Nguyen v. State

• Decision Date: 08 February 2012
• Docket Number: PD–0261–11.,Nos. PD–0260–11,s. PD–0260–11
• Citation: 359 S.W.3d 636
• Parties: THA DANG NGUYEN, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

359 S.W.3d 636

THA DANG NGUYEN, Appellant,

v.The STATE of Texas.

Nos. PD–0260–11

PD–0261–11.

Court of Criminal Appeals of Texas.

Feb. 8, 2012.

Richard A. Henderson, Fort Worth, for Appellant.

Helena F. Faulkner, Asst. Crim. D.A., Fort Worth, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON, HERVEY and ALCALA, JJ., joined.

We granted the State's petition for discretionary review to decide if Texas Penal Code Section 3.03(b)(2)(B) authorizes a trial judge to order consecutive sentences when a defendant is originally charged with multiple sexual offenses but pleads guilty, pursuant to a plea bargain, to multiple nonsexual offenses.¹ Both appellant and the State offer plausible, but conflicting, interpretations of the statute's text. Because we find that the statutory language is ambiguous, we turn to its legislative history. This history shows that the legislature enacted this provision to ensure that defendants who, pursuant to a plea bargain, are placed on deferred adjudication for certain specified sex offenses are subject to the same requirements, disabilities, and punishments that had previously been applied only to those formally “convicted” of a sex offense. We therefore affirm the judgment of the court of appeals, although for a different reason than that relied upon by the lower court.²

I. Background.

The State filed two separate indictments charging appellant with aggravated sexual assault and sexual assault of two of his daughters. After plea negotiations, the prosecutor added a handwritten injury-to-a-child count to each indictment. Appellant pled guilty to the two counts of injury to a child, which is not a sex offense.³ The trial judge deferred adjudication and placed appellant on community supervision for five years. The conditions of his community supervision included a ban on contact between appellant and his daughters.

Five months later, the State filed a motion to revoke community supervision, alleging that appellant had contacted his daughters in violation of his community-supervision terms. The evidence at the revocation hearing showed that appellant, who had been a Buddhist monk, performed a funeral ceremony at a temple several months after he pled guilty. His ex-wife and daughters attended that ceremony. After the ceremony, the family asked one of the daughter's teachers to take a photograph of the family, including appellant, his ex-wife, his two daughters, and his youngest son.

One daughter testified that she thought her father was only prohibited from having “harmful contact” with her and her sister,⁴ not from contacting them at all. She said that she and her sister had contact with appellant at least once a week since his community supervision began, but she and her mother took the photograph to the probation officer because her mother was angry that appellant had been seeing another woman. The trial judge revoked appellant's community supervision based upon the violation of the “no contact” order and sentenced him to “10 years' confinement in each of the two cases, and the Court orders that these cases run consecutively.... It is the specific order of this court that you serve two 10–year sentences, one after the other, totaling 20 years.”

On appeal, appellant argued that the trial court erred in finding a community- supervision violation based on contact that was facilitated by appellant's ex-wife and in ordering that the sentences run consecutively. The court of appeals noted a problem with finding a violation based on contact that was initiated by appellant's ex-wife and brought to the State's attention only after she became angry, but it found the evidence sufficient to show a probation violation.⁵ However, the court of appeals held that the trial judge had erred in ordering consecutive sentences because “[d]ue process prohibits punishing a person for an offense of which he was not convicted and of which he may have been acquitted or for which he may never have been prosecuted.” ⁶ Since appellant had not bargained for consecutive sentences, the Court held that nonconsensual consecutive sentences based on nonsexual offenses violated federal constitutional due process.⁷ The court of appeals reformed the judgment to order the two ten-year sentences to be served concurrently. Two judges concurred without written opinion.

II. The Statute and the Parties' Contentions.

Section 3.03(b)(2)(B) of the Penal Code authorizes consecutive sentences when the State charges a defendant with multiple sex crimes arising from the same criminal episode. Before 1997, the Penal Code authorized trial judges to order consecutive sentences only when the defendant committed several intoxication manslaughter offenses in the same criminal episode.⁸ In the 1997 session, the Texas Legislature added provisions authorizing trial judges to order consecutive sentences for certain specified sex offenses. ⁹ The 1997 Act revised Section 3.03(b)(2) to read as follows:

(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) [of online solicitation of a minor, continuous sexual abuse of a child, indecency with a minor, sexual assault, aggravated sexual assault, prohibited sexual conduct (incest), or sexual performance of a child], 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 both sections

(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.¹⁰

At issue in this case is the meaning of the italicized words in the statute. ¹¹ Do those words refer to a plea bargain for sex offenses (appellant's interpretation) or for a plea bargain for non-sexual offenses as long as the defendant was originally charged with more than one sex offense (the State's interpretation)?

A. The State's Interpretation.

The State claims that the statute is unambiguous on its face and argues that its plain language permits the trial judge to impose consecutive sentences for multiple nonsexual offenses if the Defendant was originally charged with qualifying sexual offenses but a plea agreement for nonsexual offenses was reached.

The State relies primarily on the reasoning in Sikes v. State,¹² an unpublished memorandum decision from the Austin Court of Appeals. In Sikes, the defendant pled guilty to two counts: indecency with a child by contact and attempted indecency with a child by contact, for which he was sentenced to five years in prison and ten years of community supervision.¹³ The trial judge had carefully explained that, according to the explicit terms of the plea agreement, Sikes was required to serve the entire five years on the first count before the clock on his ten years of community supervision would begin ticking. ¹⁴ Based on this reasoning, the Sikes Court concluded that Sikes's “guilty pleas were in accordance with the plea agreement” that called for consecutive sentences, and the defendant had obtained a “most favorable” plea agreement.¹⁵ The court also noted that “[a] careful reading of section 3.03(b)(2)(B) shows that it is applicable when the defendant is merely charged with more than one [sex] offense.... The key word is charged, not convicted.” ¹⁶ We note that the Sikes opinion was unpublished, that it rejected an argument that Sikes's judgment was legally “void,” and that Sikes had expressly agreed to consecutive sentences as a part of his plea agreement.

Besides relying on Sikes, the State argues the logic of the statutory language,

By its express language, subsection (b)(2)(B) applies to a defendant who was charged with an enumerated offense ( e.g. aggravated sexual assault or sexual assault committed against a child younger than age seventeen) and was convicted of an offense for which a plea agreement was reached. Id. If these requirements are met, then the sentence may run either concurrently or consecutively.¹⁷

The literal language of the statute could be interpreted in this manner, but such an interpretation leads to strange results and would punish those who are never convicted of any sexual offenses more severely than those who have been formally convicted of a qualifying sexual offense and an attempted sexual offense.¹⁸

B. Appellant's Interpretation.

Appellant argues that nonsexual offenses do not qualify for consecutive sentences under Penal Code 3.03(b)(2)(A); therefore, the statute does not authorize consecutive sentences for any nonsexual convictions, regardless of whether the conviction was obtained through a plea agreement in which the defendant had originally been charged with a sexual offense. He insists that the sexual-offense charges disappeared when the prosecutor added counts for nonsexual offenses in the indictment and the parties reached a plea agreement on those nonsexual offenses alone.

Appellant contends that, regardless of whether a defendant consents to consecutive sentences in a plea agreement, Sections 3.03(b)(2)(A) and 3.03(b)(2)(B) authorize consecutive sentences only when those sentences are for qualifying sex offenses. Under appellant's reasoning, the legislature intended to extend the authority to impose consecutive sentences beyond formal “convictions” for sex offenses to include deferred-adjudication plea agreements for sex offenses. Appellant reasons that the “charged with” language means that “the plea agreement”...