Jimmy Don Price v. State
2013 Tex. App. LEXIS 11766
Tex. App.2013Background
- Jimmy Don Price was indicted on four counts for sexual offenses against his stepdaughter: continuous sexual abuse (count 1), two counts of indecency with a child by contact (counts 2 & 3), and attempted aggravated sexual assault (count 4).
- Jury convicted Price on all counts; sentence: 32 years for continuous sexual abuse and 20 years (concurrent) for attempted aggravated sexual assault.
- Continuous sexual abuse (Tex. Penal Code §21.02) requires two or more acts of sexual abuse over a 30+ day period; §21.02(c) lists offenses that qualify as "acts of sexual abuse." §21.02(e) restricts convicting/ punishing a defendant for both continuous abuse and listed subsection (c) offenses involving the same victim unless certain conditions are met.
- Price did not raise pre-trial objections to the indictment or contemporaneous trial objections about multiple punishment; he raised a double-jeopardy challenge on appeal arguing attempted aggravated sexual assault is subsumed by the continuous sexual abuse conviction.
- The court treated the attempted aggravated sexual assault (as pled and submitted) as effectively the same for double-jeopardy purposes as aggravated sexual assault when based on the same acts and time period, retained the continuous-sexual-abuse conviction (greater sentence) and vacated the attempted aggravated sexual assault conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attempted aggravated sexual assault is barred by double jeopardy when convicted along with continuous sexual abuse based on the same victim and time period | Price: attempted aggravated sexual assault is a lesser-included/same offense and thus cannot be separately punished when continuous sexual abuse covers the same acts/time frame | State: attempted aggravated sexual assault is not listed in §21.02(c), so the Legislature intended separate punishment; attempted offenses can be charged separately | Court: Satisfied double-jeopardy; treated the attempted aggravated sexual assault as effectively the same for purposes of §21.02(e) given how it was pled/submitted. Affirmed continuous sexual abuse (32 years) and vacated attempted aggravated sexual assault conviction (20 years) |
| Whether §21.02(d) (non‑unanimity on specific acts/dates) violates due process/equal protection as applied to Price | Price: §21.02(d) is unconstitutional on due process and equal protection grounds | State: (not detailed on appeal); Price failed to preserve the challenge | Court: Issue forfeited—Price did not raise the challenge in the trial court; claim overruled |
Key Cases Cited
- Brown v. Ohio, 432 U.S. 161 (Sup. Ct.) (greater and lesser‑included offenses cannot both be punished)
- Littrell v. State, 271 S.W.3d 273 (Tex. Crim. App.) (legislative intent governs when multiple punishments are allowed)
- Soliz v. State, 353 S.W.3d 850 (Tex. Crim. App.) (§21.02(e)(3) makes listed subsection (c) offenses always lesser‑included offenses of continuous sexual abuse)
- Ex parte Denton, 399 S.W.3d 540 (Tex. Crim. App.) (remedy: retain conviction with greater sentence and set aside the other)
- Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App.) (most serious offense = highest sentence assessed)