Summary
holding sentences must be served concurrently on three identical drug offenses prosecuted together on State's motion to consolidate
Summary of this case from Ex parte VetcherOpinion
Nos. PD-1948-06, PD-1949-06, PD-1950-06.
May 14, 2008.
Appeal from the 377th District Court, Victoria County, Robert C. Cheshire, J.
Luis A. Martinez, Victoria, for Appellant.
Michael M. Kelly, Asst. Crim. D.A., Victoria, Jeffrey L. Van Horn, State's Attorney, Austin, for the State.
MEYERS, J., delivered the opinion of the Court, in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.
OPINION
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 Tex.App. LEXIS 7870 (Tex.App.-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 appeals 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 § 3.03. 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.
For violations of Ch. 481 of the Health and Safety Code, the means of consolidating multiple offenses is provided solely by § 481.132. However, Appellant did not object, and this is not an issue on appeal.
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 "[p]unishment 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 pre-trial 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. 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.
The following is the pre-trial discussion related to the joinder of the offenses:
[The Court]: I believe this is the type of case that, if you are found guilty, this would have to run concurrently then.
[The State]: The way it's been pled, then" Yes, your Honor.
[The Court]: Well, there are only certain exceptions.
[The State]: Yes, your Honor.
[The Court]: These offenses, I don't believe, would fit in those exceptions, without double checking the statute"
[The State]: Yes, sir.
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 serve 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.CrimApp. 2000), in which we explained that there are trade-offs 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 man-slaughter, 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.
And finally, Appellant argues that the language of § 481.134 does not actually preclude concurrent sentencing in this case. Appellant maintains that a plain reading of the statute shows that subsection (h) is applicable only if a defendant's punishment is actually increased due to the drug-free zone finding. Appellant explains that there are four reasons that concurrent sentences are not precluded: (1) during the sentencing hearing, the State and the judge had an exchange that should be interpreted as the State's waiver of consecutive sentencing, (2) no punishment was actually increased, (3) if punishment was increased, the increase was not due to the drug-free zone finding, and (4) the conviction of the drug-free zone offense is not a conviction under "any other criminal statute" as required by § 481.134(h).
The following is a punishment hearing discussion related to sentencing:
[The Court]: There is no provision in 481.134, the State is seeking enhancement under, a repeat felony statute — If they're going under that statute, there is no indication that that increases or doubles the fine. So, the Court is deeming that the legislature, by its enaction of the statute then, and the State's election, means that your range of punishment has a minimum of 5 years, for the first degree felony, and the maximum find of $10,000 that may be assessed.
The other interpretation would be that you carry the 134 increase along, but specific statutory provisions apply over non-specific. So, it's appropriate, when you're seeking another enhancement, you go with the other enhancement that's being sought —
Unless the State has something further concerning that.
[The State]: Not at this time.
[The Court]: Then, Mr. Williams, you are benefitting from the Court's ruling of that and that your minimum is determined to be 5, rather than 10, and a fine up to $10,000, rather than a fine up to the maximum $20,000.
Appellant notes that all three offenses received identical sentences, so there is no indication that the drug-free zone sentence was increased in any way. Therefore, Health and Safety Code § 481.134(h) does not apply, and § 481.132 is the only applicable statute. Appellant suggests that, even if we determined that his sentence was actually increased under § 481.134, the increase was not due to the drug-free zone finding because, during the sentencing hearing, the judge stated that he was giving Appellant the benefit of his interpretation of the statutes and increasing the minimum punishment of his offenses due to his repeat-felony status, rather than increasing the minimum punishment because of the drug-free zone finding. Appellant additionally argues that the two conflicting provisions are part of the same statute — the Texas Controlled Substances Act. Therefore, § 481.134(h) would not be applicable because it comes into effect only when there is a conviction under a different criminal statute, such as for robbery. For all of these reasons, Appellant argues that the application of § 481.134(h) was an abuse of discretion by the trial judge. As a remedy, Appellant asks us to either reform the sentences and have them run concurrently or remand this cause to the trial court for a new punishment hearing.
Appellant still argues this point despite the fact that, when pronouncing judgment, the trial judge specifically explained that he applied both the repeat-felon enhancement and increased the minimum punishment of the drug-free zone offense.
The case before us presents a question of statutory construction; essentially, which one of these two statutes applies to Appellant's sentencing? Because statutory interpretation is a question of law, this court conducts a de novo review. See Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997), and Johnson v. State, 954 S.W.2d 770 (Tex.Crim.App. 1997).
Under the canons of statutory construction, we are to construe a statute according to its plain language, unless the language is ambiguous or the interpretation would lead to absurd results that the legislature could not have intended. Thompson v. State, 236 S.W.3d 787, 792 (Tex.Crim.App. 2007), citing Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991). We also concluded in Boykin that we must focus our attention on the literal text of the statute. With this in mind, we look to the language of the two sections of the Health and Safety Code. Section 481.132(d) says that if a defendant is convicted of "more than one offense arising out of the same criminal episode" prosecuted in one trial, then the sentences for the defendant's convictions must run concurrently. Section 481.132(a) defines "criminal episode" as "the commission of two or more offenses under this chapter" under certain circumstances. (Emphasis added.) The "chapter" that this
subsection refers to is Chapter 481, the Texas Controlled Substances Act. Appellant was indicted for three offenses under Chapter 481, the offenses were prosecuted in one trial, and Appellant was convicted of all three offenses, therefore, § 481.132(d) applies to Appellant's situation.
The next step is to look at the language of Health and Safety Code § 481.134(h), which states, "Punishment 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." It is apparent from the language of this statute that a conviction for an offense listed any-where within § 481.134 cannot run concurrently with a conviction for an offense under any other criminal statute. Just reading the statute under the auspices of common usage and grammar, "any other criminal statute" means a criminal statute not listed within § 481.134. Appellant's punishment was increased for a conviction listed under § 481.134(c), however, all of Appellant's convictions were for offenses listed under § 481.134(c). The logical extension of this analysis is that, because Appellant was not convicted of a criminal offense not listed within § 481.134, the consecutive sentencing provision of § 481.134(h) does not apply. Therefore, § 481.132(d) determines whether the sentences are to run concurrently.
Some may argue that § 481.134(h) should be given effect because the Texas Legislature passed it subsequent to § 481.132(d), or because they view § 481.134(h) as an "exception" to the general rule of § 481.132(d). However, under the Code Construction Act, we give exclusive effect of a specific provision over a more general provision only when the two irreconcilably conflict. TEX. GOV'T CODE ANN. § 311.026. In the case at hand, there is no conflict between the two sections because only one applies to Appellant's convictions. Because § 481.134(h) does not address Appellant's situation, it is incapable of being in conflict with § 481.132(d). As such, Appellant should have been ordered to serve his three 17-year sentences concurrently.
CONCLUSION
The court of appeals did not engage in statutory construction regarding which of these two statutes applies to Appellant's case and, therefore, incorrectly affirmed the trial court's cumulation of Appellant's sentences. Because § 481.134(h) did not apply to Appellant's sentencing, § 481.132 controls in this situation. We reverse the decision of the court of appeals and reform the judgment to reflect that all three sentences run concurrently.
PRICE, J., filed a concurring opinion, in which KEASLER and HOLCOMB, JJ., joined.
KELLER, P.J., dissented.
I agree that the trial court erred in ordering the appellant's third sentence, enhanced under the drug-free zone provision of the Health and Safety Code, to run consecutively to his other two, concurrently running sentences, and I join the Court's opinion. I write separately only to elaborate on the Court's reasoning.
The appellant was charged in three separate indictments alleging delivery of cocaine, perpetrated on three different dates, in an amount between one and four grams. This constitutes the repeated commission of the same offense under Section 481.112(a) and (c) of the Health and Safety Code. Each indictment included an enhancement count alleging the commission of a prior felony that boosted the grade of the offense from a second degree felony to a first degree felony, punishable by a term of life, or not more than 99 years or less than five years in the penitentiary, and a fine of no more than $10,000. It is undisputed that the State consolidated these three offenses for trial, and there was no severance. By the express terms of Section 481.132(d) of the Health and Safety Code, therefore, the trial court was required to run the three sentences concurrently.
See TEX. HEALTH SAFETY CODE § 481.112(a) (c) (". . . a person commits an offense if the person knowingly . . . delivers . . . a controlled substance listed in Penalty Group 1. * * * An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.").
TEX. PEN. CODE §§ 12.42(b) 12.32.
See TEX. HEALTH SAFETY CODE § 481.132(d) ("If the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which the accused has been found guilty shall be pronounced, and those sentences run concurrently."); see also TEX. HEALTH SAFETY CODE § 481.132(a)(2) (defining "criminal episode" to include "the repeated commission of the same or similar offenses").
The complication in this case arises from the fact that the third indictment also alleged that the appellant committed his delivery offense within a thousand feet of the premises of a school — a so-called "drug-free zone." For this reason, the appellant was also susceptible under this third indictment to an enhancement of his sentence by increasing the minimum punishment by five years and doubling the fine. The trial court concluded that, because the appellant's third conviction was susceptible to this drug-free zone enhancement, his sentence for that conviction could not be made to run concurrently with the other two sentences, notwithstanding Section 481.132(d). The trial court believed that Section 481.132(d)'s requirement of concurrent sentences was trumped by Section 481.134(h), which provides that "[p]unishment 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." In my view, however, the trial court misconstrued the plain language of Section 481.134(h).
See TEX. HEALTH SAFETY CODE § 481.134(c)(1) ("The minimum term of confinement or imprisonment for an offense otherwise punishable under Section 481.112(c) . . . is increased by five years and the maximum fine for the offense is doubled if it is shown on the trial of the offense that the offense was committed . . . within 1000 feet of premises of a school[.]").
Under Subsection (h) of Section 481.134, it is impermissible to run punishment for "an offense listed" elsewhere in Section 481.134 concurrently with punishment for any offense defined by "any other criminal statute." By "other criminal statute," Subsection (h) plainly means any criminal statute other than those criminal statutes listed in the other subsections of Section 481.134. There is nothing else in the sentence that the word "other" could possibly refer back to. Each of the three offenses the appellant was indicted for is defined as a second degree felony by Section 481.112(c) of the Health and Safety Code. Section 481.112(c), in turn, is listed in Subsection (c) of Section 481.134 — the same "section" that Subsection (h) of Section 481.134 refers to. Because all of the offenses that the appellant was convicted of are listed in Section 481.134, he has not been convicted under any criminal statute "other" than those listed in Section 481.134. For this reason, the prohibition against concurrent sentences as defined by Subsection (h) of Section 481.134 does not apply to the appellant's consolidated convictions. And because prosecution for all three offenses was consolidated under Section 481.132(d) of the Health and Safety Code, concurrent sentencing was mandated. The trial court erred to conclude otherwise.
TEX. HEALTH SAFETY CODE § 481.134(h) (emphasis added).
The State Prosecuting Attorney has filed an amicus brief in this cause, asking the Court to apply principles of in pari materia to conclude that Section 481.134(h)'s prohibition against concurrent sentencing for drug-free zone punishments should govern. But one of the first principles of in pari materia, which is applicable to the Health and Safety Code, is to construe seemingly conflicting statutes to harmonize if at all possible. Here, there is no conflict Each of the appellant's three convictions was for "an offense listed under" Section 481.134; none was for an offense "under any other criminal statute." On its face, then, Subsection (h) of Section 481.134 does not prohibit concurrent sentences under these circumstances. In the absence of any special provision that would operate to prohibit the appellant from obtaining concurrent sentences, the general statutory requirement of concurrent sentencing when prosecutions are consolidated, contained in Section 481.132(d) of the Health and Safety Code, plainly governs.
E.g., Cheney v. State, 755 S.W.2d 123, 126 (Tex.Crim.App. 1988). See TEX. HEALTH SAFETY CODE § 1.002 ("Chapter 311, Government Code (Code Construction Act), applies to the construction of each provision in this code except as otherwise provided by this code."). The Texas Controlled Substances Act (Chapter 481 of the Texas Health and Safety Code) does not provide otherwise. Under Section 311.026(a) of the Code Construction Act, any conflict between a general provision and a special or local provision "shall be construed, if possible, so that effect is given to both." TEX. GOV'T CODE § 311.026(a).