NOS. 07-08-0502-CR, 07- 08-0503-CR; 07-08-504-CR; 07-08-0505-CR; 07-08-0506-CR

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JULY 15, 2010

ALFREDO SOLIS, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 251ST DISTRICT COURT OF POTTER COUNTY; NO. 57,754-C, 57,761-C, 57, 762-C, 57,763-C, 57,764-C; HONORABLE ANA ESTEVEZ, JUDGE

Before QUINN, C.J., a nd CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION Appellant Alfredo Soli s appeals ten convictions for aggravated sexual assault of a child, sexual assault of a child, and indecency with a child by sexual contact. Through one issue, he argues the trial court abused its discretion by ordering the jury-imposed sentences for three of the convictions to run consecutively. We disagree, and will affirm.2 Background

Indictments filed in five cases alle ged appellant committed multiple sexual offenses against one child, his stepdaughter. T he cases were consolidated for trial. At trial appellant pl ead guilty to each of the indict ed offenses. After the State presented evidence, the court instructed the ju ry to return a verdict of guilty on each count. The jury entered verdicts accordi ngly. Appellant elected assessment of punishment by the jury. During its deliber ation on punishment, the foreman sent the court a note inquiring: “1) If given probation on one count of the lessor (sic) charges, does that ensure that if the defendant gets out he for sure will be on probation? 2) If not does probation have to be given on all charges.(sic)” The court responded with a suppl emental charge instructing the jury to continue its deliberations. The jury returned verdic ts assessing two fifty-year sentences for aggravated sexual assault of a child, 1 two twenty-year sentences for sexual assault of a child, 2 five twenty-year sentences for indec ency with a child by sexual contact, 3 and one nine-year probated sentence for indecency with a child by sexual contact.

1 Tex. Penal Code Ann. ' 22.021(a)(2)(B) (Vernon Supp. 2009).

2 Tex. Penal Code Ann. ' 22.011(a)(2) (Vernon Supp. 2009).

3 Tex. Penal Code Ann. ' 21.11(a)(1) (Vernon Supp. 2009).3 The State moved for consecutive sentencing and A that [appellant = s] probation term not begin until he is paroled on the last sentence prior to that. @ Appellant objected to stacked sentences. After the trial c ourt made some comments, apparently based on the jury’s note, concerning the jury’s wis hes regarding appellant ’s eventual possible release from confinement, and further argum ent from counsel, the court “stacked” one of the fifty-year sentences, one of t he twenty-year sentences and the probated sentence. It ordered the remaining sentences run concurrently. The effect of the court’s sentencing was seventy years confi nement followed by nine years probation. Appellant timely filed notice of appeal.

Issue Appellant raises one issue on appeal: Where a defendant in his mid-50s opts for jury sentencing, and where the trial court concludes from the punishm ent verdicts that the jury intended the defendant to be released at some ti me in the future, is the trial court entitled to frustrate t hat intention by cumula ting the sentences of imprisonment to make release much less likely? 4 Discussion

Statute authorizes a trial court to cu mulate sentences imposed for certain offenses arising out of the same criminal episode and prosec uted in a single criminal action. Tex. Penal Code A nn. § 3.03 (Vernon Supp. 2009). Those offenses include

4 The State contends appell ant’s issue was not preserved for our review. See Tex. R. App. P. 33.1; Pena v. State, 285 S.W.3d 459, 462-464 (Tex .Crim.App. 2009) (discussing preservation of error). Although the State’s argument has some merit, we find appellant’s objection to the imposition of cumulative sentencing for the fifty-and twenty-year sentences was conveyed to the tr ial court, and was overruled by the court’s sentencing decision, so as to preserve the complained-of error for our review.4 indecency with a child, and aggra vated sexual assault and sexual assault of a child younger than seventeen. Tex. Penal Code Ann. §§ 3.03(b)(2)(A); 21.11; 22.011; 22.021 (Vernon Supp. 2009); see DeLeon v. State, 294 S.W.3d 742 (Tex.App.— Amarillo 2009, pet. refus ed) (applying statute). The Court of Criminal Appeals has indi cated that a trial court’s decision to cumulate sentences constitutes an abuse of discretion only when cumulation is not permitted by statute. See Beedy v. State, 250 S.W.3d 107, 110 (T ex.Crim.App. 2008) ( A when a trial judge lawfully ex ercises the option to cumulate, that decision is unassailable on appeal @ ) ; Barrow v. State , 207 S.W.3d 377, 380-81 (Tex.Crim.App. 2006) (discussing trial court = s discretionary decision whether to cumulate sentences). Accord Nicholas v. State, 56 S.W.3d 760, 764-65 (Tex.App.

B Houston [14th Dist.] 2001, pet. refused) (noting, as a practical matter, an abuse of discretion occurs in sentencing for multiple offenses only if the trial cour t imposes consecutive sentences where the law requires concurrent sentences, where the c ourt imposes concurrent sentences but the law requires consecutive ones, or where the court otherwise fails to observe the statutory requirements per taining to sentencing); Revels v. State , No. 05-07-01555-CR, 2008 Tex. App. Lexis 9197, at *18 (Tex.App.

B Dallas Dec. 11, 2008, no pet.). Appellant does not contend t he trial court’s cumulation order in this case contravened the statute. T he trial court did not alter t he individual sentences imposed by the jury, and none exceed the statutory range. All the sentences were subject to cumulation. Tex. Penal Code Ann. ' 3.03(b)(2)(B) (Vernon Supp. 2009).5 Nonetheless, appellant contends the order was an abus e of discretion because of the peculiar circumstances. He points to the trial court’s comment, which he contends indicates the court understood the jury intended t hat appellant eventually be eligible for release from imprisonment. He then argues that, despite its understanding of the jury’s intention, the trial cour t ordered cumulation of sentences, making his eventual eligibility for releas e much less likely. This action, appellant posits, must constitute an abuse of discretion. Effectively, appellant’s argument is an iter ation of the position rejected by the Court of Criminal Appeals in Barrow . 207 S.W.3d at 381-82. There, Judge Meyers, in dissent, took the position that allowing t he trial judge to cumulate jury-determined sentences contradicts a Texas defendant’s st atutory right to have punishment assessed by the jury. Id . at 382. Addressing constitution al challenges to judge-ordered cumulation, the majority opinion pointed out t hat, by statute, Texas permits a defendant to opt for jury-assessed punishment but the Legislature also has assigned the decision whether to cumulate sentenc es to the trial court. Id . at 380. Because the jury simply has no role in t he decision whether sentences are to be served consecutively or concurrently when stat ute permits, and the decision is left to the discretion of the trial court, Barrow , 207 S.W.3d at 380, 5 we are unable to agree that the

5 Cf. Gordon v. State, 633 S.W.2d 872, 879 n.16 (Tex .Crim.App. 1982) (citing O = Bryan v. State, 591 S.W.2d 464, 476, 478 (Tex .Crim.App. 1979) ( A The duration of confinement following its assess ment of punishment is not a legitimate concern of a jury @ ).6 jury’s intentions regarding a ppellant’s eventual e ligibility for release could operate to limit the trial court’s discr etion to order cumulation. 6 We accordingly overrule appellant = s issue and affirm the judgments of the trial court.

James T. Campbell Justice Do not publish.

6 Although we need not address it, we agr ee with the State also that the jury foreman’s note is subject to mo re than one interpretation as an indicator of the jury’s thinking regarding appellant’s event ual release from confinement.