Carmichael v. State
2016 Tex. App. LEXIS 11285
| Tex. App. | 2016Background
- Defendant Terrence Carmichael (father/stepfather) was tried for multiple sexual offenses against three daughters; jury convicted him of continuous sexual abuse of a child (Count I), aggravated sexual assault of a child (Count II), and two counts of indecency with a child (Counts III & IV).
- Count I alleged continuous abuse from June 1, 2011 to June 14, 2013 (six acts against two complainants). Count II alleged an aggravated sexual assault against AC on June 15, 2011.
- The State abandoned one indictment count (aggravated assault against DT) before trial but elicited DT’s testimony at trial about extraneous offenses.
- Trial court assessed concurrent sentences: life for continuous sexual abuse and aggravated sexual assault; 20 years each for indecency counts.
- On appeal Carmichael raised double jeopardy, sufficiency, evidentiary admission (outcry/extraneous offense and SANE evidence), ineffective assistance/court oversight of counsel, and statutory/unanimity challenges to Texas Penal Code § 21.02(d).
Issues
| Issue | Carmichael's Argument | State's/Respondent's Argument | Held |
|---|---|---|---|
| Double jeopardy between continuous sexual abuse (Count I) and aggravated sexual assault (Count II) | Count II duplicates an act within the continuous-abuse period so punishment for both violates double jeopardy | No timely objection at trial; but claim reviewable if apparent on face of record | Court: Violates double jeopardy; vacated aggravated sexual assault conviction, retained continuous-abuse conviction |
| Sufficiency of evidence for aggravated sexual assault | Evidence insufficient to support Count II | Not reached in light of double jeopardy resolution | Not reached; sufficiency issue overruled as moot |
| Admission of extraneous-offense testimony (DT) and SANE testimony (Perusquia) | Trial court erred by admitting without required hearings under art. 38.37 and art. 38.072 / Rule 403 balancing | Defendant failed to object at trial; preservation required; hearing requirement is forfeitable | Court: Complaints forfeited for lack of timely objection; admission upheld on preservation grounds |
| Ineffective assistance / trial-court duty to ensure counsel competent after counsel’s stroke | Trial court should have intervened given counsel’s health and perceived lack of vigorous objections | Defendant raised no contemporaneous objections; court questioned counsel and defendant affirmed counsel competent; defendant must prove entitlement to new counsel | Court: No reversible error; defendant did not show lack of effective assistance or harm |
| Statutory/unanimity challenge to § 21.02(d) (continuous-abuse statute) | § 21.02(d) unconstitutional because jurors need unanimous agreement on specific acts/dates | § 21.02(d) requires unanimity on elements (two or more acts during 30+ days) not on specific acts; manner/means need not be unanimous | Court: Follows Fulmer; statute constitutional; unanimity satisfied as to elements |
Key Cases Cited
- Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000) (appellate review of double-jeopardy claims apparent on face of record)
- Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010) (Double Jeopardy Clause protects against multiple punishments for same offense)
- Littrell v. State, 271 S.W.3d 273 (Tex. Crim. App. 2008) (legislative intent governs when two offenses constitute same punishment)
- Price v. State, 434 S.W.3d 601 (Tex. Crim. App. 2014) (offenses listed in §21.02(c) are predicate/lesser-included offenses of continuous sexual abuse)
- Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) (remedy for multiple punishments: affirm most serious, vacate the other)
- Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004) (preservation rule applies to most complaints; forfeiture for failure to object)
- Fulmer v. State, 401 S.W.3d 305 (Tex. App.-San Antonio 2013) (upholding constitutionality of §21.02(d); unanimity required only as to elements, not specific acts)