Beedy v. State

• Decision Date: 27 April 2006
• Docket Number: No. 01-05-00601-CR.,No. 01-05-00587-CR.,01-05-00587-CR.,01-05-00601-CR.
• Citation: 194 S.W.3d 595
• Parties: Arnold Ray BEEDY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

194 S.W.3d 595

Arnold Ray BEEDY, Appellant, v. The STATE of Texas, Appellee.

No. 01-05-00587-CR.

No. 01-05-00601-CR.

Court of Appeals of Texas, Houston (1st Dist.).

April 27, 2006.

Joseph W. Varela, Houston, TX, David Bosserman, Assistant Criminal District Attorney, Angleton, TX, for Appellant.

Jeri Yenne, Criminal District Attorney, Angleton, TX, for Appellee.

Panel consists of Justices TAFT, HIGLEY, and BLAND.

OPINION

TIM TAFT, Justice.

Appellant, Arnold Ray Beedy, pleaded guilty to two counts of indecency with a child by exposure and pleaded true to an enhancement paragraph alleging a prior conviction for sexual assault of a child. See TEX. PEN.CODE ANN. § 21.11 (Vernon 2003). The trial court assessed appellant's punishment at 12 years in prison on count I, deferred adjudication of guilt on count II, and ordered 10 years of community supervision to be served consecutively with the prison sentence. See TEX.CODE CRIM. PROC. ANN. art. 42.08 (Vernon Supp.2005); TEX. PEN.CODE ANN. § 3.03 (Vernon Supp. 2005). We determine whether the trial court abused its discretion by ordering that appellant's deferred-adjudication community supervision run consecutively with his prison term. We modify the trial court's judgment by deleting that portion of the judgment requiring appellant's deferred-adjudication community supervision to begin after appellant's prison sentence is completed and by decreeing, instead, that the community supervision and prison term run concurrently. We affirm the trial court's judgment as modified.

Factual Background

Appellant pleaded guilty, without a plea agreement, to two counts of indecency with a child by exposure, and pleaded true to an enhancement paragraph that alleged a prior conviction for sexual assault of a child. The trial court assessed punishment at 12 years in prison on count I. The trial court deferred adjudicating appellant's guilt on count II, placed him on community supervision for 10 years, and ordered the community supervision to begin after appellant had served his prison sentence on his count I conviction. Appellant did not object to the punishments assessed or to the court's cumulation of sentences.¹

Standard of Review

We review a complaint about consecutive sentences under an abuse-of-discretion standard. See Harvey v. State, 821 S.W.2d 389, 392 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd). An abuse of discretion generally will be found only if (1) the trial court imposes consecutive sentences when the law requires concurrent sentences, (2) the trial court imposes concurrent sentences when the law requires consecutive ones, or (3) the trial court otherwise fails to observe the statutory requirements pertaining to sentencing. Nicholas v. State, 56 S.W.3d 760, 765 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd).

The Law

Cumulative sentencing is permitted only as provided by statute. See TEX.CODE CRIM. PROC. ANN. art. 42.08; see also TEX. PEN.CODE ANN. § 3.03; Harvey, 821 S.W.2d at 392. When a defendant has been convicted in two or more cases, the trial court has discretion to order the judgment and sentence imposed in the second conviction either (1) to begin to run after the judgment and sentence imposed in the preceding conviction has ceased to operate or (2) to run concurrently with the judgment and sentence imposed in the preceding conviction. See TEX.CODE CRIM. PROC. ANN. art. 42.08(a). Specifically, subsection (a) of article 42.08 of the Code of Criminal Procedure provides:

When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be accordingly; provided, however, that the cumulative total of suspended sentences in felony cases shall not exceed 10 years, and the cumulative total of suspended sentences in misdemeanor cases shall not exceed the maximum period of confinement in jail applicable to the misdemeanor offenses, though in no event more than three years, including extensions of periods of community supervision under Section 22, Article 42.12, of this code, if none of the offenses are offenses under Chapter 49, Penal Code, or four years, including extensions, if any of the offenses are offenses under Chapter 49, Penal Code.

Id. (emphasis added).

If the convictions arise out of the "same criminal episode" and the cases are tried together, the sentences must run concurrently unless the convictions are for certain specified offenses, including sex crimes against children, that arise out of the same criminal episode, in which case the trial court may exercise its discretion to cumulate or to stack the sentences. See TEX. PEN.CODE ANN. § 3.03. Specifically, section 3.03 provides:

(a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.

(b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:

. . .

(2) an offense:

(A) under Section 21.11, 22.011, 22.021, 25.02, or 43.25 committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section; or

(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense listed in Paragraph (A) committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is charged with violations of the same section more than once or is charged with violations of more than one section;

. . .

Id. (emphasis added). Indecency with a child under the age of 17 constitutes one of these specific offenses that removes the mandated concurrent sentencing. See id; TEX. PEN.CODE ANN. § 21.11.

Here, appellant's two offenses required the trial court to take both of these statutes into account to determine whether to stack the deferred-adjudication community supervision atop the prison-term punishment. Appellant pleaded guilty to two counts of indecency with a child under 17 and considered these counts arising out of the same criminal episode. The State argues that, under section 3.03 of the Penal Code and article 42.08 of the Code of Criminal Procedure, the trial court was not required to order concurrent sentences, but had the option of ordering that appellant's sentences be served either concurrently or consecutively.

To determine whether the trial court abused its discretion in this case, we must determine whether an order for deferred-adjudication community supervision is a "conviction" for purposes of the statutes authorizing cumulative sentences. See TEX.CODE CRIM. PROC. ANN. art. 42.08 (using term conviction); TEX. PEN.CODE ANN. § 3.03 (using term conviction).

Statutory Construction

A. Plain and Common Meaning

When construing a Texas statute, our paramount task is to ascertain the Legislature's intent in enacting that provision. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). The starting point in analyzing the meaning of a statute is the language of the statute itself. Brown v. State, 943 S.W.2d 35, 36 (Tex.Crim.App. 1997). When a statute is clear and unambiguous, we apply the plain meaning of its words. Ramos v. State, 934 S.W.2d 358, 364 (Tex.Crim.App.1996); Boykin, 818 S.W.2d at 785; see TEX. GOV'T CODE ANN. § 311.011 (Vernon 2005). We presume that the Legislature intended the plain meaning of the words that it used. Boykin, 818 S.W.2d at 785. We are to presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect. Whitelaw v. State, 29 S.W.3d 129, 131 (Tex.Crim.App.2000). Unless a statute is ambiguous, we abide by the clear language of the statute and enforce it as written. See Griffith v. State, 116 S.W.3d 782, 785 (Tex.Crim.App.2003). When interpreting a statute, we are required to interpret an unambiguous statute literally, unless doing so would lead to an absurd result. Id. Only when a literal reading of the statute leads to an absurd result will we resort to the use of extra-textual factors to determine legislative intent. Id.

"Conviction" is not defined in the Code of Criminal Procedure or the Penal Code. See TEX. PEN.CODE ANN. § 1.07 (Vernon 2003); TEX.CODE CRIM. PROC. ANN. art. 3.01 (Vernon 2005). The Court of Criminal Appeals and our Court have addressed the meaning of the term "conviction" in a number of different settings, though not for purposes of the stacking statutes.² The Court of Criminal Appeals has also concluded, in Ex parte Evans, that it had most often "construed the term `conviction' to mean a judgment of guilt and the assessment of punishment." Ex parte Evans, 964 S.W.2d 643, 646-47 (Tex.Crim. App.1998).

That an adjudication of guilt must precede a final conviction has been clearly stated by the Court of Criminal Appeals. In McNew v. State, the Court of Criminal Appeals has also considered the meaning of "conviction" in relation to the deferred-adjudication statute. Id. 608 S.W.2d 166, 171 (Tex.Crim.App.1978). The court recognized that "a `conviction,' regardless of the...