Barrow v. State (2006)
In Barrow v. State, 207 S.W.3d 377 (Tex. Crim. App. 2006), the Court of Criminal Appeals addressed whether a trial court's decision to cumulate sentences pursuant to Texas Penal Code section 3.03 violated the United States Supreme Court's decision in Apprendi v. New Jersey , the defendant's Sixth Amendment right to a jury trial, and due process.
The Court of Criminal Appeals held that, under Apprendi, when a defendant elects to have the jury assess punishment, "any discrete finding of fact that has the effect of increasing the maximum punishment that can be assessed must be made by the jury, even if that fact-finding occurs as part of the punishment determination." Id. at 379; see also Apprendi, 530 U.S. 466 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.").
The court noted that Apprendi prohibits the trial court from "unilaterally increasing individual sentences on the basis of facts that were not resolved by the jury." Barrow, 207 S.W.3d at 379.
The court stated that Apprendi does not "speak to a trial court's authority to cumulate sentences when that authority is provided by statute and is not based upon discrete fact-finding, but is wholly discretionary." Id.
A jury convicted Barrow of two counts of sexual assault and assessed punishment within the statutory punishment range for each conviction. Barrow, 207 S.W.3d at 379.
The Court of Criminal Appeals reasoned that when the trial court decided to cumulate the sentences, the court "in no way altered either of the individual sentences." Id.
The court's decision to cumulate the sentences "did not raise the 'statutory maximum' punishment for either offense." Id.
The court further concluded that because cumulating sentences does not "implicate discrete fact finding that affects the 'statutory maximum' punishment," the decision to cumulate also "does not activate the Sixth Amendment right to a jury determination." Id. at 380.
The court also analogized the decision to cumulate to the jury's--or the trial court's, in a bench trial--broad discretion to impose a punishment within the statutory punishment range and stated that the decision to cumulate, although statutorily placed with the trial court instead of the jury, is of an "essentially normative, non-fact-bound character." Id. at 381.
The court held that it does "not believe that the legislatively endowed, normative decision whether to cumulate sentences exceeds that level of discretion that the Supreme Court has always recognized as consistent with due process." Id. at 382.
"The Legislature has charged the trial court with the determination of whether to cumulate, and the trial court is free to make this determination so long as the individual sentences are not elevated beyond their respective statutory maximums." Barrow, 207 S.W.3d at 382.
The Court held that the Apprendi line of cases does not "speak to a trial court's authority to cumulate sentences when that authority is provided by statute and is not based upon discrete fact-finding, but is wholly discretionary."
Thus, the court held that the cumulative sentencing statute "does not violate the Sixth Amendment right to a jury trial."
The court also rejected the argument that the statutory scheme, which permits a trial court to decide whether to cumulate sentences, violates an appellant's right to due process. See id. at 382 ("We do not believe that the legislatively endowed, normative decision whether to cumulate sentences exceeds that level of discretion that the Supreme Court has always recognized as consistent with due process.").
In Barrow v. State, the appellant argued "that the decision by the trial court to cumulate his sentences was a violation of due process because it was essentially arbitrary, there being no definite or concrete criteria that govern the decision to cumulate." Id. at 380.
The appellant further asserted the decision to cumulate sentences is so arbitrary that it allows the trial court to exercise "'statutorily authorized judicial despotism.'" Id. at 380-81.
The court held the discretionary decision to cumulate sentences "no more violates due process than does the decision, by judge or jury, of what particular sentence to impose within the statutorily prescribed range of punishment." Id. at 381.
The court further explained:
As we have already noted, aside from a few specific instances where the range of punishment depends upon the determination of discrete facts, "deciding what punishment to assess is a normative process, not intrinsically factbound." Indeed, we have described the jury's discretion to impose any punishment within the prescribed range as essentially "unfettered." Subject only to a very limited, "exceedingly rare," and somewhat amorphous Eighth Amendment gross-disproportionality review, a punishment that falls within the legislatively prescribed range, and that is based upon the jury's (or trial court's, in a bench trial) informed normative judgment, is unassailable on appeal. The same thing is true for the discretionary decision whether to cumulate sentences. The Legislature was not required to provide the option to cumulate sentences at all. That the Legislature did so provide, but then reserved the cumulation aspect of punishment for the judge rather than the jury, does not change its essentially normative, non-fact-bound character.
The discretionary assessment of punishment within legislatively prescribed boundaries has long been ingrained and accepted in American jurisprudence. In United States v. Booker, the Supreme Court observed that it has "never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range." Further, the Court went on to say, "when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant." We do not believe that the legislatively endowed, normative decision whether to cumulate sentences exceeds that level of discretion that the Supreme Court has always recognized as consistent with due process. The Legislature has charged the trial court with the determination of whether to cumulate, and the trial court is free to make this determination so long as the individual sentences are not elevated beyond their respective statutory maximums. (Id. at 381-82.)
Judge Meyers, in dissent, took the position that allowing the trial judge to cumulate jury-determined sentences contradicts a Texas defendant's statutory right to have punishment assessed by the jury. Id. at 382.
Addressing constitutional challenges to judge-ordered cumulation, the majority opinion pointed out that, by statute, Texas permits a defendant to opt for jury-assessed punishment but the Legislature also has assigned the decision whether to cumulate sentences to the trial court. Id. at 380.