*1 673 error). of error “objec- Point points and identified as the briefed strikes White Saldano, juror. S.W.3d See 232 eleven is overruled. tionable” (harm from of de- at 91 erroneous denial af- court is judgment when, for challenge fense cause occurs firmed. things, among other unsuccess- defendant an fully requests peremptory additional JJ., concurred. PRICE and WOMACK used to that he claims he would have strike defen- remove a veniremember whom as and who “objectionable” identifies
dant fact,
actually jury). sits on specifi-
record reflects the trial court appellant requesting
cally asked if he was appellant peremptory
an extra strike when “objectionable,” as
identified White responded, doing, All I’m appellant “No. Yising WILLIAMS, Appellant, Turnar stating Judge, is on the record [White], objectionable number 46 to us.” v. entirety also set We out The STATE of Texas.
appellant’s argument respect PD-1948-06, PD-1949- Nos. appel of the trial on rulings merits court’s 06, PD-1950-06. challenges lant’s for cause: challenged the seven enumer- of Texas. Appeals Court of Criminal persons variety ated venire for a of dis- answers qualifying given response May 2008. questions from both and the the State instance, In each trial defense. incorrectly challenge.12
court denied portion appellant’s
This elev point inadequately
enth error Tex.R.App. (f), 38.1(e),
briefed. See PROC.
(h). has obligation This Court no to con issues, compose
struct and appellant’s
facts, arguments ci appropriate “with
tations to to the record.” authorities and Assuming, therefore, appel
See id. deprived
lant could establish that he was statutory peremptory
of a strike from rulings challenges
erroneous on his
cause, presents nothing still for review. he Cardenas
See S.W.3d
(Tex.Crim.App.2000) (appellate court has inadequately obligation
no consider Hedger, (Chang, assuming We conditions for veniremembers note met, Mahan), establishing appellant an extra appellant would since received harm are Newbury, erroneously See peremptory court strike. have to show challenges denied his cause to two of at 31.
674 more,
or grams, but less than four cocaine, Penalty a controlled substance 1. Tex. Health Group & Code Ann. 481.112(c). One of the indictments con- a paragraph alleging tained the of- 1,000 fense occurred within feet of a drug-free-zone school—a raises —which the minimum term of confinement five years and doubles the maximum fine if convicted. Tex. Health & 481.134(c). trial, § Ann. Prior to the court granted the State’s motion to consolidate the three causes for one trial under Texas Penal Code 3.03. jury
After a Appellant was convict- ed of all three offenses and sentenced judge. the trial trial judge sentenced years’ to 17 and a confinement $3,000 fine for each conviction. The trial judge then ordered the sentence for the drug-free zone offense to be served consec- utively to the other two concurrently. would be served Appellant appealed “stacking” of one two, arguing of the sentences on the other all of should have ordered the sentences to run sought joinder the State of the of prosecuted part fenses and them as of one episode under Health & if a provides Martinez, Victoria, A. Appel- Luis for defendant is convicted of more lant. single offense out of a D.A., Kelly, Michael M. Asst. Crim. Vic- episode, then the sentences must be served toria, Horn, Jeffrey L. Attor- Van State’s concurrently. opinion, a memorandum Austin, ney, for the State. appeals the court of affirmed Williams v. judgment. court’s Nos.
OPINION 13-05-194-CR, 13-05-195-CR, 13-05-196- MEYERS, J., opinion delivered the CR, TexApp. 2006 WL Court, PRICE, WOMACK, in which 7870 (TexApp.-Corpus LEXIS Christi JOHNSON, KEASLER, HERVEY, 2006)(mem. Aug op., designated JJ., HOLCOMB, COCHRAN, joined. Appellant filed a publication). petition review, indictments, discretionary granted. which we separate In three charged delivery gram with the of one We reverse the decision of the court of parties that he understood the appeals Appellant’s hold that sen told both convicted, concurrently. signify be served indictment tences shall have to run sentences would Appellant’s AND FACTS PROCEDURAL this un- concurrently. The State affirmed
HISTORY derstanding.2 judge The and the State pun- agree that the basis for appeared to indictments, separate Appellant In three Appel- be enhancement would ishment selling cocaine to a charged was with crack status, making a repeat-offender lant’s separate informant confidential on felony first-degree felony second-degree a at different The State dates locations. punishment purposes. to consolidate three causes for Tex. Pen.Code moved the 12.42(b). However, jury- during § § one Texas 3.08.1 trial under Penal Code Ann. announcements, judge explained trial the granted. Following a This motion was that, of trial, Appellant if was convicted the jury Appellant was found single offenses, the sentence for the guilty of all three was Appellant offenses. run offense would have to consecu- judge. subsequently sentenced judge trial tively to the other two. The in are The conflict this case is that there Appellant verified that under- specifically ways two to possible Appellant, sentence this to be the case. The issue came stood depending upon judge which statute the time at hear- up a third the believed was Texas controlling. Under trial that ing, judge when the stated he Safety 481.132(d), if Health and Code sen- Appellant’s needed time decide multiple convictions out of one sin- deliberation, judge some tence. After gle are episode togeth- prosecuted unpublished provid- an upon opinion relied action, single er in a then Appel- to him to decide ed State run concurrently. sentences must In con- confinement years’ lant’s sentence trast, Safety Texas Health Code and $3,000 offense, two per fine and 481.134(h), drug-free- deals with concurrently the sentences be served zones, “[pjunishment that states consecutively. third to be and the served for a increased conviction for an offense listed under this section not run con- Appellant appealed the determination currently with for a conviction part consecutively. of his sentence run any other criminal statute.” opinion 2-1 In a memorandum with little judge par- why they The trial as to explanation conferred with believed Safety several times to how to and language ties determine Health Appellant. properly During pre- sentence controlled over Health and motions, 481.132(d), prosecutor ap- the court of exchange judge Appellant required had an in held that peals pled, then— way 1. of Ch. The it’s been [The State]: For violations 481 of the Health Code, consolidating Yes, the means mul- your Honor. provided by § tiple solely Well, offenses only Court]: there are certain [The However, Appellant object, did this is exceptions. appeal. not an issue on Yes, your Honor. [The State]: offenses, believe, Court]: These I don't [The following pre-trial is the re- discussion exceptions, fit in those without double would joinder lated to the of the offenses: checking the statute— ¡The type of Court]: I believe this is the Yes, sir. [The State]: you guilty, would case if are found this have to run then. serve a case, consecutive sentence for the drug convicted. this con- offense that drug- was committed in the tends that the State all received of the free-zone. benefit consolidating the cases while return, nothing received mak- granted Appellant’s We petition for re- ing an unfair trade-off. view to consider the State’s election to consolidate the cases limited the trial Second, Appellant argues that although court’s authority to order that one sen- wrong join the State used the section to all tence run consecutively to the sentences of the language offenses the other causes. of Texas Penal Code 3.02 and Texas Health and Code 481.132 are vir- *4 ANALYSIS same, tually the and neither statute con-
Appellant presents
arguments
several
to tains an exception to concurrent sentenc-
support
proposition
the
that
ing for an
drug-
offense committed in a
judge’s authority was confined to the con-
Appellant
free-zone.
observes that
the
sentencing
current
provisions of 481.132.
Legislature
Texas
added concurrent sen-
First, Appellant asserts that because the
tencing exceptions to Texas Penal Code
State elected to consolidate all of the
offenses,
§ 3.03 in 1997 for certain
includ-
trial, they
causes for one
by
were bound
assault,
ing intoxication
intoxication man-
provision
the
requiring concurrent sen-
slaughter,
offenses,
and certain sexual
but
tencing. Appellant supports his conclusion
Thus,
not for
the Health and
Code.
State,
with LaPorte v.
677 (3) increased, to the actually punish- or remand this cause ment was increased, hearing. was not ment was the increase for a new trial court (4) drug-free finding, due a presents The case before us drug-free conviction of the zone of- construction; statutory essen question “any a other fense is not conviction under ap tially, one of these two statutes required statute” as sentencing? Because plies Appellant’s 481.134(h). question a statutory interpretation is *5 lead to that the tion would absurd results because, finding during zone the sentenc- could have intended. legislature not ing hearing, the that he was stated State, 787, 792 Thompson v. 236 S.W.3d giving Appellant the inter- benefit of his (Tex.Crim.App.2007), citing Boykin v. pretation increasing of the statutes and 782, (Tex.Crim.App. minimum due punishment of his offenses 1991). Boykin also in We concluded status, repeat-felony to his than rather focus our attention on the literal we must increasing the minimum be- mind, With this in we text of the statute. drug-free finding.4 Ap- cause of the language of sections of look to the the two pellant additionally argues that the two and Section the Health Code. provisions conflicting part are of the same 481.132(d) says that if is con a defendant Texas statute —the Controlled Substances than victed of “more one offense Therefore, 481.134(h) § Act. would not be episode” prose out of same it applicable only into effect comes trial, in one then the sentences cuted when there is conviction under a differ- run con defendant’s convictions must statute, robbery. ent criminal such as for currently. defines reasons, argues all of these Appellant For of 481.134(h) episode” as “the commission “criminal §of an application was ” chapter more offenses this two or under judge. of discretion the trial As abuse (Emphasis a remedy, Appellant to either re- under certain circumstances. asks us added.) “chapter” sentences run The that this subsec- form the and have them 5, interpretation you your to be The other would be that minimum is determined $10,000, 10, up carry along, specific the 134 increase stat- and to but rather than a fine So, utory apply non-specific. provisions up a fine the maximum over rather to you’re seeking appropriate, when another it’s $20,000. enhancement, you go with the other enhance- argues despite Appellant point being sought— still this ment that’s judgment, pronouncing when fact something the State has con- Unless further ap- judge specifically explained that he cerning that. repeat-felon plied both the enhancement Not at time. [The State]: Then, Williams, punishment of the you are the minimum [The Court]: Mr. increased benefitting ruling that and zone offense. from Court’s only tion refers to Chapter applies Appellant’s the Texas because one 481.134(h) Appellant Controlled Substances Act. convictions. Because does indicted for three under Chapter offenses situation, Appellant’s not address it is in- in prosecuted the offenses were capable being in conflict with was convicted of all 481.132(d). such, As should 481.132(d) offenses, therefore, § ap- have been ordered to his three 17- serve plies to situation. Appellant’s year concurrently. sentences step language
The next is to look at the 481.134(h), of Health and CONCLUSION states, “Punishment is in- in appeals engage court of did not creased for a conviction an offense statutory regarding construction listed under run this section con- applies Appellant’s these two statutes currently for a conviction and, therefore, incorrectly case affirmed any under other criminal statute.” It is Appellant’s court’s cumulation apparent language from the of this statute sentences. Because did not any- that a conviction for an offense listed Appellant’s sentencing, § apply where within 481.134 cannot run concur- controls this situation. reverse the We rently with a conviction for an offense appeals decision of the court of and reform other criminal statute. Just judgment to reflect that all three sen- reading auspices statute under the run concurrently. tences usage grammar, “any common other a criminal statute” means statute Appellant’s not listed within PRICE, J., concurring opinion, filed a *6 punishment was increased for a conviction JJ„ HOLCOMB, and KEASLER 481.134(c), however, § listed under all of joined. Appellant’s convictions were for offenses 481.134(c). § under logical listed The ex- KELLER, P.J., dissented. that, analysis
tension of this because PRICE, J., concurring in which Appellant was not convicted of a criminal HOLCOMB, JJ., joined. KEASLER and 481.134, § offense not listed within the provision of consecutive agree I that the trial court erred in 481.134(h) Therefore, § apply. does not sentence, ordering the third en- appellant’s 481.132(d) determines whether the sen- drug-free provision hanced under the zone run concurrently. tences are to Code, Safety of the Health and to run 481.134(h) may argue that Some two, consecutively to his other concurrent- given effect should be because the Texas join I ly running and the Legislature passed subsequent it to only to opinion. separately Court’s I write 481.132(d), they or because view reasoning. the elaborate on Court’s “exception” gen- as an charged sep- in three appellant The was 481.132(d). However, eral rule of under alleging delivery arate indictments of co- Act, give the Code Construction we exclu- caine, dates, on three different perpetrated specific provision sive effect of a over a grams. in an amount one and four between general provision only more when the two repeated the commission This constitutes irreconcilably conflict. Tex. Gov’t Code hand, of same offense under Section In at there 311.026. the case Ann. (c) no the two sections and of the Health and conflict between 481.132(d). that trial court believed Each an en- The indictment included Code.1 481.132(d)’s alleging requirement hancement count commission of concur- Section grade that boosted of prior felony of a by Section trumped rent sentences felony to degree from a the offense second 481.134(h), “[punish- that provides by a term degree felony, punishable a first for for a that is increased conviction ment life, years not or less or more than 99 under this an offense listed section years a penitentiary, than five in the and punishment for concurrently run with $10,000.2 of no more than It is undis- fine any other criminal stat- a conviction under these puted that the State consolidated however, view, my the trial court ute.” no three offenses for and there was plain language of Section misconstrued By express terms of Sec- severance. 481.134(h). 481.132(d) the Health tion (h) Under Subsection Section Code, therefore, re- the trial court was run for impermissible it is run the three sentences concur- quired elsewhere in Section “an offense listed” rently.3 for concurrently complication in this arises from case any by “any other criminal offense defined the fact the third indictment also al- statute,” By statute.”5 “other criminal leged appellant committed his de- (h) plainly means Subsection livery offense within thousand feet of the other those criminal statutes statute “drug- of a premises school—a so-called in listed the other subsections of Section reason, appellant free zone.” For this nothing sen There is else in the in- susceptible was also third possibly “other” could tence word dictment an enhancement of his sen- to. refer back Each of the three offenses by increasing punish- tence the minimum as appellant was indicted is defined years five doubling ment the fine.4 felony by degree a second Section The trial court concluded 481.112(c) the Health Code. appellant’s susceptible third conviction was turn, 481.112(c), is listed Sub Section enhancement, to this his (c) section 481.134—the same sentence that conviction not be could (h) made to run “section” Subsection of Section with the other *7 the of notwithstanding Section 481.134 refers to. Because all of two nounced, 1. See Tex. Health & those sentences run concurrent- Safety Code (c) ("... person & commits if the ly.”); an offense see also Safety & Tex Health Code person knowingly 481.132(a)(2) ... ... a con (defining episode" delivers "criminal Group Penalty trolled substance listed in 1. repeated of the to include "the commission * * * (a) An is a offense Subsection offenses”). or similar same degree felony of the if second the amount the controlled substance to which the offense 4. See Safety & Tex. Health Code is, by including applies aggregate weight, 481.134(c)(1) ("The con- minimum term of dilutants, gram adulterants or or more imprisonment for oth- finement or an offense grams."). but less four 481.112(c) punishable erwise under Section years ... is increased five and the maxi- 12.42(b) §§ & 2. Pen.Code Tex. fine for offense is if it is mum doubled shown on trial of offense 481.132(d) 3. See Safety Tex Health & ... offense was committed within 1000 feet ("If guilty the accused is found of more than school[.]”). premises of a of the one offense out same episode prosecuted single ac- in a (em- tion, 5. Tex. sentence for each offense for which Health & added). guilty pro- phasis has been found be accused shall 481.132(d) appellant fenses that the was convicted of Safety Code, of the Health and plainly governs. are listed in Section he has not any been convicted under criminal statute
“other” than those listed Section reason,
481.134. For this prohibition
against concurrent sentences as defined (h)
Subsection of Section 481.134 does not
apply appellant’s to the consolidated con
victions. prosecution And because for all
three offenses was consolidated under Sec LOPEZ, Jr., Appellant, Osvaldo 481.132(d) tion of the Health and Code, sentencing concurrent was mandat
ed. The trial court erred to conclude oth The STATE of Texas. erwise. PD-1124-07, Nos. PD-1125-07.
The State Prosecuting Attorney has cause, filed an asking amicus brief in this Appeals Court of Criminal of Texas. apply principles Court to pari of in May materia conclude 481.134(h)’sprohibition against concurrent punishments govern. princi-
should But one of the first materia,
ples of pari applicable which is Code, Health and is to con- seemingly
strue conflicting statutes to har- Here, possible.6
monize at all there is
no conflict. Each of appellant’s
convictions was for “an offense listed un- 481.134;
der” Section none was for an
offense “under other criminal statute.” (h) face, then,
On its Subsection of Section prohibit
481.134 does not concurrent sen-
tences under these circumstances. In the any special
absence of provision that operate prohibit
would the appellant *8 obtaining
from concurrent
general statutory requirement of concur-
rent prosecutions when are
consolidated, contained E.g., Code) Cheney 481 of the Texas Health and (Tex.Crim.App.1988). provide See Tex. Health & Safe- does not otherwise. Under Section Act, (“Chapter Government of the Code Construction ty (Code Act), applies general provision Construction conflict between a construed, provision special provision construction of each in this code or local “shall be code.”). except provided by possible, given as otherwise so that effect is to both.” 311.026(a). (Chapter The Texas Controlled Substances Act Tex. Gov’t Code notes all three offenses law, review. this court conducts de novo no received identical so there is (Tex. State, 85 v. See Guzman drug-free indication zone sentence Crim.App.1997), Johnson Therefore, way. was increased (Tex.Crim.App.1997). S.W.2d does Health and only appli- 481.132 the apply, statutory con Under canons of Appellant suggests cable statute. struction, we are to construe a statute if we determined that his sentence even unless the according plain language, to its actually increased under ambiguous interpreta language is or the increase was not due to