Bonilla, Ronald Antonio

a trial court question The is not whether BONILLA, Appellant Ronald Antonio fully competing equities balance the

could arrive at this trial court’s conclusion. balancing That is within the trial court’s uphold will that substan-

discretion and we of STATE Texas by decision some evi- supported tive when NO. PD-1099-13 matters, But and this process dence. has the creator and Court been Appeals Court of Criminal of Texas. While

guardian processes. those we change a trial arbitrarily cannot court’s Delivered: November result, we can that' trial ensure courts process of bal-

abide time-honored

ancing equities. And competing (such

record of fact or a hear- findings our

ing transcript) provides only method of

knowing balancing occurred. The simply

record here is devoid of factual

support that the trial court considered the

potential specific harm schoolchildren if pending

the educator is allowed to teach appeal.

the outcome of the

But while the record fails to indicate the competing equi-

trial court balanced the

ties, the State for Educator Board Certifi-

cation, as in this the relator mandamus

proceeding, proving has the burden clearly trial court abused its discretion. Packer,

Walker

(Tex.1992). argu- The Board limited its

ment the assertion the trial court injunction

lacked discretion grant

during the pendency appeal —not retained discretion but abused it

given these facts. the relator here While requested

has relief for the trial discretion, particular

court’s abuse it is be

paramount cognizant that trial courts obligation fully

their demonstrate the they typically engage

calculus in when

granting injunctions. Accordingly, I con- petition

cur Court’s denial

writ of mandamus. Carter, Appellant. F.

William Jessica for State of Escue Texas. OPINION judge “did not err in stacking the sentences” because there is “some evi- Cochran, J., the opinion delivered dence” that the offenses occurred after Keller, P.J., Meyers, Court in which 1,1997.3 JJ., Hervey, joined. Keasler and in The issue this case is who bears I. showing judge

the burden of that the trial in cumulating indecency-with-a-child erred April On appellant was indicted when sentences some sexual abuse took with four counts of indecency with a child: place before the 1997 Penal Code amend 1. Touching genitals M.B.’s on or about permitting ments cumulation of sentences 1, 2002; January for child sexual offenses and some took 2. Causing M.B. to touch appellant’s place after that apply date.1 We will our genitals 1, 2002; on or about January appellate normal rule of review: party The complains who about the trial judge’s ac 3. Touching genitals D.B.’s on or about appeal tion on direct bears the burden of 1,1995; January objecting at trial and providing a record 4. Causing D.B. to touch appellant’s that judge’s shows the trial error.2 genitals 1,1995. on or January about Appellant relies the 1995 dates set The evidence at trial appel- showed that out in the indictment and in the judgment lant came to the United States from El being only jury dates on which the Salvador and lived with family various could have found that the offenses oc- brother, members. He lived his show, curred. But appellant did not either M.B., father of both D.B. many and for at trial appeal, or on that the could years. Appellant sexually abused both not have him guilty found of an offense D.B. throughout and M.B. their that childhood. occurred after D.B. testified that appellant first effective date of the started cumulation statute. Instead, sexually molesting him ample there is sometime between evidence to show 1994 appellant and when he began sexually D.B. either the abusing (before first or grade. 1995 the 1997 second D.B. per- amendment remembered effective) mitting cumulation became details of numerous and different incidents sexually continued to abuse him until 2002 occurred both at home appel- and at (at years least five after the job 1997 amend- lant’s site. When D.B. was about ten effective). eleven, ment became We or therefore in 1998 appellant began agree with the court appeals that the- stimulating him until he ejaculate. would Appellant's ground sole for review reads as appealing party issue is not whether the is the follows: State or the defendant or whether the trial The court ruling erred when legally it found court's every 'correct' sense, convictions of indecen- complaining party but whether the on cy with a child in counts 3 and 4 could be appeal brought to the trial court’s attention they stacked prior because both occurred very complaint party making is now 1997 and could not be appeal. on This 'raise it or waive it’ forfeiture penal stacked under section 3.03 of the applies equally goose rule gander, and code at that time. defendant.”). State 2. See 335- Martinez 10-12-00064-CR, (Tex.Crim.App.2002) 3. Bonilla v. No. (citing State v. Merca do, 1998) WL (Tex.Crim.App. (Tex.App.-Waco July at *4 that, 33.1, 2013) (not proposition designated “under publication). Rule range that-that date pre- 1996—it falls within as he became explained D.B. talking that we were about.4 appellant teenager teen and maga- pornographic him showing began on all four appellant guilty found The sexually abusing while videos zines and punishment and assessed his counts that he told him. In D.B. each imprisonment on years’ fourteen in sexual activities engage did not want asked the tri- prosecutor The then count. told him when with him. But (the 8 and judge al to “stack” Counts ever if D.B. he commit suicide D.B.) top of involving Counts counts not live that he could anyone told and said M.B., (the youn- involving counts life, teenager con- in his without D.B. brother). asked, “Motion judge ger geni- to rub his to allow tinued sentences; Ap- correct?” for consecutive began in D.B. point tals. At some pellant responded, attempts to resisting appellant’s physically Honor, deny their you we ask that Your what finally reported abuse him. D.B. believe that the has request. We throughout his to him appellant had done they that heard all the evidence and signs when he saw youth childhood and they that deemed punishment have set a abusing youn- his was also in know that this proper this case. We M.B., brother, way in that he ger the same evidence, but has also heard Court had been abused. you deny it and that we would ask that boys was that Appellant’s defense run all four counts concurrent. you abuse; he story of sexual fabricated their judge trial ordered that “Counts and they and sexually, them never touched another, concurrent with one Counts run sexually. Period. never touched him another; with one 3 and run concurrent prosecu- During closing arguments, but the sentences in Counts 8 and both alleged the Janu- why he had explained tor in to the sentences Counts run consecutive 1, 1995, even in the indictment ary date 2.” 1 and in abuse occurred later though most of the years: argued be- appeal, appellant On January Any time cause an offense date of alleged for [D.B.]

We’ve judgment in the for counts 3 got when we’ve this was listed between 1995 and effec- 4 and that date was before the But and alleged indictment]. date [in permit- amendment the instances tive date of the 1997 specifically you can recall abuse of- ting because cumulation of child sexual why reported we it as 1995 fenses, judge stacking trial erred in first time. Kids remembers the [D.B.] 1 and 2.5 The they times and those counts on Counts remember first and last claim, appeals rejected appellant’s a lot of abuse court just remember dates recited middle, being explaining ear- offense “[t]he he remembered but necessarily do not render grade. judgments third So ly on between first and stacking order the sen- date. the trial court’s why allege that’s we offense, following any,, as said if occurred jury charge included the in- so 4. The years birthday struction: within ten after the 18th indictment, alleged is not victim. The which offense: The State Date of case, alleged in required prove the exact date included all four counts in this was offense, 16th, may prove if but presented April the indictment on any, time to have been committed Bonilla, 2013 WL at *3-4. prior presentment of the indictment to the Here, tences invalid.”6 the State used the criminal episode must be served concur- phrase “on or about” in its indictment so rently they may and when be served con- prove “it was free to that these offenses secutively. Generally, such sentences occurred prior present- date must be served concurrently,8 but there ment of the indictment and within the specific are statutory exceptions to that statutory period, limitations which had not rule. exception One added expired.” Because there was “some evi- permits the trial judge to cumulate dence” that appellant touched penis D.B.’s sentences for child sexual abuse offenses.9 and that he made D.B. penis touch his However, exception this applies only to an “many” January times after offense that occurs after the effective date judge did not err in stacking the 1,1997.10 of September sentences.7 granted We review because the law in Bahena,11 In parte Ex we addressed a this area is unsettled. When the indict- situation in which the evidence showed ment and judgment lists an offense date multiple acts of sexual molestation of a is before the effective date of the child that “occurred sometime between amendment 3.08, to Penal Code Section 21, 1993, September and up to at least but the evidence shows that the acts that September case, 1998.”12 In that constituted the offense occurred both be- defendant claimed that his counsel were date, fore and after that effective does the ineffective failing for to challenge the trial judge trial have the discretion to cumulate judge’s stacking order because one of the the sentences? He does. alleged

indictments an aggravated sexual II. assault offense that occurred “on or about 1, 1996,” July and that Penal is date before the Code Section 3.03 sets out when sentences that arise out of the same 1997 amendment became effective.13 We 6. Id. at *4. whether the accused is convicted of viola- tions of the same section more than once or 7. Id. is convicted of violations of more than one section[.] 3.03(a) 8. Section reads: Leg., Act of June 75th R.S. ch. When the guilty accused is found of more provision § 7. That states: arising than one offense out of the same episode prosecuted criminal single in a (a) change The by law made this Act action, criminal a sentence for each offense applies only to an offense committed on or for which he guilty has been found shall be after the effective date of this Act. For pronounced. Except provided by Sub- section, purposes of this an offense is com- (b), section shall run sentences concur- mitted before the effective date of this Act if rently. any element of the offense occurs before the effective date. 3.03(b)(2)(A) 9. Section reads: (b) An offense committed before the effec- guilty If the accused is found of more than tive date of this Act is covered the law in arising one offense out of the same criminal committed, effect when the offense was and episode, the sentences run concurrent- the former law is continued in effect for ly consecutively if each sentence is for a purpose. that conviction of ... an offense ... under Sec- tion 33.021 or an (Tex.Crim.App.2006). offense under Section 195 S.W.3d 704 21.02, 21.11, 22.011, 22.021, 25.02, or younger 43.25 committed a victim 12. Id. at 706. years age than 17 at the time of the regardless commission of the offense 13. Id. with older cumulate a current sentence the evidence showed

concluded explained We there must be ones. sexually had molested the the defendant prior linking evidence” convic- “some between 1993 multiple child on occasions to the defendant.20 Various courts tions had commit- September have used Miller’s “some evi- appeals charged before and ted “these language addressing when the trial dence” noted September after 1997.”14 We judge’s discretion to cumulate sentences upheld had that several courts in which the in child sexual abuse cases if “some judge’s the trial cumulation order have occurred be- alleged offenses were offenses oc- showed that evidence” The in- September fore or after 1,1997.15 curred after We held (or judgment) dictment date is deter- could not be called ineffective that counsel minative. determines stacking failing challenge order judge has discretion to whether the of stacked sentences because issue cumulate sentences. in which the evidence showed sexual cases State,21 example, For Owens after the effective offenses both before and that the defendant committed proved State the amendment to Section 3.03 was date of abuse, numerous acts of child sexual some “an area of law.” unsettled occurring of them before State,17 example, In Hendrix v. occurring them and some of held Appeals Fourteenth Court rejected The court the defen- that date. an offense although the indictment required claim that the State was dant’s 3, 1997,” August date “on or about doubt, beyond prove, a reasonable to cumulate the judge had discretion sen of each offense occurred af- each element long tences in a child abuse case “as as 1, 1997, uphold the trial September ter there was some evidence that offenses Instead, judge’s cumulation order. the tri- 1,1997.”18 September after occurred al had the to stack the judge discretion is the same “some evidence” stan- This as “there some [was] sentences State,19 in dard that we used in Miller v. occurred after evidence 1,1997.”22 September addressing judge’s discretion to 14. Id. at 706-07. 20. Id. at 261. State, (citing Id. at 707 n. 7 Bates v. 15. 2003, (Tex.App.-Austin 21. 96 S.W.3d 668 no 928, 2005, (Tex.App.-Dallas S.W.3d 930-31 pet.). State, 797, pet.); no Dale v. 170 S.W.3d 800- 2005, (Tex.App.-Fort pet.); Worth Hen no (noting at that 3.03 22. Id. Section “does State, 839, (Tex. v. drix 150 S.W.3d 852-54 specify evidentiary trigger burden 2004, ref’d); App.-Houston pet. Dist.] [14th sentences”); authority the court's to cumulate State, 668, (Tex. Owens v. 96 S.W.3d 671-72 797, 170 S.W.3d 801 n. see also Dale 2003, App.-Austin pet.); no Yebiov. 2005, (noting (Tex.App.-Fort pet.) Worth no (Tex.App.-Texarkana 195-96 that defendant's sexual abuse continued from ref'd)). pet. that 1991 until and he did not contend Sep- did not continue after the sexual assaults Bohena, 16. at 707. 1997); tember Yebio (Tex.App.-Texarkana pet.) no (Tex.App.-Houston

17. 150 S.W.3d 839 [14th (holding that consecutive sentences were im- ref'd). pet. Dist.] proper because there was no evidence that September after child sexual abuse continued Id. though alleged even indictment of- 5, 1997). September (Tex.Crim.App.2000). 19. 33 fense date of S.W.3d 257 Rule agree ap We with those courts of 33.1 of the Rules Under Procedure,24 Appellate was judge that have held that the trial peals obligation complain in the trial court under stack sentences has discretion that the cumulation order improper 3.03(b)(2)(A) “some evi if there is Section judge because the could not have found that the offenses occurred dence” that convicted him for offenses 1, 1997. With that back D.B. occurred after Septem we turn to ground, present case. ber the date the cumulation stat

ute went into effect. As we ex have III. plained, Rule Appellate Both Texas Procedure Appellant 1995 date claims that the 33.1 and Texas Rule of are Evidence 103 in the He judgment dispositive. set out “judge-protecting” preser- rules of error that the State an act that argues principle vation. The basic of both rules “on or January occurred about” Thus, “party is that responsibility.” judgment recites that as well. and the date (wheth- party complaining on appeal

And, there was “some evidence” because defendant) er it be the State or the abusing D.B. appellant began sexually admission, about a trial court’s exclu- 1,1997, “oc before the offenses sion, “must, suppression evidence before the effective date of the curred” opportunity, at the earliest have done amendment, judge and therefore the trial necessary to everything bring to in cumulating the erred sentences judge’s attention the [or evidence rule abusing D.B. with M.B.23 abusing those for question and its precise statute] never “on or But mentioned this proper application date question.”25 about” issue the trial court. (A) argues grounds Appellant ruling that Article 42.01 of the stated complaining of Criminal party sought Code Procedure mandates from the “the sentence served shall be based on the specificity trial court sufficient judgment” information contained in the make trial court aware of the com- judgment date because sets out an offense plaint, specific grounds the unless were January the sentences cannot be context; apparent from the and argument But could be cumulated. this (B) requirements complied with the the judg equally used the State: the Because Rules of Civil or Criminal Evi- Texas cumulated, orders the ment sentences to be or the Texas Civil or dence Rules of simply cop or about” the “on offense date is Procedure; Appellate and indictment, ied from the but it not mean does (2) the trial court: anything more within the than some date (A) request, objection, the mo- ruled on or and the indict statute limitations before tion, expressly implicitly; or either or State, 253, Sledge ment. See v. 953 S.W.2d (B) objec- request, to rule on the refused 1997); (Tex.Crim.App. Thomas v. 255-56 motion, tion, complaining and the 688, State, (Tex.Crim.App. 753 S.W.2d objected party to the refusal. 1988). State, v. 91 S.W.3d 335-36 25. Martinez 33.1(a) Appel- of the

24. Rule Texas Rules (quoting Stephen (Tex.Crim.App.2002) late Procedure reads: al., Goode, et Texas the Practice: Guide to prerequisite complaint presenting As a to a Criminal, of Evidence: Civil and Texas Rules 103.2, (2d ed.1993)); Reyna v. review, at 14 see also appellate the must show for record State, (Tex.Crim.App. 168 S.W.3d that: is, 2005) ("The (1) party responsibility for complaint basis trial court the was made to the things, Appellate It timely request, objection, among Rule 33.1. by a or motion other prerequisite a provides presenting as a that: that to appellant the time judge’s thus covered entire objected at trial Appellant order, any but he failed to offer cumulation D.B. and the various inci- abused all of objection.26 for his legal dents, or factual basis principles double-jeopardy and grant to the just judge asked the He the prevent prosecuting State from the sentences. motion to cumulate State’s for appellant other incidents covered by the indictment that had occurred be- show, rate, did not At 1994 and 2009.29 tween jury trial or on that the appeal, either at of an guilty have him could not found prevent If to appellant wished September that occurred after offense cumulating the judge from sen ap was evidence that ample 1997. There tences, he had to in the trial court object numerous sexually D.B. pellant abused (1) requested argue and he had 1, 1997, and nu times before elect a to submit single State to incident Appellant times after that date. merous that, as for each count and a specific elect a did not ask State to result, only the State submitted incidents incident,27 date of and the “on or about” that had occurred before 1, 1995-alleged in the indictment- January (2) 1997; there flaw in legal was some molestation that covered all acts of sexual in the language State’s “on or about” in April occurred between 1994 and (3) dictment; or was not “some evi there The the date of the indictment.28 finding dence” a incident specify particular asked to never after charged Sep committed finding him of two counts guilty or date 1,1997.30 sexually abusing jury’s verdict D.B. tember review, appellate Sledge record complaint for 28. See 953 S.W.2d ("It grounds 1997) (Tex.Crim.App. party must show that the ‘stated well settled that is ruling sought from the language [he] the 'on or about’ of an indictment make the specificity court with sufficient prove the State to other than allows a date ”). complaint.' trial court aware of the alleged in the one indictment as presentment date is anterior objection Having specific failed to make a statutory indictment and within the limitation explain objection, appel the basis period.”). spe appeal forfeited error on unless the lant objection cific and its was obvious to basis 29. See Cosio v. Tex.R.App. 33.1(a)(1)(A); judge. See P. Clark (Tex.Crim.App.2011) (stating "A defendant’s (Tex.Crim.App. strategic decision to elect or not elect is a ("While 2012) 'hyper-technical no or formal weighing choice made the above consid required phrases’ of words or istic use erations,” noting when the defen error, objection preserve for an order incident, specific does not elect "it dant will objecting party 'let the trial must still particular impossible to which be determine wants, judge why what he he thinks he know incident criminal conduct that was it, enough clearly is entitled to to do so about, jeop will unanimous the State be [and] judge him at a time understand ardy-barred prosecuting from later a defen judge proper position to do when the is any presented dant the offenses tri ”) omitted). (citations something about it.' al”). State, 769, O'Neal v. 771 n. 27. See 746 S.W.2d State, 839, 30. See Hendrix 150 S.W.3d (absent (Tex.Crim.App.1988) request a 2004, pet. defendant, (Tex.App.-Houston Dist.] [14th required "the State is ref'd) (although alleged an indictment offense specific an election" of act make what sexual 3, 1997, August judge date "on or about” relying support it is on to when the conviction had discretion to cumulate sentences in child evidence shows that defendant has com- against mitted the same act case "as there was some evi- of sexual abuse abuse times). multiple Sep- the same victim that the after dence offenses occurred have explained judge’s We that the trial State did not specify an incident that oc- decision to cumulate sentences for child 1, curred September 1997, before the trial sexual offenses under Section 3.03 does not judge did not abuse his discretion in cumu- right violate the defendant’s to jury deci- lating the sentences for abusing D.B. with right process sion or his to due because it those for abusing his younger brother. generally does not “turn on discrete or short, In we agree with the court of particular findings of fact judge’s on the appeals that the “on or about” date listed However, part.”31 in cases in which the in the indictment the judgment does defendant has committed child sexual not determine the actual date of the of- abuse both before and after the effective fense for purposes of cumulating a sen- date of the statutory provision, the defen- 3.03(b)(2)(A). tence under Section We may request dant the State to elect a therefore affirm the judgment of the court and, specific incident if the State an elects of appeals. September incident before and the jury finds the defendant guilty of that Alcala, J., filed a concurring opinion in incident,

specific may sentence not be Johnson, J., which joined. Price, J., filed a cumulated with another sentence. Of dissenting opinion Womack, J., in which if course the defendant requests elec- tion, joined. may try the State the defendant

again post-1997 for one of the incidents

and cumulate that sentence with the earli- CONCURRING OPINION er ones. Alcala, J., filed a concurring opinion in Here, there was not just “some evi- Johnson, J., which joined. dence” that the sexual against abuse D.B. I 1, concur in the 1997; judgment

continued after Court’s September up- there overwhelming holding was the trial evidence that court’s did. cumulation order n Bonilla, Because request did not Ronald Antonio appellant, incident, State to elect a specific and the but I join do not majority opinion. 1, 1997”); State, hand, tember Owens v. 96 S.W.3d other if there is no evidence that 668, (Tex.App.-Austin 671-72 pet.) no the incidents of child sexual abuse occurred (rejecting complaint defendant’s that State September then judge required prove, beyond a reasonable does not have discretion to cumulate the sen doubt, charged that each of the three tences. Yebio v. 87 S.W.3d 1, 1997; September occurred after stating 'd). (Tex.App.-Texarkana pet. ref that "the trial court has discretion to cumu- A cumulation order in a case in which there 3.03(b) late sentences under section when is "no finding evidence” to there is some evidence that the offenses oc- 1997”); sexual September curred after abuse occurred after Dale v. unauthorized, (Tex.App.- 801 n. 2 and results in an ille pet.) (noting Fort Worth no that "in gal subject sentence not to forfeiture. LaPorte impose order for the trial court to consecutive (Tex.Crim.App. 3.03(b), sentencing penal under Code section 1992). double-jeopardy ap Like a violation there had Appellant to be some record, parent on the face of the an unautho committed the offenses after rized cumulation order be raised for the 1,1997, the effective date of this section.... appeal first time on or collateral attack. See The State offered evidence that the’ State, 640, (Tex. v. 8 S.W.3d 643 Gonzalez frequently, beginning shortly occurred after Crim.App.2000). Appellant Triplet August married in ending Appellant 1991 and in 1998. does not State, 377, (Tex. 31. Barrow v. 207 S.W.3d 380 contend that the sexual assaults did not con- Crim.App.2006). 1, 1997.”). September tinue after On the 820 cumulation test to the trial court’s agree with all of the Court’s dence

Although I and its the ultimate merits analysis Virginia, on 443 U.S. order. See Jackson v. evidence” that there is “some conclusion 2781, 99 S.Ct. 61 L.Ed.2d 560 cu- support the trial court’s the record to (1979). sufficiency-of-the-evi The Jackson order, preserva- disagree I that mulation test, although to de generally used dence is to assert this required of error tion exists termine whether sufficient evidence on challenge sufficiency-of-the-evidence each element of support in the record appeal. offense, by has also used this been challenge to the Addressing appellant’s review other chal evidence-based Court supporting of the evidence adequacy See, State, e.g., v. 415 lenges. Moreno order, con appeals the court of cumulation 284, (Tex.Crim.App.2013) S.W.3d test that exam a “some evidence” ducted State, affidavits); v. (probable-cause Coble any that the record for evidence ined 253, (Tex.Crim.App.2010) 330 S.W.3d order. the trial court’s issue); (future-dangerousness special 10-12-00064-CR, State, v. No. Bonilla (Tex. 497, v. McCain (Tex.App. at *4 2013 WL — Waco (affirmative deadly-weap Crim.App.2000) 2013) (mem. designated not op., July findings); on see also v. Johnson appeals court of publication).1 for The (Tex.Crim.App.2014) that was some evidence determined “there test is used for (explaining Jackson four three and that the offenses counts sufficiency evidence for matters assessing 1, 1997,” September based occurred after “directly indirectly relate or to a de appel trial record that showed that on the sentence”). or guilt fendant’s Because of inde lant committed instances” “many complaint rests on whether appellate here occurring a child on or after cency with in the record to there is appeals Id. court of ob that date. order, analyt support the cumulation is was recited date that served ically involving similar to other situations judg in the indictment and in the written sufficiency the evidence because, review of dispositive light ments was sentence, and related to a defendant’s use the “on or about” of the State’s therefore, prove it was free to I conclude language, that the essence prior offenses occurred date applies analogy. And the Jackson test of the and within presentment indictment essentially that other the test period. the limitations Id. appeals to this situ applied courts of have ation. See Owens refers to Although the court of (Tex.App. pet.) no test, I as the evidence” its test “some — Austin (“Although testimony some victim’s essentially applying that it is conclude Virginia sufficiency-of-the-evi- conflicted as of the times dates Jackson years age younger the Texas a victim 1. A trial court is authorized under than 17 defendant’s sen- Penal Code to cumulate a at the time of of the offense the commission indecency with a child tences for offenses of regardless of whether is convict- the accused occurring 1997. See on or more than ed of violations same section 3.03(b)(2). § The Texas Penal 3.03(b)(2)(A). Code Tex. Penal § once[.]” Tex Penal Code states, "(b) guilty If Code the accused is found provision permitting This cumulation of sen- arising than one out of the of more offense indecency applies only with a child tences episode, criminal run same the sentences the statute's to those offenses committed after concurrently consecutively if each sentence Acts effective date of 1997. See (A) (2) a conviction ... is for of: offense: R.S., Leg., 75th ch ... Section ... committed under 21.11

821 assaults, challenges sufficiency a reasonable view of the Like all sexual evidence, supported as a whole it is unnecessary ap evidence for an pellant exercise of to run preserve type court’s its discretion this of complaint Bates with an See Rankin consecutively.”); objection sentences at trial. Owens’s State, (Tex.App.— 164 (Tex.Crim.App. S.W.3d 46 S.W.3d 2001). that, I, therefore, pet.) no “if the (stating disagree Dallas with ma jority at issue oc opinion’s shows determination after the appellant’s obligation curred effective date section complain in the 3.03(b) ... then the trial court has the trial court that cumulation order was sentences,” authority up to stack the improper. peculiar I also find it cumulation holding majority opinion give “[t]here order because re sexual indicating any was no evidence as lief if were no there evidence to support sault occurred before the summer of order on in cumulation the basis Hendrix v. 2000”); circumstances, those the improper stack (Tex.App. ing order would render appellant’s [14th Dist.] sen — Houston ref'd) LaPorte v. pet. (applying test tence illegal. some-evidence (“An cumulation order because upholding (Tex.Crim.App.1992) improp is, essence, evidence shows that the incidents of er order void “[t]he cumulation a sentence, oc sexual abuse B.S. continued to and such be error cannot waived.”).2 up My cur until well after the bottom am line is that I effective unpersuaded by date of the cumulation ma reasoning of the statute”). jority that boils opinion down to this: grant only deny it would relief under error and would relief required

Because is preserved, major- been preservation circumstances which no of when error has sentences, proposition I that this is not a where the it cannot stand for the note situation challenge procedures employed is to the sufficiency-of-the-evidence complaint that a order, respect to the cumulation which was pre- challenging cumulation order must be a McJunkins, parte the situation Ex through appeal timely objection served for (op. (Tex.Crim.App.1997) McJunkins, therefore, at trial. id. See only reh'g). Because McJunkins addressed this consequence little to the matters raised in procedural irregularity way in the appeal. imposed agreed-upon cumulative court against to run concur- preserva- to the offenses MB reasoning require ity opinion’s relating rently and the two sentences I see unpersuasive to me. tion of error against DB to also run con- the offenses re- imposing preservation for a no basis currently, but it the two sentences ordered circumstances, when in these quirement consecutively to DB to relating run analysis always will lead preservation the However, MB. relating two sentences analysis, result as the error to the same appellant the alleged the indictment inquiries two could thus be conflat- and the DB '‘on against the or committed simpler, appropriate the more ed into in a date which was before about” sufficiency of the evi- test —the traditional statutory the effective date of the amend- to address dence review—that is tailored stacking. permitted ment that such The like suffieiency-of-the-evidence complaints court of affirmed the court’s in case. I conclude the one asserted this nevertheless, that, holding stacking order complaint did not forfeit his appellant there evidence from because was some to the trial court’s cumulation respect which the could have found his is in the na- complaint order because against appellant committed his offenses sufflciency-of-the-evidence a chal- ture of statute, DB amendment lenge, preserved which does not need to be stacking permissible.1 order was We in appeal. the evidence Analyzing for for granted petition discre- whole, I that there record as would hold tionary holding. review examine this supporting is sufficient I, therefore, cumulation court’s order. I. PROCEDURAL POSTURE the court of judgment would affirm indictment, single appellant In a appeals upholding the trial court’s cumula- four charged with discrete instances of tion order. child, indecency with a of which two were against have

alleged to been committed DISSENTING OPINION against two allegedly MB and committed DB.2 I II the indictment Counts J., PRICE, dissenting opinion filed a alleged appellant committed inde- WOMACK, J., joined. which cency with a MB in against child two of four appellant was convicted different, statutorily ways on the discrete indecency counts of with a child sexual date; that, on same Count I or young committed his two contact January about MB nephews, and DB. The assessed II genitals, touched MB’s while Count al- for at four- punishment date, his each offense leged on or the same about penitentiary. in the The trial years teen appel- caused MB to touch the relating ordered the genitals.3 court two sentences lant’s Counts III and IV the 10-12-00064-CR, (2) ing No. circumstances: the offenses 1. Bonilla ... are 11, 2013) (Tex.App. July repeated WL commission of the same simi- — Waco (mem. offenses."); designated op., publication). lar art. Proc. Tex.Code Crim. 21.24(a) ("Two may or more offenses be ..., 3.02(a) ("A single joined § See Tex. Penal Code defendant in a with each indictment count, prosecuted single separate be criminal action offense stated in a if the of- episode, arising all offenses of the same crimi- arise out of criminal out fenses the same ("In Code.”). chapter, Chapter § episode.”); nal id. Penal 3.01 this as defined 3 of the episode’ 'criminal means the commission of offenses, 21.11(a)(1) ("A regardless person two or more of whether 3. See Tex. Penal Code if, younger the harm is directed toward or inflicted commits an offense with a child , person years age, person one more than ... under the follow- than 17 ... ... alleged appellant appeal, appellant indictment that the also On the challenged the indecency against with a child committed trial court’s authority to enter the stacking different, statutorily DB in discrete two 1997, order. In Legislature the amended date; ways alleged on the same III Count 3.03(b) Section of the Penal grant Code to that, 1, 1995, January on or about the trial courts the discretion to stack sen- genitals, touched DB’s while appellant tences pertaining to convictions for inde- that, alleged IV on or about the Count But, cency with a child.5 as the appellant date, appellant same the caused DB to pointed brief, out in appellate his the genitals. the In separate touch amendment prospective, meaning that forms, appel- verdict the convicted the it cannot be construed to authorize stack- and, lant of all four offenses at the conclu- ing that would utilize a sentence for an trial, punishment phase sion of the of as- offense occurring 1, before fourteen-year sessed a sentence for each 1997, the effective date of the amendment.6 The offense. trial court ordered the two appellant argued because the sentences MB relating to to run concur- indictment the rently with one another and the two sen- against DB occurred on January relating tences to DB to also run concur- judgments because the written corre- rently. But it stacked the two concurrent sponding to Counts III and IV of the relating sentences to DB top on of the two MB, indictment reflect that concurrent sentences the date of the relating over re- appellant’s objection.4 spective offenses was and that “1/1/1995” however, engages in appeals, sexual contact with the child or and that court seems to engage rejected appellant’s argument causes the child to have sexual con- on the tacté”); section, merits, 21.11(c) ("In § perhaps light id. explicit this 'sex- of this Court’s acts, 412, following holding ual contact’ means the if com- in LaPorte v. (Tex.Crim.App.1992), gratify mitted with the intent to arouse or invalid .cumu- (1) subject any person; any touching ordinary sexual desire of orders are not rules lation procedural of by person, including touching through contempora default such as the objection procedural neous clothing, any part genitals ... rule. Issues of of of the of a child; (2) systemic, meaning default are any touching any part appel that an of the child, may body late court not reverse a including touching through of a conviction with addressing any Gipson out clothing, any part genitals such issue. with ... of a (Tex.Crim.App. person."). 2012). LaPorte, light holding In of our however, the Court need not remand this punishment After returned its ver- cause to the court of to address the dicts, prosecutor expressly requested procedural argument. State's default See Gil correspond- the trial court stack the sentences (Tex. ley v. 119-20 ing to Counts III and IV of the indictment Crim.App.2014) (although typically this Court upon corresponding the sentences to Counts I only addresses "decisions” of the courts and II. The asked trial court to appeals, proper disposition when the of an deny request, particular this but stated no clear, outstanding issue is we resolve it legal oppose basis to it. The State now ar- review, discretionary though on not ad gues appellant’s general objection below, judicial dressed in the interest of econ preserve argument appeal. failed to his omy). (to 33.1(a)(1)(A) preserve See P. TexR.App. particular complaint appeal, appealing 3.03(b), § 5. See Tex. Penal party's timely objection as amended must "state[] Code by Leg., § p. Acts 75th ch. grounds ruling complaining for the Sept. eff. party sought from court with suffi- specificity cient to make the trial court aware complaint”). Leg., pp. of the The State made no such 6. Acts 75th ch. 2252-53, procedural argument Sept. default to the court of eff. IV). (Count appellant’s genitals victim at the time of the DB’s first age “[t]he (7) (which years” memory was seven sexual abuse offense[s] years in the have been was of incident that occurred some 1996), the offenses when point ages the sentences DB was between not be eight, family DB could stacked was living six and while DB’s against offenses MB. sentences for the in would Bryan. a house in This coincide years through with the 1996. On this disagreed.7 Noting appeals court of occasion, particular appellant the “rubbed (1) the the indictment genitals couple for a of seconds.” [DB’s] were “on DB committed against time, the wearing clothing DB was at and 1, 1995, (2) January or there was about” he could remember an in not instance some in the record from which beyond the went “on appellant top which have found that both of- jury might the during the clothing touching” years actually September fenses occurred Bryan family lived in the house. (3) the appellant and that had purposes Because “sexual contact” to elect which failed to “ask the State as to indecency touching with a child includes act, acts, it multiple rely upon would out of through clothing, this incident could conviction[,]” ap- to secure a court of support guilty a verdict under III of Count that “the did peals concluded trial court the indictment.9 sentenees[,]” stacking in and err granted appellant’s pe- affirmed.8 We 1996, In DB’s family December of discretionary review in to tition for order College moved to a new house Station. appellant’s contention that the address DB an incident at the remembered new erred to hold court of so appellant pulled house which the a dis- in the there was evidence record pair tinctive of red shorts off of DB and finding that the of- support would masturbated him. DB testified that this DB against af- fenses committed occurred recurred than one occasion—in on more ter the trial court had fact, “many there times” in which the were under the amended discretion statute my genitals appellant “would either rub stack those sentences the sentences my my over clothes or he would take imposed that were offenses com- clothes off me.” Any and masturbate one MB. mitted incidents, apparently occurring of these all 1997, prior could also PERTINENT II. THE FACTS support conviction appellant’s under I by canvassing the evidence that begin III Count of the indictment. was adduced at trial with a view to what it carpet to when DB’s respect cleaning reveals with father owned (Count III) genitals company. and DB was seven or eight touched DB’s When old, years years when caused DB to the corresponding to touch Bonilla, Sept. §§ 2 p. 2013 WL & eff. *4. Never theless, only codify this amendment served 8. Id. pre-existing case law. See Resnick v. (Tex.Crim.App. 559-60 Code, 9. Section 21.11 of the Penal the inde- 1978) (statutory definition of "sexual contact” statute, cency-with-a-child was amended in contact”); require does not "flesh-to-flesh include a definition of contact sexual (Tex. Deason 715-16 "touching through expressly includes (same). Crim.App.1990) reh'g) (opinion on clothing,” prospec- amendment but that only. Leg., tive 77th See Acts ch. Yes, job he sometimes went to sites A sir. appellant, carpets with the who cleaned Q How many you times do think —if apartment complexes for DB’s father. On you can give idea, even me some how sites, job get point these “it would many your times he penis? touched appellant] where would be masturbat- [the A Countless. ing expose and then he would [DB] himself Q many How you times do think he he put would hand [DB] [DB’s] you had touch penis? his around appellant’s] penis and then he [the A Countless. his put would hand around hand [DB’s] By old, the time years DB was 12 to 13 ... and make hand masturbate [DB’s] appellant “would still genitals rub [his] him.” pre-1997 These additional incidents over clothes and try [his] stuff to hug convictions and, like, [him] kiss on He would [him]. under both Count III and IV of the Count still take put [DB’s] hand and it on his indictment. genitals but fight [DB] would him off.” persisted Septem- abuse well after Thus, the evidence would also con- 1997, moreover, by ber of which time DB victions for both III Count and Count IV years was almost ten old: of the indictment on the basis of num- And, know, you as I got little older ber of undifferentiated incidents occurring maybe 10 or 11 he would masturbate me after the effective date of the 1997 amend- ejaculated. until I IAnd would not 3.03(b) ment to Section of the Penal want to him. masturbate So what he Code.10 just would do is he would finish himself. The appellant request did not that the Q talking starting So we were about State, case-in-chief, at the close of its elect Now, you’re at 7. talking when we’re which particular incident of in- abuse it getting up into 10 or 11? rely tended to on prove either III Count Yes, A sir. Count IV the perhaps indictment — When, starting age at about the DB order to advantage take of the jeopardy resist, began to appellant “try to bar to later prosecution for of those hug bring [DB] and back in.” [him] incidents in the absence of such an elec-

Q continuing? Is this all still I tion.11 jury Nor did he seek a instruction mean, I know specifical- required it’s hard talk jury would have to reach ly having about you someone touch like respect unanimous verdict with to what- that; continuing throughout but is that particular ever incidents it might find to this period? satisfy each count.12 The returned (Tex.Crim. 10. All of these incidents occurred before the 12. Francis v. 36 S.W.3d 121 effective date of the App.2000). George Continuous Sexual Abuse See E. Dix & John M. Young Child or Children statute. Tex Pe- Schmolesky, 43 Texas Criminal Practice: Prac § Leg., 42:22, (3d 21.02. See Acts 80th at 849-50 ed. nal Code tice and Procedure 4.01, §§ pp. 2011) ("A ch. 1.17 & 1127-28 & charge making clear Sept. eff. agree it must on one of several acts or inci offense, constituting dents as that Francis Goodbread, indicated, parte necessary 11. Ex 967 S.W.2d 860- State is even if the * * * (Tex.Crim.App.1998); required Dixon v. State been has not to elect. If (Tex.Crim.App.2006); Ex a defendant waits until formulation of Pruitt, (Tex.Crim.App.2007); parte charge relief to obtain on the basis of facts election, required that would have the defen Cos io (Tex.Crim.App.2011). dant be entitled under no Francis to verdicts, Article 42.01 simply finding that A. general the four of each of guilty was Article 42.01 of Code of Criminal in the indictment.” counts “as be con- governs Procedure what must judgment.14 tained in a written It declares III. ANALYSIS sentence served shall be based “[t]he sup- are III and Count IV Both Count judg- the information contained in the on that oc- of incidents ported 1(14) of 42.01 ment.” Section Article 1,1997, before and curred requires judgment that the reflect the date provision granting of the the effective date 1(27) “a requires of the offense.16 Section the sen- stack the trial court discretion of the age statement victim of top those on imposed for counts tences if one sex- offense” the offense is for which I and imposed the sentences Count registration required, as is the offender fail- Faulting II. Count indecency with a Ac- case child.17 partic- to elect which ing to force the State cordingly, judgments corresponding rely for convic- ular it would incidents indictment, III to Counts and IV tion, the court of held trial court listed the date of the offenses stack the sentences court’s discretion to “1/1/1995,” of DB at reported age triggered long as there was “some so (7) time of offense “seven the the to the in the record show that evidence” the at trial years.”18 Because evidence Sep- against DB occurred offenses already years old shows that DB was nine Thus, ap- tember 1997.13 the court September the now appellant as of the imposed burden on peals essentially indecency argues that his sentences for the to the record show that appellant make a child DB made to against with cannot be pre-dated incidents that jury upon relied inde- consecutively run to his sentences for amendment, spe- the the effective date of cency with a child MB. to cifically by forcing the State to elect requires judg- The But Article also the proceed pre-indictment on a incident. 42.01 attempt explain not to ment to reflect whether “the defendant’s court did why place cumulatively it is to the burden sentence is to run or concur- appropriate that sen- appellant. considering rently on the Before with another sentence or however, ap- question, judgments corresponding I first consider the tences.” The duly the pellant’s respect to Counts III and IV this case argument argument that the those two written reflect the sentences for judgment —an opinion consecutively” failed to ac- counts “shall run to the sen- appeals’s court of II, in imposed tences I and knowledge, much less address. Counts 1(14). charge requiring § jury than in effect 16. Id. more then, charge, The would not elect. any one acts or limit of several 1(27); § 17. Id. Proc. arts. Tex.Code Crim. might It incidents constitute the crime. 62.001(5)(A),62.051(a). would, however, jurors make clear that unanimously agree on them as must one of The at trial DB was 18. showed that offense.”). constituting proved speaking, January Strictly on 1988. bom then, yet he seven would not have turned Bonilla, WL at *4. by January years old the date the judgment occurred. reflects offense art. 14. Tex.Code Crim. Proc. 42.01. 1(19). § 15. Id. 19. Tex.Code Crim. Proc. art. 42.01 keeping pronounce- Rather, with the trial court’s September the relevant ment from the bench at the conclusion question fact procedural is one of history: punishment phase. The does what did the institutional fact-finder— explain why judg- this notation in the here, appellant’s jury were the —find ment should not also constitute “informa- particular incidents it rely upon to tion judgment” upon contained course, convict?20 problem, that, The which sentence served shall be “[t]he without an election given presume Should we based[.]” statutory requirement general of a ver- trial court simply cumulating erred dict,21 jury was never called sentences because to do so was inconsis- upon to specific indicate which incidents— tent with judgment its recitation of the whether occurring before date of the age offense and the of the 1997, or after —it upon relied to convict. victim at that time? Or should we instead Because the utterly record is unrevealing presume because the judgment re- with regard to that question, cites that the trial court ordered the sen- court had no factual upon basis which to cumulatively, tences to run the trial court determine which incidents the jury relied (if actually implicitly) determined that the upon. Nor do the notations reflected in occurred after judgment the written purport to reflect simply recording made a mistake in the trial court’s finding with respect the date of age the offense and what incidents the jury relied victim? offers no satisfacto- reason, convict. For this I reject the ap- ry solution quandary. to this pellant’s assumption tacit appro- that it is event, In we should be hesitant to priate to defer to purported fact-find- involve the trial court in the sort of fact court’s, ing part be finding function that the appellant’s argu- reflected in the written judgment. implicitly ment assumes to appropriate be in this case. At least the context of a B. The Burden of Production trial, jury the question is not what How, then, go trial court do we about respect determining believes with to wheth- er the what incidents appellant jury upon incidents for which the relied in the was convicted under Counts III face of a silent In and IV of record? the absence of the indictment occurred before or after controlling legislation,22 rules or courts 20. We have held that the trial question partic- court’s decision the fact involved here—What whether to exercise its discretion to cumulate jury rely upon ular incidents did the to convict implicate sentences does not the Sixth under Counts III and IV of the right jury Amendment precisely to a trial be indictment? —is not one that the trial court typically cause it does not "turn on dis definitively could in the answer face of a particular findings crete or of fact on the silent record. State, judge’s part.” Barrow v. 207 S.W.3d (Tex.Crim.App.2006). This is not to 1(a) 21. See Tex.Code Crim. Proc. art. 37.07 § say may that the trial court never called be ("The every verdict in criminal action must be upon predicate fact-finding to make a general.”). See, respect e.g., to issues of cumulation. (Tex.Crim. Miller v. example statutory cite To but one of a (trial App.2000) authority court’s to cumulate assignment production, of a burden of take resulting sentences from follow convictions 2.03(c) Section of the Penal Code. Tex. Penal ing non-joined or -consolidated trials is con 2.03(c) ("The issue of the existence of tingent finding upon a that "the record con Code linking jury a defense is not submitted to the tains some evidence” unless defendant to conviction). prior the sentence supporting from the But evidence is admitted the de- all, to benefit party that stands prevail party which should decide

typically example, For stacking order.23 from the face of a record issue in particular on a 42.08(a) Article Code construing respect to some determi- is silent with Procedure,24 the statute of Criminal pro- a burden of by assigning fact native of sentences for cumulation authorizes Here, whether the the issue is duction. offenses, and non-consolidated non-joined to stack the sen- court is authorized trial a trial court have held that we per- DB those upon pertaining tences of another top new sentence on stack a fact, MB, and the determinative taining to in the proceeding earlier from an sentence silent, exactly which the record is about linking the defendant absence of evidence (pre- post-amendment) which incidents for which the earlier sen- to the conviction appel- upon relied to find Thus, essentially we imposed.25 tence was against DB. committed the offenses lant production to the the burden of allocated authority a trial court’s In the context of State. sentences, has hereto- this Court cumulate Nevertheless, of sev- following the lead establishing de- the burden of placed fore cases,26 the is, eral other courts upon facts the State —which terminative infirmity fense.”). Krajcovic an absence of constitutional strates In was which would (Tex.Crim.App.2013), the issue in the one condition rely.”). the ben whether the was entitled to recent under a efit of a instruction governing de self amendment to statute 42.08(a). Proc. art. 24. Tex.Code Crim Legislature problem was that fense. only, prospective and it made the amendment Miller, ("Only when 33 S.W.3d at 261 25. See exactly when unclear from the evidence was some evidence that links the record contains af before or the homicide occurred—whether prior convictions is the defendant legislative amend ter the effective date of the 42.08(a) judge's authority under [Article] Krajcovic ment. See words, triggered. die record must In other 2011) (Tex.App. & n. 10 Worth — Fort judge's exercise of discre- implementing (legislative the so- amendment tion.”). provided that an of called "castle doctrine” date is to fense committed before the effective stacking per proposition that 26. For the law). held governed the former We be as there was some missible so appellant was not entitled to the III that the offenses in Counts in the record the new law because "there instruction under Sep occurred after and IV of the indictment that the offense was no affirmative evidence 1997, 1, appeals cited the court of tember committed on or after” the amendment’s was 839, (Tex. State, S.W.3d 853 Hendrix v. 150 Krajcovic, date. 393 S.W.3d at 287. effective 2004, ref'd), pet. App. [14th Dist.] — Houston say, evidence That is to in the absence of 668, State, 96 S.W.3d 671-72 and Owens v. "establishing temporal point that precise a pet.). George no See (Tex.App. — Austin definitively which version of the determines Schmolesky, 43 Texas Prac E. Dix & John M. satisfy appellant failed to appliesf,]” law 38:35, Criminal Practice and Procedure tice: production under Section his burden (3d ed.2011) (describing the hold at 430-31 2.03(c) entitled to an instruc to show he was ). and Owens ing in Both Hendrix Owens tion under the amendment to self-defense opinion an earlier Yebio cited J., (Price, concurring). Id. at 289 statute. 2002, pet. (Tex.App. S.W.3d 193 — Texarkana Yebio, ref'd). alleged that In the indictment Dansby v. 23. Cf. "on or about” a date the offense occurred ("What (Tex.Crim.App.2013) we hold to- n.17 that, September 1997. 87 S.W.3d that fell after day beneficiary appellate rule is as of the However, there was no evidence at 195. any proof one upon of the violation of sexual abuse had actual incident of show probation, appellate an court condition of date, order, the court of ly after that so may the State bears occurred affirm a revocation judgment to delete the appeals reformed the producing a record that demon- the burden of appeals court of in this case held that not.27 But the State could have remedied particular failure of the record to show the just readily situation as as the appel- upon jury incident which the relied defeat- lant choosing to elect sponte, sua improper-cumulation ed the appeals court of did not elaborate as to claim, why since he could have remedied the it believed that it should be the appel- election, by requesting situation but did lant who shoulders this burden.28 I next Thus, order. challenge cumulation Id. Yebiois for the appeal, only first time on Hendrix, Owen, distinguishable from and the if the supported evidence could not have case, instant in each of which there was evi- jury finding that the offense occurred after finding jury dence to that the of- 1997. Id. at 826. In other words, fense occurred both and after before the effec- holding LaPorte's a claim that a — that tive date of the 1997 amendment to Section cumulation order is unauthorized be 3.03(b) of the Penal Code. raised for appeal applies the first time on — only when a claimant is correct on the merits 27. The court of reasoned: that the cumulation order is in fact unautho perceive rized. I argu three flaws in this phrase Because the State used the “on or all, ment. conception, First of under this it indictment, about” in the it was free to necessary becomes to resolve the merits of a prove that these offenses occurred on claim in order subject to declare whether it is prior presentment date of the indict- procedural just year default. But last we statutory ment and within the limitations demonstrated typically necessary that it is not Further, period, expired. which had not to demonstrate that a claim is an assured appellant] did not [the ask State to elect winner in order subject to show that it "is not act, acts, multiple as to which out of ordinary principles procedural default.” rely upon to secure a conviction. (Tex. Davison v. Thus, S.W.3d as as there some Crim.App.2013). reviewing A court must re that the offenses for counts three and four waiver-only solve the systemic- merits of a occurred after requirement type regardless of claim court’s order was not erroneous. Bonilla, ultimately proves whether the claim meritori 2013 WL at *4. Second, simply ous. the Court takes it for possible It is to understand the court of granted that the cumulation order in this case appeals’s holding essentially proce- one of only legally unauthorized if there is insuffi right dural default—that the lost his jury cient evidence which from could have complain potentially unlawful cumu- Septem found that the offense occurred after inaction, through namely, lation order his Majority Opinion ber at 827 & n. 30. failure to insist at trial that the State elect the But we characterized this as “an unsettled particular incidents of sexual abuse Bahena, parte area of the law” in Ex rely persuading which it intended to (Tex.Crim.App.2006), to convict the of the offenses we have had no occasion to settle that area of alleged in Counts III and IV of the indict- Third, today. the law until I believe that the understood, ment. ap- Thus the court of proper question to ask is not whether the peals's holding seems to be in tension with could have found that the offense occurred LaPorte, holding this Court’s 840 S.W.2d at post-September but whether the rec 415, improper that "an cumulation order ... jury, ord shows that the as institutional fact- time[,]” any including be raised at for finder, actually did find that the oc offense appeal. the first time on text, ante, curred after that date. See at 827- respect 28. When the record is silent with today to Court holds that the question, question this procedurally did then the next to indeed default his claim ask is: party Which should be held the cumulation order accountable for was unauthorized. He question failing did so that silence? It is the latter I to demonstrate "that the guilty could not have believe the Court found him of an offense should address and resolve 1, today. that occurred after Ma- 1997.” jority Opinion Judge-Alcala procedural at 822. The Court takes the avoids the issue of position that the by characterizing trial court’s cumulation or- default appellant's the unauthorized, subject der was challenges sufficiency and therefore claim as one that the or of the same repeated the court commission simi- appeals’s whether consider offenses[,]” property burden of lar production of the whether assignment the begin I review of appropriate. Thus, permitted or not.30 the State was to to in- legal principles four intersect than pursue conviction for more one of- (1) joinder the form decision: law of our prosecution any fense in of- the same (2) severance; law the governing the and the same “crimi- during fenses committed charging dates in a pleading of offense statutorily episode,” nal as so defined. (3) instrument; law State requiring Code, Penal Under Section 3.04 of the among to discrete incidents has elect right defendant retained an absolute to proven independently support trial that those force the State to sever offenses and (4) alleged, it has and the offense separate prosecutions.31 embark on But fail- consequences of the State’s jeopardy right price. Upon came at a to sever elect. ure to severance, could, at its dis- the trial court sentences; cretion, opt where- to cumulate The Law C. as, for acceding “reward” defendant’s origi- and 1. Joinder Severance. As of of- joinder/consolidation to State’s Code, join- in the 1973 Penal nally enacted in a single prosecution fenses was that the single in a of offenses indictment der run required trial court was result- in the same criminal action and con- concurrently.32 ing sentences disparate instru- charging solidation of 1995, however, In the defendant’s incen- single trial were limited to ments for joinder/consolidation tive to accede to was prosecutions repeated for the commission time, the pared Legis- back. For the first property origi- offense.29 This the same for one provided spe- lature at least considerably by nal scheme was broadened manslaughter— cific 1987, offense—intoxication however, when the Legislature join the State would be allowed con- episode” definition of statutory “criminal include, alia, expanded prosecution inter “the solidate offenses for still case, actually appellate cu- did find—and how the evidence court's Concurring Opinion respond mulation order. at 822- simply court should when the record however, appeal, on direct 24. In his brief jury’s finding. does not disclose appellant did not characterize his claim in way, arguing 399, 1973, 1, instead law in "[t]he this Leg., § p. 29. See ch. Acts 63rd effect at the time commission of counts 883, 1, ("In chapter, eff. Jan. this ‘crimi- not allow the did court to ‘stack’ episode’ repeated nal means the commission Appellant’s Appeal Brief on counts.” Direct defined in Title 7 of one offense this at 27. The raised the issue as one (Offenses Against Property).”). code stack, authority of the trial court’s not of evidentiary sufficiency. Nor did court of 387, 1, p.1900, Leg., § 30. Acts 70th ch. the issue appeals characterize as one of suffi- Sept. eff. ciency unpublished opin- of the evidence its Instead, ion. the court held that Leg., p. 31. Acts ch. 63rd the trial court had "discretion” to stack eff. Jan. there sentences so was "some evi- dence that the offenses for counts three and Id.; George Dix & E. John M. see also four occurred 1997.” Schmolesky, Bonilla, 43 Texas WL at *4. But the Practice: Criminal Prac- 38:33, (3d us, me, § at 426 ed. question it seems to before is not what tice Procedure 2011) ("In effect, concurrency of sentences is rationally finder of fact could some have presented, asserting found on the facts what the the defendant’s 'reward' for not his but right charges.”). jury, fact her as the institutional finder in this or to severance of request cumulation of sentences.33 For to the presentment of the indictment and being, the time the defendant could still statutory within the period.”38 limitation severance, on a insist since Section 3.04 The trial court instructed appellant’s time, was not at amended this but either accordingly. The indictment was way, any resulting sentences could be cu- filed April and there is cur- later, 1997, years mulated. Two rently no limitations period for the offense Legislature expanded the list of offenses of indecency Therefore, with a child.39 for which cumulation of sentences re- appellant could be convicted for any in- option joinder/con- mained an stance of indecency with a child that con- —even by adding sex offenses commit- allegations formed to the in the various solidation— against ted children (including indecency counts of the indictment and was commit- child).34 time, with a 16, At the same prior April 2009, ted to whether occur- Legislature stripped the ring defendant of his before or after the effective date of right joined/consoli- absolute to sever such 3.03(b) the 1997 amendment to Section law, then, dated offenses.35 Under current the Penal Code. at respect any indecency- least with to 3. The State’s Election. The rule appellant may

with-a-child offense that the that an “on or pleading about” does not have committed after the effective date of bind the State to the actual date of the amendment,36 the 1997 unquali- he has no offense named in the indictment creates right fied insist on severance to force ambiguities certain proof trial.40 trials, separate nor he glean the auto- Should the State happen present evi- matic “reward” of concurrent sentences for dence of conduct that prove would serve to acceding joinder.37 to the the alleged offense and which occurred on Pleading.

2. “On or About” occasion, “It is more than one the defendant well settled that the ‘on or about’ language may not be distinguish able to the incident of an indictment prove allows the State to he is called defend himself a date other than the one from those other extraneous incidents that indictment as date is anterior are admissible to serve some other valid 1995, 596, 1, 3435, Leg., p. § 33. Acts prosecuting 74th ch. indecency the offense of with a 1, 2007, 593, 1.03, Sept. Leg., § eff. 1995. child. Acts 80th ch. 1120, 1, p. Sept. Though eff. 2007. this change statutory provision limitations 1997, 2251, Leg., p. § 34. Acts 75th ch. came well after the offenses were 1, Sept. eff. 1997. committed, change expressly was made to apply prior offense for which the limi 1997, 3, 667, 2252, Leg., p. § Acts 75th ch. 35. period already tations had not run. Acts 1, Sept. eff. 1997. 2007, 4.01(c), Leg., p. 80th ch. Sept. erroneously eff. 2007. The trial court Leg., 36. Acts §§ 75th ch. 7 & appellant's jury prior instructed the 2252-53, pp. Sept. eff. th (ten period years limitations after the 18 victims) birthday apply. Since 3.03(b), 3.04(c). §§ 37. Tex. Penal Code period had not run the time of the appellant's respect trial with either MB (Tex. Sledge DB, however, jury charge this error Crim.App.1997). inconsequential. trial, 255; By appellant's the time of the 40. E.g., Sledge, Article 953 S.W.2d at Crawford 12.01 of the Code Criminal Procedure had 905 (Tex.Crim.App. 1985). provide been amended to “no limitation” for 832 Consequences Moreover, Jeopardy 4.

evidentiary he can- Double purpose.41 jury not has not con- assured the to Elect. The be State’s Failure ab- a being generally, him for criminal State, victed we sence of an the have election unanimity much, that it has attained less held, protection invokes the constitutional any to one On the respect with incident.42 put being the twice defendant hand, important it the State other is that offense, jeopardy for the “same” and the any one that should not be held to incident a may prosecuted defendant not be second satisfy pleading its “on or about” any presented time for incident fact- opportunity gauge had an until it has to finder at trial that could have the first developed jury, how has the its case before to a under served conviction the which to may so that it choose incident allegations prosecu- in that initial pled rely for conviction to its upon according elect, By the State failing tion.46 to essen- all of optimal proof.43 For these reasons tially ability to obtain a later forfeits its upon we at least the have held defen- separate conviction of those inci- ultimately request, dant’s the State must then, dents and under Article 42.08 of the urge upon incident it intends elect which to Procedure, the of Criminal stack sen- Code the of its jury in satisfaction “on or about” that later resulting tence from conviction have also pleading; but we held that such top on it obtained the sentence under required an is not until the State election Moreover, prosecution. the first when the Moreover, case in chief.44 wheth- rests its record is as to whether the unclear State er the defendant has an requested or not election, actually we have pre- made (at the time the its election State rests State did not elect.47 sumed that This chief, time), or at it case other effectively the burden on State places upon remains incumbent trial court to produce a record that avoids adverse grant later in- request the defendant’s than jeopardy consequences rather on the it must struct the that be unanimous produce posi- defendant to a record respect to which incident of the tively to jeopar- establishes his entitlement offense the charged guilty defendant was case, dy protection. In the instant be- committing, even if the uncertain to, required cause the was not “on or State particular date about” which not, particu- that incident occurred.45 the record shows it did elect a State, (Tex. judge charge 41. O’Neal v. 772 must craft a ensures 1988); Crim.App. Phillips jury's verdict will be unanimous (Tex.Crim.App.2006). presented specific based on case.”). Indeed, request a even absent instruction, jury-unanimity the trial court's Phillips, 42. 193 S.W.3d at 910. failure to can submit one sometimes result in O'Neal, reversible error under Almanza (quoting 746 S.W.2d at 771 Cross (Tex.Crim.App.1985) (opinion S.W.2d 157 90 Tex.Crim. lin v. 235 S.W. Cosio, reh'g). supra, at 776-77. (Tex.Crim.App.1921)). 772; O’Neal, 46. See note ante. Phillips, 746 S.W.2d at S.W.3d at 912. The trial court order sooner, discretion, Pruitt, ("If State to elect at its but 47. See at 347 State (cid:127) so, trial, request, must do the time the prior make did an election at the it did chief; ''[fjailure If, State rests its case in specificity. required not do so with the O’Neal, case, supra. do error.” reviewing so constitutes in this finds court itself in position having guess whether Cosio, election, (‘‘[E]ven S.W.3d at See State made an then should decide elect, election.”). required there when State is was no by prove particular lar incident which to either Count on the incident that the State indictment, reasons, has elected. For these may Count IV of the it the defen- III or compel dant the can State to For re-prosecute the for elect. not later (1) the part, State’s election it assures that presented the incidents trial that any of jury’s can direct the par- attention to the supported have for could his conviction ticular that best incident fulfills its burden indecency with a in child as Counts (2) proof; preserves and the option By IV. the State failing compel III and to later, prosecuting the extraneous incidents chief, at the the to elect close of its case in perhaps to seek stacked sentences under reap in the this case is able to 42.08(a). Article It always within the “strategic” benefit —however deliberate- elect, to power State’s choose to regardless double-jeopardy this ly substantial —of of whether the defendant seeks it. protection.48 might reasonably One ask why he should not likewise strate- reap reasons, the strategic may For either party gic election, benefit of the State’s elect as prefer failure to forgo to resulting a less- impacts availability that failure the of cu- than-optimally functioning jury trial. The then, may of sentences for State joined prefer mulation to elect because instruction, given jury-unanimity the 1997 Section even a under amendment to 3.03(b). jurors the pick are free to whichever inci- they agree

dent can the best satisfies Assigning the for D. Burden of proof State’s burden and still a return Purposes

Cumulation general may verdict.49 defendant be willing give up to the advantages of elec- world, perfect In the jurisprudential a exchange tion in for the double-jeopardy always multiple State would elect which of enjoy. windfall he will Because a defen- rely it will its upon prove incidents to “on dant is entitled to a fair —but not necessar- pleading. or about” Election assures ily a perfect trial, and because right his trial will jury operate optimally — compel subject an election is to the ordi- (1) parties. part, both For the defendant’s forfeiture, nary criminal-jus- rules of precise he he knows incident must system tice tolerates —but does not neces- (2) against; appro- defend he can ask sarily maneuvering by favor—such jury’s priate limiting instructions parties. incidents, consideration of the extraneous insulating himself as best can from he unqualified Had the State exercised its (3) inferences; case, character-conformity in this right to elect then the trial request jury-unanimity he can instruc- court would have known for certain wheth- jury’s tion that focuses the consideration er the sentences properly Cosio, ("A Cosio, (even 48. See 353 S.W.3d at defen- 49. See 353 S.W.3d at 776 without strategic purely decision to elect is dant's it is election still incumbent forfeited.”). may be waived What we charge [jury] on the trial court "to submit a should have said in a defen- Cosio was that possibility allow for the does not require decision State dant’s whether to verdict”; non-unanimous the event strategic always ais one. The can elect State submitted, such an instruction is while "strategic away take that decision" from the say by have to does not its verdict which by deciding, sponte, to elect. defendant sua convict, still incident it relied it must event, right In that defendant has no incident). unanimity particular on a attain jeopardy protection inheres compel only non-election. He can State's elect; prevent State he cannot State electing. from 3.03(b). pros later Of the from prevents erated State under Section be stacked the course, be said had the inci any the same could the defendant for of ecuting right to unqualified exercised his appellant already relied.51 upon which it has dents parties Both the State to elect. compel it re-prosecute, State And when the cannot reap their re- forgo to election and opted conviction obviously cannot obtain a later these strategic objectives. Under spective stacking purposes for under and sentence circumstances, held party which should be 42.08(a). why imagine It Article is hard to in- for their mutual failure accountable uncertainty record should the same in the re- would have upon sist an election that the State operate prevent not likewise for certain the sentences vealed whether order benefitting stacking from a from DB against offenses for the committed joined clearly not for authorized the sentences for upon could be stacked by the 1997 to Section amendment MB? committed With the offenses 3.03(b) Placing Penal a bur Code.52 issue, who respect to the cumulation contrast, appellant, by the to com den on bilat- have to bear the brunt of this should the the State to elect in order to avoid pel eral breakdown? of an record would consequences uncertain precedents that the State suggest Our extent, long our at least to some contradict bear the The State is should burden. complaint standing appellate rule beneficiary In the stacking of order. authority to en regarding the trial court’s record, insist face of an uncertain we have a cumulation in violation of Sec ter order ed, stacking is not When authorized.50 subject procedural tion 3.03 is not def not even when we State elect—and does ault.53 tell whether simply cannot from the record Moreover, the equities placing favor the State elected—we have or not has thereby gen on the least in a uncertainty declared that the burden State —at Miller, appellant record as that the should. 50. S.W.3d at 261. silent circumstances, lenity the rule of Under these dictate, opt applicable, were that we Pruitt, it 51. S.W.3d at 347. interpretation” the sav- for the "less harsh of ings Section clause to the 1997 amendment of altogether law It is not clear from our case Cuellar, 3.03(b) of the Penal Code. lenity” applies of whether so-called "rule (Cochran, J., concurring). at 823 n.8 provisions construction of the Texas of Because I would reach the same conclusion Forward, parte Penal Code. See Ex lenity, without reference the rule of (Tex.Crim.App.2008). S.W.3d n.19 deference to the observation in Forward does, provides it "it the rule of deci Even if apply to Penal construction of the only 'when both alternative choices [for sion Code, my analysis I omit it from in the text. penal provision] how to construe a are more- ” equally (quoting Id. Cu or-less reasonable.’ 53. LaPorte, (Tex. parte 823 n.8 In Ex ellar v. S.W.2d at McJunkins, (Cochran, J., concurring)). (Tex.Crim.App. Crim.App.2002) 954 S.W.2d 39 1997), lenity likely apply, subsequently of it would we that a defendant If the rule did held holding validly right in favor of in the can waive his to concurrent sen counsel a specific showing charges Chap of a in the record tences for consolidated under absence plea guilty part Penal a that the found ter 3 of the Code as so, agreement. the 1997 Even to insist basis of incidents that occurred we continued 3.03(b), rightly LaPorte had been decided to amendment Section subject in that should to cumula extent that it allowed the sentences not be challenge, appeal, impossible legislative time on tion. It is to know the case to the first respect authority question, and it is the trial court's to enter a cumula intent to this at order in violation Section 3.03. Id. reasonable to conclude tion least consequences should suffer State one, in which present failing case such as fits of to elect among pre-amend- post-amendment the indictment offense dates ment and incidents to case, III preceded prove both Counts and IV that its the State should be held effective date the 1997 amendment to accountable for the consequences 3.03(b). allega- resulting Section Based uncertainty whether the record dates, pre-amendment appel- supports tion of the imposition of stacked sen- 3.03(b) made presumably pre-trial lant choice tences under Section of the Penal to insist of upon Accordingly, whether severance the Code. I would hold that the him charges against under Section 3.04 trial court lacked the authority to stack the (as do, pre-amend- he was entitled to sentences pertaining to the com- ment) or, instead, joinder against to accede to the mitted DB atop per- the sentences (to reap of offenses and the “reward” taining to the offenses committed entitled, MB, pre-amendment) which he was and that the court of appeals erred to guaranteed concurring sentences. He conclude otherwise.

cannot have known until the trial itself might, whether the State upon reliance IV. CONCLUSION rule, pleading present the “on or about” Because the cumulation orders were not evidence of indecency incidents of with a shown to be authorized under the 1997 child that occurred after the effective 3.03(b), amendment to Section all of the statutory And, date amendment. appellant’s sentences have been should indeed, had the State proven only post- concurrently.' made to run Accordingly, I incidents, amendmenf the appellant could would reform each judg- written enjoyed not have the reward of concur- ments in this cause to delete the cumula- all, rent sentences after notwithstanding not, tion orders.54 Because the Court does the presumption pre- that he entertained respectfully I dissent. trial, actually based the dates al- leged the indictment. It seems mani-

festly unjust permit the State to stand

by while pre- makes this

sumptive strategic decision whether or

not to seek reward of concurrent sen-

tences, insist, opt and then he should joinder, that he deprived nevertheless be BARRIOS, Appellant Jose Manuel simply of that reward because at trial the presented State “some evidence” of inci- Texas, Appellee STATE allegations dents that would place took after the effective date of No. 07-13-00426-CR 3.03(b). the amendment to Section Texas, of Appeals Court I conclude for opting allege pre- Amarillo. amendment dates the indictment and then later choosing advantage to take December rule, the “on or about” pleading while at the same time pursuing strategic bene- Beedy authority simply

54. See 113-14 ful to delete it from the (Tex Crim.App.2008) remedy (proper judgment). cumulation order that is entered without law-

Case Details

Case Name: Bonilla, Ronald Antonio

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 19, 2014

Citation: 452 S.W.3d 811

Docket Number: NO. PD-1099-13

Court Abbreviation: Tex. Crim. App.