No. 04-01-00846-CR
Delivered and Filed: June 18, 2003 Do Not Publish
Appeal From the 187th Judicial District Court of Bexar County, Texas, Trial Court No. 2001-CR-0779, Honorable Raymond Angelini, Judge Presiding. AFFIRMED
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Sandee Bryan MARION, Justice.
Opinion by: Paul W. Green, Justice
Appellant Simon Jaramillo appeals his convictions on six counts, including three counts of sexual assault on a child, two counts of indecency with a child by contact, and one count of indecency with a child by exposure. Subsequent to a jury trial, Jaramillo was sentenced to several shorter prison terms, each within the statutory limit. The State filed a motion to cumulate the sentences and the trial court did so, sentencing Jaramillo to a total of twenty-four years' imprisonment. Jaramillo now appeals in three issues.
Background
J.V., a fourteen-year-old child, accused Appellant Simon Jaramillo, her mother's boyfriend, of sexually assaulting her on two separate occasions. Following a jury trial, Jaramillo was convicted of six counts of sexual assault and sexual indecency. Specifically, he was convicted and sentenced as follows: Count I: Sexual Assault: 4 years
Count II: Sexual Assault: 10 years
Count III: Indecency With a Child: 2 years
Count IV: Indecency With a Child: 2 years
Count V: Sexual Assault: 4 years
Count VI: Indecency With a Child: 2 years
The State moved to have the sentences cumulated and served consecutively, and the trial court granted the motion, setting the sentence at a total of twenty-four years. Jaramillo now appeals this order, claiming the twenty-four year sentence violates his right to fair trial and due process under Apprendi v. New Jersey, 530 U.S. 466 (2000) because it is in excess of the statutory maximum sentence allowed by each respective count. Apprendi v. New Jersey
In his first issue, Jaramillo claims the cumulative sentence is in excess of the statutory maximum, violating his right to a trial by jury and to due process, as well as the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). Jaramillo challenges the trial court's use of Texas Penal Code § 3.03(b)(2) and Texas Code of Criminal Procedure art. 42.08(a) to order consecutive sentencing in his case. Tex. P. Code Ann. § 3.03(a), (b)(2) (Vernon 2003); Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2003). He claims the use of these statutes 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. In addition, Jaramillo argues the increase was based solely on facts determined by the trial court rather than charged to the jury, thereby violating Apprendi. In Apprendi, the Supreme Court considered the constitutionality of the New Jersey hate crimes statute. Under the statute a jury could convict a defendant of a second degree offense based on its finding, beyond a reasonable doubt, that he unlawfully possessed a prohibited weapon. Ex parte Boyd, 58 S.W.3d 134, 136 (Tex.Crim.App. 2001). After a subsequent proceeding, the statute permitted a trial judge to impose punishment for a first degree offense based on the judge's finding, by a preponderance of the evidence, that the defendant's purpose for possessing the weapon was motivated by bias against a characteristic of the victim. Id. The Supreme Court held the New Jersey statute violated due process, finding it unconstitutional for a legislature to remove from the jury the assessment of facts (aside from a prior conviction) which increase the prescribed range of penalties to which a criminal defendant is exposed. Apprendi, 530 U.S. at 490. Texas courts have since adopted the rule laid out by the Apprendi Court, 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 a jury, and proved beyond a reasonable doubt. Ex parte Boyd, 58 S.W.3d at 136. Both the Supreme Court and Texas courts, however, have been concerned with whether the sentencing court had, on the basis of facts found by the court and not the jury, exceeded the sentence for a particular count. United States v. McWaine, 290 F.3d 269, 275-76 (5th Cir. 2002); United States v. White, 240 F.3d 127, 135 (2d Cir. 2001). Under both Texas and federal law, the trial court has discretion to stack sentences under certain circumstances. Tex. P. Code Ann. § 3.03(b)(2) (Vernon 2003); McWaine, 290 F.3d at 275; Pettigrew v. State, 48 S.W.3d 769, 771 (Tex.Crim.App. 2001). In the case at hand, the trial court decided to cumulate the sentences under the Texas Penal Code § 3.03(b)(2). The 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 as to any individual count, the court's findings resulted in the imposition of a greater punishment than was authorized by the jury's verdict. The trial court's cumulation of Jaramillo's sentences, then, is not in conflict with the Supreme Court's holding in Apprendi and we overrule Jaramillo's first issue. In his second and third issues, Jaramillo claims Texas Code of Criminal Procedure art. 42.08(a) and Texas Penal Code § 3.03(a), (b)(2)(A) are unconstitutional as applied under both the United States and Texas Constitutions because they allow a 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 to due process and conflicting with the Supreme Court's holding in Apprendi. When reviewing an attack upon the constitutionality of a statute, the court begins with a 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. 25 (Tex.Crim.App. 2002); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App. 1978); Ex parte Ports, 21 S.W.3d 444, 446 (Tex.App.-San Antonio 2000, pet. ref'd). The burden rests upon the individual who challenges the statute to establish 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. For the reasons stated above, Jaramillo has failed to establish the unconstitutionality of the statutes challenged. In spite of Jaramillo's claim, the statutes do not allow sentencing in excess of the statutory maximum prescribed for each individual offense. In addition, there is no constitutionally cognizable right to concurrent rather than consecutive sentences. McWaine, 290 F.3d at 276; White, 240 F.3d at 135. When Congress or the Legislature creates distinct offenses, the presumption is that it intends to permit cumulative sentences. White, 240 F.3d at 135; Garrett v. United States, 471 U.S. 773, 793 (1985). Because Jaramillo failed to introduce sufficient evidence to the contrary, we will presume the Legislature acted in a constitutionally sound fashion. His second and third issues are overruled. Because the cumulation of Jaramillo's sentences did not result in a violation of his constitutional rights or the Supreme Court's holding in Apprendi, and because the statutes in question are not unconstitutional, we overrule all three of Jaramillo's issues. The judgment of the trial court is affirmed.