Tha Dang Nguyen v. State

• Court: Court of Appeals of Texas
• Decided: December 30, 2010
• Docket: 02-09-00444-CR
• Status: Published

Opinion

02-09-443-CR, 02-09-444-CR

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-09-00443-CR

NO. 02-09-00444-CR

THA DANG NGUYEN

APPELLANT

V.

THE STATE OF TEXAS

STATE

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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

MEMORANDUM OPINION[1]

          Appellant Tha Dang Nguyen pled guilty to two, separately charged counts of injury to a child–bodily injury pursuant to a plea bargain, and the trial court deferred adjudication and placed him on five years’ community supervision.  Approximately five months later, the trial court found that Appellant had violated the terms and conditions of his community supervision, adjudicated his guilt in each case, and sentenced him to ten years’ confinement in each case, to be served consecutively.  In two issues, Appellant argues that the trial court abused its discretion by concluding that he had violated his community supervision by having contact with his daughters, the complainants, and that the trial court erred by ordering that the two sentences run consecutively.  Because the trial court improperly cumulated, or “stacked,” the sentences, we sustain Appellant’s first issue and modify the judgment in trial cause no. 1135784D (appeal cause no. 02-09-00443-CR) to delete the cumulation orders.  Because the trial court properly granted the State’s motion to proceed to adjudication and revoked Appellant’s community supervision, we overrule his second issue, affirm the trial court’s judgment in trial cause no. 1135787D (appeal cause no. 02-09-00444-CR), and affirm the trial court’s judgment in trial cause no. 1135784D (appeal cause no. 02-09-00443-CR) as modified.

I.  Proper Revocation of Appellant’s Community Supervision

          In his second issue, Appellant argues that the trial court abused its discretion by finding that Appellant had violated the conditions of community supervision prohibiting contact with his daughters.  We review an order revoking community supervision under an abuse of discretion standard.[2]  In a revocation proceeding, the State must prove by a preponderance of the evidence that the defendant violated the terms and conditions of community supervision.[3]  The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and we review the evidence in the light most favorable to the trial court=s ruling.[4]

          One of the conditions of Appellant’s community supervision was that he have no contact with his daughters.  The trial court heard evidence that Appellant spoke to his daughters by telephone regularly and met personally with them and their mother when their mother took them to a funeral at the temple where Appellant used to be a monk as well as on other occasions.  The trial court admitted into evidence family photographs that Appellant had told a community supervision officer were taken at the temple after the trial court placed him on community supervision.  Appellant’s daughters, their mother, and the community supervision officer all testified.

          While the record reflects that the mother actively participated in creating opportunities for contact between Appellant and the girls at the temple as well as telephone contact, that she reported the contacts and provided the photographs for his prosecution after she became angry with Appellant, and that she took the girls to the jail to visit Appellant after his arrest for violating his conditions of community supervision (although they did not always go upstairs with her to see him), this evidence does not render the evidence of Appellant’s violations insufficient.

          Employing the appropriate standard of review, we hold that the trial court did not abuse its discretion by granting the State’s motion to adjudicate Appellant’s guilt and revoking his community supervision in each case.  We overrule his second issue.

II.  Improper Cumulation of Sentences

          In his first issue, Appellant contends that the trial court erred by cumulating his sentences.  The original indictment in trial cause no. 1135784D (appeal cause no. 02-09-00443-CR), concerning V.N., Appellant’s daughter, alleged that one count of aggravated sexual assault by digital-vaginal penetration occurred on or about January 15, 2002, and one count of sexual assault by digital-vaginal penetration occurred on or about September 1, 2007.  The original indictment in trial cause no. 1135787D (appeal cause no. 02-09-00444-CR), concerning Appellant’s daughter, D.K., alleged that three counts of aggravated sexual assault by digital-vaginal penetration occurred on or about July 4, 2008, June 1, 2006, and January 1, 2003, respectively, and that one count of aggravated sexual assault by oral-vaginal contact occurred on or about June 15, 2006.

          Each indictment was amended to add a single count of injury to a child.  Each injury-to-a-child count was alleged to have been committed on, as opposed to on or about a certain date, “said date.”  No day, month, or year is specified in either injury-to-a-child count.  Appellant pled guilty only to the count of injury to a child in each indictment, and the State did not pursue the remaining counts.  The order of deferred adjudication and judgment adjudicating guilt in trial cause no. 1135784D (appeal cause no. 02-09-00443-CR) indicate that the offense of injury to a child was committed against V.N. on January 15, 2002.  The order of deferred adjudication and judgment adjudicating guilt in trial cause no. 1135787D (appeal cause no. 02-09-00444-CR) indicate that the offense of injury to a child was committed against D.K. on July 4, 2008.  The record does not provide an explanation for the trial court’s selection of these dates, although we note that they match the “on or about” dates alleged for the first count in each indictment.

          Article 21.24 of the code of criminal procedure provides in pertinent part that “[t]wo or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code.”[5]  That is, the offenses alleged in each indictment below were properly joined in a single indictment only if they were part of the same criminal episode.  But the State may also join separate indictments in a single prosecution when the offenses alleged in the separate indictments are part of a single criminal episode.[6]  Section 3.01 of the penal code provides,

          In this chapter, “criminal episode” means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:

          (1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

          (2) the offenses are the repeated commission of the same or similar offenses.[7]

It is not necessary that the offenses occur on a single date or in a single place or against a single complainant.^[8]  The offenses against different complainants can even take place over a period of years.[9]

          V.N. testified that Appellant sexually assaulted D.K. and her and that he molested her from when she was in fourth grade until she was in tenth grade:  “He took his finger and went down there.”  When the trial court asked, “Like in your female private parts?” she answered, “Yes.”

          Appellant argues that his convictions are from the same criminal episode, even though he admits that the scant record before us does not clearly show that.  He points out that the two cases were tried together in one adjudication hearing, alleging the same violation.  In its brief, “[t]he State acknowledges that the offenses appear to have been prosecuted in the same criminal action and to involve the commission of the same or similar offenses.”  Given the allegations in the two indictments, the familial relationships, and V.N.’s testimony, we hold that the offenses arose out of the same criminal episode.[10]  Based on the record, we hold that they were prosecuted in the same criminal action.

          Section 3.03(a) of the penal code provides,

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.^[11]

Subsection (b) details the circumstances allowing cumulative sentences.[12]  The offense of injury to a child is not listed as an excepted offense to the concurrent sentencing requirement.[13]  Appellant therefore argues that because his convictions do not fall within any of the statutory exceptions to the rule requiring concurrent sentences, the trial court erred by ordering cumulative sentences.  The State argues that section 3.03(b)(2)(B) provides an exception authorizing the trial court’s cumulation of Appellant’s sentences.  Section 3.03(b) provides,

          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:

          (1) . . . [;]

          (2) an offense:

                    (A) . . . [;]

(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) [sexual assault of a child and aggravated sexual assault of a child are both listed] 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[.][14] 

          The State, relying on an unpublished opinion from our sister court in Austin,^[15] argues that because Appellant was “charged” with more than one offense listed in section 3.03(b)(2)(A) (that is, four counts of aggravated sexual assault in one case, and one count of aggravated sexual assault and one count of sexual assault in the other case) and entered into a plea agreement in each case, subsection B applies to allow cumulative sentencing for his convictions for injury to a child.  It is the mere accusation, according to the State, that allows cumulation in this context.  Under the State’s argument, a defendant’s acquittal or the State’s waiver of a “charged” offense would have no effect on the trial court’s ability to cumulate the sentences.  We are not persuaded that the reasoning of the Austin court applies to the case now before this court.

          In Sikes v. State, Sikes was charged in a two-count indictment with sexual offenses against a child.  Pursuant to a plea bargain agreement, he pled guilty to one count, was convicted, and received a prison sentence, and he pled guilty to the lesser included offense of attempted commission of the offense alleged in the second count, was convicted, and was placed on community supervision for ten years.  In accordance with the agreement, Sikes served his full prison sentence and then began serving his community supervision term after his release from prison.  When the trial court revoked his community supervision, the question was when the new sentence was to begin.  The decision affirming the order revoking Appellant’s community supervision was essentially a scattergun approach firmly grounded in the trial court’s conviction that it was fundamentally unfair for Sikes to have agreed to this procedure, benefitted from it, and not have complained about it until his community supervision was revoked.[16]

          The Sikes court held that Sikes forfeited his complaint by not appealing from the grant of community supervision, that Sikes did not argue that his conviction was void, that Sikes did not bring an application for writ of habeas corpus, and that Sikes raised only a section 3.03 violation.[17]  Although the Sikes court recognized the holding in Parfait v. State^[18] that the plain reading of section 3.03(b)(2)(A) prohibits stacking sentences for convictions for attempted offenses,[19] the Sikes court posited that section 3.03(b)(2)(B) uses the word “charged” rather than “convicted.”[20]

          We hold that the plain reading of the statute reveals that section 3.03(b)(2)(B) permits the State and a defendant to agree, pursuant to a plea bargain agreement, to allow a defendant to plead to a non-sexual offense against a child and, at the same time, agree that the sentences may be stacked.[21]  Due 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.[22]  Interpreting the statute to allow a due process violation would be absurd.[23]  In the case now before this court, Appellant, unlike Sikes, did not plea bargain for a penitentiary sentence and also for a probated sentence that he would not begin serving until he had been released from prison.  In other words, Sikes plea-bargained for stacked sentences, but Appellant did not.

          We therefore hold that the trial court erred by holding that Appellant serve his two sentences consecutively.  We sustain his first issue and modify the judgment in trial cause no. 1135784D (appeal cause no. 02-09-00443-CR) by deleting the orders that “THIS SENTENCE SHALL RUN CONSECUTIVELY” and that

SENTENCE IN THIS CAUSE SHALL BEGIN WHEN THE JUDGMENT AND SENTENCE RENDERED IN CRIMINAL DISTRICT COURT ONE IN TARRANT COUNTY TEXAS IN CAUSE #1135787D [appeal cause no. 02-09-00444-CR] FOR INJURY TO A CHILD-BODILY INJURY, WHICH SENTENCE IN THE CASE CONSISTS OF 10 YEARS CONFINEMENT SHALL HAVE CEASED TO OPERATE[.][24]

III.  Conclusion

          Having held that the trial court did not abuse its discretion by adjudicating Appellant’s guilt and revoking his community supervision in each case, we affirm the trial court’s judgment in trial cause no. 1135787D (appeal cause no. 02-09-00-444-CR).  Having also held that the trial court erred by cumulating Appellant’s two sentences, we affirm the trial court’s judgment in trial cause no. 1135784D (appeal cause no 02-09-00443-CR) as modified.

                                                                             LEE ANN DAUPHINOT

                                                                             JUSTICE

PANEL:  DAUPHINOT, WALKER, and GABRIEL, JJ.

WALKER and GABRIEL, JJ. concur without opinion.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED:  December 30, 2010

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[1]See Tex. R. App. P. 47.4.

[2]Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.CFort Worth 2007, pet. ref=d). 

[3]Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cherry, 215 S.W.3d at 919. 

[4]Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Cherry, 215 S.W.3d at 919.

[5]Tex. Code Crim. Proc. Ann. art. 21.24 (Vernon 2009).

[6]See Tex. Penal Code Ann. § 3.02(a), (b) (Vernon 2003).

[7]See id. § 3.01.

[8]See Baker v. State, 107 S.W.3d 671, 673 (Tex. App.—San Antonio 2003, no pet.) (treating offenses committed against three different women at three different locations within an eleven-month period as offenses committed in a single episode).

[9]Diaz v. State, 125 S.W.3d 739, 742 (Tex. App.—Houston [1st Dist.] 2003, pets. ref’d).

[10]See id.; see also Tex. Penal Code Ann. § 3.01.

[11]Tex. Penal Code Ann. § 3.03(a) (Vernon Supp. 2010).

[12]Id. § 3.03(b).

[13]Id.

[14]Id. § 3.03(b)(2)(B).

[15]Sikes v. State, No. 03-06-00608-CR, 2007 WL 4269815 (Tex. App.—Austin Dec. 5, 2007, no pet.) (mem. op., not designated for publication).

[16]Id. at *3–*4.

[17]Id. at *4.

[18]120 S.W.3d 348 (Tex. Crim. App. 2003).

[19]Id. at 350–51.

[20]See Tex. Penal Code Ann. § 3.03(b)(2)(B).

[21]See id.

[22]See U.S. Const. amends. VI, XIV.

[23]See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

[24]See Beedy v. State, 250 S.W.3d 107, 113–14 (Tex. Crim. App. 2008) (holding that unlawful cumulation order is remedied by modifying judgment to delete cumulation order).