Arnold Ray Beedy v. State

Opinion issued April 27, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00587-CR

NO. 01-05-00601-CR

ARNOLD RAY BEEDY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 46495

O P I N I O N

Appellant, Arnold Ray Beedy, pleaded guilty to two counts of indecency with

a child by exposure and pleaded true to an enhancement paragraph alleging a prior

conviction for sexual assault of a child. See Tex. Pen. Code Ann. § 21.11 (Vernon

2003). The trial court assessed appellant’s punishment at 12 years in prison on count

I, deferred adjudication of guilt on count II, and ordered 10 years of community

supervision to be served consecutively with the prison sentence . See Tex. Code

Crim. Proc. Ann. art . 42.08 (Vernon Supp. 2005); Tex. Pen. Code Ann. § 3.03

(Vernon Supp. 2005). We determine whether the trial court abused its discretion by

ordering that appellant’s deferred-adjudication community supervision run

consecutively with his prison term. We modify the trial court’s judgment by deleting

that portion of the judgment requiring appellant’s deferred-adjudication community

supervision to begin after appellant’s prison sentence is completed and by decreeing,

instead, that the community supervision and prison term run concurrently. We affirm

the trial court’s judgment as modified.

Factual Background

Appellant pleaded guilty, without a plea agreement, to two counts of indecency

with a child by exposure, and pleaded true to an enhancement paragraph that alleged

a prior conviction for sexual assault of a child. T he trial court assessed punishment

at 12 years in prison on count I. The trial court deferred adjudicating appellant’s guilt

on count II, placed him on community supervision for 10 years, and ordered the

community supervision to begin after appellant had served his prison sentence on his

count I conviction . Appellant did not object to the punishments assessed or to the

court’s cumulation of sentences.

Standard of Review

We review a complaint about consecutive sentences under an

abuse-of-discretion standard. See Harvey v. State , 821 S.W.2d 389, 392 (Tex.

App.—Houston [14th Dist.] 1991, pet. ref’d). An abuse of discretion generally will

be found only if (1) the trial court imposes consecutive sentences when the law

requires concurrent sentences, (2) the trial court imposes concurrent sentences when

the law requires consecutive ones, or (3) the trial court otherwise fails to observe the

statutory requirements pertaining to sentencing. Nicholas v. State , 56 S.W.3d 760, 765

(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). The Law

Cumulative sentencing is permitted only as provided by statute. See Tex. Code

Crim. Proc. Ann. art . 42.08; see also Tex. Pen. Code Ann. § 3.03; Harvey , 821

S.W.2d at 392 . When a defendant has been convicted in two or more cases, the trial

court has discretion to order the judgment and sentence imposed in the second

conviction either (1) to begin to run after the judgment and sentence imposed in the

preceding conviction has ceased to operate or (2) to run concurrently with the

judgment and sentence imposed in the preceding conviction. See Tex. Code Crim.

Proc. Ann. art. 42.08(a). Specifically, subsection (a) of article 42.08 of the Code of

Criminal Procedure 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 the cumulative total of suspended sentences in

misdemeanor cases shall not exceed the maximum period of

confinement in jail applicable to the 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 code, 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.

Id. (emphasis added).

If the convictions arise out of the “same criminal episode” and the cases are

tried together, the sentences must run concurrently unless the convictions are for

certain specified offenses, including sex crimes against children, that arise out of the

same criminal episode, in which case the trial court may exercise its discretion to

cumulate or to stack the sentences. See Tex. Pen. Code Ann. § 3.03. Specifically,

section 3.03 provides:

(a) 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.

(b) 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:

. . .

(2)an offense:

(A) under Section 21.11, 22.011,

22.021, 25.02, or 43.25

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 convicted of violations

of the same section more than

once or is convicted of violations

of more than one section; or

(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) 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;

. . .

Id. (emphasis added). Indecency with a child under the age of 17 constitutes one

of these specific offenses that removes the mandated concurrent sentencing. See id ;

Tex. Pen. Code Ann. § 21.11.

Here, appellant’s two offenses required the trial court to take both of these

statutes into account to determine whether to stack the deferred-adjudication

community supervision atop the prison-term punishment. Appellant pleaded guilty

to two counts of indecency with a child under 17 and considered these counts arising

out of the same criminal episode. The State argues that, under section 3.03 of the

Penal Code and article 42.08 of the Code of Criminal Procedure, the trial court was

not required to order concurrent sentences, but had the option of ordering that

appellant’s sentences be served either concurrently or consecutively.

To determine whether the trial court abused its discretion in this case, we must

determine whether an order for deferred-adjudication community supervision is a

“conviction” for purposes of the statutes authorizing cumulative sentences . See Tex.

Code Crim. Proc. Ann. art. 42.08 (using term conviction); Tex. Pen. Code Ann. §

3.03 (using term conviction).

Statutory Construction

A. Plain and Common Meaning

When construing a Texas statute, our paramount task is to ascertain the

Legislature’s intent in enacting that provision. Boykin v. State , 818 S.W.2d 782, 785

(Tex. 1991). The starting point in analyzing the meaning of a statute is the language

of the statute itself. Brown v. State , 943 S.W.2d 35, 36 (Tex. Crim. App. 1997). When

a statute is clear and unambiguous, we apply the plain meaning of its words. Ramos

v. State , 934 S.W.2d 358, 364 (Tex. Crim. App. 1996); Boykin , 818 S.W.2d at 785 ; see

Tex. Gov’t Code Ann. § 311.011 (Vernon 2005). We presume that the Legislature

intended the plain meaning of the words that it used. Boykin , 818 S.W.2d at 785 . We

are to presume that every word in a statute has been used for a purpose and that each

word, phrase, clause, and sentence should be given effect. Whitelaw v. State , 29

S.W.3d 129, 131 (Tex. Crim. App. 2000). Unless a statute is ambiguous, we abide by

the clear language of the statute and enforce it as written. See Griffith v. State , 116

S.W.3d 782, 785 (Tex. Crim. App. 2003) . When interpreting a statute, we are required

to interpret an unambiguous statute literally, unless doing so would lead to an absurd

result. Id . Only when a literal reading of the statute leads to an absurd result will we

resort to the use of extra-textual factors to determine legislative intent. Id.

“Conviction” is not defined in the Code of Criminal Procedure or the Penal

Code. See Tex. Pen. Code Ann. § 1.07 ( Vernon 2003); Tex. Code Crim. Proc.

Ann . art. 3.01 ( Vernon 2005). The Court of Criminal Appeals and our Court have

addressed the meaning of the term “conviction” in a number of different settings,

though not for purposes of the stacking statutes.

The Court of Criminal Appeals has

also concluded, in Ex parte Evans , that it had most often “construed the term

‘conviction’ to mean a judgment of guilt and the assessment of punishment.” Ex parte

Evans , 964 S.W.2d 643 , 646–47 (Tex. Crim. App. 1998).

That an adjudication of guilt must precede a final conviction has been clearly

stated by the Court of Criminal Appeals. In McNew v. State , the Court of Criminal

Appeals has also considered the meaning of “conviction” in relation to the deferred-

adjudication statute. Id. 608 S.W.2d 166, 171 (Tex. Crim. App. 1978). The court

recognized that “a ‘conviction,’ regardless of the context in which it is used, always

involves an adjudication of guilt.”

Id. at 172 . (emphasis added). Because the

procedures for granting deferred adjudication do not involve an adjudication of guilt

until after community supervision is revoked, if it is ever revoked, the Court of

Criminal Appeals concluded that “it is clear that a trial judge’s action in deferring the

proceedings without entering an adjudication of guilt is not a ‘conviction.’” Id .

Simply put, whether examined in the context of the term’s plain meaning or of its

common usage, there can be no “final conviction” without an adjudication of guilt.

See id.

Recently, in Donovan v. State , the Court of Criminal Appeals recognized that

deferred adjudication is not a “conviction” because a defendant on deferred-

adjudication community supervision has not been found guilty. Id. , 68 S.W.3d 633 ,

636–37 (Tex. Crim. App. 2002). The court stated that “[t]hat is one of the signal

benefits of deferred adjudication as opposed to, for instance, regular community

supervision. When adjudication is deferred, there is no ‘finding or verdict of guilt.’”

Id. Section 5(a) of article 42.12 provides that placing a defendant on deferred

adjudication is not an adjudication of guilt. See Tex. Code Crim. Proc. Ann. art .

42.12, § 5 (a) (Vernon Supp. 2005) . Because deferred adjudication does not include

an adjudication of guilt, it is not a conviction for purposes of cumulative sentencing.

See McNew, 608 S.W.2d at 171 .

Nevertheless, the State argues that interpreting the plain meaning of the statutes

to limit the definition of “conviction” to exclude deferred adjudication is improper.

The State relies on Pettigrew v. State to support its argument that the Legislature

intended to give the trial court the maximum flexibility possible in stacking sentences.

See id. , 48 S.W.3d 769, 733 (Tex. Crim. App. 2001) . Pettigrew is distinguishable. In

Pettigrew , the defendant first had been convicted of aggravated sexual assault and had

been placed on post-conviction community supervision for 10 years. Pettigrew , 48

S.W.3d at 770 . While serving his community supervision sentence, the defendant was

convicted of murder and sentenced to 75 years in prison. Id. After the defendant’s

second conviction, the trial court revoked the defendant’s community supervision and

sentenced him to 10 additional years in prison, to run consecutively after the 75-year

sentence for murder. Id.

The issue in Pettigrew was whether the trial court could stack the defendant’s

punishment for a previous conviction on top of a sentence for a subsequent conviction.

Id. at 770–71. There was no dispute that the trial court was authorized to stack the

two sentences assessed; the only issue was which sentence could be stacked on the

other. See id. at 775 (Johnson, J., dissenting). The Court of Criminal Appeals

interpreted the language of article 42.08 to mean that “a case could be treated as a

‘conviction’ at the time the sentence is suspended or at the time the sentence is

imposed.”

Id . at 771. In Pettigrew , the court held that the Legislature intended both

suspended and imposed sentences to be treated as “convictions” for the purpose of

stacking in order to give the trial court the maximum flexibility possible in stacking

sentences. Id .

Pettigrew concerned a conviction and assessment of punishment, followed by

suspension of the conviction and imposition of community supervision, followed by

revocation of community supervision and reinstatement of the original punishment,

followed by stacking the sentence with another for which the defendant was convicted.

Here, in contrast, the trial court has not convicted appellant of his count II offense;

rather, the trial court deferred the proceedings without adjudicating guilt. In

conclusion, the analysis in Pettigrew does not assist this Court because, in Pettigrew ,

the trial court revoked the defendant’s community supervision, which had been

imposed upon the suspension of his sentence, then ordered the defendant’s prison

sentences to run consecutively, i.e. there had been an adjudication of guilt and thus

two convictions.

Our conclusion is supported by Hurley v. State , in which the Dallas Court of

Appeals held that stacking deferred-adjudication community supervision on top of a

prison term is not permissible under Code of Criminal Procedure article 42.08 and

Penal Code section 3.03 because a deferred-adjudication order is not a conviction. See

Hurley v. State , 130 S.W.3d 501, 507 (Tex. App.—Dallas 2004, no pet.). The State

contends that Hurley was wrongly decided because the term “conviction” has been

defined to include deferred adjudication. See id. In Hurley , the defendant entered

non-negotiated guilty pleas to the charges of indecency with a child under the age of

17 and aggravated sexual assault of a child under the age of 14. Id. The trial court

found the defendant guilty of the first charge and assessed punishment at 15 years in

prison. Id. The trial court deferred adjudicating the defendant’s guilt on the second

offense and placed the defendant on community supervision for 10 years, to begin

after his prison term. Id. The Dallas Court of Appeals held that, because a deferred-adjudication order does not involve a “conviction,” that order cannot be the subject of

cumulative sentencing under Texas law. Id. at 503 . For the reasons discussed above,

we agree with the Dallas Court of Appeals’s analysis in Hurley . See id.

B. Absurd Result

Alternatively, the State argues that the plain meaning of the statute, as we have

interpreted it, leads to absurd results and contravenes public policy. Specifically, the

State argues that “[t]here is no logical reason for the legislature to have intended to

allow cummulation [sic] of sentences in [post-conviction community supervision]

cases but not allow them in deferred-adjudication cases. There is no reason for a

distinction between the two forms of community supervision.”

We disagree that this result is so absurd that we must conclude that the

Legislature did not mean what it plainly said. There is nothing inherently absurd

about a statutory interpretation that results in the trial court’s having discretion to

stack a post-conviction community supervision order, but not a deferred-adjudication

community supervision order, onto prison time.

C. Other Factors

When interpreting a statute, we consider the entire act, its nature and

object, and the consequence that would follow from each construction. Boykin , 818

S.W.2d at 785 . We must reject any statutory interpretation that defeats the legislative

purpose. Id. Under the Code Construction Act, even when a statute is not ambiguous

on its face, we may consider other factors to determine the Legislature’s

intent—factors including, but not limited to, (1) the object sought to be obtained; (2)

the circumstances of the statute’s enactment; (3) the legislative history; (4) the

common law or former statutory provisions, including laws on the same or similar

subjects; and (5) the consequences of a particular construction. See Tex. Gov’t Code

Ann . § 311.023(1)-(5) (Vernon 2005). We may also consider statutory provisions on

the same or similar subjects. Id. § 312.008 (Vernon 2005). And, “[w]hen the same

or a similar term is used in the same connection in different statutes, the term will be

given the same meaning in one as in the other, unless there is something to indicate

that a different meaning was intended.” Guthery v. Taylor , 112 S.W.3d 715 , 721–22

(Tex. App.—Houston [14th Dist.] 2003, no pet.).

The State contends that Hurley was also wrongly decided because the term

conviction has been liberally construed to include entry of a guilty plea. See Hurley ,

130 S.W.3d at 506–07. The State specifically argues that, under Penal Code section

12.42, deferred adjudication for certain sex offenses can be used as a previous

conviction for enhancement purposes and, therefore, that a similar definition should

be applied under article 42.08 and section 3.03. See Tex. Pen. Code Ann. § 12.42

(Vernon Supp. 2005). Section 12.42(g) provides that a defendant has been previously

convicted of an offense listed under subsection 12.42(c)(2)(B) if the defendant “was

adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return

for a grant of deferred adjudication.” Id . However , this subsection expressly applies

only to section 12.42 of the Penal Code. See Tex. Pen. Code Ann. § 12.42 (g) .

Neither article 42.08 nor section 3.03 includes such a definition for the term

“conviction.” Moreover, that the Legislature felt the need expressly to include

deferred adjudication within the definition of “conviction” in section 12.42 indicates

the Legislature’s understanding that the term “conviction” would not include deferred-adjudication orders unless the Legislature expressly provided to the contrary. The

existence of such a definition in section 12.42, and the absence of the term from both

of the cumulative-sentencing statutes, thus support the conclusion that a deferred-adjudication community supervision order is not a conviction for purposes of

cumulative sentencing. See Hurley , 130 S.W.3d at 506–07.

The State also cites federal authority to demonstrate that courts have liberally

construed the a similar definition “conviction.” See Garnica-Vasquez v. Reno , 210

F.3d 558, 559 (5th Cir. 2000) (stating that deferred adjudication is considered

conviction for purposes of federal deportation statute); U.S. v. Stauder , 73 F.3d 56 , 57

(5th Cir. 1996) (stating that deferred adjudication is considered conviction in

calculating base offense level for later conviction under federal sentencing guidelines).

These cases were based on federal statutes and sentencing guidelines containing

definitions of “conviction” that expressly include admissions of guilt without a formal

conviction. Accordingly, considering the plain meaning of the Texas cumulative-sentencing statutes and case law, the federal authority cited by the State is not

persuasive. See Hurley , 130 S.W.3d at 507 .

The State further argues that the trial court should have the discretion to stack

deferred-adjudication community supervision on a conviction because not allowing

the trial court to do so would deprive appellant of “a chance to clean his record of one

of the two charges if he successfully completes the deferred sentence.” The State does

not show how appellant does not have that opportunity when the deferred adjudication

is concurrent.

We conclude that appellant’s deferred-adjudication community supervision was

not a conviction for purposes of article 42.08 and section 3.03(c). Accordingly, the

trial court did not abuse its discretion in ordering the deferred-adjudication community

supervision to begin after appellant served his prison sentence.

We sustain appellant’s sole point of error.

Remedy

Appellant requests that the judgment be reformed to delete that portion

requiring his deferred-adjudication community supervision to begin after his prison

sentence for count I. The State argues that if this Court holds that it was improper to

stack appellant’s deferred-adjudication community supervision on his prison sentence,

then the Court should remand the cause for a new punishment hearing on count II .

The proper remedy for a void cumulation order is to reform the judgment to

delete the cumulation order. Robbins v. State , 914 S.W.2d 582, 584 (Tex. Crim. App.

1996) (distinguishing Ex parte Sims , 868 S.W.2d 803 (Tex. Crim. App. 1993), in

which court remanded cause for new trial because consecutive sentences were part of

negotiated plea bargain) ; LaPorte v. State , 840 S.W.2d 412, 415 (Tex. Crim. App.

1992). This disposition is appropriate because the decision to stack comes after the

decision of to adjudicate or not to adjudicate guilt and to assess punishment if guilt is

decreed. Although at first blush, it seems unlikely that a trial court would assess

deferred-adjudication community supervision that could be served concurrently with

prison time, it is possible that a trial court could take note of Pettigrew and assess

deferred-adjudication community supervision with the possibility that it could be

adjudicated and stacked at the slightest violation while the defendant is in prison in

order to assure good behavior in prison.

Therefore, we modify the judgment to delete the cumulation order. See

Robbins v. State , 914 S.W.2d at 584 & n.1.

Conclusion

We modify the trial court’s judgment to delete that portion requiring appellant’s

deferred-adjudication community supervision to begin after appellant’s prison

sentence is completed and to decree, instead, that the community supervision and

prison term run concurrently. We affirm the trial court’s judgment as modified.

Tim Taft

Justice

Panel consists of Justices Taft, Higley, and Bland.

Publish. See Tex. R. App. P. 47.2(b).