Williams v. State

253 S.W.3d 673, 2008 WL 2081614
Court of Criminal Appeals of Texas·Decided May 14, 2008·No. PD-1948-06, PD-1949-06, PD-1950-06·Published·Cited by 123 cases

Opinions

OPINION

MEYERS, J.,

delivered the opinion of the Court,

in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

In three separate indictments, Appellant was charged with the delivery of one gram or more, but less than four grams, of cocaine, a controlled substance in Penalty Group 1. Tex. Health & Safety Code Ann. § 481.112(c). One of the indictments contained a paragraph alleging that the offense occurred within 1,000 feet of a school — a drug-free-zone — which raises the minimum term of confinement by five years and doubles the maximum fine if convicted. Tex. Health & Safety Code Ann. § 481.134(c). Prior to trial, the court granted the State’s motion to consolidate the three causes for one trial under Texas Penal Code § 3.03.

After a jury trial, Appellant was convicted of all three offenses and sentenced by the trial judge. The trial judge sentenced Appellant to 17 years’ confinement and a $3,000 fine for each conviction. The trial judge then ordered the sentence for the drug-free zone offense to be served consecutively to the other two sentences, which would be served concurrently.

Appellant appealed the “stacking” of one of the sentences on the other two, arguing that the judge should have ordered all of the sentences to run concurrently because the State sought the joinder of the offenses and prosecuted them as part of one criminal episode under Health & Safety Code § 481.132, which provides that if a defendant is convicted of more than one offense arising out of a single criminal episode, then the sentences must be served concurrently. In a memorandum opinion, the court of appeals affirmed the trial court’s judgment. Williams v. State, Nos. 13-05-194-CR, 13-05-195-CR, 13-05-196-CR, 2006 WL 2523186, 2006 TexApp. LEXIS 7870 (TexApp.-Corpus Christi Aug 31, 2006)(mem. op., not designated for publication). Appellant filed a petition for discretionary review, which we granted. We reverse the decision of the court of [675]*675appeals and hold that Appellant’s sentences shall be served concurrently.

FACTS AND PROCEDURAL HISTORY

In three separate indictments, Appellant was charged with selling crack cocaine to a confidential informant on three separate dates at different locations. The State moved to consolidate the three causes for one trial under Texas Penal Code § 3.08.1 This motion was granted. Following a single jury trial, Appellant was found guilty of all three offenses. Appellant was subsequently sentenced by the trial judge.

The conflict in this case is that there are two possible ways to sentence Appellant, depending upon which statute the judge believed was controlling. Under Texas Health and Safety Code § 481.132(d), if multiple convictions arising out of one single criminal episode are prosecuted together in a single criminal action, then the sentences must run concurrently. In contrast, Texas Health and Safety Code § 481.134(h), which deals with drug-free-zones, states that “[pjunishment that is increased for a conviction for an offense listed under this section may not run concurrently with punishment for a conviction under any other criminal statute.”

The trial judge conferred with the parties several times to determine how to properly sentence Appellant. During pretrial motions, the prosecutor and the judge had an exchange in which the judge told both parties that he understood the indictment to signify that, if convicted, Appellant’s sentences would have to run concurrently. The State affirmed this understanding.2 The judge and the State appeared to agree that the basis for punishment enhancement would be Appellant’s repeat-offender status, making a second-degree felony a first-degree felony for punishment purposes. Tex. Pen.Code Ann. § 12.42(b). However, during jury-trial announcements, the judge explained that, if Appellant was convicted of the offenses, the sentence for the drug-free zone offense would have to run consecutively to the other two. The trial judge specifically verified that Appellant understood this to be the case. The issue came up a third time at the punishment hearing, when the trial judge stated that he needed time to decide Appellant’s sentence. After some deliberation, the judge relied upon an unpublished opinion provided to him by the State to decide Appellant’s sentence of 17 years’ confinement and a $3,000 fine per offense, with two of the sentences to be served concurrently and the third to be served consecutively.

Appellant appealed the determination that part of his sentence run consecutively. In a 2-1 memorandum opinion with little explanation as to why they believed that the language of Health and Safety Code § 481.134(h) controlled over Health and Safety Code § 481.132(d), the court of appeals held that Appellant was required to [676]*676serve a consecutive sentence for the drug offense that was committed in the drug-free-zone.

We granted Appellant’s petition for review to consider if the State’s election to consolidate the cases limited the trial court’s authority to order that one sentence run consecutively to the sentences in the other causes.

ANALYSIS

Appellant presents several arguments to support the proposition that the trial judge’s authority was confined to the concurrent sentencing provisions of § 481.132. First, Appellant asserts that because the State elected to consolidate all of the causes for one trial, they were bound by the provision requiring concurrent sentencing. Appellant supports his conclusion with LaPorte v. State, 840 S.W.2d 412 (Tex.Crim.App.1992), and Llamas v. State, 12 S.W.3d 469 (Tex.Crim.App.2000), in which we explained that there are tradeoffs for both the State and defendant when consolidating multiple offenses for one trial. The State is encouraged to clear their trial docket while also preserving resources by conducting only one trial. The defendant, on the other hand, is in danger of unfair prejudice since the jury will hear about multiple offenses. Learning of multiple offenses could lead a jury to find the defendant guilty because they believe that he is a “bad guy,” or the jury may be more inclined to believe that, if defendant is accused of other crimes, then he is probably guilty of the crimes charged. To balance out this disadvantage, the defendant usually receives concurrent sentences if convicted. In this case, Appellant contends that the State received all of the benefit of consolidating the cases while Appellant received nothing in return, making this an unfair trade-off.

Second, Appellant argues that although the State used the wrong section to join all of the offenses for one trial, the language of Texas Penal Code § 3.02 and Texas Health and Safety Code § 481.132 are virtually the same, and neither statute contains an exception to concurrent sentencing for an offense committed in a drug-free-zone. Appellant observes that the Texas Legislature added concurrent sentencing exceptions to Texas Penal Code § 3.03 in 1997 for certain offenses, including intoxication assault, intoxication manslaughter, and certain sexual offenses, but not for the Health and Safety Code. Thus, Appellant asserts that, since we know that the legislature is capable of making exceptions to a provision, we must assume that the Legislature did not intend to create an exception for drug-free zone offenses.

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Williams v. State, 253 S.W.3d 673, 2008 WL 2081614 (Tex. 2008).

253 S.W.3d 673 (Williams v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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