Dalton Ty Allen Crowder v. the State of Texas ( 2023 )

Opinion filed July 27, 2023
In The
Eleventh Court of Appeals
__________
Nos. 11-22-00081-CR & 11-22-00082-CR
__________
DALTON TY ALLEN CROWDER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause Nos. CR27498 and CR27434
MEMORANDUM OPINION
The grand jury indicted Appellant, Dalton Ty Allen Crowder, for two separate
acts of sexual assault, each a second-degree felony offense. TEX. PENAL CODE ANN.
§ 22.011 (West Supp. 2022). Appellant waived his right to a jury trial in both cases
and, in a single proceeding requested by the parties, the trial court convicted
Appellant of both offenses and assessed his punishment at five years’ imprisonment
for each conviction; the sentences were ordered to be served consecutively. In a
single issue, Appellant contends that the trial court’s cumulation order is unlawful.
We agree and modify the trial court’s judgment.
I. Factual Background
Appellant was indicted for two separate acts of sexual assault; the offenses
were committed on different dates and against different victims. It is undisputed
that these offenses occurred as part of the same criminal episode. The indictment
filed in trial court cause no. CR27498 alleges that Appellant committed the offense
of sexual assault “on or about” November 1, 2019. The indictment filed in trial court
cause no. CR27434 alleges that Appellant committed the offense of sexual assault
“on or about” March 9, 2019. However, neither indictment alleges the age of either
victim.
A bench trial proceeded over the course of two days: March 21 and 22, 2022.
At the beginning of trial, counsel for the State and for Appellant agreed that, if
Appellant was convicted of both offenses, the sentences to be imposed by the trial
court could be served concurrently or consecutively. Each victim testified to her age
and stated that, on the date they testified at trial, they were twenty-one years old and
twenty-two years old, respectively.
Neither the State nor Appellant argued or presented evidence that the two
victims were under seventeen at the time that Appellant committed the sexual
assaults. Further, neither party asked the trial court to make any findings regarding
the victims’ ages, and the trial court did not make any such findings either in its
rulings or its judgments. After the trial court convicted Appellant of both charged
offenses and assessed his punishment for each offense, the sentences were ordered
to be served consecutively.
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II. Standard of Review
We review a trial court’s decision to cumulate sentences for an abuse of
discretion. Byrd v. State, 499 S.W.3d 443, 446 (Tex. Crim. App. 2016). “‘Normally,
the trial [court] has absolute discretion to cumulate sentences,’ so long as the law
authorizes the imposition of cumulative sentences.” Id. (quoting Smith v. State, 575
S.W.2d 41, 41 (Tex. Crim. App. 1979)). A trial court abuses its discretion if it orders
consecutive sentences when the law only permits concurrent sentences. Id.III. Analysis
At the outset, we note that a complaint that a cumulation order is unlawful
may be raised for the first time on appeal. See Ex parte Carter, 521 S.W.3d 344,
347 (Tex. Crim. App. 2017) (“[Section] 3.03 confers a Marin waiver-only right—a
right that must be implemented unless affirmatively waived.”) (citing Ex parte
McJunkins, 954 S.W.2d 39, 40–41 (Tex. Crim. App. 1997)).
Article 42.08 of the Code of Criminal Procedure generally affords a trial court
the discretion to cumulate sentences that are imposed against a defendant who is
convicted of two or more offenses. TEX. CODE. CRIM. PROC. ANN. art. 42.08(a)
(West 2018). However, Section 3.03 of the Penal Code provides that, generally,
sentences imposed against a defendant shall be served concurrently “[w]hen the
[defendant] is found guilty of more than one offense arising out of the same criminal
episode prosecuted in a single criminal action.” Middleton v. State, 634 S.W.3d 46,
49 (Tex. Crim. App. 2021) (quoting PENAL § 3.03(a)). A “criminal episode” is the
commission of the same or similar offenses, as opposed to a “single criminal action”
which refers to a single trial or plea proceeding. PENAL § 3.01 (defining “criminal
episode); Middleton, 634 S.W.3d at 50 (defining “single criminal action”) (citing
LaPorte v. State, 840 S.W.2d 412, 414 (Tex. Crim. App. 1992)).
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Section 3.03 contains exceptions to this general sentencing rule: the trial court
may cumulate sentences if each sentence imposed is based on a conviction for an
offense that is specified in the subsections enumerated in Section 3.03(b). PENAL
§ 3.03(b); see Miles v. State, 506 S.W.3d 485, 486 (Tex. Crim. App. 2016). Among
the offenses excepted from the general rule is the offense of sexual assault that is
committed against a victim that is younger than seventeen years of age. PENAL
§§ 3.03(b)(2)(A), 22.011(a)(2), (c)(1).
The trial court’s decision to cumulate sentences is a purely normative and
discretionary act; aside from a few specific instances where the range of punishment
depends upon the determination of discrete facts, the decision as to what punishment
to assess is not intrinsically fact bound. Barrow v. State, 207 S.W.3d 377, 380–81
(Tex. Crim. App. 2006). Because an unlawful cumulation order signed by the trial
court does not constitute reversible error, the appropriate remedy is to reform the
trial court’s judgment and delete the unlawful order. See Sullivan v. State, 387
S.W.3d 649, 653 (Tex. Crim. App. 2013) (citing Morris v. State, 301 S.W.3d 281,
294 (Tex. Crim. App. 2009)); Beedy v. State, 250 S.W.3d 107, 114 (Tex. Crim. App.
2008).
In this case, Appellant and the State now agree that the trial court abused its
discretion when it cumulated Appellant’s sentences. The dispute on appeal concerns
which remedy we should order to correct this oversight.
Appellant argues that the victims’ testimony undisputedly establishes that
each victim was seventeen years of age or older at the time that Appellant committed
each charged offense. He further points out that neither indictment alleges that the
victims were under the age of seventeen, nor did the State attempt to establish these
facts at trial. The trial court’s judgments of conviction, which order the cumulation
of Appellant’s sentences, also do not recite the ages of the victims. As such,
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Appellant asserts that the trial court’s cumulation order was unlawful and should be
deleted. We agree.
The State contends that, unlike other offenses referenced in Section 3.03(b),
the offense of sexual assault does not per se involve victims under the age of
seventeen. See PENAL §§ 3.03(b)(2), 22.011(a)–(b), (c)(1). Thus, the State asserts,
because the trial court’s authority to cumulate sentences for sexual assault
convictions turns on whether the victims were under the age of seventeen, the
context in this case is one of several unusual circumstances in which the trial court’s
assessment of punishment is not a purely normative, discretionary function, but
instead relies on “the determination of discrete facts.” See Barrow, 207 S.W.3d at380–81. Consequently, the State avers that the proper disposition of Appellant’s
complaint is to remand both cases to the trial court for a new sentencing hearing.
The State cites Barrow in support of its assertion that the trial court’s
cumulation order turns on a finding of fact; however, Barrow is inapposite. There,
the Court of Criminal Appeals held that a trial court’s authority to cumulate
sentences does not violate the Fifth or Sixth Amendments to the United States
Constitution. Id. The court also stated that cumulation has an “essentially
normative, non-fact-bound character.” 1 Id. at 381; see Espinoza v. State, No. 11-19-
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The State also contends that, because other statutes condition certain punishments based on a
victim’s age, we should treat Section 3.03(b) similarly to how courts have construed these other statutes.
See Diaz v. State, No. 01-18-00636-CR, 2020 WL 2026320 (Tex. App.—Houston [1st Dist.] April 28,
2020, no pet.) (mem. op., not designated for publication) (treating a finding that the victim was under the
age of six in an aggravated sexual assault as a punishment enhancement); Gumtow v. State, 03-18-00077-
CR, 2019 WL 6869949 (Tex. App.—Austin Dec. 12, 2019, no pet.) (mem. op., not designated for
publication) (submitting the victim’s age to the jury as a special issue in its punishment verdict under Article
42A.056). For similar reasons, these examples are also inapposite.
The State references Section 22.021, which specifically contains an enhanced punishment range
when the offense of sexual assault is committed against victims under the ages of six and fourteen. PENAL
§ 22.021(2)(f). Section 22.011 contains no such enhancement, and any such enhancement pertains only to
the punishment range for the convicted offense rather than the trial court’s authority to cumulate sentences.
The State also references Article 42A.056(4) of the Code of Criminal Procedure, which precludes a
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00232-CR, 2022 WL 3903774, at *12 (Tex. App.—Eastland Aug. 31, 2022, pet.
ref’d) (mem. op., not designated for publication) (reiterating Barrow’s holding that
cumulation is a purely normative process that does not turn on any discrete findings
of fact by the trial court).
Here, Appellant was charged with and convicted of two separate sexual
assault offenses, and it is undisputed that these offenses occurred within the same
criminal episode. Nothing in the indictments, the evidence, or the trial court’s
judgments indicates that either victim was, or could have been, under the age of
seventeen at the time that Appellant sexually assaulted them.2 Thus, additional
information is not required to conclude that the offenses for which Appellant was
convicted are not among those where the cumulation of multiple sentences is
permitted under Section 3.03. See PENAL § 3.03(b). Therefore, we hold that the trial
court’s cumulation order is unlawful and should be vacated. Byrd, 499 S.W.3d at
446; see also Green v. State, No. 11-16-00107-CR, 2017 WL 2704069, at *1–2 (Tex.
App.—Eastland June 15, 2017, no pet.) (mem. op., not designated for publication)
(the trial court’s cumulation order was vacated because the victim was older than
seventeen years of age at the time the defendant committed the sexual assaults).
defendant’s eligibility for jury-recommended community supervision if the defendant has been convicted
of an offense under Section 22.011 and the victim of the offense was under fourteen years of age at the time
the offense was committed. CRIM. PROC. art. 42A.056(4) (West Supp. 2022). However, neither of these
statutes pertain to the issue before us.
2
In fact, the only evidence in the record of the victims’ ages shows that neither of them could have
been under seventeen years of age at the times that Appellant sexually assaulted each victim. These
offenses, as charged in the indictments, occurred on or about March 9 and November 1, 2019, respectively.
The victims testified that, at the time of trial, they were twenty-one and twenty-two years of age,
respectively. Appellant was convicted of both offenses and the sentences were imposed by the trial court
on March 22, 2022. Because slightly more than three years had passed between the date of the earliest
charged offense and the date of Appellant’s trial, neither victim could have been younger than eighteen
years of age, much less younger than seventeen, when they were sexually assaulted by Appellant.
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Because the trial court abused its discretion when it cumulated Appellant’s sentences
and signed the cumulation order, we sustain Appellant’s sole issue on appeal.
IV. This Court’s Ruling
We modify the judgments of the trial court in both cause numbers (1) to vacate
the cumulation order and (2) to show that the sentences imposed against Appellant
in both cause numbers shall be served concurrently. As modified, we affirm the
judgments of the trial court. See TEX. R. APP. P. 43.2(b).
W. STACY TROTTER
JUSTICE
July 27, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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