Nos. PD-0847-15 & PD-0848-15

In the

Court of Criminal Appeals

At Austin 



Nos. 14-14-00154-CR & 14-14-00155-CR

In the

Court of Appeals

For the

Fourteenth District of Texas

At Houston



Nos. 1323841 & 1390391

In the 185th District Court

Of Harris County, Texas



KOJUAN J. MILES

Appellant

V.

THE STATE OF TEXAS

Appellee



STATE’S PETITION FOR DISCRETIONARY REVIEW



DEVON ANDERSON

District Attorney

Harris County, Texas

DAN MCCRORY

Assistant District Attorney

Harris County, Texas

ANN JOHNSON

ALLEN OTTO

Assistant District Attorneys

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

Tel.: 713/755-5826

FAX No.: 713/755-5809

Counsel for Appellee

ORAL ARGUMENT REQUESTED

PD-0847&0848-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 8/13/2015 5:27:20 PM

Accepted 8/17/2015 2:07:28 PM

ABEL ACOSTA

CLERK
i

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 68.4(d), the State requests oral argument so that 

any questions this Court may have about these unique and novel issues may be 

addressed in full.

IDENTIFICATION OF THE PARTIES

 Pursuant to TEX. R. APP. P. 68.4(a), a complete list of the names of all 

interested parties is provided below.

 Victim: 

 A.J.—a juvenile 

 

 Counsel for the State:

 Devon Anderson, District Attorney of Harris County

 Dan McCrory, Assistant District Attorney on appeal

 Ann Johnson, Assistant District Attorney at trial

Allen Otto, Assistant District Attorney at trial

 1201 Franklin, Suite 600, Houston, Texas 77002

 Lisa McMinn, State Prosecuting Attorney

 P. O. Box 13046, Austin, Texas 78711

 Appellant or criminal defendant:

 Kojuan J. Miles 

 

 Counsel for Appellant:

 Jules Johnson—Counsel at trial 

Mark Hochglaube—Counsel at trial
ii

Nicolas Hughes—Counsel on appeal

 Assistant Public Defenders, Harris County, Texas

 1201 Franklin, 13th Floor, Houston, Texas 77002

Deborah Summers—Counsel at trial

11210 Steeplecrest, Suite 120

Houston, Texas 77065

 

Trial Judges:

 Honorable Marc Brown—Presiding Judge

Honorable Susan Brown—Presiding Judge
iii

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .......................................................... i

IDENTIFICATION OF THE PARTIES..............................................................................i

INDEX OF AUTHORITIES .............................................................................................. iv

STATEMENT OF THE CASE ........................................................................................... 1

STATEMENT OF THE PROCEDURAL HISTORY ........................................................ 1

QUESTION PRESENTED FOR REVIEW........................................................................ 2

Did the court of appeals err in holding that section 3.03(b) of the Texas Penal Code 

does not allow the cumulation of sentences for two offenses listed within different 

paragraphs of subsection (b) of the stacking statute?...................................................... 2

PRAYER FOR RELIEF .................................................................................................... 21

CERTIFICATE OF SERVICE.......................................................................................... 22

CERTIFICATE OF COMPLIANCE ................................................................................ 23
iv

INDEX OF AUTHORITIES

CASES

Boykin v. State, 

818 S.W.2d 782 (Tex. Crim. App. 1991)...................................................................... 19

Butcher v. State, 

454 S.W.3d 13 (Tex. Crim. App. 2015)........................................................................ 16

Chase v. State, 

448 S.W.3d 6 (Tex. Crim. App. 2014)..............................................................16, 17, 20

Jourdan v. State, 

428 S.W.3d 86 (Tex. Crim. App. 2014)........................................................................ 18

Miles v. State, 

No. 14-14-00154-CR, 2015 WL 3751704 (Tex. App.--Houston 

[14th Dist.] June 16, 2015, pet filed).......................................1, 3, 4, 5, 6, 13, 14, 15, 16

Nguyen v. State, 

359 S.W.3d 636 (Tex. Crim. App. 2012)...................................................................... 16

Parfait v. State, 

120 S.W.3d 348 (Tex. Crim. App. 2003)...................................................................... 20

STATUTES

TEX. GOV’T CODE ANN. § 311.021 (West 2013) .............................................................. 17

TEX. PEN. CODE ANN. § 3.03 (West Supp. 2014) .......................................2, 12, 14, 15, 28

OTHER AUTHORITIES

Act of April 7, 2011, 82nd Leg., R.S., ch. 1, § 6.01.......................................................... 12

Act of May 17, 2013, 83rd Leg., R.S., ch. 228, § 1 .......................................................... 12

Act of May 23, 2005, 79th Leg., R.S., ch. 527, § 1............................................................. 9

Act of May 25, 1995, 74th Leg., R.S., ch. 596, § 1............................................................. 7
v

Act of May 27,2007, 80th Leg., R.S., ch. 1291, § 6.......................................................... 11

Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 2............................................................. 8

Act of May 31, 2009, 81st Leg., R.S., ch. 1130, § 21 ....................................................... 11

Acts 1973, 63rd Leg., R.S., ch. 399, § 1.............................................................................. 7

GARNER’S DICTIONARY OF LEGAL USAGE (3d ed. 2011) ...........................................15, 17

House Research Organization, Bill Analysis from House Criminal Jurisprudence 

Committee, H.B. 220 (April 18, 2013).......................................................................... 16

RULES

TEX. R. APP. P. 39.7..............................................................................................................i

TEX. R. APP. P. 66.3............................................................................................................. 2
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

STATEMENT OF THE CASE

In cause number 1323841, appellant was charged by indictment with the 

offense of sexual assault of a child. (CR I 14).1 In cause number 1390391, 

appellant was charged by indictment with the offense of compelling prostitution. 

(CR II 16). After finding appellant guilty of both charged offenses, the jury 

assessed punishment at seven-years confinement for the sexual assault offense and 

23-years confinement for the compelling prostitution offense. (CR I 261; CR II 

474). In cause number 1390391, the judge entered a cumulation order, directing

the sentences to be served consecutively. (CR II 474-475).

STATEMENT OF THE PROCEDURAL HISTORY

On June 16, 2015, a panel of the Fourteenth Court of Appeals issued a 

published opinion in which it affirmed appellant’s two convictions, but ordered the 

deletion of the cumulation order. Miles v. State, No. 14-14-00154-CR, 2015 WL 

3751704 (Tex. App.--Houston [14th Dist.] June 16, 2015, pet filed). Specifically, 

the Court modified the judgment in cause number 1390391 to delete the 

cumulation order. Id. No motion for rehearing was filed.

 

1

“CR I” refers to the clerk’s record for cause number 1323841.

 “CR II” refers to the clerk’s record for cause number 1390391.
2

QUESTION PRESENTED FOR REVIEW

Did the court of appeals err in holding that section 3.03(b) of the 

Texas Penal Code does not allow the cumulation of sentences for two 

offenses listed within different paragraphs of subsection (b) of the 

stacking statute?

1. Reason for granting review

Review of this question presented should be granted because the Fourteenth

Court of Appeals decided an important question of state law that has not been, but 

should be, decided by this Court. TEX. R. APP. P. 66.3(b). Namely, this Court 

should determine the scope of the stacking provision provided by section 3.03(b) 

of the Texas Penal Code.

2. Argument

2.1 The stacking statute – Section 3.03

A trial judge’s authority to stack a defendant’s sentences is found in section 

3.03 of the Texas Penal Code. TEX. PEN. CODE ANN. § 3.03 (West 2014). This 

statute contains two subsections, (a) and (b). The plain language of subsection (a)

provides that a defendant found guilty of more than one offense in a single trial 

will have his sentences run concurrently. Subsection (b), however, provides 

exceptions to this general rule by listing a number of offenses for which multiple 

sentences may run consecutively under certain circumstances.

2

 Id.
3

2.2 Relevant facts

Appellant was convicted of two offenses – compelling prostitution and 

sexual assault of a child. (CR I 261; CR II 474). Subsection 3.03(b) lists both of 

these offenses. The offense of sexual assault is in subsection (b)(2) and the offense 

of compelling prostitution is in subsection (b)(5).

When the State moved to cumulate the sentences at trial, appellant argued 

that only sentences for offenses listed in the same paragraph of subsection (b) 

could be stacked together. (RR X 77-83). The State maintained that sentences for 

any offenses listed under subsection (b) could be stacked. The trial judge agreed 

with the State and stacked appellant’s sentences. (RR X 77-83).

2.3 The court of appeals’s opinion

Based on its interpretation of the plain meaning of the text of the statute, the 

Fourteenth Court of Appeals agreed with appellant and held that a sentence for an 

offense listed in subsection (b) may be stacked only with a sentence for another 

offense listed in the same paragraph. Miles, 2015 WL 3751704, at *8-13. In other

words, sentences for two offenses listed in subsection (b)(2) may be stacked, but a 

sentence for an offense in subsection (b)(2) may not be stacked on a sentence for 

an offense in subsection (b)(5) (as occurred in this case). Id. at *10, 13.

 

2

The full text of this lengthy statute is attached to this brief in Appendix B.
4

Since this issue is one of statutory interpretation, the appellate court 

examined section 3.03(b) under the general principles of statutory construction. 

The court focused on the literal text of the statute in an effort to determine the 

collective intent of the legislators who enacted the statute. Id. at *8. In conducting 

its textual analysis, the court found that several aspects of the statute’s plain 

language rendered appellant’s interpretation of the statute the only reasonable 

reading of it. Id. at *10.

First, the appellate court noted that subsections (b)(1), (b)(3), and (b)(5) list 

only two offenses within each particular paragraph. For example, subsection (b)(5) 

provides that sentences may be stacked if each sentence is for a conviction for an 

offense under section 20A.02 (human trafficking) or section 43.05 (compelling 

prostitution), “regardless of whether the accused is convicted of violations of the 

same section more than once or is convicted of violations of both sections.” Miles, 

2015 WL 3751704, at *10 (original bolding and italics).

The court held that if all offenses listed in subsection (b) could be stacked as 

urged by the State, the references to “both sections” in subsections (b)(1), (b)(3), 

and (b)(5) would be meaningless. Id. It concluded that subsections (b)(1), (b)(3), 

and (b)(5) each list only two offenses, so the phrase “both sections” necessarily 

indicates that the Legislature intended the stacking of only those two offenses 

listed together. Id.
5

Second, the appellate court observed that subsections (b)(1), (b)(2), (b)(3), 

(b)(5), and (b)(6) each includes a paragraph (B) that refers to convictions obtained 

by plea agreements for which the defendant was charged with “more than one 

offense listed in Paragraph (A).” Miles, 2015 WL at *11 (original bolding and 

italics). The court concluded that the Legislature’s use of this phrase in each 

paragraph (B) suggests that the Legislature intended only for offenses listed in the 

companion paragraph (A) to be stacked together. Miles, 2015 WL 3751704, at *11.

Third, the appellate court looked to the manner in which section 3.03(b) was 

amended over time. Id. at *11-12. Each of the six paragraphs under subsection (b) 

was added to the statute during different legislative sessions. Id. at *11. 

Sometimes the Legislature added a new offense to the stacking statute by placing it 

in a newly-created paragraph, but on other occasions it added a new offense to an 

existing paragraph. For example, in 2005, the Legislature added the offense of 

intoxication assault to the existing subsection (b)(1), but created the new 

subsection (b)(3) and included the offenses of child pornography and improper 

photography in it. Id. at *12; Act of May 23, 2005, 79th Leg., R.S., ch. 527, § 1. 

2005 Tex. Gen. Laws 1430-31. The court determined that the only logical reason 

for doing so – placing one new offense in a preexisting subsection and another in a 

new subsection – is that the Legislature did not intend for the two particular 

offenses to be subject to cumulation. Miles, 2015 WL 3751704, at *12.
6

Based on these three considerations, the appellate court concluded that the 

unambiguous plain language of section 3.03(b) provides that a sentence for 

compelling prostitution may not be stacked with a sentence for sexual assault of a 

child. Id. at 13.

2.4 State’s response to the court of appeals’s opinion

The appellate court erred in finding that the plain language in subsection 

3.03(b) demonstrates that sentences for offenses listed in that subsection may be 

stacked only with sentences for offenses listed in the same paragraph and it further 

erred by determining that the statutory language is unambiguous.

2.4.1 The plain text of the statute does not reflect a legislative intent to restrict 

sentence stacking to offenses within the same paragraph

As mentioned, the court of appeals found it significant that subsections 

(b)(1), (b)(3), and (b)(5) each lists only two offenses [sections] and provides that 

stacking is permitted if the defendant is convicted of violations of the same section 

more than once or is convicted of violations of “both sections.” The appellate 

court found the use of the phrase “both sections” in these three paragraphs to be 

inconsistent with a legislative intent to allow stacking of all offenses spread across 

the six paragraphs. Miles, 2015 WL 3751704, at *10.

The Legislature’s use of the term “both sections,” however, is simply the 

practical result of the manner in which section 3.03 was amended over a number of 

legislative sessions rather than an indication of the legislative intent divined by the 
7

court of appeals. The Legislature added section 3.03 to the Texas Penal Code in 

1974. Acts 1973, 63rd Leg., R.S., ch. 399, § 1. At that time, the statute provided 

that when a defendant is found guilty of more than one offense in a single trial, the 

sentences shall be served concurrently. There was no subsection (b), meaning 

there was no exception to the general rule that sentences under this statute must be 

served concurrently. So the statute did not yet contain the phrase “same sections.”

In 1995, the Legislature amended the statute by adding subsection (b), 

thereby creating the first exception to the general rule prohibiting the stacking of 

sentences resulting from a single trial. Act of May 25, 1995, 74th Leg., R.S., ch. 

596, § 1. The newly-created subsection (b) read: “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 an offense 

under section 49.08 [intoxication manslaughter].” Id. So at this point, sentences 

for only one offense could be stacked pursuant to section 3.03. As such, the term 

“same sections” still had not entered the language of the statute.

In 1997, the Legislature again amended section 3.03 by providing a second

paragraph under subsection (b) which contained a list of five sex-related offenses

(indecency with a child, sexual assault, aggravated sexual assault, prohibited

sexual conduct, and sexual performance of a child). The availability for stacking
8

sentences for these five offenses, however, was limited to cases in which the victim 

was younger than 17 years old. Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 2.

So, following this amendment, subsection (b)’s first paragraph, (b)(1),

contained the offense of intoxication manslaughter, while the second paragraph, 

(b)(2), contained the five newly added offenses. Id. In this form, the statute 

allowed the stacking of sentences for the offense of intoxication manslaughter “or”

the five sex-related offenses. Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 2. 

After this amendment, there still was no reference to the phrase “same sections.” 

Id.

At this point in the evolution of the statute, it could be asked why did the 

Legislature not simply add the five new offenses in the same paragraph as the 

existing offense if it intended for sentences for any of the six offenses to be 

stackable upon one another? While placing all the offenses within one paragraph 

likely would have removed any doubt about a legislative intent to allow sentences 

for all six offenses to be stackable interchangeably, such a construction of the 

statute would not have been practical because sentences for all convictions for

intoxication manslaughter are stackable but sentences for the other five offenses 

are stackable only if the offense was committed against a victim younger than 17 

years old. 
9

So it made sense for the Legislature to place those five offenses in a separate 

paragraph so that the qualifier regarding the victim’s age could be added to those 

five particular offenses and be made applicable only to them. In other words, the 

creation of the second paragraph did not signal a legislative intent to limit the 

ability to stack offenses to circumstances involving only offenses within the same 

paragraph. Rather, the separation of the offenses into two separate paragraphs was 

simply consistent with a legislative effort to clarify that the victim-age requirement 

applied only to the five new offenses and not intoxication manslaughter.

The Legislature next amended section 3.03 in 2005 by adding the offense of 

intoxication assault to subsection (b)’s first paragraph and creating a third 

paragraph in which two offenses, improper photography and possession of child 

pornography, were added to the list of stackable offenses. Act of May 23, 2005, 

79th Leg., R.S., ch. 527, § 1. It made sense for the Legislature to add the new 

offenses in this manner because, as a result of the 1997 amendment, it had already 

begun to place related offenses in separate paragraphs, not because it intended for 

stacking to be available only for offenses within the same paragraph, but so that it 

could separate the subsection (b)(2) offenses from the (b)(1) offenses for purposes 

of applying the victim-age qualifier only to the (b)(2) offenses. 

So, the Legislature added intoxication assault to subsection (b)(1) since it 

was related to that subsection’s existing offense, intoxication manslaughter. And it 
10

added the two other new offenses, which are related to one another by virtue of 

both involving unlawful sexual images, in the newly-created subsection (b)(3). Of 

course, it would not have been practical to add these two new offenses to (b)(2) 

since these new offenses were not intended to be subject to (b)(2)’s victim-age 

qualifier.

The 2005 amendment also provides the first appearance of the phrase “both 

sections,” which the court of appeals deemed compelling in reaching its 

determination that the plain language of the statute signals a legislative intent to 

not allow stacking of offenses from different paragraphs. Such language, however, 

does not necessarily evince such a legislative intent. Rather, this language is the 

practical result of the manner in which this statute was constructed over a number 

of legislative sessions. Since subsection (b)(1), in its original form, allowed 

stacking only for multiple commissions of the one offense of intoxication 

manslaughter, the addition of the term “both sections” made it clear that the newly

created stacking options were not limited to multiple commissions of a single 

offense as had previously been the case under subsection (b)(1). In other words, 

the “both sections” clarifies that the amended subsection (b)(1) allows stacking of 

sentences for both offenses listed in that paragraph, but it does not indicate an 

intent to segregate the subsection (b) paragraphs for stacking purposes.
11

The Legislature amended the statute again in 2007 by adding the offense of 

online solicitation of a minor to subsection (b)(2). Act of May 27,2007, 80th Leg., 

R.S., ch. 1291, § 6. It was reasonable for the Legislature to place this new offense 

in an existing paragraph, (b)(2), so that the offense could be placed under the 

application of this particular paragraph’s unique qualifier based on the victim’s 

age.

When the Legislature amended the statute in 2009, it added a fourth 

paragraph under subsection (b) which added to the stacking equation any offense 

for which the judgment contained an affirmative finding that the offense was 

committed as part of the activities of a criminal street gang. Act of May 31, 2009, 

81st Leg., R.S., ch. 1130, § 21. Again, it made sense to house this broad category 

of offenses in a separate paragraph as a practical organizational tool since the 

offenses made available for stacking in this paragraph had the unique qualifier of a 

particular affirmative finding. So the creation of a fourth paragraph did not signal 

a legislative intent to limit stacking to offenses within a particular paragraph. 

Rather, it likely was done to avoid any confusion that might result from placing the 

affirmative-finding requirement in an existing paragraph containing offenses that 

are stackable without such an affirmative finding.

In 2011, the Legislature added two more offenses to subsection (b), human 

trafficking and compelling prostitution, and placed them in a newly created fifth 
12

paragraph. Act of April 7, 2011, 82nd Leg., R.S., ch. 1, § 6.01. The fifth 

paragraph contains the same language about “both sections” found in the other two 

paragraphs that contain only two offenses, subsections (b)(1) and (b)(3). TEX. PEN.

CODE ANN. § 3.03(b)(5) (West Supp. 2014). It was reasonable for the Legislature 

to add these two related offenses by creating a new paragraph because, beginning 

with the 1995 addition of subsection (b)(2), the Legislature had already placed 

similar offenses in separate paragraphs for reasons other than an intent to preclude 

stacking offenses from different paragraphs (namely, the second paragraph was 

created to group offenses intended to be subject to the victim-age qualifier).

In 2013, the Legislature added two more offenses to subsection (b), injury to 

a child or an elderly or disabled person and injury to a group home facility 

resident, and placed them in a newly created sixth paragraph. Act of May 17, 

2013, 83rd Leg., R.S., ch. 228, § 1. But the legislature mandated that these 

offenses were available for stacking only if they were committed in such a way as 

to make them a first degree felony. TEX. PEN. CODE ANN. § 3.03(b)(6) (West Supp. 

2014). Since the use of these two offenses was qualified by this condition, it was 

reasonable to place them in a separate paragraph so as the clarify that these two 

offenses were the only offenses within subsection (b) that were subject to the firstdegree felony requirement, similar to the manner in which subsection (b)(2) was 
13

created to clarify that only the offenses in subsection (b)(2) were subject to the 

victim-age requirement.

Therefore, as explained in this detailed description of section 3.03(b)’s 

evolution over a number of legislative sessions, the phrase “both sections” entered 

the statutory language as a practical result of the organizational manner in which 

the statute developed over time, not as the result of a legislative intent to restrict 

stacking to offenses within the same paragraph. Accordingly, the court of appeals’s 

reliance on this phrase to arrive at a restrictive interpretation of legislative intent 

was misplaced. Miles, 2015 WL 3751704, at *10.

Similarly, regarding the court of appeals’s reliance on the fact that 

subsections (b)(1), (b)(2), (b)(3), (b)(5), and (b)(6) each includes a paragraph (B) 

that allows stacking for plea-bargained convictions and which refers back to its 

companion paragraph (A) to infer a legislative intent to allow stacking only for 

offenses listed in the particular companion paragraph (A), the construction of the 

(B) paragraphs is again the result of the manner in which the statute evolved rather 

than evidence of the legislative intent inferred by the appellate court. Id. at 11. 

Specifically, it was not feasible to provide a single paragraph (B) to apply to 

and refer back to all six of the paragraph (A)s because subsection (b)(4) does not 

even have a paragraph (B) and subsections (b)(2) and (b)(6) have modified 

versions of the paragraph (B) version found in the remaining three paragraphs. 
14

TEX. PEN. CODE ANN. § 3.03(b) (West Supp. 2014). Since there is not uniformity 

in the language of all the paragraph (B)s, it was necessary to provide an individual 

paragraph (B) for each of the six subsection (b) paragraphs, with the exception of 

subsection (b)(4), appropriately worded for each paragraph (A). As such, the 

reference back to the companion paragraph (A) in each paragraph (B) does not 

signal a legislative intent to restrict which offenses may be stacked together. 

Rather, the language is the practical result of the need to tailor each paragraph (B) 

to its companion paragraph (A).

Likewise, the court of appeals erred by discerning a legislative intent based 

on the fact that some new offenses were added to section 3.03 by placing them in 

an existing subsection (b) paragraph, while other offenses were added by placing 

them in a newly created paragraph. Miles, 2015 WL 3751704, at *12. As 

mentioned in the detailed discussion of the various legislative amendments, the 

Legislature fell into the pattern of placing similar offenses within their own 

paragraph, beginning with the creation of subsection (b)(2) offenses which were all 

sex-related offenses and required their own paragraph so as to accommodate the 

victim-age qualifier. So, again, the manner in which new offenses were added to 

section 3.03 over times reflects an organizational pattern rather than a legislative 

intent to restrict sentence stacking to offenses within the same paragraph.
15

Accordingly, given the piece-meal manner in which the statute was created 

over time by numerous legislative amendments, the court of appeals erred in 

determining that the plain meaning of the text of the statute dictates that appellant’s 

interpretation of the statute is the only reasonable one. Miles, 2015 WL 3751704, 

at *10. 

If anything, any plain meaning drawn from the statute’s text would favor the 

State’s interpretation. Significantly, the six paragraphs within subsection (b) are 

separated by the word “or” as reflected by its presence at the end of the fifth 

paragraph and before the sixth paragraph. TEX. PEN. CODE ANN. § 3.03(b) (West 

Supp. 2014). The well-known legal writing scholar, Bryan Garner, has recognized 

that “or” has both an inclusive and exclusive sense, but explained that the meaning 

of “or” is usually inclusive. GARNER’S DICTIONARY OF LEGAL USAGE 639 (3d ed. 

2011). Therefore, the common usage of the term “or” indicates that the legislature 

intended to collectively include the offenses from all six paragraphs for purposes of 

stacking, which is consistent with the State’s interpretation of the statute’s plain 

language and would allow the stacking of appellant’s two sentences.

2.4.2 If the statutory language is ambiguous, extratextual factors favor the 

State’s interpretation

Despite acknowledging that the word “or,” which appears between 

subsections (b)(5) and (b)(6), can be interpreted in two ways (as either inclusive or 

exclusive), the court of appeals nevertheless ruled that section 3.03’s language was 
16

unambiguous. Miles, 2015 WL 3751704, at *11, 13. Typically, however, when a 

statutory term is susceptible to different meanings, it renders the statute 

ambiguous. Butcher v. State, 454 S.W.3d 13, 16-17 (Tex. Crim. App. 2015); Chase 

v. State, 448 S.W.3d 6, 11 (Tex. Crim. App. 2014). When a statute is ambiguous, 

legislative intent may be deciphered by consulting extratextual factors. Chase, 448 

S.W.3d at 11. Since the use of the word “or” renders section 3.03 ambiguous, 

extratextual factors may be considered. Id. (listing factors that may be 

contemplated).

One factor that may be considered is legislative history. Id. This Court has 

found that a bill analysis from the House Research Organization may be 

compelling evidence of legislative intent relating to section 3.03. Nguyen v. State, 

359 S.W.3d 636, 643-45 (Tex. Crim. App. 2012). In 2013, the House Research 

Organization issued a bill analysis of the proposed addition of paragraph six to 

section 3.03(b). House Research Organization, Bill Analysis from House Criminal 

Jurisprudence Committee, H.B. 220 (April 18, 2013). In providing background for 

the statute, the authors explained that section 3.03 provides:

Sentences for convictions or plea agreements for the 

following offenses may run concurrently or 

consecutively:

 intoxication assault or manslaughter;

 online solicitation of a minor;

 continuous sexual abuse of a child;

 indecency with a child;
17

 sexual assault or aggravated sexual assault;

 incest;

 sexual performance by a child;

 improper photography or visual recording;

 possession or promotion of child pornography;

 trafficking of persons; and

 compelling prostitution.

Id. (emphasis added). The use of the word “and” to connect all the offenses which 

are found across the several paragraphs within subsection (b) indicates an inclusive 

connotation evincing a legislative intent to allow the stacking of all offenses listed 

in subsection (b) regardless of whether the offenses appear in different paragraphs. 

An inclusive interpretation of the word “or” in section 3.03 between 

subsections (b)(5) and (b)(6) is also consistent with the teachings of Bryan Garner, 

who recognized that “or” has both an inclusive and exclusive sense, but explained 

that the meaning of “or” is usually inclusive. GARNER’S DICTIONARY OF LEGAL 

USAGE 639 (3d ed. 2011). Therefore, this factor militates in favor of finding that 

section 3.03 permits stacking for all the offenses listed in subsection (b).

Another extratextual factor to consider is the consequences of a particular 

construction of a statute. Chase, 448 S.W.3d at 11. It is presumed that the 

Legislature intended a “just and reasonable result.” TEX. GOV’T CODE ANN. §

311.021(3) (West 2013). The court of appeals’s interpretation of section 3.03(b) 

creates absurd results. For purposes of demonstrating the potential absurdity, 

consider two scenarios. In scenario one, a man commits two separate offenses of 
18

sexual assault by penetrating his underaged girlfriend’s sexual organ with his 

finger and also causing his penis to contact her sexual organ during a single 

encounter. See Jourdan v. State, 428 S.W.3d 86, 97 (Tex. Crim. App. 2014). He is 

convicted of both offenses in a single trial and receives a 20-year sentence for each 

offense. Even under appellant’s interpretation of section 3.03, the trial court may 

stack these two sentences (effectively a 40-year sentence) because both offenses 

for which the defendant was convicted appear in the same paragraph, subsection 

(b)(2).

In scenario two, the same man causes his penis to contact his underaged 

girlfriend’s sexual organ a single time, but with no digital penetration. Later in the 

day, the man compels his girlfriend to engage in an act of prostitution with a 

stranger who has sexual intercourse with the girl. The man is convicted of sexual 

assault and compelling prostitution and, like the first scenario, receives a 20-year 

sentence for each offense. However, under appellant’s interpretation, the judge 

could not stack this defendant’s two sentences because they are for offenses found 

in separate paragraphs, (b)(2) and (b)(5). So, effectively, this defendant would face 

a 20-year sentence (two concurrent 20-year sentences).

It would be absurd for the man in scenario one who sexually assaulted his 

girlfriend twice in a single encounter to be punished twice as severely as the man 

in scenario two who also sexually assaulted his girlfriend but then further forced 
19

her to be sexually assaulted by a stranger as a result of the compelled act of 

prostitution. The second scenario seems much more egregious since the victim is 

subjected to unwanted sex from a stranger under circumstances that brand her a 

prostitute.

In a similar vein, it would be absurd to allow the stacking of two sexual 

assaults under subsection (b), but not allow the stacking of sexual assault and 

compelling prostitution simply because they are in different paragraphs. By its 

nature, the offense of compelling prostitution often will include a sexual assault as 

well. In others words, when a defendant forces an underaged girl to have sex with 

someone for money, the defendant is committing the offense of compelling 

prostitution but the man paying to have sex with the juvenile is committing the 

offense of sexual assault. Since the offense of compelling prostitution frequently 

includes a sexual assault, it would be absurd to not permit these two offenses to be 

stacked given the Legislature’s unquestionable expressed interest in allowing 

stacked sentences for similar offenses. Therefore, consideration of these potential 

consequences militates in favor of finding that section 3.03 permits stacking for all 

of the offenses listed in subsection (b).3

 

3

These absurd results also demonstrate why the State’s interpretation of the statute should 

prevail even if the plain language of the statute is found to favor appellant’s interpretation. 

Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (when application of statute’s 

plain language would lead to absurd results, courts should not apply the language literally).
20

Another extratextual factor to consider in determining legislative intent is 

the object sought to be obtained by the statute. Chase, 448 S.W.3d at 11. One goal

of section 3.03(b) is to protect the innocent from predators. See Parfait v. State, 

120 S.W.3d 348, 351 (Tex. Crim. App. 2003). Punishing the defendant in scenario 

two much more leniently than the less culpable defendant in scenario one is 

inconsistent with the goal of protecting the innocent. So this factor also 

demonstrates that section 3.03 should be interpreted as allowing stacking for all the 

offenses in subsection (b).

Consideration of these extratextual factors demonstrates that the Legislature 

intended for sentences for all offenses listed in subsection (b) to be stackable with 

one another. Accordingly, appellant’s two sentences for the offenses of sexual 

assault and compelling prostitution may be stacked together, meaning the trial 

judge did not err in entering the cumulation order. The court of appeals erred in 

holding otherwise.
21

PRAYER FOR RELIEF

It is respectfully requested that this petition be granted and the court of 

appeals’s deletion of the cumulation order in cause number 1390391 be reversed.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Dan McCrory

DAN McCRORY

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

TBC No. 13489950

mccrory_daniel@dao.hctx.net
22

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been sent to the 

following email addresses via TexFile:

Nicolas Hughes

Assistant Public Defender

Nicolas.hughes@pdo.hctx.net

Lisa C. McMinn

State Prosecuting Attorney

Lisa.McMinn@spa.texas.gov

/s/ Dan McCrory

DAN McCRORY

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

TBC No. 13489950
23

CERTIFICATE OF COMPLIANCE

 The undersigned attorney certifies that this computer-generated document 

has a word count of 4,370 words, based upon the representation provided by the 

word processing program that was used to create the document.

 /s/ Dan McCrory

DAN McCRORY

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826 

TBC No. 13489950

Date: 8/13/2015
24

 APPENDIX A - Miles v. State opinion
Affirmed as Modified and Opinion filed June 16, 2015. 

In The 

Fourteenth Court of Appeals 

NO. 14-14-00154-CR 

NO. 14-14-00155-CR 

KOJUAN J MILES, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 185th District Court 

Harris County, Texas 

Trial Court Cause Nos. 1323841, 1390391 

OPINION 

A jury found appellant Kojuan Miles guilty of compelling prostitution and 

sexual assault of the complainant, a fifteen-year-old girl. The jury assessed 

punishment at twenty-three years’ and seven years’ confinement, respectively, and 

the trial court cumulated the sentences. Appellant contends the trial court erred by 

excluding relevant evidence from the complainant’s Facebook page during both 

phases of the trial, admitting irrelevant expert testimony during the guilt phase of 
2 

the trial, cumulating his sentences, and signing judgments with unnecessary 

verbiage describing his offenses. 

We overrule appellant’s evidentiary issues and his issue concerning the 

verbiage of the judgments. In an issue of first impression, however, we hold that 

the trial court erred by cumulating sentences that resulted from a single criminal 

action under Section 3.03(b) of the Texas Penal Code for convictions of 

compelling prostitution and sexual assault of a child. We modify the trial court’s 

judgment in the compelling prostitution case to delete the cumulation order, affirm 

that judgment as modified, and affirm the trial court’s judgment in the sexual 

assault case. 

I. BACKGROUND

The complainant, Amy,1

 testified that she lived with at least seven relatives 

in a single motel room in North Carolina. She met appellant in mid-October 2011 

when she was fifteen and he was twenty-two. He was the cousin of her friend. He 

took Amy out to eat at a fast-food restaurant and was teaching her how to drive. 

She thought he was nice and cute, and he made her “feel like somebody.” 

Amy told appellant about her difficult family situation, and he suggested that 

she leave with him for Los Angeles. She wanted to go, so she packed some clothes 

and left with him the following morning. Amy hoped that appellant would be her 

boyfriend. She thought appellant would take care of her. 

They drove for two days, and at some point Amy told appellant that she 

wanted to go home. He said they were too far and could not turn back around. 

She felt trapped. When they arrived at a truck stop in Houston, appellant asked 

Amy to perform oral sex on him. She complied. Then they stayed overnight at a 

 1

 We use a pseudonym for the child complainant. 
3 

house in Houston. He shook her awake at night and had sex with her—he put his 

penis inside her vagina. 

The next morning, appellant told Amy that they did not have any more 

money for food or gas, and they had nowhere to stay. Amy testified, “[S]o he said 

that I would have to sell my body.” She did not want to do it, but she complied 

because she was thinking “how we going to eat and stuff.” He told her to take off 

her panties so that it would be easy and she would not have to take them off when 

she got to a guy. He told her to not go for the young guys and to go for the older 

guys and ones with accents. He told her that when a car pulls up, she should ask 

them if they want a date and get in the car. He told her to charge $60 for sex and 

$50 for head, i.e., oral sex. He also told her that if she were caught by police, she 

should use her sister’s name and date of birth because the sister was eighteen years 

old. 

Appellant made contact with another prostitute who was “walking” like 

Amy. Appellant told Amy that this other woman was going to be Amy’s “wifey.”2

 

Amy testified that she had sex eight times, although she told a doctor at the 

Children’s Assessment Center (CAC) that she had sex with three people. After 

being paid, Amy would call appellant to come pick her up. He would tell her, 

“Give me the bread,” i.e., money, and Amy gave it to him. 

At 3:40 a.m. the following morning, appellant and Amy were sitting in a 

parked car in an area known for prostitution—it was a “track” where prostitutes 

walk the streets. Houston Police Department officers suspected prostitution 

activity and investigated further. Because Amy looked “very young” and an 

officer suspected her to be underage, a juvenile sex crimes officer, Catherine 

Bartels, was called to the scene. Bartels took Amy to the CAC for an interview 

 2

 A police officer testified that sometimes prostitutes call each other “wives.” 
4 

and evaluation. Amy initially gave the officers her sister’s name but later 

acknowledged her real identity and discussed her sexual activity. 

Appellant was charged with sexual assault and compelling prostitution. A 

jury found him guilty on both counts and assessed punishment at seven years’ 

confinement for sexual assault and twenty-three years’ confinement for compelling 

prostitution. The trial court ordered the compelling prostitution sentence to run 

consecutively after the sexual assault sentence. 

II. EXCLUSION OF FACEBOOK EVIDENCE

In his second issue,3

 appellant contends the trial court abused its discretion 

during the guilt and punishment phases of his trial by excluding evidence 

consisting of Amy’s posts on Facebook and related testimony. The trial court 

excluded twenty-four pages from Amy’s Facebook page. The posts were from 

September 2012 through the date of trial, but Amy testified outside the jury’s 

presence that the posts were similar to her posts from the time when she met 

appellant. Appellant contends the images and comments show Amy to be a 

“sexualized teenager” because she posted photos of herself “in various states of 

undress”4

 and proclaimed in one post, “I wanna have sex now . horny asFFFFF.” 

Appellant also contends the posts show Amy’s “experiments with sexuality” and 

preoccupation with money.5

 

 3

 We address appellant’s issues in a different order than presented in his brief because of 

the relief sought for each issue. 

4

 One photo shows Amy wearing what appears to be a bra or bathing suit top. Other 

photos show Amy’s midriff. 

5

 Two photos show a number of twenty-dollar bills spread out. Other posts show Amy 

posing with and kissing a person who appears to be female with a comment, “I got her back she 

JRWP\IURQWVKHP\NLQJTXHHQƆ ́$QRWKHUSKRWRLVRI$P\ZLWKWKHFRPPHQW3)DYSLF

Rate Tbh && @__Trulesbian IG.” The fictitious name Amy used for her account included the 

middle name “SoHomo.” 
5 

The State contends that the evidence was irrelevant during both phases of 

the trial. After reviewing general standards for relevancy, we address the 

admissibility of the Facebook evidence in each phase separately. 

A. Relevancy Standards 

We review a trial court’s ruling to exclude evidence under an abuse-ofdiscretion standard. Resendiz v. State, 112 S.W.3d 541, 544 (Tex. Crim. App. 

2003). We will not reverse the trial court’s ruling unless it falls outsize the zone of 

reasonable disagreement. Id.

“Generally, all relevant evidence is admissible.” Layton v. State, 280 

S.W.3d 235, 240 (Tex. Crim. App. 2009) (citing Tex. R. Evid. 402). Evidence is 

relevant if it has “any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than 

it would be without the evidence.” Tex. R. Evid. 401 (1998, repealed 2015). This 

definition is “necessarily a broad one.” Montgomery v. State, 810 S.W.2d 372, 391 

(Tex. Crim. App. 1990) (op. on reh’g). Even “marginally probative” evidence 

should be admitted if “it has any tendency at all, even potentially, to make a fact of 

consequence more or less likely.” Fuller v. State, 829 S.W.2d 191, 198 (Tex. 

Crim. App. 1992). 

To determine whether evidence is relevant in a particular case, courts must 

“examine the purpose for which the evidence is being introduced.” Layton, 280 

S.W.3d at 240. There must be a “direct or logical connection between the actual 

evidence and the proposition sought to be proved.” Id. We may reverse a trial 

court’s ruling on relevancy only when there is no room for disagreement that in 

common experience a particular inference is available. See Montgomery, 810 

S.W.2d at 391. 
6 

B. Guilt Phase 

Appellant argues the evidence was relevant during the guilt phase of the trial 

because (1) “[e]vidence of [Amy]’s sexuality undercut the State’s claim that she 

was a hapless victim that was compelled into prostitution and is therefore probative 

of the defense’s claim of fabrication”; and (2) the evidence “diminishes [Amy]’s 

credibility and is likely to create a reasonable doubt in the jury’s mind that Mr. 

Miles sexually assaulted [Amy].” We disagree. 

The trial court reasonably could have concluded that the Facebook evidence 

did not prove Amy’s “sexuality” or any type of propensity to engage in 

prostitution. Further, even if the evidence related to “sexuality,” the trial court 

reasonably could have concluded the evidence did not make it less likely that 

appellant compelled her to prostitution. Compelling prostitution of a minor 

requires the defendant to cause “by any means” a child to commit prostitution; the 

compulsion need not be “by force, threat, or fraud.” See Tex. Penal Code Ann. 

§ 43.05(a); see also Waggoner v. State, 897 S.W.2d 510, 512 (Tex. App.—Austin 

1995, no pet.) (sufficient evidence by merely providing the opportunity for a child 

to engage in prostitution). To the extent reasonable people could disagree about 

whether Amy’s Facebook posts directly and logically informed the issue of 

whether she fabricated events or engaged in prostitution without any assistance 

from appellant, we must still defer to the trial court’s ruling under the abuse-ofdiscretion standard. See Montgomery, 810 S.W.2d at 391. 

We also cannot conclude that the trial court abused its discretion by ruling 

that the Facebook evidence would not have diminished Amy’s credibility with 

respect to the sexual assault. Appellant has not demonstrated how the Facebook 

evidence would have diminished Amy’s credibility regarding the sexual assault, 

and we do not see any direct or logical connection. Further, even if the evidence 
7 

showed Amy’s “sexuality” or desire for a sexual encounter, the evidence would not 

have had any tendency to prove or disprove a fact of consequence related to the 

sexual assault. See Tex. Penal Code Ann. § 22.011(a)(2)(A) (sexual assault 

requires that the defendant intentionally or knowingly cause the penetration of the 

sexual organ of a child by any means).6

C. Punishment Phase 

Appellant argues that during the punishment phase, “the jurors were unable 

to properly calculate Mr. Miles’s culpability without viewing the Facebook exhibit 

and without hearing the fruits of the cross-examination the exhibit would 

engender.” Appellant argues that the trial court’s “failure to permit the defense to 

cross-examine [Amy] using her Facebook photos and comments additionally 

prevented the defense from arguing that the jurors should not have assigned to Mr. 

Miles complete culpability for [Amy]’s alleged acts of prostitution when 

determining Mr. Miles’s punishment.” At trial, however, after both sides had 

rested during the punishment phase, appellant asked the court to reopen the 

evidence as follows: 

Judge, we’d request permission to reopen and add into evidence 

Defendant’s Exhibit No. 1, which is the same Facebook photos of the 

complainant and basically we’re asking out of sort of reciprocity. The 

defense — the prosecution has been able to put in Facebook of the 

defendant and we would ask that, likewise, the complainant’s 

Facebook images be considered in evidence as well. 

 6

 The parties do not address Rule 412 of the Texas Rules of Evidence, but to the extent 

the Facebook evidence showed a reputation for past sexual behavior, it would have been 

inadmissible. See Tex. R. Evid. 412(a) (1998, repealed 2015). Similarly, to the extent the 

Facebook evidence constituted evidence of specific instances of past sexual behavior, appellant 

has never argued that one of the listed exceptions to general inadmissibility would apply in this 

case. See Tex. R. Evid. 412(b). 
8 

Neither the State nor appellant called Amy to testify during punishment. The State 

objected to the relevance of the Facebook exhibit, and the trial court sustained the 

objection.7

We hold that appellant failed to preserve error.8

 To preserve error, an 

appellant must have “‘stated the grounds for the ruling that [he] sought from the 

trial court with sufficient specificity to make the trial court aware of the 

complaint.’” Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) 

(alteration in original) (quoting Tex. R. App. P. 33.1(a)(1)). “So it is not enough to 

tell the judge that evidence is admissible.” Id. “The proponent, if he is the losing 

party on appeal, must have told the judge why the evidence was admissible.” Id. 

Further, the complaint to the trial court must comport with the complaint on 

appeal, or else no error is preserved. See Pena v. State, 285 S.W.3d 459, 464 (Tex. 

Crim. App. 2009); see also Reyna, 168 S.W.3d at 177 (“The issue, we said, ‘is not 

whether the appealing party is the State or the defendant or whether the trial 

court’s ruling is legally ‘correct’ in every sense, but whether the complaining party 

on appeal brought to the trial court’s attention the very complaint that party is now 

making on appeal.’” (quoting Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. 

App. 2002))). 

At trial, appellant asked the court to reopen the case and admit the Facebook 

exhibit “out of sort of reciprocity.” Appellant did not argue that the evidence was 

relevant to appellant’s culpability, nor did appellant ask the trial court to allow 

 7

 Also, appellant objected during the State’s closing argument and again “offer[ed] 

Defendant’s Exhibit No. 1, the Facebook images” into evidence. Appellant gave no rationale for 

admission. Although the trial court overruled appellant’s objection, it did not rule on appellant’s 

request to offer the Facebook evidence at this time. 

8

 The State did not raise error preservation in its brief on appeal, but the preservation of 

error is “a systemic requirement that a first-level appellate court should ordinarily review on its 

own motion.” E.g., Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (quotation 

omitted). 
9 

Amy to testify. Accordingly, appellant’s complaints on appeal about the relevancy 

of the Facebook exhibit to his culpability and the relevancy of Amy’s testimony on 

the subject were not preserved for appellate review.9

Appellant’s second issue is overruled. 

III. ADMISSION OF EXPERT TESTIMONY

In his third issue, appellant contends that a “great volume of expert witness 

testimony in this case was irrelevant and unrelated to [appellant]’s case and 

bombarded the jury with prejudicial ‘background’ information which resulted in an 

unfair trial.” The State contends that appellant has waived error by inadequate 

briefing (by not citing to the record) and has failed to preserve error for most of the 

expert testimony. The State also contends the evidence was relevant. 

First, we address the State’s waiver argument. Then, we identify the 

evidence for which appellant objected and preserved error. Finally, we address the 

relevancy of that evidence under an abuse-of-discretion standard of review. 

A. No Briefing Waiver 

An appellant’s failure to include citations to the record in the appellant’s 

brief may result in waiver of error on appeal. Lacaze v. State, 346 S.W.3d 113, 

119 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); see also Tex. R. App. P. 

 9

 We note that appellant has not argued on appeal that the trial court abused its discretion 

by refusing to reopen the case, rather than by merely excluding relevant evidence. Under Article 

36.02 of the Code of Criminal Procedure, “The court shall allow testimony to be introduced at 

any time before the argument of a cause is concluded, if it appears that it is necessary to a due 

administration of justice.” Tex. Code Crim. Proc. Ann. art. 36.02 (emphasis added). This statute 

has been applied to the punishment phase of a trial. See Rogers v. State, 774 S.W.2d 247, 262–

63 (Tex. Crim. App. 1989), overruled on other grounds by Peek v. State, 106 S.W.3d 72 (Tex. 

Crim. App. 2003). For reopening of the case to be necessary to a due administration of justice, 

new evidence must be “more than just relevant—it must actually make a difference in the case.” 

Peek, 106 S.W.3d at 79. Thus, a trial court does not abuse its discretion by refusing to reopen 

the case unless the evidence “would materially change the case in the proponent’s favor.” Id.
10 

38.1(i) (argument must contain appropriate citations to the record). The briefing 

rules should be construed liberally and are “meant to acquaint the court with the 

issues in a case and present argument that will enable the court to decide the case.” 

Tex. R. App. P. 38.9 

Here, appellant complains about the admission of testimony from three 

witnesses, and appellant references relatively short spans of pages—eleven pages 

or less—when paraphrasing their testimony. In his reply brief, appellant further 

narrows his citations to particular pages within the spans provided in his original 

brief. We hold that in the context of this case appellant’s briefing is sufficient to 

acquaint the court with the issues and enable the court to decide them. Appellant 

has not waived his entire issue by inadequate briefing. 

B. Preservation of Error 

An appellant must preserve error in the trial court based on the erroneous 

admission of evidence by making a specific and timely objection and obtaining a 

ruling from the trial court. Lacaze, 346 S.W.3d at 119; see also Tex. R. App. P. 

33.1(a). An appellant must object each time evidence is offered unless the 

appellant receives a running objection or requests a hearing outside the presence of 

the jury. Lacaze, 346 S.W.3d at 119 (citing Dreyer v. State, 309 S.W.3d 751, 754 

(Tex. App.—Houston [14th Dist.] 2010, no pet.)). 

Appellant failed to object to most of the evidence he now complains about 

on appeal. But appellant contends he preserved error regarding all of the 

complained-of expert testimony because he obtained a running objection to the 

State’s opening argument, and “the trial court gave the State the ‘green light’ to put 

on expert testimony.” We disagree with appellant’s contention and with his 

characterization of what transpired during opening statements. The following 

exchange occurred during the State’s opening argument: 
11 

[The State]: You’re going to hear from Officer Bartels that the game 

is what’s called prostitution but that the way it operates is that young 

women are put out on streets — 

[Defense Counsel]: Judge, we object. We ask for a running objection 

to any commentary that doesn’t apply specifically to this defendant. 

The Court: Can y’all come up, please? 

(At the bench, on the record) 

The Court: Are you going to offer her up as an expert? Is that where 

this is coming from? 

[The State]: Yeah, she’s an expert. 

The Court: Okay. All right. Your objection’s overruled. I’ll give you 

a running objection. 

[Defense Counsel]: May I have a running objection? 

The Court: Of course, of course. 

In context, appellant’s “running objection” was to the State’s argument, not 

to the admission of evidence. The record does not show that the trial court 

understood appellant to be objecting to all expert testimony at this time or that 

appellant was requesting a running objection to testimony that might be offered 

thereafter. Nor would that be a reasonable interpretation of the exchange. Indeed, 

appellant merely asked for “a running objection to any commentary.” If appellant 

desired a running objection that extended beyond the opening statement, he needed 

to ask for it. See, e.g., Pena, 285 S.W.3d at 464 (noting that an appellant must let 

the trial judge know what the appellant wants). Appellant relies on Graham v. 

State, in which the Court of Criminal Appeals held that once the defendant 

obtained an adverse ruling, the defendant did not need to object to a rephrased 

question immediately following the trial court’s ruling. See 710 S.W.2d 588, 591 

(Tex. Crim. App. 1986) (holding that it was clear the trial court gave the State “the 

green light” to put on the complained-of evidence). Graham is inapposite. 
12 

Nonetheless, appellant contends he objected to specific evidence during trial. 

Many of his objections were sustained. However, we have reviewed the record 

and identified several overruled objections related to appellant’s arguments on 

appeal. We address each of those objections in turn. See Lacaze, 346 S.W.3d at 

120 (reviewing the admission of testimony that was both (1) referenced in the 

appellant’s brief and (2) objected to at trial).10

C. Catherine Bartels 

Officer Catherine Bartels specialized in law enforcement of juvenile sex 

crimes. She testified as follows: 

[The State]: Okay. In general, regardless of whether it’s a gorilla 

pimp or a finesse pimp, is there another term for finesse pimp as well 

or mack? 

[Defense Counsel]: Objection, Judge, relevance. 

The Court: Overruled. 

[The State]: Have you heard the phrase “mack”? Is that another word 

that’s also used? 

[Bartels]: It’s been used here and there. 

Appellant contends that the elicitation of this terminology (i.e., “mack”) was 

irrelevant and was never used during trial. Indeed, no other evidence or testimony 

referenced the word “mack.”11

Assuming without deciding that this evidence was irrelevant, we conclude 

that its admission at trial did not affect appellant’s substantial rights. See Tex. R. 

App. P. 44.2(b) (non-constitutional error must be disregarded if it does not affect 

substantial rights). A defendant’s “substantial rights are not affected by the 

 10 We limit our review to those overruled objections within the spans of pages appellant 

cites in the “Relevant Facts” section of his third appellate issue and those cited in his reply brief. 

11 During opening arguments, the State briefly mentioned that “mack” was another term 

for a “finesse pimp.” 
13 

erroneous admission of evidence if the appellate court, after examining the record 

as a whole, has fair assurance that the error did not influence the jury, or had but a 

slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) 

(quotation omitted). After reviewing the entire record, we conclude that the brief 

reference to the word “mack” was not prejudicial to appellant and did not influence 

the jury at all. Any error in the admission of this evidence was harmless. 

D. Danielle Madera 

Dr. Danielle Madera was a staff psychologist at the CAC. The trial court 

overruled two relevancy objections to her testimony that appellant now complains 

about on appeal. The first exchange occurred as follows: 

[The State]: Okay. But you’re being called on, in your expertise in 

these areas, to help maybe explain some things to us? 

[Madera]: Yeah, to talk about the kids we see here. We’ve had about 

30 girls that have come through the CAC now for domestic human 

trafficking as well — 

[Defense Counsel]: Objection, Your Honor, relevance. 

The Court: Overruled. 

[Madera]: — as well as the literature — 

[Defense Counsel]: Objection, Your Honor, narrative. 

The Court: Overruled. 

[Madera]: — as well as the literature that’s in the field. 

Appellant contends that the number of domestic human-trafficking victims at the 

CAC is irrelevant. In context, however, the State elicited this testimony to show 

that Madera was qualified to opine on issues related to compelling prostitution of 

minors. For example, Madera later testified that it is common for children at the 

CAC to initially lie, as Amy did. 
14 

For any of Madera’s subsequent opinions to be admissible, the State had the 

burden to establish Madera was qualified to render her opinions. See Vela v. State, 

209 S.W.3d 128, 132 (Tex. Crim. App. 2006). In particular, the State had to show 

that Madera’s background was “tailored to the specific area of expertise” for which 

Madera would testify. See id. at 133. Thus, testimony showing that Madera had 

experience with other child sex-offense victims at the CAC was relevant to her 

ability to render opinions about child sex-offense victims. The trial court did not 

abuse its discretion by overruling appellant’s relevancy objection. 

Next, appellant objected based on relevancy as follows: 

[The State]: So, to continue, and you say based on the literature and 

what you know, a big factor is generally a child has been sexually 

abused already, correct? 

[Madera]: Yes. 

[The State]: And why is that potentially important if they have? And 

not all of them have necessarily, correct? 

[Madera]: Correct. 

[The State]: Okay. But why is that important? 

[Defense Counsel]: Objection, Your Honor, relevance. 

The Court: Overruled. 

[Madera]: It’s important because that initial child abuse put that child 

in a vulnerable position to later be abused or victimized by somebody 

else and they oftentimes are not supported in their family. They may 

not have any sort of family support, so somebody comes along and 

offers them something better, a better life, it looks more appealing to a 

child — 

[Defense Counsel]: Objection, Your Honor, narrative. 

The Court: Overruled. 

[The State]: Okay. You can continue. 

[Madera]: I think that was the end. 
15 

Madera previously had testified that children compelled into prostitution “are not 

just at home, bored, looking for some fast money or something to do with their 

time.” Madera had testified, without a relevancy objection, that at least ninety 

percent have been sexually abused previously. 

Appellant contends that Madera’s testimony about the vulnerability of 

sexually abused children is irrelevant because there is no testimony that Amy had 

been sexually abused before her interactions with appellant. Assuming Madera’s 

testimony on this subject was irrelevant,12 we conclude that the error did not affect 

appellant’s substantial rights. See Tex. R. App. P. 44.2(b). Because there was no 

evidence of Amy’s prior sexual abuse, Amy arguably did not fit the profile that the 

State attempted to construct through Madera’s testimony about human-trafficking 

victims. Madera’s testimony about the vulnerability of those who had been 

sexually abused would not have had much, if any, effect on the jury. See Motilla, 

78 S.W.3d at 355. In fact, the lack of evidence of Amy’s prior sexual abuse, 

coupled with Madera’s testimony that the vast majority of child human-trafficking 

victims had been sexually abused, would have weighed in appellant’s favor—that 

is, Amy did not necessarily fit the profile of the vulnerable child victim that was 

the subject of Madera’s testimony. 

Any error in the admission of Madera’s testimony was harmless. 

E. Marcella Donaruma 

Dr. Marcella Donaruma was the medical doctor at the CAC who interviewed 

and examined Amy. Donaruma testified about how Amy initially did not want to 

 12 See Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996) (noting that expert 

testimony must be sufficiently tied to the facts of the case that it will aid the jury in resolving a 

factual dispute; “Expert testimony that does not relate to a fact in issue is not helpful.”), 

discussed in Vela, 209 S.W.3d at 133. 
16 

identify herself or say what grade she was in, but then Amy started to “open up” 

and answer Donaruma’s questions. The following testimony occurred: 

[The State]: Do you have children that sometimes just won’t answer 

anything? 

[Donaruma]: Yes, I do. 

[Defense Counsel]: Object, Your Honor, relevance. 

The Court: Overruled. 

[Donaruma]: Yes, I do. 

Viewed in context of Donaruma’s immediately preceding testimony about Amy 

initially not wanting to answer questions, the trial court would not have abused its 

discretion in concluding this evidence to be relevant. See Shaw v. State, 329 

S.W.3d 645, 651 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (holding that 

evidence was relevant when the witness testified about how the child 

complainant’s actions were “appropriate” because child sex-abuse victims often 

cry out to multiple people; generally in a child sex-assault case, expert “testimony 

is relevant if the witness explains that certain behavior is consistent with sexual 

abuse and the child in question has exhibited such behavior”). 

 Having reviewed the alleged inadmissible evidence that drew timely and 

specific objections from appellant at trial, we hold that there is no reversible error. 

Appellant’s third issue is overruled. 

IV. CUMULATION ORDER

In his first issue, appellant contends the trial court erred by cumulating (or 

“stacking”) appellant’s sentences and ordering him to serve the sentences 

consecutively. He contends the cumulation statute does not authorize a trial court 

to stack a sentence for compelling prostitution with a sentence for sexual assault of 

a child when both are imposed during a single criminal action. We agree. 
17 

A. Standard of Review 

We generally review a trial court’s decision to stack a defendant’s sentences 

for an abuse of discretion. Mireles v. State, 444 S.W.3d 679, 680 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref’d). When the law authorizes the imposition of 

cumulative sentences, the trial court has absolute discretion to cumulate the 

sentences. Tran v. State, 221 S.W.3d 79, 90 (Tex. App.—Houston [14th Dist.] 

2005, pet. ref’d). But a trial court abuses its discretion if it fails to apply the law 

correctly. Mireles, 444 S.W.3d at 680. The parties agree that the issue of whether 

the trial court could stack appellant’s sentences is one of statutory interpretation, 

which we review de novo. See, e.g., Nguyen v. State, 359 S.W.3d 636, 641–42 

(Tex. Crim. App. 2012) (applying de novo review to the cumulation statute). 

B. General Principles of Statutory Construction 

In construing a statute, we seek to effectuate the collective intent or purpose 

of the legislators who enacted the legislation as reflected in the words of the 

statute. See Price v. State, 434 S.W.3d 601, 605 (Tex. Crim. App. 2014). In doing 

so, we focus our attention on the literal text of the statute. Nguyen, 359 S.W.3d at 

641. We presume that the Legislature intended for the entire statutory scheme to 

be effective. Id.; see also Tex. Gov’t Code Ann. § 311.021(2).13 Thus, we are to 

avoid a construction of a statute that would render a provision meaningless, 

nugatory, or mere surplusage. See Ludwig v. State, 931 S.W.2d 239, 242 n.9 (Tex. 

Crim. App. 1996); Cook v. State, 902 S.W.2d 471, 478 (Tex. Crim. App. 1995); 

see also State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006). When statutory 

language is clear and unambiguous, we give effect to its plain meaning unless to do 

so would lead to absurd consequences that the Legislature could not possibly have 

 13 Generally, we apply the sections of the Code Construction Act listed in Section 1.05(b) 

of the Penal Code. See Tex. Penal Code Ann. § 1.05(b). 
18 

intended. Price, 434 S.W.3d at 605; Boykin v. State, 818 S.W.2d 782, 785 (Tex. 

Crim. App. 1991). 

C. The Cumulation Statute 

Generally, when a defendant is sentenced for multiple convictions obtained 

during a single criminal action, the trial court must order the sentences to run 

concurrently. See Tex. Penal Code Ann. § 3.03(a) (West Supp. 2014). Section 

3.03(b) is an exception to the general rule and authorizes a trial court to stack 

sentences for specified offenses: 

(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: 

(1) an offense: 

(A) under Section 49.07 [intoxication assault] or 49.08 

[intoxication manslaughter], regardless of whether the 

accused is convicted of violations of the same section 

more than once or is convicted of violations of both 

sections; 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), regardless of whether the 

accused is charged with violations of the same section 

more than once or is charged with violations of both 

sections; 

(2) an offense: 

(A) under Section 33.021 [online solicitation of a minor] 

or an offense under Section 21.02 [continuous sexual 

abuse of young child or children], 21.11 [indecency with 

a child], 22.011 [sexual assault], 22.021 [aggravated 

sexual assault], 25.02 [prohibited sexual conduct], or 

43.25 [sexual performance by a child] 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 
19 

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; 

(3) an offense: 

(A) under Section 21.15 [improper photography or visual 

recording] or 43.26 [possession or promotion of child 

pornography], regardless of whether the accused is 

convicted of violations of the same section more than 

once or is convicted of violations of both sections; 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), regardless of whether the 

accused is charged with violations of the same section 

more than once or is charged with violations of both 

sections; 

(4) an offense for which the judgment in the case contains an 

affirmative finding under Article 42.0197, Code of Criminal 

Procedure [gang-related conduct]; 

(5) an offense: 

(A) under Section 20A.02 [trafficking of persons] or 

43.05 [compelling prostitution], regardless of whether the 

accused is convicted of violations of the same section 

more than once or is convicted of violations of both 

sections; 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), regardless of whether the 

accused is charged with violations of the same section 

more than once or is charged with violations of both 

sections; or 
20 

(6) an offense: 

(A) under Section 22.04(a)(1) or (2) or Section 22.04(a1)(1) or (2) [injury to a child, elderly individual, or 

disabled individual] that is punishable as a felony of the 

first degree, 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) or which a plea agreement was reached in a case in 

which the accused was charged with more than one 

offense listed in Paragraph (A) and punishable as 

described by that paragraph, 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. 

Tex. Pen. Code Ann. § 3.03(b). 

D. Parties’ Arguments 

Appellant and the State each propose different interpretations of the 

statute.14 Appellant contends that the only reasonable interpretation of the statute 

is that offenses listed in each subsection (b)(1), (2), (3), (5), and (6) cannot be 

stacked with offenses listed in other subsections (b)(1), (2), (3), (5), and (6). In 

other words, two offenses listed in (b)(2) could be stacked together, but one 

offense from (b)(2) could not be stacked with one offense from (b)(5), as the trial 

court did here for sexual assault and compelling prostitution. 

The State contends that the “or” appearing after subsection (b)(5)(B) means 

that all of the offenses listed in subsection (b) may be stacked together. Appellant 

 14 Both parties contend that the statute is unambiguous; thus, we should not resort to 

extra-textual materials for interpretation. See, e.g., Boykin, 818 S.W.2d at 785–86 (“If the plain 

language of a statute would lead to absurd results, or if the language is not plain but rather 

ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a 

court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or 

administrative interpretations of the statute or legislative history.”). 
21 

counters that “or” can be inclusive or exclusive, and it is not dispositive of the 

Legislature’s intent. Moreover, appellant argues the State’s interpretation renders 

parts of the statute meaningless. 

The State also contends that appellant’s interpretation does not produce a 

just and reasonable result. See Tex. Gov’t Code Ann. § 311.021(3). The State 

argues that appellant’s interpretation is contrary to the Legislature’s intent of 

allowing the State to prosecute a defendant for multiple sex-related offenses 

against a child in a single proceeding. 

E. Textual Analysis 

Based on the plain meaning of the text of the statute, we hold that 

appellant’s interpretation of the statute is the only reasonable interpretation 

because the State’s interpretation would render portions of the statute meaningless 

and would not give effect to the entire statute. 

Subsection (b)(5)(A) states that sentences may be stacked if each sentence is 

for an offense of human trafficking or compelling prostitution, “regardless of 

whether the accused is convicted of violations of the same section more than once 

or is convicted of violations of both sections.” Tex. Penal Code Ann. 

§ 3.03(b)(5)(A) (emphasis added). If all offenses listed in subsection (b) could be 

stacked, the references to “both sections” in subsections (b)(1), (3), and (5) would 

be meaningless and irreconcilable. Subsections (b)(1), (3), and (5) each list only 

two offenses, so the phrase “both sections” necessarily indicates that the 

Legislature intended the stacking of only those two offenses together. 

Further, subsections (b)(1), (2), (3), (5), and (6) each include a paragraph (B) 

that refers to convictions obtained by plea agreements for which the defendant was 

charged with “more than one offense listed in Paragraph (A).” Id.
22 

§ 3.03(b)(1)(B), (2)(B), (3)(B), (5)(B), (6)(B) (emphasis added). The Legislature’s 

use of this phrase in each paragraph (B) suggests that the Legislature intended only 

for offenses listed in the companion paragraph (A) to be stacked together. See

Tex. Penal Code Ann. § 1.05(c)(2) (“In this code . . . a reference to a . . . paragraph 

or other numbered or lettered unit without further identification is a reference to a 

unit of the next-larger unit of this code in which the reference appears.”).15 

The State’s reliance on the word “or” appearing after subsection (b)(5)(B) is 

not dispositive because “or” can be interpreted in two ways. It can be used as an 

“inclusive” function word to express “an alternative between different or unlike 

things.” Webster’s Third New International Dictionary 1585 (1993); see Black’s 

Law Dictionary 1095 (6th ed. 1990); see also Heritage on San Gabriel 

Homeowners Ass’n v. Tex. Comm’n on Envtl. Quality, 393 S.W.3d 417, 427 (Tex. 

App.—Austin 2012, pet. denied) (“[T]he word ‘or’ does not automatically create a 

choice between two mutually exclusive options.”). But “or” can also be an 

“exclusive” word to express a “choice between alternative things,” whether two or 

more. Webster’s Third New International Dictionary, supra, at 1585; see Black’s 

Law Dictionary, supra, at 1095. See generally Lake v. Woodcreek Homeowners 

Ass’n, 243 P.3d 1283, 1289 (Wash. 2010) (discussing the difference between both 

uses). “The Legislature’s use of the disjunctive term ‘or’ typically signifies a 

separation between two distinct ideas.” Heritage, 393 S.W.3d at 427 (“The use of 

the disjunctive usually indicates alternatives and requires those alternatives to be 

treated separately . . . .”). 

 15 We do not think it could be argued that convictions from plea agreements, i.e., under 

paragraph (B), should be treated differently than convictions after a trial, i.e., under paragraph 

(A), given the intent of the Legislature to stack sentences for convictions for the specified 

offenses, regardless of how the convictions are obtained. See Nguyen, 359 S.W.3d at 645 

(discussing legislative history and holding that sentences for guilty pleas to offenses not listed in 

subsection (b) could not be stacked even though the defendant had initially been charged with 

offenses listed in subsection (b)). 
23 

To determine which meaning was intended, “Texas courts consider the use 

of the word ‘or’ against the backdrop of the entire statute.” Id. Looking to the 

entire statute, the exclusive use of the word “or” at the end of subsection (b)(5)(B) 

is the only reasonable interpretation because the inclusive use of “or” would render 

meaningless parts of the statute and not give effect to the entire statute, as 

discussed above.

We note that the Legislature amended subsection (b) in piecemeal fashion to 

add specific offenses and categories of offenses: first, intoxication manslaughter, 

see Act of May 25, 1995, 74th Leg., R.S., ch. 596, § 1, 1995 Tex. Gen. Laws 3435, 

3435; second, most of the sexual offenses against children in (b)(2), see Act of 

May 31, 1997, 75th Leg., R.S., ch. 667, § 2, 1997 Tex. Gen. Laws 2250, 2251–52; 

third, intoxication assault for subsection (b)(1), and improper photography and 

child pornography in (b)(3), see Act of May 23, 2005, 79th Leg., R.S., ch. 527, § 1, 

2005 Tex. Gen. Laws 1429, 1429–30; fourth, online solicitation of a minor in 

(b)(2), see Act of May 27, 2007, 88th Leg., R.S., ch. 1291, § 6, 2007 Tex. Gen. 

Laws 4344, 4349; fifth, the gang-related affirmative finding in (b)(4), see Act of 

May 31, 2009, 81st Leg., R.S., ch. 1130, § 21, 2009 Tex. Gen. Laws 3119, 3126–

27; sixth, human trafficking and compelling prostitution in (b)(5), see Act of April 

7, 2011, 82nd Leg., R.S., ch. 1, § 6.01, 2011 Tex. Sess. Law Serv. 1, 14–15 (West); 

and finally, injury to a child, elderly, or disabled person in (b)(6), see Act of May 

17, 2013, 83rd Leg., R.S., ch. 228, § 1, 2013 Tex. Sess. Law Serv. 968, 968–69 

(West). 

Looking solely to the text of each amendment, we discern that the 

Legislature considered each category separately and would not have intended 

subsection (b) to authorize stacking among the various categories of offenses. One 

reason for this understanding is that the Legislature added the various categories of 
24 

offenses with corresponding paragraphs (A) and (B). And for some amendments, 

the Legislature created new subsections (b)(2) through (b)(6), but for other 

amendments, the Legislature added offenses to preexisting subsections. For 

example, the Legislature added child pornography to a new subsection (b)(3) at the 

same time the Legislature added intoxication assault to an existing subsection 

(b)(1). We presume the Legislature did not act arbitrarily in doing so. See State ex 

rel. Lykos v. Fine, 330 S.W.3d 904, 909 (Tex. Crim. App. 2011) (reviewing 

constitutionality of a statute, “[i]t is to be presumed that the Legislature has not 

acted unreasonably or arbitrarily”). 

The only logical reason for doing so—placing one offense in a preexisting 

subsection and another offense in a new subsection—is that the Legislature did not 

intend for intoxication assault to be stacked with child pornography.16 The same 

can be said for compelling prostitution. Had the Legislature intended for 

compelling prostitution to be included in one of the offenses against children 

enumerated in subsection (b)(2) for which cumulation is authorized, the 

Legislature could have added it to subsection (b)(2). Instead, the Legislature 

grouped compelling prostitution (against adults and children alike) with human 

trafficking in a new subsection (b)(5), declaring that stacking was authorized for 

“both sections”—in the plea context, for “both sections” listed in paragraph (A). 

“Both sections” unambiguously refers only to human trafficking and compelling 

prostitution. 

 16 Similarly, the online solicitation of a minor offense was added to subsection (b)(2), 

although it just as easily could have been added to (b)(3), or a new subsection could have been 

created. 
25 

F. Just and Reasonable Result and Purpose of Statute 

The State suggests that a prohibition on stacking a (b)(2) offense with a 

(b)(5) offense would not yield a just and reasonable result. See Tex. Gov’t Code 

Ann. § 311.021(3). The State posits a hypothetical whereby appellant was 

convicted of two counts of sexual assault and sentenced to twenty years for each 

offense, cumulated, compared to a hypothetical whereby appellant was convicted 

of one count of sexual assault and one count of compelling prostitution and 

sentenced to twenty years each, which could not be cumulated under our 

interpretation of the statute. The State contends the latter situation would not be 

just and reasonable because it is the more egregious scenario. 

The State’s hypothetical ignores the actual sentences in this case, which 

were for seven years’ confinement on the sexual assault conviction and twentythree years’ confinement on the compelling prostitution conviction. So, the jury 

obviously viewed the compelling prostitution charge as more egregious. Had 

appellant received only seven years each on two stacked sentences for sexual 

assault, he would have been sentenced to less time than he actually received in this 

case even though sexual assault cannot be stacked with compelling prostitution. In 

short, the State’s hypothetical is untethered to the facts of this case and does not 

lead to a conclusion that our interpretation of the statute will cause an unjust or 

unreasonable result. 

Finally, the State contends that the purpose of the statute is to allow the State 

to prosecute a defendant for multiple sex-related offenses against a child in a single 

proceeding so that the child complainant does not have to suffer through multiple 

trials. This ostensible purpose is derived from extra-textual legislative history of 

the 1997 omnibus bill that added Section 3.03(b)(2) while simultaneously adding 

Section 3.04(c) to remove a defendant’s previously unqualified right to sever 
26 

Section 3.03(b)(2) offenses. See House Research Organization, Bill Analysis for 

House Criminal Jurisprudence Committee, C.S.S.B. 381 (May 20, 1997) (noting 

that the bill would “restrict defendants’ right to multiple trials for serious sex 

offenses committed against children so that child victims cannot be forced to 

undergo multiple trials”; claiming that defendants “sometimes use their right to 

have multiple offenses tried separately as a tactic to traumatize victims by putting 

them through multiple trials”); see also Act of May 31, 1997, 75th Leg., R.S., ch. 

667, § 3, 1997 Tex. Gen. Laws 2250, 2252; Bonilla v. State, 452 S.W.3d 811, 831 

(Tex. Crim. App. 2014) (Price, J., dissenting).17

The 2005 bill adding intoxication assault, child pornography, and improper 

photography offenses to Section 3.03(b) further narrowed a defendant’s right to 

sever offenses by making Section 3.04(c) applicable to all offenses “described by 

Section 3.03(b).” See Act of May 23, 2005, 79th Leg., R.S., ch. 527, § 2, 2005 

Tex. Gen. Laws 1429, 1430 (codified at Tex. Penal Code Ann. § 3.04(c)). Our 

holding today, however, is limited to the trial court’s authority to stack sentences, 

not to the State’s ability to consolidate or join offenses so as to prevent the 

necessity for multiple trials. Appellant had no unqualified right to sever in this 

case and could not have forced the child complainant to endure multiple trials. The 

State retains that authority although the consequence of joining multiple offenses 

not listed in the same subsection (b)(1), (2), (3), (5), or (6) will be concurrent 

sentences.18

 17 At the time, Section 3.04(c) stated that the right to severance did not apply to a 

prosecution for offenses “described by Section 3.03(b)(2).” See Act of May 31, 1997, 75th Leg., 

R.S., ch. 667, § 3, 1997 Tex. Gen. Laws 2250, 2252. 

18 We note that in appellant’s case, the State had evidence appellant committed up to 

eight counts of compelling prostitution, which could have been stacked together, and two counts 

of sexual assault, which could have been stacked together. 
27 

Even if the purpose of Section 3.04(c) concerning severance is indivisible 

from the purpose of Section 3.03(b) concerning cumulation, the Legislature must 

be understood to mean what it has expressed in the statutory text, and we cannot 

add to or subtract from the statute, particularly by reference to extra-textual 

legislative history. See Parfait v. State, 120 S.W.3d 348, 350–51 (Tex. Crim. App. 

2003) (holding that sentences for attempts of subsection (b)(2) offenses cannot be 

stacked despite the statute’s purpose of protecting innocent children from rapists); 

see also Boykin, 818 S.W.2d at 785–86. When, as here, the plain language of the 

statute is not ambiguous and prescribes a result that is not absurd, we must apply 

the statute as written. See, e.g., Dobbs v. State, 434 S.W.3d 166, 173 (Tex. Crim. 

App. 2014). 

G. Conclusion Regarding Cumulation 

The unambiguous language of Section 3.03(b) provides that a sentence for 

compelling prostitution may not be stacked with a sentence for sexual assault of a 

child when the offenses arise out of the same criminal episode and are prosecuted 

in a single criminal action. The trial court erred by cumulating appellant’s 

sentences. 

Appellant’s first issue is sustained. Accordingly, we will reform the 

judgment to delete the cumulation order. See Beedy v. State, 250 S.W.3d 107, 110 

(Tex. Crim. App. 2008). 

V. VERBIAGE IN THE JUDGMENT

In his fourth issue, appellant requests this court to reform his judgments to 

reflect the statutory names of the offenses because the judgements contain 

unnecessary verbiage. The judgments identify the offenses for which he was 

convicted as “sexual assault of a child 14–17 years of age” and “compelling 
28 

prostitution less than 18 years of age.” Appellant contends the judgments should 

be reformed to reflect only the titles of the offenses identified in the Penal Code, 

respectively “sexual assault” and “compelling prostitution.” We disagree with 

appellant’s contention that reformation is required. 

Texas judgments must reflect the “offense or offenses for which the 

defendant was convicted.” Tex. Code Crim. Proc. Ann. art. 42.01, § 1(13). 

Appellant relies on Ex parte Mattox, 129 S.W.2d 641 (Tex. Crim. App. 1939), to 

suggest that it is a clerical error for a judgment to reflect unnecessary verbiage. 

Mattox had been charged with one count of “robbery by using and exhibiting a 

firearm,” and two counts of “robbery by assault and violence.” Id. at 641. Mattox 

waived a jury and pleaded guilty to the two counts of robbery by assault and 

violence, and the court sentenced him to fifteen years’ confinement, id. at 642, but 

the judgment incorrectly identified the offense to which he pleaded guilty as 

robbery “by use of firearms,” see id. at 642, 645 (op. on reh’g). The distinction 

was important because at the time, robbery by assault or violence carried a 

punishment of five years to life while robbery by use of a firearm was a capital 

offense for which a defendant could not waive a jury. Id. at 643. The Court of 

Criminal Appeals explained that it was merely a clerical error for the clerk to 

include in the judgment “by use of firearms” after the offense of “robbery.” See id.

at 645. A nunc pro tunc judgment corrected the earlier judgment by removing the 

“by use of firearms” phrase. See id. The nunc pro tunc judgment was necessary 

for the judgment to “speak the truth” of what actually happened at trial. Id.; see 

also French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (appellate court 

has authority to reform a judgment to make the record “speak the truth”). 

Ex parte Mattox did not hold, as appellant suggests, that it was error by itself 

to include “by use of firearms” in the title of the offense in the judgment; it was 
29 

error in that case because Mattox had not pleaded guilty to that distinct offense. At 

the time, the Penal Code included only one offense of “Robbery,” wherein the 

different categories of robbery were distinguished under the same Article. See

Tex. Penal Code art. 1408 (1925, repealed).19 By the court’s distinguishing 

between “robbery” and “robbery by use of firearms,” the court acknowledged that 

a greater description of the offense may be appropriate compared to the title of the 

offense identified in the Penal Code, so the judgment may “speak the truth” of the 

offense committed. See Davis v. State, 501 S.W.2d 629, 633 (Tex. Crim. App. 

1973) (noting that the “better practice” for naming offenses in judgments would be 

to use the term “burglary with intent to commit theft” or “burglary with intent to 

commit rape” or another “accurate description of the offense,” rather than merely 

“burglary, as charged in the indictment”). 

In appellant’s case, the phrases “of a child 14–17 years of age” and “less 

than 18 years of age” accurately describe the offenses—sexual assault and 

compelling prostitution, respectively—for which appellant was convicted. Like 

the old robbery statute, the sexual assault and compelling prostitution statutes 

criminalize different types of conduct for which there can be varying defenses and 

punishments. For example, compelling prostitution is ordinarily a second degree 

felony, but it is a first degree felony when the complainant is “a child younger than 

18 years.” Tex. Penal Code Ann. § 43.05. Certain defenses apply to sexual assault 

when the complainant is “a child 14 years of age or older.” See id. § 22.011(e). 

 19 The statute identified “Robbery” as follows: “If any person by assault, or violence, or 

by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of 

another any property with intent to appropriate the same to his own use, he shall be punished by 

confinement in the penitentiary for life, or for a term of not less than five years; and when a 

firearm or other deadly weapon is used or exhibited in the commission of the offense, the 

punishment shall be death or by confinement in the penitentiary for any term not less than five 

years.” Tex. Penal Code art. 1408 (1925, repealed) 
30 

Thus, we cannot conclude that the trial court erred by including phrases that 

accurately describe the offenses for which appellant was convicted. 

Appellant has cited to no authority that would require a judgment to include 

only the title of the offense identified in the Penal Code. Similarly, we have found 

no authority to that effect, and the Code of Criminal Procedure does not require it. 

Appellant’s fourth issue is overruled. 

VI. CONCLUSION

We have overruled appellant’s second, third, and fourth issues, but sustained 

his first regarding the cumulation order. Accordingly, we modify the trial court’s 

judgment in the compelling prostitution case, Cause No. 14-14-00155-CR (Trial 

Court Cause No. 1390391), to delete the cumulation order, and we affirm the 

judgment as modified. We affirm the trial court’s judgment in the sexual assault 

case, Cause No. 14-14-00154-CR (Trial Court Cause No. 1323841). 

 

 /s/ Sharon McCally 

 Justice 

Panel consists of Chief Justice Frost and Justices Boyce and McCally. 

Publish — Tex. R. App. P. 47.2(b). 
26

 

 APPENDIX B –SECTION 3.03
27

(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: 

(1) an offense: 

(A) Under Section 49.07 or 49.08, regardless of whether the accused 

is convicted of violations of the same section more than once or is 

convicted of violations of both sections; 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), regardless of whether the accused is charged with 

violations of the same section more than once or is charged with 

violations of both sections; 

(2) an offense: 

(A) under Section 33.021 or an offense under Section 21.02, 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; 

(3) an offense: 

(A) under Section 21.15 or 43.26, regardless of whether the accused is 

convicted of violations of the same section more than once or is 

convicted of violations of both sections; or 
28

(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), regardless of whether the accused is charged with violations of 

the same section more than once or is charged with violations of both 

sections; 

(4) an offense for which the judgment in the case contains an 

affirmative finding under Article 42.0197, Code of Criminal 

Procedure; 

(5) an offense: 

(A) under Section 20A.02 or 43.05, regardless of whether the accused 

is convicted of violations of the same section more than once or is 

convicted of violations of both sections; 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), regardless of whether the accused is charged with violations of 

the same section more than once or is charged with violations of both 

sections; or 

(6) an offense: 

(A) under Section 22.04(a)(1) or (2) or Section 22.04(a-1)(1) or (2)

that is punishable as a felony of the first degree, 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) or which a plea agreement was reached in a case in which the 

accused was charged with more than one offense listed in Paragraph 

(A) and punishable as described by that paragraph, 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.

TEX. PEN. CODE ANN. § 3.03 (West Supp. 2014).