16 16 v. << (2010)

Court of Appeals of Texas, Waco.

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 8 9 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 12 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 15 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 16 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

NO. 02-09-00443-CR

Decided: December 30, 2010