Case Information
*1 Fourth Court of Appeals San Antonio, Texas OPINION
No. 04-12-00693-CR Anthony L. MALDONADO , Appellant
v.
The STATE of The STATE of Texas, Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR6679 Honorable Maria Teresa Herr, Judge Presiding Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: March 26, 2014
AFFIRMED AS MODIFIED
Anthony L. Maldonado appeals his convictions for the offenses of aggravated sexual assault of a child and indecency with a child by contact. Because they violate the Double Jeopardy Clause of the Fifth Amendment, we vacate the convictions for indecency with a child by contact under Count III and Count X and modify the trial court’s judgment of conviction to so reflect. In all other respects, we affirm the judgment of the trial court.
B ACKGROUND
Maldonado was charged with the offenses of aggravated sexual assault of a child and indecency with a child by contact. The indictment alleged five counts of aggravated sexual assault of a child, and eight counts of indecency with a child by contact, against two complainants, [1] committed on or about September 1, 2005, September 1, 2006, and March 1, 2007. The indictment also alleged in an enhancement paragraph a prior conviction of sexual assault.
The State waived Count V, and the remaining twelve counts were submitted to the jury, which found Maldonado guilty of each count. After Maldonado pleaded true to the enhancement paragraph, the trial court assessed punishment at life imprisonment on all counts, to run concurrently.
D ISCUSSION
On appeal, Maldonado complains that the trial court erred in: (1) sustaining the State’s objection to his question during voir dire on the basis that he was improperly attempting to commit the venire; (2) overruling his hearsay objection during the testimony of complainant S.R.; and (3) submitting Counts III and X of the indictment to the jury because they were lesser-included offenses of other aggravated sexual assault counts.
Voir Dire
Maldonado first argues that the trial court erred during voir dire when it sustained the State’s objection that defense counsel was attempting to commit prospective jurors based on the allegations in the indictment. Specifically, defense counsel attempted to ascertain whether the jurors would regard the multi-count indictment as evidence of guilt and add credibility to the complainants’ testimony, as demonstrated by the following exchange that occurred during individual voir dire:
Defense counsel: (addressing potential juror #15) You think that because they’ve been accused multiple times or there’s multiple accusations that that would make it so it would be hard for you to be fair, like you would go one way or the other?
Potential juror (#15): I guess an example would be if that child can explain multiple different times that it happened, then the likeliness of it happening is probably true.
Counsel: Just based on how many accusation there are, you - - Potential juror (#15): If it’s the one person. Now, if in the past there’s been other accusations from other people, maybe they weren’t brought up or whatever, I’m not sure how that works.
Counsel: Number 16, do you feel differently than number 15? Potential juror (#16): No, not really. I mean, we just have to hear the facts of the case.
Counsel: Even before hearing the facts of the case, though, do you think it’s more likely to be true?
Potential juror (#16): Yeah, I think if someone’s going to make up such an incredible lie, they can - - if it’s accused two different settings, they can lie about that same setting. You know, they would lie about both of those settings. Now, if it was something that by multiple people, multiple times, then, yes, it would sway a little bit, tend to believe it’s more accurate.
Prosecutor: I’m sorry to interrupt, but, Judge, I’m going - - I feel like this is going into improper commitment questions from this jury panel.
The Court: It’s close. And I do want to talk about it. I need the attorneys at the bench and the court reporter at the bench.
After a bench conference, the trial court sustained the State’s objection.
We review a trial court’s ruling regarding the limitation of voir dire questioning for an
abuse of discretion.
Davis v. State
,
Assuming, without deciding, that the question was proper and that the trial court erred by
denying Maldonado the right to ask it, we conclude that any error was harmless.
See
T EX . R. A PP . P. 44.2(b);
Woods
,
Hearsay
Maldonado next argues that the trial court erred in overruling his hearsay objection during the testimony of complainant S.R. The following exchange occurred during the defense’s re-cross- examination of S.R.:
Q: In March of 2007 you received a phone call, right?
A: Yes.
Q: From your cousin [M.R.], right?
A: Yes, sir.
Q: And this is the first time [M.R.] tells you that she’s being touched, right? A: Yes, sir.
Q: Yet you remark to your mom he’s touching [M.R.] again, right? A: Yes.
Q: But previous to that you had no indication that he was touching [M.R.], right?
A: No, I did not know until that time.
On redirect, the prosecution asked the following:
Q: So . . . , [S.R.], what did you mean when you said he’s touching her again? What did you mean when you told your mom that?
A: Well, she didn’t really explain to me how he touched her, but [s]he just said that - - that he rubbed her down there, that’s all she told me.
Q: Okay. Did she say that it had happened again?
Defense Counsel: Objection, your Honor. That’s a hearsay statement, I believe. Hearsay. Objection.
Prosecutor: Well, Judge, it’s being offered based on the questions by defense counsel.
The Court: It’s overruled. Go ahead.
Q: [By the prosecutor] So, in other words, you said to your mom[,] Nancy, He’s touching her again, or, He touched her again. Why did you use the word “again”?
A: Because he had already like, you know - - ‘cause I told my mom that he - - when [M.R.] had told me that, she told me - - she told me she said it. I told her like he touched her again. And I told my mom he touched her again.
Q: So that’s what [M.R.] told you, that it happened again?
A: Yes.
Here, before the defense’s hearsay objection, the jury had already heard evidence regarding the telephone conversation between the two complainants, in which M.R. first told her cousin S.R. that Maldonado had assaulted her. On direct, S.R. testified that M.R. called and she “was like, oh my gosh, [S.R.], he did it again.” S.R. asked M.R., “He touched you again?” And M.R. replied, “Yes, he touched me again.” S.R. told her mother that “Anthony touched [M.R.] again.” S.R. stated that her mother asked, “What do you mean he touched [M.R.] again?” No objections were lodged by the defense. On re-cross, the defense questioned S.R. regarding the statement that Maldonado had touched M.R. “again,” attempting to cast doubt on her assertion that she did not know that Maldonado had assaulted M.R. prior to receiving M.R.’s phone call. To clear up any confusion that may have been caused by S.R.’s use of the word “again,” the State on re-direct asked S.R. to explain what she had meant when she said that Maldonado had touched M.R. again.
The jury was informed by other witnesses that M.R. told S.R. that Maldonado had touched her again. S.R.’s mother testified that S.R. told her “it happened again” when M.R. called to tell S.R. that Maldonado had touched M.R. The defense likewise failed to object during S.R.’s testimony on direct where she repeatedly stated that Maldonado touched M.R. “again.” See Brooks v. State , 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (improper admission of evidence not reversible error if same or similar evidence is admitted without objection at another point during trial). We therefore overrule Maldonado’s second issue on appeal.
Double Jeopardy
Finally, Maldonado argues that the trial court erred in submitting the indecency allegations in Counts III and X of the indictment to the jury. Essentially, Maldonado argues that Counts III and X are barred by double jeopardy because they are subsumed in the aggravated sexual assault offenses and he is being punished twice for the same offenses. [2] The indictment alleged, in pertinent part, as follows:
COUNT I
on or about the 1st Day of September, 2005, ANTHONY MALDONADO, hereinafter referred to as defendant, did intentionally and knowingly cause the penetration of the SEXUAL ORGAN of [M.R.], a child who was younger than 14 years, by THE DEFENDANT’S SEXUAL ORGAN;
COUNT II
on or about the 1st Day of September, 2005, ANTHONY MALDONADO, hereinafter referred to as defendant, did intentionally and knowingly cause the penetration of the SEXUAL ORGAN [of] [M.R.], a child who was younger than 14 years, by THE DEFENDANT’S FINGER;
COUNT III
on or about the 1st Day of September, 2005, ANTHONY MALDONADO, hereinafter referred to as defendant, did intentionally and knowingly engage in sexual contact with [M.R.], A FEMALE CHILD YOUNGER THAN SEVENTEEN (17) YEARS AND NOT THE SPOUSE OF THE DEFENDANT by touching PART OF THE GENITALS of [M.R.] with the intent to arouse or gratify the sexual desire of any person;
COUNT IX
on or about the 1st Day of September, 2005, ANTHONY MALDONADO, hereinafter referred to as defendant, did intentionally and knowingly cause the penetration of the SEXUAL ORGAN of [S.R.], a child who was younger than 14 years, by THE DEFENDANT’S FINGER;
COUNT X
on or about the 1st Day of September, 2005, ANTHONY MALDONADO, hereinafter referred to as defendant, did intentionally and knowingly engage in sexual contact with [S.R.], A FEMALE CHILD YOUNGER THAN SEVENTEEN (17) YEARS AND NOT THE SPOUSE OF THE DEFENDANT by touching PART OF THE GENITALS of [S.R.] with the intent to arouse or gratify the sexual desire of any person[.]
Although a person who commits more than one discrete sexual assault against the same
complainant may be convicted and punished for each separate act, even if the acts were committed
in close temporal proximity, the penal statutes do not permit “stop-action” prosecutions.
See Vick
v. State
,
In this case, Maldonado was charged with penetrating M.R.’s vagina both with his penis
and digitally, on or about September 1, 2005 (Counts I and II); he was also charged with touching
M.R.’s genitals on or about September 1, 2005 (Count III). At trial, M.R. testified that Maldonado
put his penis and his fingers in her vagina on several occasions. She did not, however, testify that
he touched her genitals by any other means, including orally. Thus, there was no evidence
indicating that Maldonado committed the offense of indecency by touching her genitals separate
and apart from committing the aggravated sexual assaults by penile and digital penetration of
M.R.’s vagina.
See Aportela v. State
, No. 08–05–00396–CR, 2007 WL 2523551, at *7 (Tex.
App.—El Paso Sept. 6, 2007, pet. ref’d) (not designated for publication) (holding that indecency
by touching was incident to and subsumed by the aggravated sexual assault by digital penetration
conviction);
Belt v. State
,
Maldonado was similarly charged with digitally penetrating S.R.’s vagina on or about
September 1, 2005 (Count IX) and with touching S.R.’s genitals on or about September 1, 2005
(Count X). At trial, S.R. clearly testified that Maldonado never touched her genitals with anything
other than his hand. Accordingly, the record before us does not contain any evidence supporting
the conclusion that Maldonado touched S.R.’s genitals except in the course of or incident to the
penetration of her vagina by his finger.
See Aportela
,
Based on the testimony presented at trial, we conclude that the indecency by touching
alleged in Count III was incident to and subsumed by the aggravated sexual assault by penile
penetration alleged in Count I and digital penetration alleged in Count II.
See Patterson v. State
,
The proper remedy is to modify the judgment by vacating the lesser conviction and
sentence.
See Ex parte Cavazos
,
C ONCLUSION
Because they violate the Double Jeopardy Clause of the Fifth Amendment, we vacate the convictions for indecency with a child by contact under Count III and Count X and modify the trial court’s judgment to so reflect. As modified, the judgment of the trial court is affirmed.
Rebeca C. Martinez, Justice PUBLISH
Notes
[1] The complainants were both under the age of 14 at the time the assaults occurred; at trial, S.R. was 17 years old and M.R. was 19 years old.
[2] Although Maldonado did not raise a double jeopardy complaint in the trial court, we note that a double jeopardy
claim may be raised for the first time on appeal when, as here, the “undisputed facts show the double jeopardy violation
is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no
legitimate state interests.”
Gonzalez v. State
,