Saturday, December 6, 2008

Stack away

I'm believe that the defendant is probably incorrect in his assesment that the "stacking" of the sentences is not "legal". Depending on the circumstances they could be and in a case I wrote an appeal on, I was upheld on it being legal through the apellate process.

For those with nothing better to do here is part of my argument that the court had the authority to "stack" in a sexual assault of a minor case.

Appellant’s argument is that pursuant to Tex. Pen. Code § 3.03 (a) the cases should run concurrently unless they meet the exception provided for in Tex. Pen. Code § 3.03(b). The specific portion of paragraph (b) applicable to Appellant’s cases would be subsection (2)(A) of Tex. Pen. Code § 3.03 (b). The specific exception of paragraph (b) (2) (A) states:

(b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:

(2) an offense:

(A) under Section 21.11, 22.011, 22.021, 25.02 or 43.25 committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section.

Tex. Pen. Code § 3.03 (b) (2) (A) (Vernon 2005)

Appellant argues that since § 3.03 (b) (2)(A) speaks of “a victim” its application is limited only to cases committed against a single victim. In this case and in CR2006-106, which comprises multiple victims, even though they arise from the same criminal offense, the cases cannot be stacked as they have more than “a victim”, i.e. they have multiple victims. Appellant acknowledges in a footnote that this analysis of the statute has been rejected by two appellate courts in Dale v. State, 170 S.W.3d 797 (Tex. App.–Fort Worth 2005, no pet.) and in Salazar v. State, 127 S.W.3d 355 (Tex. App.–Houston [14th] 2004, pet. ref’d).

A review of these cases and the law reveals the basic flaw in Appellant’s theory. First, criminal episode is defined in Tex. Pen. Code § 3.01 (Vernon 2005); the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstance:

(1) the offenses are committed pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

(2) the offenses are the repeated commission of the same or similar offenses.

Tex. Pen. Code § 3.01 (Vernon 2005)

So the definition contemplates that a criminal episode can consist of multiple victims. The jury found that the Appellant engaged in illicit behavior, with both victims, which would arguably meet the definition as stated in either subparagraph (1) or (2) as defined above. As stated by the court in Salazar “we must give effect to the plain meaning of the text unless the text is ambiguous or the plain meaning would lead to absurd results”; citing to Parfait v. State, 120 S.W.3d 348, 349 (Tex. Crim. App. 2003). Salazar, 127 S.W.3d at 364.

The Salazar court went on to note that the plain language of Tex. Pen. Code § 3.03 “provides 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 [21.11, 22.011,] 22.021,…against a victim younger than seventeen years of age…” Id., at 364. The court reasoned that as long as each victim of the offenses were under the age of seventeen the requirements of the statute’s plain language were clearly met and therefore sentences could be ordered to run consecutively. Id, at 365. Subsequent to Salazar, another appellate court addressed the same issue in Dale v. State, 170 S.W.3d 797, 801 (Tex. App.—Ft. Worth 2005, no pet.) The Dale court followed the rationale of Salazar and agreed that there is no language contained in Tex. Pen. Code § 3.03 (b) which would limit its application only to sentences pertaining to offenses against the same victim. Dale, 170 S.W.3d at 801.

Not knowing the facts in the case I cannot say the above would apply.

Man gets 297 years for sexual assault
By Zeke MacCormack - Express-News

An Ingram man has been sentenced to 297 years in prison on three counts of aggravated sexual assault of a child for abusing a teenage girl who also complained of being sexually assaulted by the defendant’s former wife.

Defense attorney Ronald “Rusty” Guyer said Friday he’s looking into the legality of state District Judge Karl Prohl’s decision to “stack” the three 99-year sentences handed down late Thursday by a Kerr County jury that convicted Scott Vogel, 38, at trial this week.

Still awaiting trial on two counts of aggravated sexual assault of a child is Carrie Lynn Brandenburgh Vogel, 22, who is accused of participating in the abuse of the girl in 2006.

Assistant District Attorney Amos Barton couldn’t be reached Friday for comment on the trial that concluded at 11:55 p.m. Thursday.