not include the “prosecution of certain defendants

charged with or convicted of those offenses language,” nor did it originally amend Section

3.03.28 Only after a Senate Justice Committee hearing in which two prosecutors testified did

the Senate add Section 2 of the Act, which amended Section 3.03 of the Penal Code. The

result was Committee Substituted Senate Bill 381.29

The five other substantive sections of the Act all added provisions to various penal,

procedural, and civil statutes dealing with deferred adjudication for sex offenses. The

Legislature tightened up procedures for placing defendants on deferred adjudication for these

offenses and amended statutes to ensure that those sex offenders given deferred adjudication

were, in some instances, treated as if they had been formally convicted of a sex offense. 30

27
1997 Act, supra note 9 at p. 2250.
28
Tex. S.B. 381, 75th Leg., R.S. (1997).
29
Tex. C.S.S.B. 381, 75th Leg., R.S. (1997).
30
For example, Section 1 authorized the trial judge to put sex-offense defendants on
deferred adjudication only if he makes an explicit finding that doing so is in the victim’s best
interest. 1997 Act at 2250 (amending TEX . CODE CRIM . PROC. art. 42.12). Section 2 added
 Nguyen Page 12

Taken together, the Act’s language and provisions show a legislative intent to extend

certain provisions applicable to sex offenders that had applied only to those with formal

convictions for sex offenses to those who are granted deferred adjudication. Most of the

provisions deal with sex offenders who commit crimes against children. At the behest of

prosecutors, Sections 3.03(b)(2)(A) & (B) were added to give trial judges the authority to

cumulate sentences for multiple sex offenses against children that were part of a single

criminal episode. Subsection (A) applied to those who were formally convicted of offenses

and subsection (B) applied to those who were placed on deferred adjudication for sex

offenses.

In the bill analysis by the House Research Organization for C.S.S.B. 381, the authors

give a general background concerning the use of deferred adjudication for both sexual and

nonsexual offenses and then provide a brief explanation of each section. Concerning the

proposed changes to Section 3.03, the drafters explained,

Trying multiple offenses together or separately. If a person were found
guilty of or entered into a plea bargain for two or more of certain specified sex
offenses occurring in the same criminal episode, the sentences could run
concurrently (at the same time) or consecutively (one after the other). This

§3.03(b)(2)(B) to the Penal Code. Section 3 limited severance of charges for child sex-offense
charges. Id. at 2252 (amending TEX . PENAL CODE §3.04). Section 4 authorized an habitual-
offender finding based on deferred adjudication for a child sex offense, when before only a
formal conviction authorized such a finding. Id. (amending TEX . PENAL CODE § 12.42). Section 5
clarified that deferred adjudication for child sex offenses, as well as a formal conviction, will
result in newspaper publication of the defendant’s sex-offender status. Id. (amending TEX . REV .
CIV . STAT . art 6252-13c.1). Section 6, the final substantive section, authorized newspaper
republication based on deferred adjudications, as well as formal convictions, when a defendant
moves to a new location. Id. (amending TEX . REV . CIV . STAT . art 6252-13c.1).
 Nguyen Page 13

would apply to the following offenses committed against a victim who was
younger than 17 years old: indecency with a child, sexual assault, aggravated
sexual assault, prohibited sexual conduct or sexual performance by a child.31

The bill analysis states that the defendant must have “entered into a plea bargain for two or

more of certain specified sex offenses occurring in the same criminal episode” to authorize

the trial judge to impose consecutive offenses. In a later section, the bill analysis sets out the

position of the bill’s supporters concerning the proposed amendment to Section 3.03(b)(2)(A)

& (B):

CSSB 381 would give courts the flexibility to order sentences for multiple sex
offenses from the same criminal episode to run concurrently or consecutively.
Currently, if multiple sex offenses are tried together, defendants serve their
sentences concurrently. This can result in an inappropriately light punishment
in which justice is not served for someone found guilty of multiple sex offenses
against children, CSSB 381 would allow courts this option only if the offenses
were part of the same criminal episode.32

This indicates that the supporters of the amendments to Section 3.03(b)(2)(A) & (B) believed

that the amended statute would apply only to those who have been sentenced for multiple sex

offenses–not for those who have been charged for sex offenses but sentenced for some other,

nonsexual offenses.

Opponents to the bill argued that “[s]pecial criminal statutes and exceptions should not

be carved out for sex crimes. Deferred adjudication for sex crimes should continue to be

31
House Research Organization, Bill Analysis for House Criminal Jurisprudence
Committee, C.S.S.B. 381 (May 20, 1997) (“1997 Bill Analysis”) (available at:
http://www.lrl.state.tx.us/scanned/hroBillAnalyses/75-0/SB381.PDF).
32
Id. at 4 (emphasis added).
 Nguyen Page 14

treated in the same manner as for other offenses.”33 Opponents stated that “CSSB 381 would

give too much power to the state and treat defendants unfairly by taking away defendants’

right to have multiple offenses tried separately and by giving judges the ability to make

defendants serve sentences consecutively.” 34

Again, there was no suggestion by anyone–the legislators, bill analysis drafters,

supporters, or opponents–that the amendment to Section 3.03 (or the other changes in the

omnibus bill) applied to those who had originally been charged with sex offenses but who

were convicted of, found guilty of, or pled guilty to unrelated nonsexual offenses. The Bill

analysis and statements by supporters and opponents indicate that the purpose of the Section

was to give trial judges the authority to cumulate, when appropriate, sentences for certain sex

offenders, regardless of whether that sentence was the result of a formal “conviction” or the

result of a deferred-adjudication plea agreement. At no point do the omnibus bill or its

legislative history suggest that prosecutors could charge a defendant with qualifying sexual

offenses and then reach a plea bargain on totally different, nonsexual offenses but make the

defendant serve consecutive sentences for the nonsexual offenses.

Furthermore, we note that, in 1995, the legislature enacted Section 3.03(b)(2) which

stated that a trial judge had the authority to order consecutive sentences for multiple

intoxication offenses if “each sentence is for a conviction of . . . an offense for which a plea

33
Id. at 5.
34
Id.
 Nguyen Page 15

agreement was reached in a case in which the defendant was charged with more than one

offense under Section 49.08.”35 This is precisely the same language that was carried forward

in Section 3.03(b)(2)(B) to apply to child sex offenses. Thus, the ambiguous language found

in Section 3.03(b)(2)(B) was simply carried over from that same ambiguous language

adopted for purposes of allowing consecutive sentences for multiple intoxication-

manslaughter convictions or plea bargains before it was made applicable to sex offenses.

There has never been any suggestion in the legislative history or judicial cases that the

intoxication-manslaughter provision allows the imposition of consecutive sentences when a

defendant was originally charged with intoxication-manslaughter offenses but pled guilty,

pursuant to a plea bargain, to some other offenses such as DWI.36 All of the legislative

commentary for both the amendments creating 3.03(b)(2) and 3.03(b)(2)(B) assumes that the

defendant was convicted of, or entered a plea bargain for, the targeted offenses: intoxication

manslaughter or child sex offenses.

35
Act of May 26, 1995, 74th Leg., R.S., ch. 596, § 1, 3435, 3435 (current version at TEX .
PENAL CODE § 3.03(b)(1)). The Senate Research Center bill analysis to that provision, HB 93,
states that the legislative intent is to increase “the penalty for fatally injuring more than one
person in a motor vehicle accident if the person is intoxicated.” It explains that Section 3.03(b)
“[a]uthorizes the sentence, if the accused is found guilty of more than one offense arising out of
the same criminal episode, to run concurrently or consecutively if each sentence is for a
conviction of an offense under Section 49.08 or an offense for which a plea agreement was
reached in a case in which the accused was charged with more than one offense under Section
49.08.” Id.
36
See generally, Yvanez v. State, 991 S.W.2d 280, 282 (Tex. Crim. App. 1999); Papke v.
State, 982 S.W.2d 464 (Tex. App.–Austin 1998, pet. ref’d) (upholding constitutionality of
Section 3.03(b), which authorized consecutive sentences for multiple intoxication manslaughter
convictions arising out of a single criminal episode).
 Nguyen Page 16

Therefore, we conclude that the legislative history indicates that the amendments to

Sections 3.03(b)(2)(A) & (B) in the 1997 omnibus act dealing with deferred adjudication for

sex offenders authorize a trial judge to cumulate sentences when a defendant has been

formally found guilty of or “entered into a plea bargain for two or more of certain specified

sex offenses occurring in the same criminal episode.”37 The statute does not authorize a trial

judge to cumulate sentences when a defendant has not been found guilty of multiple specified

sexual offenses,38 or when he has entered into a plea bargain for nonsexual offenses,

regardless of the charges in the original indictment.

This interpretation of Section 3.03(b)(2)(B) ensures that, in a case where sexual offense

charges are formally dropped or are never pursued, a plea bargain on nonsexual offenses will

result only in concurrent sentences. Defendants who reach plea agreements for nonsexual

offenses will be treated like those who were never charged with sexual offenses at all. This

similarity of treatment is appropriate because in neither situation has the State proved the guilt

of the sexual offenses, either by trial or a defendant’s guilty pleas to those offenses.39

37
1997 Bill Analysis at 2.
38
See Parfait v. State, 120 S.W.3d 348, 350 (Tex. Crim. App. 2003).
39
At oral argument, the State suggested that consecutive sentences for nonsexual offenses
are the price a defendant pays for a favorable plea bargain when he is charged with sexual
offenses (and, by implication, intoxication-manslaughter charges). We find the argument that the
legislature had this price in mind as its intent in enacting both Section 3.03(b) in 1995 and
Section 3.03(b)(2)(B) in 1997 unpersuasive. When the State charges sexual offenses and the
defendant pleads guilty to several nonsexual offenses, both parties obtain a benefit. The
defendant does not face the stigma and liabilities that flow from sexual-offense convictions,
liabilities that include consecutive sentences. The State has no need to establish difficult-to-prove
sexual offense charges, charges made especially difficult because proving them requires bringing
 Nguyen Page 17

Finally, we interpret the meaning of the language of Section 3.03(b)(2)(B) based on

legislative history because doing so avoids grappling with the potential constitutional due

process problem that legitimately concerned the court of appeals in this case.40 “If there is one

doctrine more deeply rooted than any other in the process of constitutional adjudication, it is

that we ought not to pass on questions of constitutionality . . . unless such adjudication is

unavoidable.”41 Interpreting the language of Section 3.03(b)(2)(B) to refer only to plea

bargain agreements for child sex offenses avoids the need to address the constitutional

question.

We therefore agree with the Court of Appeals’s decision to modify the trial court’s

judgment and order appellant’s sentences on his two convictions for injury to a child to run

concurrently. We affirm the judgment of the court of appeals.

Delivered: February 8, 2012
Publish

a young and frequently traumatized victim into court. Society benefits from this protection of
child sexual-offense victims as well, and, in its 1997 Act, the legislature specifically limited
charge severance in sexual-offense prosecutions because of “the difficulty of multiple trials for
child victims.” 1997 Act, Bill Analysis at 4.
40
Nguyen, 2010 WL 5395820 at *4 (concluding that due-process principles prohibited
punishing a defendant as if he had been convicted of an offense “of which he was not convicted
and of which he may have been acquitted or for which he may never have been prosecuted”).
41
Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944); Pena v. State, 191
S.W.3d 133, 136 (Tex. Crim. App. 2006) (quoting Spector); Ex parte Salfen, 618 S.W.2d 766,
770 (Tex. Crim. App. 1981) (“[T]he constitutionality of a statute will not be determined in any
case unless such a determination is absolutely necessary to decide the case in which the issue is
raised.”).