Miguel Angel Munoz v. State, 11-14-00029-CR

Background

Appellant Miguel Angel Munoz was convicted by a jury of two counts of aggravated sexual assault of a child (victim C.S., age 12) and sentenced to 75 years confinement and a $10,000 fine on each count, to run concurrently.
Evidence: eyewitness Chaney observed a struggle; victim identified Munoz; physical items (mp3 player, ribbon) linked to scene; sexual-assault exam collected DNA matching Munoz from spermatozoa on two swabs.
Munoz testified he believed the victim was an adult who consented; admitted stealing the victim’s phone and discarding a shirt.
On appeal Munoz raised eight issues: jury-charge requests regarding extraneous-offense evidence, requests for lesser-offense instructions, omission of indecency-with-child instruction, a prosecutor sidebar comment objection, a double-jeopardy challenge to the two convictions, and a claim that the court impermissibly “stacked” two $10,000 fines.
The court modified the judgments to make the two $10,000 fines run concurrently (reducing the aggregate fine reflected in the withdrawal order and costs) and otherwise affirmed.

Issues

Issue	Munoz's Argument	State's Argument	Held
1/3: Failure to instruct that extraneous offenses may be weighed in Munoz’s favor	Jury should have been instructed that evidence of extraneous solicitation/theft could be weighed favorable to defense (supports claim he committed only those acts)	Proper limiting instruction on extraneous offenses was given; an instruction singling out evidence for favorable weight would be an impermissible comment on weight of evidence	Overruled — no error in omitting the requested instruction
2/4: Failure to give lesser-offense instructions for solicitation and theft	Jury should have been instructed on lesser offenses (solicitation, theft)	Those crimes are not lesser-included offenses of aggravated sexual assault; defendant did not request such instructions; court has no sua sponte duty to instruct	Overruled — no duty to give unrequested lesser-offense instructions
5: Failure to instruct on indecency with a child as a lesser included offense	Indecency with a child is a lesser included offense and should have been submitted	Defendant did not request it; charged acts (penetration and contact with anus/sexual organ) are not properly resolved in favor of indecency; court need not sua sponte instruct	Overruled — no reversible error
6: Prosecutor’s sidebar comment and trial-court ruling	Trial court erred in overruling objection to prosecutor’s comment and violated due process	Objection was not properly preserved: the examining counsel did not make/renew the objection or request a ruling; appellate complaints were not preserved/briefed	Overruled — error not preserved
7: Double jeopardy from two convictions under §22.021	Conviction on two counts of same statute constitutes double punishment	Vick and related precedent treat separate acts (penetration of anus; contact with sexual organ) as separate statutory offenses under conduct-oriented statute	Overruled — convictions for two distinct acts do not violate double jeopardy
8: Stacking of two $10,000 fines when sentences are concurrent	Two $10,000 fines impermissibly stacked for collection/withdrawal purposes	Fines for concurrent sentences must run concurrently; trial court’s papers reflected $20,000 in error; State concedes error	Sustained in part — judgments modified to make fines concurrent and correct withdrawal/order amount

Key Cases Cited

Murphy v. State, 44 S.W.3d 656 (Tex. App.—Austin 2001) (jury-charge instruction obligations)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (harm analysis for jury-charge error)
Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007) (limiting instruction for extraneous-offense evidence)
Matamoros v. State, 901 S.W.2d 470 (Tex. Crim. App. 1995) (instruction singling out evidence may impermissibly comment on weight)
Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999) (Section 22.021 is conduct-oriented; separate acts may be separate offenses)
Crook v. State, 248 S.W.3d 172 (Tex. Crim. App. 2008) (fines for concurrent sentences must run concurrently)
Nolan v. State, 39 S.W.3d 697 (Tex. App.—Houston [1st Dist.] 2001) (appellate court authority to reform judgments)