Loving v. State
2013 Tex. Crim. App. LEXIS 950
| Tex. Crim. App. | 2013Background
- Appellant Austin Loving, age 19, was tried for indecency with a child involving two sisters (ages 8 and 9); convictions included three counts of indecency by contact and two counts by exposure.
- Relevant facts: Loving opened porn on a computer, exposed his genitals and masturbated in the living room while the girls were present; at a later point he touched the younger girl's breast and caused the older girl to touch his penis (she “punched” it).
- The court of appeals vacated one exposure conviction (as to the older sister) on double-jeopardy grounds, concluding the exposure was subsumed by the contact offense; it affirmed the other convictions.
- The State sought review to decide whether exposure and contact under Tex. Penal Code § 21.11 are separately punishable when exposure precedes contact and whether the exposure here was subsumed.
- The Texas Court of Criminal Appeals framed the question as the allowable unit of prosecution within a single statutory scheme (whether separate subsections constitute distinct offenses) and examined the statute’s gravamen (focus) and caselaw.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Loving) | Held |
|---|---|---|---|
| Whether indecency-by-exposure (§21.11(a)(2)) and indecency-by-contact (§21.11(a)(1)) are distinct punishable offenses when committed against the same victim in the same transaction | Statute’s subsections criminalize different conduct; Blockburger and cognate‑pleadings show distinct elements; legislative intent presumed to permit multiple punishments | The provisions are functionally the same under cognate‑pleadings; exposure is subsumed by contact when occurring as part of the same act | Held they are distinct; the gravamen is the prohibited conduct and each completed act is a separate unit of prosecution (reversed court of appeals’ vacatur) |
| Whether the exposure in this case was factually subsumed by the contact (so double jeopardy bars both convictions) | Exposure and contact have different elements and protect different harms; exposure was not merely part of the contact | The exposure preceded and was part of the same course of conduct as the contact such that exposure was subsumed | Held not subsumed as a matter of law here: exposure and contact protect different harms and each prohibited act completed an offense; conviction for exposure was permissible |
| Whether Blockburger/cognate‑pleadings analysis controls when subsections of the same statute are at issue | Blockburger applies when separate statutes or different offenses from a single act are alleged; but State argued elements differ under Blockburger | Loving argued cognate‑pleadings shows overlap so double jeopardy forbids cumulative punishment | Court held Blockburger/cognate‑pleadings is for offenses in different statutes or distinct offenses from the same act; when subsections of same statute are at issue the proper inquiry is unit of prosecution / legislative intent (gravamen) |
| Whether other Ervin factors or continuum doctrines (Weinn/Lopez) make offenses the same | If ambiguous, Ervin factors should be considered; indecency focuses on conduct so different conduct = different offenses | The Ervin factors weigh toward not allowing multiple punishments when offenses are closely related in same statute | Court applied gravamen analysis, found conduct‑oriented statute so legislative intent supports multiple punishments; not a continuum case here |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (test for same‑offense when different statutory provisions)
- Vick v. State, 991 S.W.2d 830 (Tex.Crim.App.1999) (when subsections define separate conduct, each completed act is separate unit of prosecution)
- Gonzales v. State, 304 S.W.3d 838 (Tex.Crim.App.2010) (gravamen/legislative‑intent analysis governs multiple punishments)
- Pizzo v. State, 235 S.W.3d 711 (Tex.Crim.App.2007) (indecency‑by‑contact is conduct‑oriented; distinct touching acts are separate offenses)
- Harris v. State, 359 S.W.3d 625 (Tex.Crim.App.2011) (unit of prosecution for exposure is each exposure)
- Ex parte Ervin, 991 S.W.2d 804 (Tex.Crim.App.1999) (nonexclusive factors for legislative‑intent inquiry)
- Patterson v. State, 152 S.W.3d 88 (Tex.Crim.App.2004) (limitations on "stop‑action" prosecutions; a completed act may subsume parts of that same act)
- Weinn v. State, 326 S.W.3d 189 (Tex.Crim.App.2010) (continuum analysis)
- Lopez v. State, 108 S.W.3d 293 (Tex.Crim.App.2003) (continuum analysis)