Parfait, Hal Vernon v. State ( 2004 )

Opinion issued January 29, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00473-CR

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HAL VERNON PARFAIT, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 272nd District Court

Brazos County, Texas

Trial Court Cause No. 28,316-272

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MEMORANDUM OPINION ON REMAND

          A jury convicted appellant, Hal Vernon Parfait, of attempted aggravated sexual assault of a child and of indecency with a child by exposure. The trial court imposed a life sentence and a $10,000 fine for the attempted sexual assault conviction and 20 years and a $10,000 fine for the indecency with a child conviction. The court ordered the sentences to run consecutively under section 3.03(b)(2)(A) of the Penal Code. Tex. Pen. Code Ann. § 3.03(b)(2)(A) (Vernon Supp. 2004). Section 3.03(b)(2)(A) provides that a trial judge may assess sentences to run consecutively for convictions of more than one offense arising out of the same criminal episode when the conviction is for an offense “under Section 21.11 [indecency with a child], 22 .011 [sexual assault], 22.021 [aggravated sexual assault], 25.02 [prohibited sexual conduct], or 43.25 [sexual performance by a child] committed against a victim younger than 17 years of age.” Id.

          On appeal, Parfait asserts that the trial court erred in ordering his sentences to run consecutively because section 3.03(b)(2)(A) does not include “attempt” offenses. A panel of this court affirmed the trial court’s judgment, holding that the trial court did not err in cumulating appellant’s sentences. Parfait v. State, 85 S.W.3d 829, 831 (Tex. App.—Houston [1st Dist.] 2003), rev’d, No. 1786-02, slip op. at 7 (Tex. Crim. App. Nov. 12, 2003).

          The Court of Criminal Appeals reversed and remanded, holding that section 3.03(b)(2)(A) does not include attempted offenses. Parfait, No. 1786-02, slip op. at 1-2. The court held that “if a person is found guilty of an attempted offense, his conviction is not under both section 15.01 and the underlying penal code provision, and so section 3.03(b)(2)(A) does not include attempted offenses.” Id. at 5. The plain language of section 3.03(b)(2)(A) fails to enumerate section 15.01, and therefore it excludes attempted offenses. Id. at 6. The two sentences in this case must therefore run concurrently. We hold that the trial court erred in ordering appellant’s sentences to run consecutively.

          On remand to this court, Parfait filed a motion for leave to file a supplemental memorandum of law. Parfait’s motion is granted. In his supplemental brief, he contends that we should reverse and remand for a new punishment hearing rather than reform and affirm because the trial court possibly could have assessed a more severe punishment if it had realized it could not cumulate the sentences. This contention overlooks the fact that the trial court already has assessed the maximum sentence for both counts.

Conclusion

          The judgment for count two, indecency with a child, states, “It is the Order of this Court that this sentence run consecutive to the sentence in Cause No. 27,316 Count One.” Based on the Court of Criminal Appeals’s instructions, we reform the judgment for count two to state, “It is the Order of this Court that this sentence run concurrent to the sentence in Cause No. 27,316 Count One.” As reformed, we affirm the judgment for count two. The judgment for count one, attempted aggravated sexual assault of a child, is affirmed.   

          Parfait’s motion for leave to file a supplemental memorandum of law on remand is granted. Any other pending motions are denied as moot.

                                                             Jane Bland

                                                             Justice

Panel consists of Justices Taft, Keyes, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).