DeLeon v. State

In DeLeon v. State, 294 S.W.3d 742, 745 (Tex. App.--Amarillo 2009, pet. ref'd), a jury convicted the appellant of sixteen counts of various sexual offenses against a child. DeLeon, 294 S.W.3d at 745. Ten of those offenses occurred prior to the effective date of the 1997 amendment, and the trial court ordered that those sentences be served concurrently. Id. The remaining six counts occurred after the 1997 amendment was effective, and the trial court ordered that those sentences be served consecutively. Id. Furthermore, the trial court ordered that the sentences for the ten pre-amendment offenses be served concurrently first, and once those were discharged, the remaining six sentences would begin to run consecutively. Id. The appellant contended that the sentences for the post-amendment offenses could not be "stacked on top of" the sentences for pre-amendment offenses. The Amarillo Court of Appeals affirmed based on statutory construction principles. Id. at 747-48. The court held that the unambiguous language of section 3.03 and the 1997 amendment required concurrent sentencing for offenses committed before September 1, 1997, and gave the trial court discretion to cumulate the sentences for offenses committed after that date. Id. at 747, 749. Therefore, the sentences for the post-amendment offenses could be imposed to run consecutively to the sentences for the pre-amendment offenses. Id. In DeLeon v. State, the defendant was prosecuted for offenses during a criminal episode spanning eight years and comprising aggravated sexual assault, sexual assault, and indecency with a child. He received concurrent sentences of imprisonment for offenses committed before September 1, 1997, and consecutive sentences of imprisonment for offenses committed after that date. Id. The court in DeLeon considered the issue of the trial court's discretion with regard to consecutive sentencing when Section 3.03(b) offenses committed after the effective date of the 1997 amendment are tried together with such offenses committed before the effective date. The court stated: We think the answer to the question presented is found in the statutory language establishing the effective date of the 1997 amendment to section 3.03. As the Court of Criminal Appeals pointed out in Bahena, 195 S.W.3d at 705, the legislature used different "effective date" language in the 1995 and 1997 amendments. The legislature made the 1995 amendment, permitting consecutive sentences for multiple intoxication manslaughter convictions, applicable only if each offense joined for trial was committed on or after the amendment's effective date, September 1, 1995. The effective date language of the 1997 amendment does not contain such a provision. The 1997 statute simply stated that its change in law applies only to "an offense committed on or after" its effective date, September 1, 1997, and that offenses committed before that date are subject to the law in effect when the offense was committed. Act of May 31, 1997, 75th Leg., R.S., ch. 667, 7, 8, 2250, 2252-53. (DeLeon v. State, 294 S.W.3d at 746-7.) The court found that the trial court had discretion to cumulate sentences for the offenses committed after September 1, 1997. DeLeon v. State, 294 S.W.3d at 749.