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Click here for the full text of this decision FACTS:Bobby Glenn Barrow (appellant) was charged with two counts of sexual assault of a child, arising from the same incident that involved a 15-year-old victim. The jury assessed punishment at 15 years of imprisonment for count one and 20 years imprisonment for count two. The trial court ordered the sentences to run consecutively. On appeal to the 10th Court of Appeals in Waco, Barrow claimed that because he elected to have the jury assess punishment, the trial judge’s decision to cumulate the sentences was a violation of his constitutional right to a jury trial and his constitutional right to due process. In an unpublished opinion, the 10th Court explained that Texas Penal Code �3.03 provides that when an accused is found guilty of more than one offense arising from the same criminal incident, and the offenses are violations of Texas Penal Code �22.011, committed against a victim younger than 17 years old, the sentences may run either consecutively or concurrently. In response to Barrow’s argument that this section does not designate who makes the decision to run the sentences consecutively, rather than concurrently, the 10th Court said that Art. 42.08 of the Code of Criminal Procedure vests discretion in the trial court to order concurrent or consecutive sentences. The Court of Criminal Appeals (CCA) granted the appellant’s petition to examine his claim that the court of appeals erred in overruling his fifth and sixth points of error, because the trial court erroneously cumulated his sentences in violation of his constitutional rights to a jury trial and due process, respectively. Barrow argued that case law to the contrary should be overruled, especially in light of the recent line of opinions by the U.S. Supreme Court beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000). HOLDING:Affirmed. The Apprendi line of cases, the CCA stated, requires that in any case in which the defendant has elected to exercise his Sixth Amendment right to a jury trial, “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.” Apprendi and its progeny, the CCA stated, “clearly deal with the upper-end extension of individual sentences, when that extension is contingent upon findings of fact that were never submitted to the jury.” The court held that the Texas Legislature’s judgment placing the decision whether to run multiple sentences concurrently or consecutively with the trial court instead of the jury does not violate the Sixth Amendment right to a jury trial. The court further stated that a trial court’s decision whether to cumulate sentences exceeds that level of discretion that the U.S. Supreme Court has always recognized as consistent with due process. OPINION:Price, J., delivered the opinion of the court, in which Keller, P.J., and Womack, Johnson, Keasler, Hervey, Holcomb and Cochran, J.J., joined. DISSENT:Meyers, J. “I respectfully dissent from the majority’s holding that a trial judge has discretion to cumulate jury-determined sentences under Texas Penal Code Section 3.03. . . . [A] defendant in Texas receives more protection than provided by the Sixth Amendment in that he has the statutory choice of having his punishment assessed by a jury of his peers in addition to his constitutionally guaranteed right to a jury trial. Allowing the trial judge to cumulate the jury-determined sentences is contrary to this choice of having a jury of peers assess punishment rather than a judge.”

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