Opinion
No. 04-04-00410-CR
Delivered and Filed: February 9, 2005. DO NOT PUBLISH.
Appeal from the 187th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-8110, Honorable Raymond Angelini, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
A jury found appellant, Mark Lurati, guilty of one count of indecency with a child by contact, and four counts of sexual assault of a child. Tex. Pen. Code Ann. § 21.11 (Vernon 2003); Tex. Pen. Code Ann. § 22.011 (Vernon Supp. 2004). The jury assessed punishment at twenty years confinement on each count, each within the statutory limit. The State filed a motion to cumulate the sentences and the trial court did so, ordering the sentence in count one to run consecutively with the remaining sentences in counts two, three, four, and five, for a total of forty years' imprisonment. Lurati raises two issues on appeal: 1) whether the trial court, by ordering the sentences assessed by the jury to run consecutively, deprived Lurati of his right to have the jury assess punishment as provided by the Texas Constitution and article 27.02(7) of the Texas Code of Criminal Procedure; and 2) whether article 42.08 of the Texas Code of Criminal Procedure violates the Sixth Amendment to the United States Constitution. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Tex.R.App.P. 47.4 for the following reasons:
1. In his first issue, Lurati argues that the trial court's use of article 42.08(a) of the Texas Code of Criminal Procedure to order consecutive sentencing deprived him of his right to have the jury assess his punishment as provided by article I, § 15 of the Texas Constitution, and article 27.02(7) of the Texas Code of Criminal Procedure. Lurati claims article 42.08(a) violates his constitutional rights because his sentences, running consecutively rather than concurrently, increase the penalty to a time in excess of the statutorily prescribed maximum for each offense. Lurati relies on the recent Supreme Court cases, Apprendi v. New Jersey and Blakely v. Washington for the argument that a cumulation order must be made by a jury, not the trial court. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"); Blakely v. Washington, 124 S. Ct. 2531, 2536-37 (2004) (reaffirming Apprendi by reversing a judgment in which the trial court increased the defendant's punishment beyond the statutory maximum based on disputed facts that were never submitted to the jury). Texas courts have adopted the rule laid out in Apprendi, finding that other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proven beyond a reasonable doubt. Ex parte Boyd, 58 S.W.3d 134, 136 (Tex.Crim.App. 2001). The emphasis in Apprendi and Blakely is whether the sentencing court has, on the basis of facts found by the court and not the jury, exceeded the sentence for a particular count. See United States v. McWaine, 290 F.3d 269, 275-76 (5th Cir. 2002), cert. denied, 537 U.S. 921 (2002). Lurati does not dispute that the jury's assessment of twenty years for each count was within the statutory limit. The facts pertinent to each count were before the jury, not the trial court, so there was no violation of Apprendi or Blakely.Under Texas law, the trial court has discretion to stack sentences under certain circumstances. See Pettigrew v. State, 48 S.W.3d 769, 770 (Tex.Crim.App. 2001); Tex. Pen. Code Ann. § 3.03(b)(2) (Vernon 2003) (the cumulation of sentences is permissible when the defendant has committed more than one offense arising out of the same criminal episode, and one of those offenses is committed under sections 21.11 or 22.011 of the Penal Code). In the case at hand, the trial court's ruling did not cause any individual sentence to exceed the applicable maximum on any particular count, as each individual sentence was within the statutory limit for the crime charged. It cannot be said, therefore, that the court's findings resulted in the imposition of a greater punishment than was authorized by the jury's verdict. Lurati's first issue is overruled. 2. In his second issue, Lurati contends that article 42.08(a) of the Texas Code of Criminal Procedure violates the Sixth Amendment to the United States Constitution. U.S. Const. amend. VI. Lurati argues that article 42.08(a) is unconstitutional because it allows the court to extend the length of a prison sentence beyond the statutorily prescribed maximum, denying the accused his constitutional right to a fair jury trial and conflicting with the Supreme Court's holdings in Apprendi and Blakely. Lurati argues these cases dictate that to preserve the integrity of the jury's verdict, the jury, rather than the trial court, must be given the choice whether to stack sentences. When reviewing an attack upon the constitutionality of a statute, we begin with the presumption that the statute is valid and the Legislature has not acted unreasonably or arbitrarily. Luquis v. State, 72 S.W.3d 355, 365 n. 26 (Tex.Crim.App. 2002); Ex parte Ports, 21 S.W.3d 444, 446 (Tex.App.-San Antonio 2000, pet. ref'd). The party challenging the constitutionality of a statute bears the burden of establishing its unconstitutionality. Ex parte Ports, 21 S.W.3d at 446. In the absence of contrary evidence, we will presume the Legislature acted in a constitutionally sound fashion. Id. Lurati has failed to meet this burden because article 42.08(a) does not allow sentencing in excess of the statutory maximum prescribed for each individual sentence in contravention of Apprendi and Blakely. Lurati relies on the Blakely opinion for the argument that the Sixth Amendment requires that the jury be given the choice to decide whether to stack the sentences, but he misapplies Blakely to his case. As stated previously, the Blakely court was seeking to preserve the jury's traditional function of finding the facts essential to each count. As the court stated:
In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence — and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury.Blakely, 124 S. Ct. at 2540 (emphasis in original). Further, there is no constitutionally cognizable right to concurrent rather than consecutive sentences. United States v. McWaine, 290 F.3d 269, 276 (5th Cir. 2002), cert. denied, 537 U.S. 921 (2002). When Congress or the Legislature creates distinct offenses, the presumption is that it intends to permit cumulative sentences. Id. (citing United States v. White, 240 F.3d 127, 135 (2nd Cir. 2001), cert. denied, 540 U.S. 857 (2003)). Because Lurati has failed to overcome the presumption that the Legislature acted in a constitutionally sound fashion, we overrule his second issue. Based on the foregoing reasons, we affirm the trial court's judgment.
Article 42.08(a) provides: "When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be accordingly; provided, however, that the cumulative total of suspended sentences in felony cases shall not exceed 10 years, and that cumulative total of suspended sentences in misdemeanor offenses, though in no event more than three years, including extensions of periods of community supervision under Section 22, Article 42.12, of this case, if none of the offenses are offenses under Chapter 49, Penal Code, or four years, including extensions, if any of the offenses are offenses under Chapter 49, Penal Code." Tex. Code Crim. Pro. Ann. art. 42.08(a) (Vernon Supp. 2004).
Article I, § 15 of the Texas Constitution provides: "The right of trial by jury shall remain inviolate." Tex. Const. art. I, § 15.
Article 27.02(7) provides: "The pleadings and motions of the defendant shall be . . . [a]n election, if any, to have the jury assess the punishment if he is found guilty." Tex. Code. Crim. Pro. Ann. art. 27.02(7) (Vernon Supp. 2004).
A similar challenge was rejected by this court in Jaramillo v. State, No. 04-01-00846-CR, 2003 WL 21395548 (Tex.App.-San Antonio 2003, pet. ref'd) (not designated for publication).