Alameda v. State

breath, Hawkins, Thackston, Lynch Parnell & rill filed a motion to compel arbitra- LLP, TX, stay litigation. Dallas for Relators. tion and The trial court motion, ap- denied the and the court of Canales, (Tony) J.A. Hector Antonio Ca- peals denied mandamus relief. 123 S.W.3d nales, Simonson, P.C., Corpus Canales & 2003). (Tex.App.-San Antonio TX, Party for Real Christi Interest. For the reasons stated in an almost PER CURIAM. case, identical In re Merrill Lynch Trust Co., (Tex.2007), 235 S.W.3d 185 we hold After Pereyra Chris recovered mil- $2 the trial court abused its discretion in re- settlement, lion in a personal injury she fusing to compel arbitration with the Medi- Pierce, Lynch, retained Merrill Fenner & parties, na and in refusing stay employee Henry Smith Inc. and its Medina litigation against ML Trust. Accordingly, agreement as her financial advisors. Her hearing argument, without oral see Tex. Lynch with Merrill contained a broad arbi- R.App. P. conditionally grant we 52.8(c), tration clause: writ mandamus and order the trial agree may I that all controversies which court to vacate its order and enter a new us, including arise but not limit- between opinion. order accordance with this We involving any ed to those transaction or are confident trial comply, court will construction, performance, or breach only and our writ will issue if it does not. of this or any agreement other between us, prior, whether entered into on or participate Justice GREEN did not hereof, subsequent to the date shall be the decision. determined arbitration. investments, Among other Medina advised

Pereyra up a trust set account and Lynch Company

name Merrill Trust

Texas as trustee. The sole asset of the policy bought

trust is a life from variable Lynch

Merrill Life Insurance Company. Lynch Both of these Merrill affiliates— ALAMEDA, Appellant, Efrain ML Trust and ML Life—had their own contracts neither of Pereyra,

contained an arbitration clause. of Texas. STATE In Sеptember Pereyra initiated an No. PD-0231-06. proceeding against arbitration Merrill Co., Lynch, Lynch Henry Merrill & Medi- Texas. Appeals Court of Criminal na, & Group,1 alleging and Medina Medina 27, 2007. June fraud, fiduciary duty, breach of other claims related to the financial she services Pereyra also filed this

received. lawsuit Medina, Medina, &

against Medina asserting

ML Trust several torts as well Trust

as violations of Texas Code and

Texas Insurance Medina and Code. Mer- Smith, Lynch parent company

1. Merrill & a trade name Co. is Inc. Medina & Medina is Pierce, Lynch, Henry Defendant Merrill Fenner & used Defendant Medina. Swanda, Arlington, for Appel-

Dean M. lant. Gibson, Asst.

C. James Criminal District Paul, Worth, Atty., ‍​​‌‌​​‌‌​​​​​​‌‌‌​​​‌‌‌​​‌​‌‌‌​​‌‌​​‌​​‌​​‌‌​​‌​‍Fort State’s Matthew Atty., Austin, for State.

OPINION MEYERS, J., opinion delivered the Court, KELLER, P.J., in which and PRICE, JOHNSON, KEASLER, HERVEY, COCHRAN, JJ., joined. and Appellant was convicted of two counts of aggravated assault of a child under sexual fourteen. The assessed count, thirty years’ confinement for each trial and the ordered that sen- consecutively. Appellant tences be served order, appealed stacking as well as the tape trial court’s deсision to admit an audio and a of his conversations with victim The court transcription tape. of the audio appeals held that the trial court did not Appellant’s err in or in stacking tape the audio and the tran- admitting State, script. Alameda v. S.W.3d 2005). (Tex.App.-Ft. agree We Worth affirm appeals. of the court of the decision AND FACTS PROCEDURAL HISTORY Appellant going through a While divorce, 12-year-old he moved in victim, J.H., mother, Deborah, the sentences her should decide whether were Appellant eight judge. had known for trial whom cumulated rather than the years. nine He in an extra bedroom lived cases on this Because there are no Texas year. in Deborah’s home for close to a issue, at other the court of looked out, Appellant After moved Deborah be- courts, as as at how federal state well suspicious1 Appellant came that and J.H. interpreted wiretap courts the federal communicating without her knowl- were law, to the Texas law. which similar jack in edge, phone so she attached to considered the factors appeals The court of garage recording her a device that would Pollock, in 154 F.3d 601 outlined Pollock incoming outgoing record all and calls on (6th Cir.1998), parent held that a weeks, telephone. her home Over two may to record a give vicarious-consent twenty Deborah recorded almost hours of par- if the telephone child’s conversations J.H., Appellant conversation between and believing good-faith ent has a basis they be- neither of whom that were knew interest of the recording is in the best that ing suspect recorded. did not Deborah Although child. vicarious-consent having a Appellant that and J.H were sex- to the Texas exception as an listed relationship ual until she heard the record- that, law, held appeals the court of ing of their conversations. Deborah took child, parent may a protect order to police, Appellant to the and audiotape telephone her child’s conversations record charged aggravated was sexual as- with recording if the meets the standards sault child. Alameda, 181 at 778. Pollock. S.W.3d trial, mo- Appellant Prior to his filed a the trial appeals agreed court of suppress audiotapes. tion to He that Deborah had a court’s determination claimed that it an offense under Penal was belief objectively reasonаble good-faith, intentionally Code section2 16.02 to inter- recording phone conversations cept a communication con- wire without there- of J.H. and in the best interest was sent, audiotape so the was inadmissible Ap- of court’s denial upheld fore the trial under Code of Criminal Procedure article3 Id. at 780. suppress. motion to pellant’s 38.23. The trial found that Deborah audiotape the court held that Because recording vicariously could consent to the admitted, con- Appellant properly was conversations, of so the audio- phone J.H.’s transcript that the was admissible ceded tape admissible. was admissible, the court audiotape was admissibility of appeals did not address convicted, ap- he Appellant After The court of transcript. Id. the trial decisiоn to admit pealed court’s regarding claim rejected Appellant’s also transcript of the re- audiotape and sentences, stating cumulation of his cording. appealed He also the trial court’s for the trial improper it was not 30-year cumulation two to determine jury, than the judge, rather imposed by arguing that the jury, refer to to sections family All future references Appellant's made state- 2. 1.Members Code, specified. which led her to believe otherwise ments to Deborah Penal unless Texas Appellant frequent con- and J.H. were in also tact with each other. Deborah was Tex- articles refer to references to 3. All future Appellant to do aware that had allowed J.H. unless other- Procedure as Code of Criminal of, approve things did not such as that she specified. wise enough, driving though was not old even she join lying age in about her order gym. Texas, the State of or laws of be cumulat- Constitution the sentences would Unit- or of the Constitution laws cumulating at Because the ed. Id. 781. America, shall be admitted the statuto- the sentences does exceed ed States offense, on the trial against the court held the accused ry maximum evidence Therefore, criminal because that the cumulated sentence does not vio- case.” any 16.02(b)4 Jersey, person v. New 530 U.S. that a com- late states section (2000). intentionally inter- 120 S.Ct. L.Ed.2d if he mits an offense Alameda, communication, 181 S.W.3d audio- cepts a wire inadmissible unless the vicarious- tapes are Appellant petition filed a for discretion- the con- meets given consent Deborah review, ary asking us to consider whether or the inter- to this statute5 exception sent grafting erred in an appeals the court of for some other reason. ception legal was exception into the relevant statute in order that the vicarious-con- argues Appellant that audiotape proper- to conclude was apply does not to the wire- exception sent ly Appellant argues admitted. that be- on tap argument He bases this laws. Duf- the court of held appeals improperly cause State, 17, (Tex.App.-El fy v. 33 S.W.3d admissible, audiotape was State, 2000, pet.), no and Kent v. Paso in failing court erred to address the merits (TexApp.-Amarillo S.W.2d of his claim that the transcript of the d), in both courts stated that pet. ref Fi- audiotape improperly was admitted. applied be in all circum- section 16.02 must nally, Appellant to asks us consider wheth- specifically excepted. stances are holding er the court of erred in appeals However, noted, as the court of the trial court’s cumulation of his distinguishable from Duffy and Kent are sentences does not Apprendi. violate cases ad- Appellant’s case because those spouse can vicarious- dressed whether DISCUSSION ly recording to the other consent Admissibility Audiotape of the conversation, rather than the is- spouse’s 38.23(a) vicariously parent Article of the a can Texas Code sue of whether states, child’s recording of Criminal Procedure “No to the of her evi consent Alameda, dence obtained an officer or 181 S.W.3d at per other conversations. any provisions son in violation of n. 1. fact that there is no inter- wire, 16.02(b) through interception of a 4. Texas Penal Code Section states tained person per- oral, that a an if the commits offense in viola- or electronic communication son: tion of this subsection. (1intentionally intercepts, endeavors to in- 16.02(c), it an affirmative 5. Under section tercept, procures person or to in- another wire, (b) tercept intercept prosecution or endeavor to a defense to under Subsection oral, communication; or electronic that: (2)intentionally discloses or endeavors to (4)a person acting color of law under person disclose to another the contents of a wire, oral, intercepts or electronic com- a oral, wire, or electronic communication if munication, if: person knows or has reason to know the (A) person party to the communica- through the inter- information was obtained tion; or wire, oral, ception of a or electronic com- (B) parties one of the to the communica- subsection; munication in violation of this prior given consent to the inter- tion has (3)intentionally to use the uses or endeavors oral, ception, communication is inter- wire, unless the or electronic com- contents committing cepted purpose an person reck- munication knows was ob- unlawful act. less about the information spousal exception Therefore, consent wiretap reject Appellant’s to the we conten- tions that the preclude recog- exception statute does not us from vicarious-consent unlawfully right violates a minor’s parent-child priva- to nizing ex- vicarious-consent cy parent right and that a has the ception. only consent in the circumstances listed in Appellant also cites cases related to a family code. right minor child’s an seek abortion or Because no Texas cases have addressed purchase contraceptives paren- without parent’s ability to vicariously consent to tal proposition consent for the that a child the recording telephone of a child’s conver- the right privacy, general has and this sations, and wiretap the federal statute is right privacy should not be taken from substantively the same as the Texas stat- the child unless significant there is a state ute, we look to the Sixth Circuit’s decision Appellant argues that, interеst. further Pollock, (6th in Pollock v. 154 F.3d 601 Family because the Texas Code6 lists the Cir.1998), leading regard- which is the case circumstances parent under which a has ing the vicarious-consent doctrine to consent on of a child behalf context of the federal statute.7 does not mention the to consent Pollock, plaintiff step- the child’s conversations, recording to the of a child’s mother and the defendant was child’s legislature we should assume that the in- appealed mother. The the tri- stepmother tended that no right such exist. al court’s determination that the mother disagree. We dealt both the We had not Title III of the Omnibus violated right to privacy ability and a mother’s to Act, Crime Control and Safe Streets 18 State, consent for her in child Sorensen v. § U.S.C. 2511 she recorded conver- when 478 S.W.2d 532 (Tex.Crim.App.1972). sations daughter bеtween her and though Even the child in Sorensen was not plaintiff. upholding the trial court’s minor, we held that a child has no rea- decision,. the court of looked to expectation sonable privacy in his room federal and in state case law which parent room, routinely when enters the ap- vicarious-consent had been doctrine parent vicariously and that a can plied consent wiretap to both and federal state Pollock, to a search of her room. Id. child’s at 534. statutes.8 at 608-610. 154 F.3d Family intercept 6. Texas Code section 151.001 lists under color of law to a wire com- rights parent: party person and duties of a is a munication where such par- ( n ) parent or where one of the communication following A of a child has the given prior ties to the communication hаs rights and duties: ( n ) interception consent to such unless such com- to consent to the mar- child's intercepted purpose munication is riage, in enlistment the armed forces of the committing any criminal act. States, care, United medical and dental and psychiatric, psychological, surgical and Price, Campbell 2 8.The court referenced v. treatment; (E.D.Ark.1998), F.Supp.2d vi 1186 where the (7) represent legal the child in applied carious-consent to Title doctrine action and to make other decisions of sub- III; Silas, (Ala.Civ. Silas v. 680 So.2d 368 legal significance concerning stantial Diaz, N.J.Super. App.1996) and v. 308 State child; 504, (N.J.Super.A.D.1998), 706 A.2d 264 l(l)(a) § applied 7. 18 U.S.C. states in relevant doctrine 251 the vicarious-consent statutes; part any person intentionally respective wiretap who inter- to the state’s 318, Williams, cepts any Mich.App. pun- wire communication shall be 581 Williams v. 229 777, analog (Mich.Ct.App. ished. The federal to the consent ex- N.W.2d WL 180849 2511(2)(d) 1998) ception § Virginia Dep't is in 18 U.S.C. Health & states and West L., person acting that it is not unlawful for a Human v. David 192 W.Va. Resources exception to the Tex- adopted court the rule set out in Deborah satisfies the And, Thompson Dulaney, F.Supp. since it is not a wiretap as statute. (D.Utah 1993), and held that: 16.02 to violation of Penal Code section faith, communica- long guardian good intentionally intercept as as the has a an oral objectively consented, believing party reasonable basis for ‍​​‌‌​​‌‌​​​​​​‌‌‌​​​‌‌‌​​‌​‌‌‌​​‌‌​​‌​​‌​​‌‌​​‌​‍no tion law was necessary that it is and in the best inter- broken, 38.23 not render and article does of the est child to consent on behalf of the evidence inadmissible. taping his or her minor child to the Appellant may states that this case illus- conversations, telephone the guardian why exception trate a vicarious-consent may vicariously consent on behalf statute, added to the but he should be recording. child to the by the argues that it should be added

Pollock 154 at F.3d 608-610. Unlike However, not the courts. legislature and adults, legal ability minors do not by holding parent give can vicari- consent most situations. As the child, adding ous-consent for a we are noted, Thompson court the vicarious-con- exception to the statute. new necessary sent doctrine was because chil- Rather, saying are that vicarious-con- we dren lack both “the capacity to consent sent, type recognized which is a consent ability give and the actual consent.” many regarding contexts the law F.Supp. parent-child relationship, applies also Appellant that, case, argues in this existing exception consent to the wire- J.H. did ability have the to consent be tap statute. cause she years was thirteen old at the Admissibility Transcript recorded, time the conversations were whereas the children in Thompson were audiotape if the Appellant concedes that only However, three years and five old. admissible, complaint regarding were his the vicarious-consent doctrine has also admissibility transcript the of the of the applied children, been including older be moot. recorded conversations would fourteen-year-old in Pollock. A minor’s Therefore, audiotape because the was ability actual preclude consent does not admitted, prоperly transcript the was also her ability vicariously mother’s consent admissible, and we do not need to address on her behalf. Thus the standard set out Appellant’s ground second review. in Pollock is that vicarious-consent is ac in appeals failing The court of did not err ceptable if parent objectively had an to consider the merits of this claim. reasonable, good-faith belief that consent Cumulation Sentences ing for the child in the was child’s best interest. the trial Appellant argues cumulating erred in sen two agree appeals with the court

We imposed by jury. He reasonable, tences claims objectively Deborah had an improper that this cumulation order good-faith believing basis for was that record- 1) ing Appi'endi by in because it violated assess conversations wаs J.H.’s best ing punishment greater interest. Because the than recording of the what was jury conversations meets the standards set out authorized who determined the 2) Pollock, sentence, jury, in than the given vicarious-consent and rather (W.Va.1994), and 453 S.E.2d 646 ad both federal state statutes. under dressed vicarious-consent doctrine admit-

judge, properly determine audiotape should sen Since the ted, transcript tences should be cumulated. dealt We of the admissibility issue, each of in these issues Barrow v. not at the recorded conversations State, 207 377 (Tex.Crim.App. S.W.3d err in did not and the court of appeals 2006), holding that it the trial was within claim. of this failing to consider the merits court’s discretion to cumulate the sen 30- the two Although jury imposed tences, and that the cumulated sentence trial sentences, it year was within did not in viоlate As stated we to or- judge’s discretion to decide whether Barrow, the Apprendi line of cases does consecu- be served der that the sentences apply a trial court’s decision to re- properly tively. appeals The court of cumulate jury-imposed sentences. Bar regarding jected Appellant’s arguments row, opinion 207 S.W.3d at 379. While the upheld and of his sentences cumulation of the appeals inaccurately court of implies order. The the trial cumulation court’s that Apprendi only is violated when is affirmed. appeals court of decision statutory sentence exceeds the maximum offense, the court was correct that KELLER, P.J., concurring filed a the sentence in this case did not violate KEASLER opinion, which Alameda, Apprendi and its progeny.9 J., WOMACK, HERVEY, JJ., joined. S.W.3d at 781. concurring joined part and filed a Barrow, also determined we opinion. decision cumulate sentences HOLCOMB, J., dissenting filed fact, does not turn on a finding of so even sentences, opinion. assessed the a trial judge may order that the sentences run KELLER, P.J., in which concurring Barrow, consecutively. at 380. S.W.3d HERVEY, JJ., KEASLER, joined. Although the court of did not have the benefit of our decision in Barrow at bear on the admissi- Three salient facts decision, properly the time of its the court (1) in this case: bility tape recording held that the trial court did not err conver- parties to the recorded cumulating by the imposed the parent a the minor child of sations was jury- (2) recording recording, the conducting the part as of by parent the was conducted CONCLUSION (3) welfare, caring for the child’s We hold that the doctrine of vicarious- telephone through occurred recording applies consent to the consent of exception home. Be- in jack parent’s located Because the wiretapping statute. vic- facts, I hold would cause of these three provided tim’s mother the consent neces- “in- recording that did not constitute sary for the to the affirmative defense wiretap stat- under the Texas terception” tapping, statute it prohibiting wire was ute. a violation of Penal section 16.02 to Code wiretap Therefore, under the record the For a crime to occur conversations. statute, interception or must be an audiotape legally obtained and there was was wire, oral or by interception article 38.23. an intended rendered inadmissible that, as- that can be 9. Thе line of cases determined the maximum by jury. when a defendant elects to have a assess made sessed must be punishment, any finding of fact that increases con- exception originally that the plained communication.1 The statute electronic of “ordinary course business” tained no “intercept” has the same provides af- This limitation added limitation.6 meaning as defined under Article 18.20 Schwartz, testifying Herman ter Professor Procedure, governing Code Criminal A.C.L.U., complained on behalf of the wiretaps.2 Under law-enforcement-related po- unqualified language would allow 18.20, “the aural “intercept” Article means to enter oth- private licemen and intruders acquisition or other of the contents of a listen in on extension ers’ homes and wire, oral, or electronic communication But, declining to penalty.7 phones without electronic, through the use of an mechani- be exception the entire recommend cal, or other device.”3 This definition commented, deleted, Professor Schwartz turn relies upon definition “electron- it a crime nobody “I it wants to make take ic, mechanical, device,” or other ex- teenage in on his for a father listen plicitly types excludes certain of instru- daughter problem.”8 or some such related equipment.4 Among ments or other things, wiretap statute excludes from ap- courts federal Several telephone telegraph its reach “a or instru- phone exception to in- plied the extension ment, equipment ... used for the [or] by parent of a minor recording home communications, transmission of electronic reсording child’s because the conversations ... if the ... equipment instrument [or] ordinary course of the was done within ... is ... furnished to the subscriber the child.9 parent’s caring business of provider user or electronic wire Supreme Hampshire of New Court ordinary communications in the service interpreting the same lan- followed suit provider’s course of the being business and statute.10 I guage wiretap in its own used the subscriber or ordi- user these cases and hold that a would follow nary course its business.”5 con- parent’s recording of a minor child’s jack telephone versations from a within All language virtually of this identical purpose caring the home for language in the federal wiretap statute. from exempt child constitutes a use that is reviewing legislative history of the statute. (what counterpart federal to this provisiоn comments, has become I join opinion known as “extension these With phone” exception), the Second ex- of the Circuit Court. 16.02(b). Grant, 149, (7th § 1. Tex. Pen.Code 153-55 9. Scheib v. F.3d Cir.1994); Ingle, v. 944 F.2d Newcomb 16.02(a). § Franklin, Cir.1991); (10th Janecka (2nd Cir.1988), affirming 843 F.2d 18.20, 1(3). § 3. TexCode Crim. Proc. Art. approving opinion district court 18.20, 1(4). § 4. Art. (S.D.N.Y.1987); Anonymous, F.Supp. 24 558 Pollock, v. 154 F.2d at 679. But see Pollock 18.20, added). l(4)(A)(emphasis § 5. Art. (6th Cir.l998)(declining to follow F.3d 601 citing support but them as some these cases 677, Anonymous Anonymous, 6. v. F.2d 558 recording holding exempting parental for its (2nd Cir.1977). 679 of a minor child's conversations under Id. statute). 7. exception to the "consent” (quoting Hearings

8. on the Anti-Crime Id. 346-47, 344, Telles 139 N.H. 10. State v. Program Before 5 of the Subcomm. No. 554, (1995). A.2d 556-57 Comm., Judiciary Cong., 1st Sess. House 90th (1967)). WOMACK, J., concurring. progeny clearly and its deal with the upper-end extension of individual sen- I join judgment of the and the Court tences, when that extension is contin- portions оpinion of its that are headed gent upon findings of fact that were “Admissibility Transcript” and “Cu- jury. never submitted to the These de- mulation of Sentences.” not, however, do speak cisions to a trial For the given Presiding reasons authority court’s to cumulate sentences ante, Judge’s opinion, agree I that the tape authority provided by when stat- recording was admissible. ute and is not based upon discrete fact- finding, wholly discretionary. but is HOLCOMB, J., dissenting. Barrow, (emphasis 207 S.W.3d at 379 I respectfully majori- dissent from the original). ty’s holding that it was within the trial words, In other Barrow dictates judge’s discretion to order cumulation of Apprendi applicable line of decisions is 30-year by two sentences determined (1) only in cases a trial ‍​​‌‌​​‌‌​​​​​​‌‌‌​​​‌‌‌​​‌​‌‌‌​​‌‌​​‌​​‌​​‌‌​​‌​‍court where has in this case. (2) unilaterally increased individual sen- determination, In making this the ma (3) tences on the basis of facts that were jority relies on our recent decision in Bar by jury; but that it is not resolved (Tex.Crim. State, row v. 207 S.W.3d 377 applicable cases where the trial court’s App.2006), goes so far as to hold that (1) authority pro- to cumulate sentences [Apprendi Jersey, “the v. New 530 U.S. (2) statute, by a upon vided is not based 466, 2348, 120 S.Ct. 147 L.Ed.2d 435 (3) fact-finding, “wholly discrete but dis- (2000)] line of cases does not apply [even] I cretionary.” respectfully disagree with to a trial jury- court’s decision to cumulate reading Apprendi such a narrow and its imposed respectfully sentences.” I dis progeny. Indeed, agree. reasons discussed It is true that in the line of Apprendi

below, I might believe that Barrow itself cases, unilaterally the trial court had in- wrongly been decided.1 creased individual sentences on the basis by jury. e.g., of facts not found See Applicability Apprendi (trial Apprendi, supra imposed court en- line cases separate finding hanced sentence on its Barrow, this stated that Court the crime had been ra- motivated bias); Atizona, [Apprendi progeny] Ring these cases and its cial 536 U.S. (2002) prohibited hold that a trial court is from 122 S.Ct. L.Ed.2d 556 (trial unilaterally Verdict,” in- increasing “Special individual sen- court entered on creasing Ring’s tences the basis of facts that were not sentence from life to Thus, death, jury. separate finding resolved based on its Barrow; disclosure, Scalia, In the interest of full I admit that and like I Justice too was joined majority persuaded my position I had in Barrow. But like to reconsider because Scalia, greater clarity Justice who declared that he had "ac has which the issue quired prior presented Ring, new wisdom” since his inconsis bеen in this case. See Walton, Arizona, 611, (“In position tent in v. 497 122 Walton U.S. U.S. at S.Ct. 2428 639, 3047, (1990) truth, 110 S.Ct. 111 L.Ed.2d 511 tell the the Sixth Amendment claim was sentences, cumulating put clarity on same issue of not with the it obtained in [Almen this Arizona, 584, 611, States, 224, Ringv. 122 536 U.S. S.Ct. v. United 523 U.S. darez-Torres 2428, (2002), 1219, (1998)] I 118 153 L.Ed.2d 556 too acknowl S.Ct. 140 L.Ed.2d 350 edge gained insight Apprendi.”). I that new since

227 Moreover, aggravating quote. prohibited factors cited “ef- justifying imposi- statute); tion of quite death under the Arizona fect” is clear in both Barrow and the Barrow, 296, Thus, in Blakely Washington, present jury v. 542 124 case. U.S. (2004) (trial 2531, punishment 159 403 S.Ct. L.Ed.2d had assessed defendant’s imposed “exceptional” court an sentence years’ imprisonment at 15 count making judicial after for count years’ imprisonment determination that and 20 two. statute, prevailing defendant had ácted with “deliberate Since under the Article Booker, cruelty”); and United States 42.08 of the Texas Code of Criminal Proce- 738, dure,2 jury required 543 U.S. 125 160 to indicate S.Ct. L.Ed.2d (2005) (trial by 621 court run requirеd expected the whether it those sentences to Sentencing Federal impose concurrently consecutively, Guidelines to or there is no judicial an enhanced sentence on way based to know whether it intended the de- (if determination of spend years facts submitted to the fendant to a total of 20 (if jury). However, the States Su- ran or concurrently) years United 35 preme did not consecutively) prison. Court restrict its decision to the sentences ran in particular Thus, these determined jury circumstances. As that if the had in fact clearly articulated, appropriate punishment Court “the relevant in- for Bar- quiry form, years’ is one not of but of of 20 imprisonment, row was a total effect— the required finding expose does the de- judge’s decision to cumulate the two to a greater punishment sentences, fendant than resulting years’ in a total of 35 jury’s guilty authorized imprisonment, verdict?” in “effect” increased Apprendi, 530 (emphasis at 494 jury-assessed years. add- sentence fifteen U-S. ed). Ring, See also 536 U.S. at 122 And the fact that the judge based this (“the inquiry S.Ct. any relevant is one not decision additional fact-find- without form, added). but effect”) (emphasis ing, any input jury from the on this question, just makes such of arbi- kind The use of the “required finding” words trary decision-making Apprendi Apprendi in might tempt the in majority See, Booker, progeny its e.g., condemned. present case to reiterate the aforemen- (“The 238-39, at U.S. S.Ct. 738 tioned Barrow holding that the Framers of the Constitution understood line of only cases upper- with the “deal[s] ‘judicial despotism’ the threat of that could end sentences, extension of individual ‘arbitrary punishments upon arise from when that extension contingent upon arbitrary convictions’ without the benefit findings that were never submitted offact cases.”) jury (emphasis in criminal “[tjhese jury,” to the but that decisions do added). not ... speak to a trial authority court’s case, cumulate authority Similarly, present sentences when that in the provided by upon years statute and is not based at assessed for each discrete fact-finding, wholly but is discre- of the counts on appellant two Barrow, tionary.” convicted; and, any 207 S.W.3d without additional doing, majority But in so fact-finding input jury, this case nor from the “effect,” emphasizing would be “form” over trial court that punishment cumulated Thus, very practice years. again, jury, that the if the Apprendi line of as- discouraged, sessing cases as shown in the punishment, above- had fact intended specified. 2. All future references to аrticles refer to the otherwise Procedure, Texas Code of Criminal unless jury the as- compass right to have concurrently, those sentences to run the intended Texas is one of the punishment. trial court “effect” doubled sess solely because it punishment, simply and states that allow defendants few empowered do so under Article statute, to by opting jury of for privilege, words, judge’s deci- 42.08.3 other so, it punishment. of Even assessment cumulate, sion to Barrow called left to the trial court to determine is wholly “wholly discretionary,”4 is in fact run con- multiple sentences will whether arbitrary, violating constitutional man- the court secutively concurrently. or As Apprendi progeny, date of and its as well out, Legis- the Texas appeals pointed of as all the sources cited therein. cu- assigned the decision to lature has non, mulate, vel in Section 3.03 the “trial court’s

Finally, the fact that of Article the Code Penal Code and authority pro- ... to cumulate sentences is J/Z.08 Procedure, to trial Criminal of no by vided statute”5 is constitutional provi- these court. It is also clear from significance, considering the United States to cumu- sions that decision whether Supreme Court did not hesitate to invali- any not turn on discrete late does providing authority date statutes similar to findings judge’s of fact on the courts, particular trial in the line of cases. See, Instead, cumulating purely e.g., Apprendi, part. U.S. (“The decision, much like the deci- Jersey crime’ normative [‘hate S.Ct. 2348 New to im- challenged particular in this case is an unac- sentence statute] sion what ceptable departure jury range from the tradition pose within crimi- As indispensable part jury’s that is an of our verdict. authorized (invali- justice system”); Ring, supra, such, upon nal the Sixth infringe it does not statutory scheme dating the Arizona allow- trial. jury guarantee Amendment to ing to sentence defendant Barrow, at 380. 207 S.W.3d death, upon judge’s independent deter- aggravating mination of or more fac- dispute is well “[i]t I do not statute); Blakely, right tors enumerated in the to that the constitutional established Washington statute supra (invalidating encompass trial does not jury an impose that authorized the trial court to Id. jury punishment.” assess to have sentence, making ju- “exceptional” noted, however, after that Barrow It be should dicial the defendant determination authority support proposi- its cited no cruelty”). had acted with “deliberate only a defendants tion that Texas allows jury as- right, oрt not a privilege, Jury Assessment Punishment contrary, On the punishment. sessment As in Barrow: this Court stated one cited just preceding the in the section “Texas is one of by Barrow show that the constitu- It is established well defendants” that allow trial not en- the few states tional to a does ("[t]hese 3.See, decisions do at 379 4. 207 S.W.3d e.g., Apprendi, 530 U.S. at (“But hardly authority speak it can be said that court's S.Ct. 2348 ... to a trial doubling potential authority of one’s sentence—from when that cumulate sentences years a nominal to 20—has no more than upon and is not based provided statute years be- effect. Both in terms of absolute wholly fact-finding, discretion- but is discrete bars, of the more severe hind and because ary."). attached, here un- stigma the differential significance.”) questionably of constitutional 5. Id. added). (emphasis

229 But the two sentences. id. at cumulate jury-assessed punishment, for would ‍​​‌‌​​‌‌​​​​​​‌‌‌​​​‌‌‌​​‌​‌‌‌​​‌‌​​‌​​‌​​‌‌​​‌​‍opt “effect,” that again, once Dawson, practical Texas the (citing 43 G. Dix & R. the claims to spite of its Texas law—in Practice and Proce- Practice: Criminal role only a minor jury the (2d contrary gives ed.2001)), clearly § dure 38.12 at 656 — reserving punishment, while assessing the de- provides states that Texas fact that judge to double right for the the to right, just privilege, fendant assessment, or no reason whatso- any Dawson, Dix R. option. such See 43 G. & of such danger The constitutional (“Texas ever. § provides 38.11 at 656 law supra, is clear unchecked discretion when right jury to sentenc- the defendant with that, present under the stops to consider (em- ing. purely statutory.”) scheme, perfectly be statutory it would added). phasis Having made the decision 30-year to order two legal judge for a a right, the defendant with such vest consecutively if to run the defen- that Texas should have also ensured the if black, only concurrently but dant were Yet, by would be absolute. simulta- white, needing the defendant were without the trial the neously vesting judge with dispa- explain his reasons even authority to decide to cumulate the kind precisely Such is rate decisions. sentences, jury-assessed any the without by Apprendi and prohibited of “discretion” input jury from the on this critical deci- progeny.6 its sion, objective. its thwarts own laudable words, giveth, other Texas but then The Texas Law away. only Texas taketh The result is not section, the previous As cited in the unconstitutional, in fact unconscionable but stated that Barrow Court illustrated as Barrow and the ease be- Legislature assigned fore has the us now. the Texas non, cumulate, vel in Seсtion decision section, previous As we discussed in the the Penal Code and Article 3.03 Í2.08 jury punishment the assessed at Barrow’s Procedure, the Criminal Code years’ imprisonment. 15 and 20 It from trial court. It is also clear trial court’s decision to cumulate those provisions these that decision wheth- sentences, it turning long into one sen- any turn on er to cumulate does not years’ imprisonment. tence of 35 Even findings of fact on particular discrete or though might Texas authorized law Instead, cumulating judge’s part. so, judge practical to do “effect” decision, much like purely a normative (as emphasized by line of particular sentence the decision what cases) judge might is that the well have range punish- impose within punishment by increased Barrow’s jury’s authorized verdict. ment jury years, had determined those such, infringe uрon it does not As expectation two sentences with the guarantee Amendment Sixth to run concur- they only would be ordered trial. Indeed, jury might rently. well have Barrow, 207 at 380. S.W.3d only assessed Barrow’s section, previous discussed years’ imprisonment, on each of two As we counts, however, the criminal de- Texas law vests they had known See, Booker, 238-39, arbitrary the bene- e.g., upon convictions' without 543 U.S. at (“The cases.") (emphasis S.Ct. 738 Framers of Constitution jury in criminal fit of a 'judicial despotism’ added). understood threat 'arbitrary punishments could arise from right, merely privi- fendants with a a explicitly does not vest the trial court lege, jury to have the their punish- assess the right decide whether sen- ment.7 The decision or consecutively whether not to tences run will or concur- rently. Rather, cumulate a defendant’s sentences has Section 3.03 provides significant bearing right, on that inasmuch that when an guilty accused is found of potentially as the cumulation can double than arising more one offense out of the the jury. assessed the The same criminal episode, and the offenses fact that a statutory provision would allow are violations of Section 22.011 the judge potentially order such a sub- against Penal Code committed a victim stantial increase in the jury-assessed pun- younger years old, than 17 the sentences ishment, requiring judge without even the run may consecutively or concurrently. any fact-finding make at thus least The statute does not address who makes increase, objectively justify encourages decision, grant or if the of discretion precisely the arbitrary kind of decision- judge proper to the trial is if jury is making line cases punishment. the finder of fact at prohibited. J., Id. 382 (Meyers, dissenting) (empha- at

Moreover, it is not even clear whether original). sis in statutory actually law vests the trial As the dissent further clarified: judge with such absolute discretion. The 4,2.08 applies types Article in two § Texas Penal Code 3.03 states: situations: those in which defendant § 3.03. Arising Sentences Offenses being tried for in one several crimes Out of Same Episode Criminal trial; and those in defendant (a) guilty When the accused is found is convicted a second time while still of more than arising one offense out of serving previous his sentence from a episode the same criminal prosecuted conviction. When convictions result action, single criminal a sentence for trials, from it separate makes sense for each offense for which he has been judge to dеtermine or not guilty pronounced. found shall be Ex- to cumulate the sentences. In those provided (b), as cept by Subsection situations, only has access to concurrently. sentences shall run all the facts relevant to the cumulation (b) If the accused is found guilty decision, jury because neither more than arising one offense out of the However, fact-finder for both cases. same criminal episode, together, when the two cases are tried may ran concurrently consecutively if case,] in Barrow present [as and the each sentence for a conviction of: jury punish- the defendant has elected offenses, including enumerated [certain ment, does have all the facts 22.021, Assault, § Aggravated Sexual sentencing relevant and should be present in both Barrow issue permitted to determine the cumulation case], issue, just they pun- as decide all other ishment issues. added.) (Emphasis Id. at 382-83. Thus, as the dissent Barrow itself correctly out: pointed respect, With all due I find the Barrow reasoning persua- Unlike Article the Code dissent’s to be far more Crim- 42.08 of Procedure, 3.03(b) language majority.

inal than that of its sive Dawson, supra, jury sentencing. § 43 Dix & R. with a See G. 38.11 ("Texas added). provides purely statutory.”)(emphasis at 656 law the defendant

Conclusion reasons,

For all the above I believe that majority’s reliance on Barrow to dis-

pose present sadly case is mis-

placed. overruled, Barrow should be Since given

followed. Texas has criminal jury-as-

defendants the opt punishment,

sessed it should make that wholeheartedly,

allowance any without in

way diluting right by simultaneously

giving the trial judge the absolute and double, possi-

unchecked discretion to

bly even triple,

jury might actually intended. Since majority’s construction of the Texas

statutory scheme would authorize such an result,

arbitrary thus violating both the Constitution,

United States Appren- under progeny,

di and its statutory and the

of the defendant to have pun- assess

ishment, under the applicable law, Texas I

respectfully dissent.

Tony BLACKLOCK, Appellant Lee

The STATE of Texas. Houston, L. Denninger, John for Appel- lant. Nos. PD-1639/1640-06. P. Keating, Kevin Assistant District

Court of Criminal Appeals of Texas. Houston, Paul, Atty., ‍​​‌‌​​‌‌​​​​​​‌‌‌​​​‌‌‌​​‌​‌‌‌​​‌‌​​‌​​‌​​‌‌​​‌​‍Matthew State’s Sept. Austin, Atty., for State.

OPINION HERVEY, J., opinion delivered the for a unanimous Court. case,

In this appellant we decide that to post-conviction testing entitled DNA un- der Article 64 of the Texas Code of Crimi- nal Procedure.

Case Details

Case Name: Alameda v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 27, 2007

Citation: 235 S.W.3d 218

Docket Number: PD-0231-06

Court Abbreviation: Tex. Crim. App.