Tyson v. State

• Decision Date: 11 August 2005
• Docket Number: No. 2-03-376-CR.,No. 2-03-375-CR.,2-03-375-CR.,2-03-376-CR.
• Citation: 172 S.W.3d 172
• Parties: Lawton Frederick TYSON a/k/a Lawton F. Tyson, Appellant, v. The STATE of Texas, State.
• Court: Texas Supreme Court

172 S.W.3d 172

Lawton Frederick TYSON a/k/a Lawton F. Tyson, Appellant, v. The STATE of Texas, State.

No. 2-03-375-CR.

No. 2-03-376-CR.

Court of Appeals of Texas, Fort Worth.

August 11, 2005.

COPYRIGHT MATERIAL OMITTED

Joe L. Sheppard, Burleson, Richard Alley, Fort Worth, for Lawton Frederick Tyson.

Tim Curry, Criminal Dist. Atty., Charles M. Mallin, Anne Swenson, David M. Curl, Shawn Paschall, and Amy Collum, Asst. Criminal Dist. Attys., Fort Worth, for State.

PANEL F: LIVINGSTON, GARDNER and WALKER, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

Appellant Lawton Frederick Tyson a/k/a Lawton F. Tyson appeals from his convictions on one count of aggravated sexual assault of a child under the age of fourteen and five counts of sexual assault of a child under the age of seventeen. In three points, he contends that the trial court reversibly erred by permitting the State to amend the indictment on the day of trial, by granting the State's motion to cumulate the sentences for each count and each offense, and by charging the jury on counts two through five of the sexual assault offense in the disjunctive. In a fourth point, he contends that his constitutional protection against double jeopardy was violated by being convicted and punished consecutively for offenses occurring in the same criminal episode that constitute a single offense. We affirm as to the aggravated sexual assault and as to count one of the sexual assault, but we reverse and remand for a new trial on counts two through five of the sexual assault.

Background Facts

Police found sexually explicit photographs of children while searching the home of Jeffrey Cissell, an associate of appellant's. After identifying two of the children in the photographs, the two complainants in this case, police obtained a statement from the girls that appellant had sexually assaulted them. The younger girl, who was twelve at the time of the events, testified at trial that appellant penetrated her sexual organ with his finger more than once. The older girl, who is the older sister of the younger girl and who was fourteen at the time of the events, testified that on one occasion, appellant touched her under her clothing on her bottom, sexual organ, and breast with his hand. He also touched her breast with his penis, put his finger inside her sexual organ, and placed his mouth on her sexual organ. She also testified about another time when appellant touched her on and in her sexual organ with his penis.

Appellant was charged in case number 0870880D with one count of aggravated sexual assault of the younger child by inserting his finger into her female sexual organ on August 15, 1999. In case number 0899697R, the State charged appellant with five counts of sexual assault of the older child: count one alleged that on June 20, 1999, appellant caused the sexual organ of the child to contact his sexual organ; counts two through five alleged that on June 10, 1999, appellant caused the child's sexual organ to contact his mouth, caused the child's mouth to contact his sexual organ, penetrated the child's female sexual organ by inserting his finger into it, and caused the child's sexual organ to contact his sexual organ. The trial court permitted the State to amend the indictment in number 0899697R on the day of trial to change the year of all of the dates to 2000 and to change the dates in counts two through five to June 11.¹ The trial court also permitted the State to amend the date in the indictment in 0870880D to June 15, 2000. Appellant's counsel told the trial court that she had no objection to the amendment.

The jury convicted appellant in number 0870880D and assessed his punishment at ninety-nine years' confinement. The jury also convicted appellant in number 0899697R of count one and counts two through five, which were charged disjunctively, and assessed appellant's punishment at twenty years' confinement on count one and twenty years' confinement on counts two through five. The trial court's judgment, however, sentenced appellant to twenty years' confinement on each of counts two through five. The trial court granted the State's motion to cumulate or "stack" the sentences so that the sentences in number 0899697R ran consecutively to the sentence in 0870880D, and the sentences on the different counts in 0899697R ran consecutively to each other.

Amendment of Indictment

In his first point, appellant contends that the trial court reversibly erred and abused its discretion by permitting the State to amend the indictment on the day of trial. When the State asked to amend the indictment, appellant's counsel affirmatively stated that she had no objection to the amendment and that appellant waived the ten-day notice afforded at the defendant's request under article 28.10 of the code of criminal procedure. See TEX.CODE CRIM. PROC. ANN. art. 28.10(a) (Vernon 1989).

An indictment may not be amended on the day of trial. See State v. Murk, 815 S.W.2d 556, 558 (Tex.Crim.App.1991). But in order to preserve the error for appeal, a defendant must object; otherwise, the error is forfeited. Id.; Hoitt v. State, 30 S.W.3d 670, 674 (Tex.App.-Texarkana 2000, pet. ref'd); Briones v. State, No. 2-04-00250-CR, 2005 WL 1120018, at *2 (Tex.App.-Fort Worth May 12, 2005, no pet.) (mem.op.) (not designated for publication); see also Hernandez v. State, 127 S.W.3d 768, 772 (Tex.Crim.App.2004) (recognizing that article 28.10(c) provides that indictment or information may not be amended over defendant's objection as to form or substance if indictment or information charges defendant with additional or different offense or if substantial rights of defendant are prejudiced); Garrett v. State, 161 S.W.3d 664, 669 (Tex.App.-Fort Worth 2005, pet. filed) (same). We overrule appellant's first point.

Propriety of "Stacked" Sentences

Appellant's second point complains that he was denied due process when the trial court cumulated or "stacked" his sentences without prior notice, either in the indictment or from the trial court prior to its granting the State's motion to cumulate. Appellant also appears to argue that the statutes allowing the trial court to cumulate the sentences in this way violate the Apprendi-Blakely-Ring line of cases recently handed down by the United States Supreme Court by increasing the maximum punishment for the offenses without a jury finding. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Appellant does not argue that the stacking order violated a statutory provision. See TEX.CODE CRIM. PROC. ANN. art. 42.08 (Vernon Supp.2004-05); TEX. PENAL CODE ANN. § 3.03 (Vernon 2003); see also LaPorte v. State, 840 S.W.2d 412, 415 (Tex.Crim.App.1992) (holding that cumulation order not authorized by statute is in essence a void sentence and any error cannot be waived).

Both the Austin and Waco courts of appeals have held that a defendant is not entitled to prior notice before the trial court "stacks" sentences in accordance with the code of criminal procedure and the penal code. See Millslagle v. State, 150 S.W.3d 781, 784-85 (Tex.App.-Austin 2004, pet. dism'd); Miller v. State, No. 10-05-00004-CR, 2005 WL 1654754, at *1 (Tex.App.-Waco July 13, 2005, no pet. h.) (mem.op.) (not designated for publication); see also TEX.CODE CRIM. PROC. ANN. art. 42.08; TEX. PENAL CODE ANN. § 3.03(b). Those courts hold that the trial court has discretion to cumulate sentences in almost every case and that the statutes authorizing cumulation do not require notice. See Millslagle, 150 S.W.3d at 784-85; Miller, 2005 WL 1654754, at *1.

We agree with those courts. The plain language of the statutes does not require any prior notice. And the statutes themselves provided appellant notice that "[b]ecause of the nature of the offenses for which [he] was convicted, the trial court was authorized to cumulate the sentences whether or not the offenses arose out of the same criminal episode." See Millslagle, 150 S.W.3d at 785; see also TEX.CODE CRIM. PROC. ANN. art. 42.08; TEX. PENAL CODE ANN. § 3.03(b).

As to appellant's Apprendi-Blakely-Ring complaint, "[t]he federal appellate courts have uniformly rejected the contention that Apprendi is violated when a trial court orders the cumulation of sentences which individually lie within the statutory range of punishment but for which the cumulative total exceeds the prescribed statutory maximum for any single offense." Marrow v. State, 169 S.W.3d 328, 330 (Tex.App.-Waco 2005, pet. filed) (holding that no Apprendi violation shown when trial court cumulated sentences for aggravated sexual assault and indecency with a child when appellant did not dispute that sentence for each count was within statutory range); see, e.g., U.S. v. Davis, 329 F.3d 1250, 1253-55 (11th Cir.), cert. denied, 540 U.S. 925, 124 S.Ct. 330, 157 L.Ed.2d 225 (2003); U.S. v. Chorin, 322 F.3d 274, 278-79 (3d Cir.), cert. denied, 540 U.S. 857, 124 S.Ct. 158, 157 L.Ed.2d 104 (2003); U.S. v. McWaine, 290 F.3d 269, 275-76 (5th Cir.), cert. denied, 537 U.S. 921, 123 S.Ct. 311, 154 L.Ed.2d 210 (2002); U.S. v. Feola, 275 F.3d 216, 218-20 & n. 1 (2d Cir.2001); see also Apprendi, 530 U.S. at 474, 120 S.Ct. at 2354 ("The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts."). Some Texas courts have reached the same conclusion but only in unpublished cases. Marrow, 169 S.W.3d at 331; see Peterson v. State, Nos. 01-02-00603-CR, 01-02-00604-CR, 2003 WL 22681607, at *5 (Tex.App.-Houston [1st Dist.] Nov. 13, 2003, pets. ref'd) (mem.op.) (not designated for publication); Jaramillo v. State, No. 04-01-00846-CR, 2003 WL 21395548, at *2 (Tex.App.-San Antonio June 18, 2003, pet. ref'd) (not designated for publication). We agree with Marrow, and the federal authority and unpublished state c...