Bonilla v. State

• Decision Date: 19 November 2014
• Docket Number: NO. PD–1099–13,PD–1099–13
• Citation: 452 S.W.3d 811
• Parties: Ronald Antonio Bonilla, Appellant v. The State of Texas
• Court: Texas Court of Criminal Appeals

452 S.W.3d 811

Ronald Antonio Bonilla, Appellant

v.The State of Texas

NO. PD–1099–13

Court of Criminal Appeals of Texas.

Delivered: November 19, 2014

William F. Carter, for Appellant.

Jessica Escue for State of Texas.

OPINION

Cochran, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Keasler and Hervey, JJ., joined.

The issue in this case is who bears the burden of showing that the trial judge erred in cumulating indecency-with-a-child sentences when some sexual abuse took place before the 1997 Penal Code amendments permitting cumulation of sentences for child sexual offenses and some took place after that date.¹ We will apply our normal appellate rule of review: The party who complains about the trial judge's action on direct appeal bears the burden of objecting at trial and providing a record that shows the trial judge's error.²

Appellant relies upon the 1995 dates set out in the indictment and in the judgment as being the only dates on which the jury could have found that the offenses occurred. But appellant did not show, either at trial or on appeal, that the jury could not have found him guilty of an offense that occurred after September 1, 1997, the effective date of the cumulation statute. Instead, there is ample evidence to show that appellant began sexually abusing D.B. in 1995 (before the 1997 amendment permitting cumulation became effective) and continued to sexually abuse him until 2002 (at least five years after the 1997 amendment became effective). We therefore agree with the court of appeals that the trial judge “did not err in stacking the sentences” because there is “some evidence” that the offenses occurred after September 1, 1997.³

I.

On April 16, 2009, appellant was indicted with four counts of indecency with a child:

1. Touching M.B.'s genitals on or about January 1, 2002;

2. Causing M.B. to touch appellant's genitals on or about January 1, 2002;

3. Touching D.B.'s genitals on or about January 1, 1995;

4. Causing D.B. to touch appellant's genitals on or about January 1, 1995.

The evidence at trial showed that appellant came to the United States from El Salvador and lived with various family members. He lived with his brother, the father of both D.B. and M.B., for many years. Appellant sexually abused both D.B. and M.B. throughout their childhood. D.B. testified that appellant first started sexually molesting him sometime between 1994 and 1996, when he was in either the first or second grade. D.B. remembered the details of numerous different incidents that occurred both at home and at appellant's job site. When D.B. was about ten or eleven, in 1998 or 1999, appellant began stimulating him until he would ejaculate.

D.B. explained that, as he became a pre-teen and teenager after 1999, appellant began showing him pornographic magazines and videos while sexually abusing him. In 2001, D.B. told appellant that he did not want to engage in sexual activities with him. But when appellant told him that he would commit suicide if D.B. ever told anyone and said that he could not live without D.B. in his life, the teenager continued to allow appellant to rub his genitals. At some point in 2002, D.B. began physically resisting appellant's attempts to abuse him. D.B. finally reported what appellant had done to him throughout his childhood and youth when he saw signs that appellant was also abusing his younger brother, M.B., in the same way that he had been abused.

Appellant's defense was that the boys fabricated their story of sexual abuse; he never touched them sexually, and they never touched him sexually. Period.

During closing arguments, the prosecutor explained why he had alleged the January 1, 1995, date in the indictment even though most of the abuse occurred in later years:

We've alleged for [D.B.] 1995. Any time between 1995 and when we've got this date alleged [in the indictment]. But specifically you can recall the instances and why we reported it as 1995 because [D.B.] remembers the first time. Kids remember first and last times and they remember just a lot of abuse in the middle, but he remembered it being early on between first and third grade. So that's why we allege that 1995 date.1996–it falls within that-that date range that we were talking about.⁴

The jury found appellant guilty on all four counts and assessed his punishment at fourteen years' imprisonment on each count. The prosecutor then asked the trial judge to “stack” Counts 3 and 4 (the counts involving D.B.) on top of Counts 1 and 2 (the counts involving M.B., the younger brother). The judge asked, “Motion for consecutive sentences; correct?” Appellant responded,

Your Honor, we ask that you deny their request. We believe that the jury has heard all the evidence and that they have set a punishment that they deemed proper in this case. We know that this Court has also heard the evidence, but we would ask that you deny it and that you run all four counts concurrent.

The trial judge ordered that “Counts 1 and 2 run concurrent with one another, Counts 3 and 4 run concurrent with one another; but the sentences in Counts 3 and 4 both run consecutive to the sentences in Counts 1 and 2.”

On appeal, appellant argued that, because an offense date of January 1, 1995, was listed in the judgment for counts 3 and 4 and that date was before the effective date of the 1997 amendment permitting cumulation of child sexual abuse offenses, the trial judge erred in stacking those counts on to Counts 1 and 2.⁵ The court of appeals rejected appellant's claim, explaining that “[t]he offense dates recited in the judgments do not necessarily render the trial court's order stacking the sentences invalid.”⁶ Here, the State used the phrase “on or about” in its indictment so “it was free to prove that these offenses occurred on any date prior to the presentment of the indictment and within the statutory limitations period, which had not expired.” Because there was “some evidence” that appellant touched D.B.'s penis and that he made D.B. touch his penis “many” times after January 1, 1997, the trial judge did not err in stacking the sentences.⁷

We granted review because the law in this area is unsettled. When the indictment and judgment lists an offense date that is before the effective date of the amendment to Penal Code Section 3.03, but the evidence shows that the acts that constituted the offense occurred both before and after that effective date, does the trial judge have the discretion to cumulate the sentences? He does.

II.

Penal Code Section 3.03 sets out when sentences that arise out of the same criminal episode must be served concurrently and when they may be served consecutively. Generally, such sentences must be served concurrently,⁸ but there are specific statutory exceptions to that rule. One exception was added in 1997 and permits the trial judge to cumulate sentences for child sexual abuse offenses.⁹ However, this exception applies only to an offense that occurs after the effective date of September 1, 1997.¹⁰

In Ex parte Bahena,¹¹ we addressed a situation in which the evidence showed multiple acts of sexual molestation of a child that “occurred sometime between September 21, 1993, and up to at least September 20, 1998.”¹² In that case, the defendant claimed that his counsel were ineffective for failing to challenge the trial judge's stacking order because one of the indictments alleged an aggravated sexual assault offense that occurred “on or about July 1, 1996,” and that is a date before the 1997 amendment became effective.¹³ We concluded that the evidence showed that the defendant had sexually molested the child on multiple occasions between 1993 and September 20, 1998, and had committed “these charged offenses before and after September 1, 1997.”¹⁴ We noted that several courts of appeals had upheld the trial judge's cumulation order if “some evidence” showed that the offenses occurred after September 1, 1997.¹⁵ We held that counsel could not be called ineffective for failing to challenge the stacking order because the issue of stacked sentences in cases in which the evidence showed sexual offenses both before and after the effective date of the amendment to Section 3.03 was “an unsettled area of law.”¹⁶

In Hendrix v. State,¹⁷ for example, the Fourteenth Court of Appeals held that, although the indictment alleged an offense date “on or about August 3, 1997,” the trial judge had discretion to cumulate the sentences in a child abuse case “as long as there was some evidence that the offenses occurred after September 1, 1997.”¹⁸

This is the same “some evidence” standard that we used in Miller v. State,¹⁹ in addressing the trial judge's discretion to cumulate a current sentence with older ones. We explained that there must be “some evidence” linking the prior convictions to the defendant.²⁰ Various courts of appeals have used Miller 's “some evidence” language when addressing the trial judge's discretion to cumulate sentences in child sexual abuse cases in which the offenses were alleged to have occurred before or after September 1, 1997. The indictment (or judgment) date is not determinative. The evidence determines whether the trial judge has discretion to cumulate sentences.

For example, in Owens v. State,²¹ the State proved that the defendant committed numerous acts of child sexual abuse, some of them occurring before September 1, 1997, and some of them occurring after that date. The court rejected the defendant's claim that the State was required to prove, beyond a reasonable doubt, that each element of each offense occurred after September 1, 1997, to uphold the trial judge's cumulation order. Instead, the trial judge had the discretion to stack the sentences as long as “there [was] some evidence that the offenses occurred after September 1, 1997.”²²

We agree with those courts of appeals that have held that the trial judge has discretion to stack sentences under Section 3.03(b)(2)(A) if there is “some evidence” that the offenses occurred...