*1 HENDRIX, Appellant, William Curtis Texas, Appellee.
The STATE 14-03-00951-CR, 14-03-00950-CR,
Nos. 14-03-00953-CR,
14-03-00952-CR,
14-03-00954-CR. Texas, Appeals
Court of Dist.). (14th
Houston
Nov.
guilty as all five cases and punishment imprisonment assessed at life in each case. The trial court ordered the consecutively. sentences run Appellant four points raises error on appeal, arguing the trial court erred charging disjunc- separate offenses one); (point failing tive of error *4 jury on the lesser included indecency by expo- offenses of a child with sure and (points contact of error two three), (3) and and cumulating appellant’s proof sentences absent the convictions were for offenses occurring on after four). September (point of error two, three, points We overrule of error and four, one; part point and of error we point sustain error one as relates to Accordingly, cause number 955264. we judgments affirm the in trial court cause 955262, 955263, 955265, numbers 955266; judgment reverse the in the trial court cause number 955264and remand that for further proceedings. cause FACTUAL AND PROCEDURAL BACKGROUND Goode, Houston, E. Kenneth for Appel- and B.S. M.S. are the minor children of lant. S., In separated Alfred Jr.1 Alfred Cameron, Houston, Carol M. for State. mother, B.S., from the children’s his son, M.S., in moved Alfred. with ANDERSON, Panel consists Justices daughter, continued to with her moth- live HUDSON, and FROST. divorce, In er. Alfred filed for M.S. moved in with Alfred and B.S. MAJORITY OPINION “Bill,” Alfred characterized appellant, ANDERSON, S. JOHN Justice. family “the best friend of the for a long Appellant “big William Curtis Hendrix time” brother” to him. was who was like aggravated in with sexual assault Alfred appellant shared residence with five cases consolidated for trial. Three on two The first time occasions. (trial 955262, 1997, stayed cases court cause numbers Alfred and B.S. in ap- when 955264) 955263, and alleged pellant’s apartment. involved acts The second time was (trial M.S.; against appellant two cases court cause when came live 955266) Alfred, B.S., M.S., numbers 955265 and involved acts in house on Burr alleged against appellant B.S. A found inherited when his fa- Street Alfred August 1. At time trial B.S. was thirteen and M.S. was eleven. a week had about that it been a Dr. Ferrer There was away
ther passed sexually time she was the last when Alfred or so since five months of about period told girl- hospital, M.S. also living Alfred’s At were assaulted. and M.S. and, physician that location, during emergency room at a pediatric friend different con- time, appellant in and the “last lived alone with the assailant this B.S. “Bill” was According to ago. Burr Street. the house on been week tact” had B.S., appellant slept in the same he and were outcry, and B.S. she After M.S.’s Later, when Alfred during that time. bed care. October in foster placed into the house on moved back and M.S. S., uncle, tem- became their Marcus their Street, in the began sleeping Burr M.S. At point legal guardian. porary slept on the and B.S. appellant, bed with time, had not disclosed B.S. floor. In late No- him. sexually assaulted had Alfred, B.S., 29, 2002, August On and B.S. Marcus took M.S. vember stepmother, visiting Alfred’s M.S. were *5 counselor, and, of toward the end to see a upset and asked Deb- Debbie. M.S. was psychologist when the the intake session to daughter talk fifteen-year-old bie’s sexually had been asked B.S. whether hearing After what M.S. private. her said, abused, psychologist “yes.” B.S. The say, daughter Debbie’s told the had to talk- from perpetrator was knew who said, and what had Debbie adults M.S. B.S. if he did he asked ing with M.S. When told then talked with M.S. M.S. Debbie said, him, “yes.” thing to B.S. talked appellant had molested her and also psycholo- met with the day The after B.S. things appellant had done about other to the sexual abuse disclosed gist, B.S. some bruises on to her. Debbie observed Protec- Marcus contacted Child Marcus. vaginal her looked irri- M.S. and that area turn, who, Services, contacted tive that Deb- tated. When Debbie told M.S. department. police Alfred, hysteri- became bie had tell M.S. Dr. Laho- February Sheela On cal, tell because begging Debbie not to Assess- ti, Children’s pediatrician that, if she appellant had threatened M.S. Center, B.S. told Dr. B.S. ment examined told, Alfred, and CPS he would shoot body touched his whole Lahoti “Bill” had away. would take M.S. and, “private” specifi- with his hands Alfred what M.S. had After Debbie told mouth, buttocks, back cally, B.S.’s said, hap- what had asked M.S. Alfred appellant’s “private.” touched were me, “He touched replied, M.S. pened. how did not know Lahoti that he B.S. told police took to the dad.” Alfred then M.S. occurred, the last had but many times this station, they the police From station. contact stated the in 2001. B.S. time was Hospital, where went Texas Children’s only ab- hurt, The did not bleed. but he a sexual Dr. Kathleen Ferrer conducted some normality Dr. Lahoti observed following of assault examination M.S. around the anus. mild redness day. 15, 2003, re- grand jury July On bruises, found different Dr. Ferrer containing charges five indictments turned buttocks and stages healing, M.S.’s as follows: summarized appellant against not genital did leg. examination left redness, tears, or bruising, lacera- reveal No. 955262 Trial Cause Court A tions, hymenal ring was intact. and the 15, 2002, appel- August or about not On of M.S.’s anus did examination visual anus penetration caused the lant findings. M.S. told abnormal reveal of M.S. by placing his organ sexual Trial Court No. Cause M.S.; the anus of 3, 1997, August On or about appellant 15, 2002, On or August about appel- penetration caused the mouth of lant caused the anus of M.S. to contact organ B.S. with the sexual appellant; organ appellant. the sexual August
On or about caused the mouth of B.S. to contact the Trial Court Cause No. 955263 organ appellant. sexual 15, 2002, On about August appel- lant penetration caused the of the mouth Appellant pleaded in each of M.S. with the organ sexual of appel- cause, and the five causes were tried to- lant; trial, gether jury. At pre- the State 15, 2002,
On or August about appel- testimony sented from following wit- lant caused mouth of M.S. to contact (1) Ferrer, nesses: Dr. who conducted the sexual organ appellant. M.S.; initial sexual assault examination of (2) Stacy Officers Romano and Blake Pres-
Trial Court Cause No. 955264 ent, who complaint handled M.S.’s of al- (3) (4) leged abuse; M.S.; On about Debbie August appel- S.; G., Tiffany outcry lant caused witness for of the female M.S.; Taft, Ellen a nurse who placing per- M.S. his sexu- *6 organ al in formed a the female sexual sexual assault examination organ of of M.S.; (7) M.S.; Dexter, Officer Matthew who investigated allegations the sexual abuse of 15, 2002, August
On about appellant (8) B.S.; (9) (10) B.S.; Alfred; M., Frank penetration caused the of the female (11) brother-in-law; M., Mary Alfred’s organ sexual of placing M.S. fin- his (12) cousin; M.S. nine-year-old and B.S.’s ger M.S.; in the female organ sexual of S.; (13) Lahoti, Marcus Dr. pediatri- 15, 2002, On or August about appel- B.S.; cian who examined Daniel Sand- lant caused the organ sexual of toM.S. and Audrey King, ers psychologists; and contact organ the sexual appellant. of Rambur, Judy a psychologist at the Children’s Assessment Center. The de- Trial Court Cause No. 955265 presented fense testimony Virginia of or August On about appellant Hendrix, mother, appellant’s Reagan penetration caused the of the of anus Martinez, appellant’s uncle. by placing organ B.S. his sexual in the B.S.; of anus All five causes were submitted to the 3, 1997, orOn about August appellant jury in charge. the same For each cause caused the anus number, of B.S. to contact the the trial court forth set the alle- of organ appellant. disjunctive.2 gations in the Appellant re- example, following charge intentionally For trial unlawfully, knowingly there or [M.S.], court cause number 955262 was submitted to cause the of anus of jury: person younger years age than fourteen defendant, spouse Cause not the No. 955262 placing the anus of Now, [M.S.]; you if find be- from evidence yond a reasonable that on doubt or about day August you beyond the 15th If find Harris from the evidence Texas, County, did then and reasonable doubt on about 15th Texas is found in- unanimous verdict lesser the court submit quested Constitution). instructing the Generally, indecency with child cluded offenses of committing theories jury on alternative by exposure for each cause by contact and una- violate the does not the same offense The trial court submitted number. State, v. Martinez nimity requirement. indecency included offense lesser (Tex.Crim.App.2004); 129 S.W.3d 955264, but de- number contact cause State, 256, 258 v. S.W.2d Kitchens the less- request nied submit appellant’s on alter- Charging (Tex.Crim.App.1991). remaining four offenses in the er included however, theories, from differs native causes. involving separate offenses charging appellant guilty found jury Martinez, 129 S.W.3d incidents. separate five assessed in all causes and una- runs afoul at 103. The latter in each imprisonment at life punishment State, v. See Francis nimity requirement. The trial court ordered each cause. (Tex.Crim.App.2000) 36 S.W.3d consecutively. run sentences to indecency with (holding that instances of against constituted child DISCUSSION victim, impermissible and was Jury Disjunctive One: Point of Error disjunctive). jury in the charge Charge jury charge for contends the Appellant error, con- point In his first in the alleged separate offenses each cause charging the trial court erred tends not alternative theories disjunctive and disjunctive num- jury in for each cause support committing the same offense. He contends the submitted ber. cases: on three Vick relies convict him without permitted Francis (Tex.Crim.App.1999); as to which reaching para- a consensus (Tex.Crim.App. *7 had graph of the indictment State M.P., 2000); re In 126 S.W.3d doubt, proven beyond a reasonable result- pet.). no We Antonio (Tex.App.-San ing in a less than unanimous verdict. alleged charge analysis of the begin our cases. examining these three error requires law
Texas unanimous Vick, deciding context of In felony criminal cases. verdict Tex. question, Texas Court jeopardy double V, 13; § art. PROC. Cmm. CONST., Tex.Code Appeals of concluded Criminal (Vernon 36.29(a) Supp.2004); AnN. art. see separately each de- Legislature intended also Molandes v. 571 S.W.2d Penal Code sec- proscribed by act scribed (discussing constitu (Tex.Crim.App.1978) separate statuto- to constitute a tion 22.021 felony right to verdict tional unanimous 832-33. Section ry offense. 991 S.W.2d at cases); Phillips v. part: in relevant provides 22.021 6-7 (Tex.App.-Houston 351-52 & nn. (a) filed) an offense: person A commits pet. (noting right to
[14th Dist.] Texas, you so evidence be- County, find from the day August Unless of Harris doubt, you if have yond did then and there unlawful- or the defendant reasonable thereof, intentionally knowingly cause the ly, acquit or you will doubt reasonable M.S., person younger four- than anus of say by your verdict “Not the defendant and spouse years age not the of the teen of Guilty.” defendant, organ of contact the sexual added). (Emphasis defendant; you then will find charged in indictment. person: if the specific intent is reflected in the conduct
prohibited in applicable the four sections (i) prohibits pen- this case. Section (B) intentionally knowingly: or etration of a male or female child’s anus (i) penetration causes the of the or organ the sexual of a female child. anus organ by any or sexual a child penetration The focus of the child’s means; genital area. Somewhat related is sec- (ii) penetration causes the of the (ii), penetration tion prohibits which mouth of a child organ the sexual the child’s mouth by the defendant’s sex- actor; of the (i) ual organ. Both section and section (iii) organ causes the sexual of a (ii) child, penetration concern one penetrate child to contact or focusing area, genital on the and the anus, mouth, organ anoth- contrast, other on the In mouth. sec- actor; person, including er (iii) (iv) tions address (iv) causes the anus of a child to and contact of in a another sexual fash- mouth, anus, contact or sexual ion, by organ anus organ person, of another including the child. The statute many criminalizes actor; or types sexually assaultive conduct with (v) causes the mouth of a child to Yet, a child. each usually section entails contact the anus or sexual separate different and acts to commit person, actor; another including the various, prohibited conduct. This specificity legislature’s reflects the in- (2) if: separately tent to distinctly crimi- pro-
nalize act which constitutes the complete scribed conduct. An offense is (B) younger the victim than a person when commits years age.... sum, proscribed acts. In 22.021 is a Sec. 22.021(a) (Vernon § Tex. Pen.Code Ann. statute; conduct-oriented uses the Supp.2004). conjunctive “or” distinguish sepa- reaching conclusion that sec conduct; rate different and its various offenses,
tion 22.021 describes sections specifically define sexual con- *8 Texas of Appeals Court Criminal reasoned: in ways usually require duct that differ- Article 22.021 is a conduct-oriented ent and distinct acts to commit. These offense in which legislature the criminal- considerations lead us to conclude that very specific ized conduct of several dif- Legislature sepa- the intended that each Also, types. express- ferent the statute rately described conduct constitutes a ly separates and impliedly the sections separate statutory offense. “or,” by which is some indication that Vick, at 832-33.3 proscribed provi- one of the conduct Francis, sions an A In charged constitutes offense. more the defendant was compelling legislative demonstration of of indecency with one count with a child in offenses, argues 3. appeal separate The State "[t]he in- the describes State fails alleged explain why controlling. dictments of to Vick in each the five cases is not committing alternative theories We conclude Texas Court of Criminal offense, multiple involving sepa- Appeals’ construction of statute in Vick is argument rate controlling incidents.” The State’s is Legislature con- because the has not holding trary any changes to Vick’s that section 22.021 made to section 22.021 this mouth, organ in M.R.’s ing sexual indictment.4 36 S.W.3d single paragraph presented evidence or at 122. The State child, indecency acts of
four distinct mouth B: M.P. caused Paragraph breasts touching the victim’s two acts organ, sexual or to contact his of M.R. geni- touching and two acts of victim’s the anus of C: M.P. caused Paragraph tals, occurring at a different each act or organ, sexual M.R. contact his to time. Id. The State elected date and D: the sexual M.P. caused Paragraph separate on two a conviction based pursue his sexual M.R. contact organ of incidents, touching the vic- involving one organ. involving touching tim’s breasts and Fran- Relying at 229-30. on Vick and Id. charge in- genitals. jury the victim’s cis, Appeals Antonio Court of held the San engaged “in quired whether the defendant submitting the erred the trial court by touching the breast or sexual contact disjunctive “by sub- charge in the because 124. The court genitals.” Id. at Francis disjunctive it offenses in mitting these separate two offenses were submit- found jurors to find some chose possible is disjunc- erroneously jury to the in the ted some one of the offenses and guilty M.P. so, “By doing possi- 125. it tive. Id. at is oth- jurors another offense still chose jury that six of the convicted ble members Id. at 231. ers another.” breast-touching appellant on the (while the six believed he was inno- other case, charged with In appellant this breast-touching) cent of and six mem- separate indictments five five genital- on the bers convicted of tri- exception cause numbers. With (while the touching offense other six be- charges al court cause number genital-touch- lieved he was innocent of the con- four other causes submitted for the ing).” Id. (1) causing pen- alternatives: tained two single body part of one victim etration M.P., by appel-
In final case cited re (2) causing organ; lant, appellant’s challenge jury to the involves a victim to body part the same assault aggravated M.P., organ. The four appellant’s sexual contact case. unani- charges require with a did not juvenile defendant was sin- and, offense, two alterna- gle appel- mously agree upon as described one of the court, jury charge tives, contact, upon late contained reach- Thus, following paragraphs: possible ing its verdict. appel- have found jurors could pen- some Paragraph A: M.P. caused the and some of the by plac- penetration, lant of the mouth of M.R. etration Vick, Legisla- spouse, the child regard person’s whether "[w]hen since *9 sex, meets, person: particular opposite the a has been the same or ture after statute construed, changing with the judicially engages sexual contact without in statute, Legislature presume engage we the intended child to in child or causes the contact; the construction should continue or sexual applied gratify to that statute.” Marin or with intent arouse 267, (Tex.Crim.App.1994). S.W.2d 271-72 any person: sexual desire of part (A) person’s anus or exposes 21.11, pro- section which 4. Texas Penal Code knowing genitals, person’s of the child, provides indecency in with a scribes present; or child is part following: relevant (B) expose child to the child’s causes the if, genitals. part the child's (a) anus or of person with A commits 21.11(a) 2003). (Vernon § years Ann. younger not the Tex Pen.Code child than 17 jurors appellant guilty placing could have found organ of his in sexual the female contact. organ [M.S.]; sexual of or However, respect with to cause If you find beyond from the evidence 955262, 955263, 955265, numbers a reasonable on doubt that or about the penetration alleged also neces August 15th of day in Harris Vick, sarily included contact. See Texas, County, defendant, did then (stating 834 n. 2 “penetration unlawfully, intentionally there or of genitals necessarily includes con penetration knowingly cause the of the tact”) Therefore, causes, in these four organ [M.S.], female sexual of a per- minimum, jury, at a unanimously found younger years son than age fourteen appellant guilty of contact.5 We conclude defendant, and not spouse of the Vick, Francis, M.P., that unlike placing finger his in the female sexual in charges submitted cause numbers organ [M.S.]; 955262, 955263, 955265,and 955266 did not or deprive appellant of unanimous verdict If you find beyond from the evidence jurors because all of the who believed a reasonable doubt on or about the there was penetration necessarily also be day August 15th in Harris lieved that antecedent contact had oc Texas, County, the defendant did then curred, and a non-unanimous verdict was unlawfully, and there intentionally or Thus, not possible. there was no error organ knowingly cause appellant’s implicating right to a unani [M.S.], person younger than fourteen in mous verdict cause numbers years age spouse and not the of the 955263,955265, and 966266. defendant, organ to contact the sexual defendant; of the Trial court cause number you then will however, guilty find the defendant presents a different situation be charged the indictment. being charged cause addition to on the lesser included offense of with indecency added.) (Emphasis by contact, child charged By submitting the above three offenses could find appellant guilty: disjunctive, possible it is that some you find beyond jurors
[I]f from the evidence appellant guilty found of digital pen- a reasonable or doubt about the organ etration M.S.’s sexual and other day 15th of August jurors Harris chose to find guilty of Texas, County, the defendant penetrating contacting did then M.S.’s sexual or- unlawfully, intentionally and there gan organ. See Tex. Pen. M.P., knowingly 22.021(a)(l)(B)(i), (iii); § cause the of the Code Ann. [M.S.], per- female sexual 230-31. Unlike other younger years son than of age charges describing fourteen four penetration and defendant, by means, spouse contact prosecutor argued penetrated organ, We note that the her with his sexual it is regard to one of the that: aggravated still sexual assault be- *10 young. says pen- cause she is so law The penetration For we have [M.S.] for verdict, contact, mouth, guilty etration or it’s still a penetration. you contact or And you spend agree way to So don’t need to a whole lot don’t have which the State it, proved guilty penetration still a verdict if six believe time about whether it's or con- he contacted and that mouth six believe he tact.
849 Kitchens, 36.29; Proc. Ann. art. see disjunctively 955264 cause number submits CRiM. Midence, 2; 108 M.S.’s at 258 n. penetrating two distinct means 823 S.W.2d 565; State, organ, digital genital, and sexu- Hanson v. 55 S.W.3d and S.W.3d refd). 2001, 681, pet. to organ organ (Tex.App.-Austin al contact.6 We 693 to unani- “no requires was entitled Penal appellant conclude The Texas Code verdict, jury the trial court an offense may mous and convicted of person be in the dis- submitting charge erred this offense is unless each element of the id.; State, junctive. See Midence v. beyond a doubt.” Tex. proved reasonable 564, (Vernon 2003). (Tex.App.-Houston [14th § 5.W.3d 2.01 Pen.Code Ann. 2003, pet.). no Dist.] charge for cause errors Analysis
Harm
jury
possi
to
number 955264 enabled
Having found error in the court’s
verdict.
bly
guilty
return a non-unanimous
must
suffi
charge, we
determine whether
pos
charge made it
Because the erroneous
to
cient harm resulted from the error
re
jury to return a less than
sible for the
Appellant concedes that
quire reversal.
verdict, we find the
guilty
unanimous
and,
object
jury charge,
did not
to
harmful.
v.
charge error was
See Clear
therefore,
only “only if the
we
reverse
State,
(Tex.App.
623-24
so
such
egregious
error is
created
(holding sub
-Corpus
pet.)
Christi
no
harm that
‘has not
a fair
[appellant]
had
disjunctive
instructing
mission
short
impartial
‘egregious
trial’—in
”
to find the
jury
guilty
harm.’
Almanza
S.W.2d
aggravated sexual assault if it found
(Tex.Crim.App.1984).
appel
An
penetrated
female sex
he either
the child’s
por
court
late
must examine
relevant
finger
penetrated
organ
ual
with his
tions
entire
of the
record
determine
it with his sexual
consti
contacted
any
whether
suffered
actual
deprived
egregious
tuted
harm because
Hisey
harm as
result of the error.
of his
a unanimous
right
the defendant
(Tex.App.
“in
cannot
jury verdict
that we
determine
granted).
[14th
-Houston
pet.
Dist.]
finding
jury was unanimous
degree
We are
determine the actual
either
defendant]
[the
jury
harm “in
of the
light
charge,
entire
offense.”)
evidence,
of the
including
the state
weight
probative
contested issues
first
Accordingly,
appellant’s
we sustain
evidence,
argument
of counsel and
as to trial court cause num-
point of error
other relevant information revealed
955264, and
judgment
ber
reverse the
Almanza,
record of
trial as a
whole.”
court
remand cause number
the trial
850 Points of Error and 154-55; Two Three: Refusal etration or contact. See id. at see to Lesser State, Submit Included Offenses 904, v. also Ochoa 982 908 S.W.2d (in (Tex.Crim.App.1998) context of double error, In his points second and third case, jeopardy stating a on the appellant challenges the trial court’s refus- indecency included lesser offense of with a al to submit the included lesser offenses of child, in to aggravated addition sexual as- indecency by exposure with a child sault, required if is the evidence at trial indecency Appel- with a child contact. raised the issue the defendant intend- requested lant that these lesser included toed arouse or his gratify sexual desire be in submitted each cause. The committing while al- course court indecency by submitted contact in contact). penetration or 955264, leged pres- In the cause digital number which case, ample ent there is evidence from penile charged disjunc- contact were causes, easily which a rational fact finder tive. As to the four could remaining trial court infer that when made con- appellant’s request denied responded, complainants, can’t a tact with the “[Y]ou have lesser of his conduct penile anything. contact with That’s not included to gratify an intent arouse or indecency contact, penile if it’s ag- that’s Cunningham, own sexual desire. See 726 gravated sexual assault.” (citing containing at 154 S.W.2d cases evi- present dence to comparable evidence To determine whether a defen case). dant is entitled to a lesser included offense instruction, (1) two-pi-ong applies: a test As a prong, to the second the lesser included offense must be includ defendant to be entitled to a includ lesser proof necessary ed within the to establish indecency ed offense instruction on (2) charged; the offense some evi child, there must be some evidence in the dence must exist the record that would permit jury rationally record that would permit rationally if to find that that, if guilty, to find is the defendant defendant is he is guilty, only guilty only indecency is with a child. lesser included offense. Arevalo v. See Rousseau, 673-75; See at 855 S.W.2d State, 970 (Tex.Crim.App. S.W.2d 548 (Tex. State, Easter v. 867 S.W.2d 1998); State, Rousseau v. 855 S.W.2d 'd). require App.-Waco pet. ref This (Tex.Crim.App.1993). Indecency 672-73 if ei may ment satisfied evidence may a child lesser included of affirmatively negates ther an refutes of aggravated fense sexual assault on a offense, establishing greater element case-by-case Cunningham basis. See v. subject the evidence the issue State, (Tex.Crim.App. S.W.2d interpretations, two different 1987). light “What must be decided in interpretations negates or rebuts proved offense and the facts greater. element of the Schweinle indecency whether in this cause with a State, (Tex.Crim.App. child is a included of the lesser one 1996). than a Anything more scintilla alleged.” (citing Campbell Id. from evidence source is sufficient (Tex.Crim.App.1978)). S.W.2d 161 entitle submission issue,
Here, this court consider prong the first the test is credible, contro if the raises whether evidence is satisfied evidence trial verted, or in conflict with other evidence. issue that the defendant intended to 18; gratify arouse or his sexual desire while in See id. at Havard v. committing alleged pen- (Tex.Crim.App.1989); Upchurch
the course of *12 aggravat- offense of greater of the (Tex.App. element ref'd). sexual assault. The ed pet. -Houston [1st Dist.] Appeals has stated: Court of Criminal testimony by ap- expert to cited As enough jury may disbe- It is not that testimony from was medical pellant, there pertaining to the lieve crucial evidence a normal exam was experts stating that Rather, greater there must be offense. of abuse type with the not inconsistent directly germane to some evidence complained. and M.S. which B.S. about offense for the factfinder lesser-included expert testimony the medical Additionally, an instruction on to consider before pen- may often confuse that children lesser-included offense is warranted. friction does not rubbing with or etration testimony and by M.S. specific rebut (Tex. 532, Skinner penetrated their appellant that B.S. Crim.App.1997). case, and, anuses, in M.S.’s mouths and following evi- Appellant contends organ. sexual her jury find appellant dence to permitted evidence guilty only Although or there have been indecency by contact was (1) he com- support and claim that by exposure: testimony appellant’s medical included offense of inde- indicating physical normal exami- mitted lesser records by cency, no no conflict raised nations evidence of anal or oral we find (2) find- by chil- that would enable rational penetration; testimony both evidence that involving lacking pen- appellant of fact to conclude dren incidents er only etration, included offenses touching such as their anal lesser by exposure or indecency in their with a child genital areas and masturbation (3) the trial testimony appel- Accordingly, we hold presence; cousin’s contact. denying appellant’s that did err in lant touched B.S. and M.S. and some- court not in- touching instructions on the lesser requests times was clothed when the M.S. occurred; testimony points chil- and er- expert cluded offenses overrule with mere two three. penetration dren often confuse ror body parts; rubbing or friction their of Error Cumulation of Point Four: the children’s medical records con- Life Sentences taining numerous statements the chil- error, appellant point In his fourth they on their dren that had been touched cumulat- challenges trial court’s order anuses. organs Appellant his life ing five sentences. by cu- the trial court erred by appellant
The cited contends that evidence indict- mulating not refute his sentences because not inconsistent with does 955265 and ments cause numbers aggravated the evidence sexual assault predating the dates allege testified in this case. B.S. M.S. both authorizing date of the statute penetrated their mouths effective cumulation, jury permit- and the organ. anuses also M.S. its verdicts on of- appellant penetrated sex to base her ted testified any time within the organ. Their fenses committed ual with his sexual period of limitations. Addition- subject ten-year inter testimony different appellant complains the State’s ally, cited pretations. additional evidence “particular for con- date by appellant showing that there also was failure elect myriad touching and masturbation viction inappropriate brought out evidence.” rebut the negate does not *13 852 (Vernon 2003). appellant’s
We general § first address 3.03 As a Ann. complaint regarding electing the State not rule, a defendant is convicted of mul- when particular Generally, date. when the tiple that been properly offenses have evidence shows two or more acts of sexual joined trial, prosecuted single in a assault, of each which an offense for such concurrently. sentences must run convicted, may which the defendant 3.03(a). 1997, § Tex. Pen.Code Ann. only offense, charges indictment if legislature out exceptions carved several election, a motion for accused makes general rule. Tex. this Pen.Code Ann. required State is elect which act it 3.03(b). § exception applicable The to this rely upon will to secure a conviction. permits impose case a trial court to con- State, 903, v. 696 S.W.2d 906 Crawford for secutive sentences a defendant found State, (Tex.Crim.App.1985); Bates v. 165 guilty of more than one out arising offense (1957). 140, 366, Tex.Crim. 305 S.W.2d 368 episode of same criminal each when This repeated case involves sexual assaults is for a of aggravated sentence conviction against The B.S. M.S. record reflects sexual assault child. Tex. Pen.Code request by no appellant trial court 3.03(b)(2)(A). § exception ap- This Ann. that upon the State elect the acts plies only to offenses committed on relying which it for a was conviction. The 1,1997: September after a request by appel absence of for election (a) Act change law made this on appeal. lant waives this issue See Tex. R.App. only to an applies offense committed State, 33.1; Gallegos P. v. 756 [Sep- after effective date 45, 1988, Antonio (Tex.App.-San S.W.2d Act. pur- 1997] tember this For 'd). pet. ref We part point overrule this section, of this poses four. committed before the effective date next appellant’s address con We if of this Act element of tention court trial erred cumu- offense occurs before the effective lating the sentences for causes 955265 and date. Appellant raises the cumulation (b) appeal. issue for first time on Because An offense committed before the ef- is, in improper “[a]n cumulation order es fective date this Act is covered sence, sentence, a void and such error in effect the law when the offense waived,” cannot be examine whether it we committed, was and the former law eiTor for the trial court to cumulate pur- is continued effect these two sentences. See LaPorte v. pose.
State, 412, 415 (Tex.Crim.App. 840 S.W.2d 13, 1997, R.S., Leg., Act June 75th 1992); Nicholas ch.667, 7,§ 1997 Tex. Gen. Laws (Tex.App.-Houston [14th Dist.] 2252-53. ref'd); Levy see pet. also (Tex.Crim.App.1991) Appellant pre-Septem- asserts that the (holding sentences not authorized law in the ber 1997 offense date recited are void and that a defect which renders a judgments for causes indictments and time). raised at sentence void bars cumulation two Both indictments state sentences. Code
Texas Penal section 3.03 addresses against “on occurred B.S. arising out when sentences for offenses 3, 1997,” judg- August or about and both are to run con- episode the same criminal consecutively. August Tex. Pen.Code ments recite an offense date currently or 12.01(5)(B)(Ver- art. 1997.7 Ann. CRiM.PROc. Code Supp.2004). non 3.03, appel- the date that Under section against B.S. lant committed the offenses brief, acknowledges that In his the sentences are determines whether “accurately” informed prosecutor *14 the If consecutively concurrently. the run on their verdicts jury they that could base that committed evidence shows the within occurring offenses “sometime against September B.S. before the offenses The [M.S.] [B.S.].” natural lifetime 1, 1997, offenses the sentences for these the properly permitted jury charge also However, if may not cumulated. the its in each of the five jury to base verdicts commit- the offenses were evidence shows any time occurring on offenses causes 1, 1997, September on or after cumula- ted period limitations.8 ten-year within the permitted. tion is sub-point appellant’s regard- overrule We Typically, alleged ing date limitations. an that approximation
the indictment is primary complaint re Appellant’s prosecute allows the State to a defendant is indictments garding cumulation that the occurring for acts within limitations in causes 955265 and judgments State, period. Sledge v. See 953 S.W.2d Au state an offense date of 955266 each 253, (Tex.Crim.App.1997); 256 v. Addicks 3, 1997, prior to exception a date gust State, 608, 611 (Tex.App.-Hous S.W.3d allowing cumulation, and in section 3.03 for refd). 2000, pet. ton The “on Dist.] [14th 1, date pre-September that the ren of an language about” indictment allows ders the cumulation orders for these two prove a than the State to date other Au disagree causes invalid. We that the alleged in long the indictment as as 3, in the 1997 offense date recited gust presentment the date anterior to the is judgments the cumulation orders renders statutory the indictment and within the invalid. The trial in these two causes Id.; period. limitations see Thomas court had discretion cumulate State, 688, (Tex.Crim.App.1988) 753 S.W.2d 3.03(b), as two sentences under section (" alleges an indictment that Where as evidence that the long there was some transpired some ‘on or relevant event September after 1997. offenses occurred date, particular put about’ the accused 671-72 See Owens v. S.W.3d on to prepare proof notice for that (“Al pet.) no (Tex.App.-Austin at happened any event time within the limitations”). though testimony the victim’s sometimes statutory period The as as to dates of the sexual conflicted aggravated statute of limitations saults, years a reasonable view of the evidence assault of a child is ten from the eighteenth birthday supported of the victim. Tex. a whole trial court’s exercise specific 7. date in cause The State is not bound indictments numbers offense, against state the any, alleged if in the 15, 2002,” August committed, M.S. occurred "on or about have but indictment to been well after the effective date of section 3.03. beyond a upon proof conviction had specifically complain Appellant does offense, any, doubt that the if reasonable appeal that cumulation of his three sentences peri- was at time within the committed Moreover, improper. involving M.S. period od of limitations. The limitation indicating ap- record contains evidence applicable aggravated to the offense of sex- pellant against committed these offenses M.S. years ual a child is ten from assault of September after birthday the victim of date of the 18th the offense. 8. The instructed the as follows: its run they discretion to testified sentences M.S. that when lived at the [the] consecutively.”). house, Because State Sep- used Burr Street which was after indictment, phrase 1, 1997, “on or about” tember she saw appellant “[s]tick prove it was free these offenses part mess private behind and [B.S.’s] prior present occurred on date to the private part.” Additionally, with [B.S.’s] indictment, 15, 2003, ment of the July and Marcus, the children’s uncle and current period, within statutory limitations legal guardian, testified about incident not expired. which had Glenn See 17, 2001, that occurred on when January (Tex.Crim. 345-46 he went to the Burr Street house Owens, App.1969); 671-72 found the door to the that appel- bedroom *15 (holding trial court has discretion cumu- lant and shared Mar- B.S. locked. When 3.03(b) late sentences under section when room, finally gained entry cus into the he there is some that the evidence offenses appellant sweating noticed was and B.S. 1, 1997); September occurred after Yebio looked scared. 193, (Tex.App.- 195-96 The evidence that the shows incidents 'd) Texarkana ref pet. (concluding pri- against sexual abuse continued to oc- B.S. applied or statute where evidence showed cur until up September well after the that assaults during day occurred be 1, 1997 effective date of the cumulation year fore the beginning of 1997 school Appellant statute. does address (before 1, 1997), although September in showing evidence the record that inci- alleged indictments the offenses occurred dents sexual abuse oc- against B.S. September on about and re 1, 1997, on or September curred after and forming judgment provide that the evidence, appellant has not cited be- concurrently run defendant’s sentences in in in- sides the offense dates recited consecutively). stead of judgments, showing dictment and that the We review the record to determine against prior to B.S. occurred whether there is some evidence that the 1,1997. September September offenses occurred on or after that, whole, conclude as a the evi- We 1997. The record shows that B.S. was supports dence the trial court’s exercise 5, 1989, born November and he was 3.03(b) its discretion section to order under thirteen years old when he testified at appellant’s sentences in 955265 and causes trial. testified that the time ap- B.S. last to run consecutively. We overrule sexually him in pellant abused was appellant’s point fourth of error. eleven Dr. years
when was
old.
Lahoti
testimony,
testifying
corroborated B.S.’s
CONCLUSION
her
that he told
that the last time he was
judgments in
affirm the
trial court
We
in
appellant
assaulted
was
2001.
955262,955263,955265,
cause numbers
and
Alfred,
father,
B.S.’s
testified that the first
955266, and
remand cause
reverse and
time he and B.S. shared
residence with
proceedings
number 955264 for further
appellant
after Alfred
was
opinion.
with this
consistent
1999, Alfred, B.S., M.S.,
injured.
all lived in the Burr Street house
appellant
Hudson, J., concurs.
together,
passed
after Alfred’s father
Justice,
HUDSON,
J. HARVEY
away. The evidence showed that B.S. and
concurring.
together
continued to live
fully join
re-
sleep
up
majority’s holding
until
time
I
room
outcry
unanimity
jury’s
August
garding
M.S.’s
2002.
of the
verdict
late
separately
955,262;
legislature’s intent to
flects the
to “contact” in cause numbers
955,263; 955,265;
955,266.
distinctly
act which
I concur
criminalize
judgment
respect
to those convic
Id. at
conduct.”
proscribed
constitutes
tions, however,
express my
view
“penetration”
merely al
“contact” and
are
below, I fear the
For
set forth
reasons
committing
means of
ternative
(1) serious-
Appeals
has
Court Criminal
number
regard
offense.
to cause
With
jeopardy protections
ly eroded the double
955,264,
majori
I
concur with the
likewise
by our state and federal constitu-
afforded
ty’s holding that the trial court committed
tions, (2) unjustifiably
construed
charge error with
to that cause.
respect
oth-
differently
every
assault
from
statute
upon controlling
is grounded
Our decision
statute,
imposed an unrealistic
penal
er
precedent
Texas
Court of Criminal
predict
upon
precisely
the State to
burden
namely, its
Appeals,
decision
Vick
anticipate
the evidence to be adduced
(Tex.Crim.App.
penetrating complainant’s the female sexu- Pleadings and under Joinder organ organ. al Id. at with his sexual the Common Law acquitted The defendant was tried and charge. this After the defendant was A the law of universal maxim in common the guilty, found not State reindicted the England brought “that no man is to be was aggravated defendant for the sexual as- once, life, into of his more than jeopardy sault the same victim in the trans- 4 for the same offense.” William Black- as alleged previous action had been stone, ageless *329. The COMMENTARIES However, Id. in- indictment. the new however, difficulty precept, with this noble dictment alleged the State the defendant parameters of to define the attempting aggravated committed sexual assault an “offense.” (1) contacting complainant’s female ever un Perhaps first test devised organ with and ascertaining law for English der common complainant’s contacting female sexual on an was the “same limits offense his mouth. the trial organ with Id. Both Swenson, Ashe 397 U.S. evidence test.” v. appeals court the court of held the 1189, 25 L.Ed.2d 90 S.Ct. defendant charged second indictment (1970). test,” if evidence Under “same already same offense for which witnesses, substantially testimo acquitted. had been tried and Id. 831- prosecu in the ny, and evidence were used Appeals, 32. The of Criminal how- Court distinct criminal separate tion of two ever, disagreed. court held defen- statutes, they to be one were considered dant been with a new and had and, thus, only could one conviction different offense the second indictment State, Byrd Tex. obtained. See v. because “each section en- [of statute] (1921) (hold 418, 235 S.W. tails to commit Crim. different acts Thus, in various, only transaction is prohibited ing conduct.” that where result). volved, can opined only court that this re- one conviction “specificity inevitable, could, ancillary, perhaps single An out of a transaction as he but concept from arising the “same evidence only Staples he could “cut once.” test” was the idea of a “criminal transac- 76 Tex.Crim. 175 S.W. act, (1915).4 A tion.” “criminal therefore, transaction” is “an jeopardy purposes, For acts, proceeding a series of from one temporal an “offense” tended to have wrongful impulse of the or in which will”1 spatial example, For if the limits. defen- single running is “a there intent” dant from stole two horses different own- through connecting the acts.2 A crim- ers but stolen the horses were at the same “offense,” inal term was used place, time and for theft of conviction issues, analyzing jeopardy synony- prosecution one horse would bar for the phrase mous “criminal transac- theft of the horse because the State other tion.” each “criminal transaction” could not same of- “punish twice conceivably could violate several Wright fense.” See 37 Tex.Crim. penal statutes.3 (1897). S.W. However, proof because the these viola- bewildering phenomenon A arose evidence,” would require
tions the “same term “offense” had two distinct and (and offense) proof only thus of the same entirely meanings different based its one conviction could be obtained out of An context. “offense” was sometimes used “criminal each transaction.” statute, to mean the violation of criminal theft, bailee, concept e.g., shoplift-
This was further refined conversion occasions, what became known in Texas as the “carv- etc.5 the term ing, On other *17 Under doc- ing “carving doctrine.” the “offense” was used to mean the constitu- trine,” parameters the State “could carve but one of- tional of criminal for conduct theft, out of v. jeopardy purposes, e.g., fense the transaction.” Curtis double con- State, 86, 227, bailee, 22 Tex.App. shoplifting 3 88 version a could S.W. (1886). Thus, prosecutor perpetrated in permit- the was constitute one offense if the Thus, large statutory ted to carve as violation same criminal transaction.6 Texas State, 489, Tex.App. “general carving 1. v. 24 S.W. 4. Under 6 doctrine the Whitford State, 537, (1887); proceed- party may 537 also Kalish v. 662 rule” was "a in criminal 595, offense, (Tex.Crim.App.1983). ing great S.W.2d 598 be held answer for small, legally can be out which carved of a State, 702, (Tex. 2. v. Leal 711 S.W.2d 707 State, 421, transaction.” Jackson v. 43 Tex. 1986), App.-Corpus part, rev’d Christi in (1875). aff'd 423 grounds, part in on other 782 844 S.W.2d (Tex. 1990). Crim.App. example, "we the ele- 5. For find all of necessary to of as- ments offense Appeals 3. The Court of reasoned: are sault with intent to rob contained may ... there be number of distinct charging robbery by indictment the offense of [statutory] single in a trans- crimes criminal against principal.” v. assault Tomlin that, State, 207, 303, action. This comes from fact 155 Tex.Crim. 233 S.W.2d limited, language being added). while words our (emphasis 304 may of life almost be the transactions variety, example, For of carv infinite in and the lines to 6. "Under the doctrine termed ing attorney may specific being prosecuting be drawn around offenses this State the necessarily incomparably large single out of a trans more limited than carve as offense once, words, can, only impossible that must cut it is there should action as he but he can one for be an exact outline of crime whose circum- State carve but conviction State, Fleming exactly every v. 168 Tex. shall coincide with the same ference offense.” 457, 595, (1959) (em S.W.2d 459 criminal transaction. Crim. 330 added). Whitford, phasis 6 at S.W. 537.
857 incest, de confusing charged only is with such were jurisprudence filled evidence chal as, might produce fendant some only “There must not statements [ie., relationship the familial between lenging but statutory violations] prior offenses convictions, Exacerbating this and the victim. not of the same himself prior offense [ie., conduct], law rule that problem of an was common jeopardy limited but (and, [ie., only alleged statutory of a like one offense could violation] offense thus, ob only conviction could be character that for which the accused as tained) State, v. single Watson Tex. indictment. being tried.” Brittian 85 (1919) (em State, 60, 851, (Tex.Crim.App.1 63 Crim. S.W. 995).8 added).7 phasis legislature Texas justice, To difficulty presented promote
Another
this
allegations
several statu-
put
provided
is that it
a tremendous burden
scheme
tory violations, all
in the same
prosecution
correctly
antici
committed
upon the
and, thus,
quali-
all
pate
in the evidence. For exam
“criminal transaction”
variances
offense,
fying
pled
could be
ple,
might
penal
commit two
as
same
indictment.9
single
com
counts
the same
violations in a
act as where he
From
until
Crimi-
rape
mits both
and incest
the same
Code
provided
nal
that an indictment
moment.
Hunt v.
123 Tex.
Procedure
See
(1933).
counts,
“may
charging the
many
Crim.
In
contain as
[ie.,
circumstance,
only
offense,
transaction]
if
this
he were
think
rape,
might
attorney
prepares may
the defendant
some
who
offer
consensual,
necessary
if
to insert.”10
the Code
evidence that
act
but
done,
linguistic
Despite
impreci-
could be crushed
accumu-
this unfortunate
man
sion,
lating charges,
injured by
law
sever-
their
it manifest in common
solemn
statutory
presentation
jury.
al
constitute the same
example,
jeopardy purposes. For
S.W.
31 Tex.Crim.
Crawford
observes that "a
Blackstone
conviction of
(Ct.App.1892)
*18
manslaughter,
appeal,
on an
is a
even in
bar
object
inserting
in
in
various counts
"The
appeal,
another
and much
in
indict-
more
an
is not to
con-
indictment
secure
murder;
ment,
prosecuted
of
the
for
fact
is
counts,
many
the
but to meet
victions for as
both, though
the same in
the offenses differ in
phases
testimony;
it is
and
various
colouring
degree.”
in
and
Blackstone at
permissible
proper
charge
to
all
felo-
and
the
confusion,
To
I
*330.
lessen the
shall hereaf-
go
up the
which
to make
offense commit-
nies
statutory
jeopar-
ter refer to
"violations” and
defendant,
charge
by the
not to
differ-
ted
but
dy limited "offenses.”
and
ent offenses committed at different times
* * *
colorfully
emphati-
8. This doctrine was
and
or
Where two
different transactions.
cally
by
Appeals:
embraced
Court of
the
charged in
same indict-
more felonies are
the
ment,
they
presumption
parts
the
the
are
of
Can
be
of
convicted
two felonies
transaction,
indictment,
by
pun-
are to be
under
same
same
sustained
the
be
evidence;
judge
they may
all
be
each?
the
and while
ished for
The learned trial
same
jury,
argument
can be
one
admits in his
that there is no
submitted to
there
but
were,
which,
proceeding
precedent
appropriates
one
as
for such
as the
it
conviction
decisions,
through
in the Texas
at bar to be found
intent which runs
connects
nor, indeed,
any
case
can
well-considered
acts or
and makes them
these several
offenses
any
except
Crawford,
found in
in those courts
be
state
fense.” regarding joinder the rules ought permitted to allege State all of dramatically legisla- were altered when the statutory arising the various violations in a adopted ture penal new code and amend- (i.e., single criminal transaction single criminal procedure. ed the code of A vari- “offense”) in one indictment to meet ety of interests were served the new contingencies might evidence that devel- legislation. Judicial were con- resources in trial op securing with the view of but offenses, served in that for different one conviction.12 time, first could in a single be included Thus, century, Thus, than a multiple more the State indictment. convictions permitted to include in one indictment could be obtained in one trial. Variances many as distinct penal occurring allegata probata violations between the and the were it, during the same criminal granting transaction as reduced State flexibili- faith, in good necessary ty allege believed pru- single count all the various possible contingencies dent to meet all the proof manner means which the not, evidence. The might State could how- show the defendant committed the ever, join one indictment al- pleading offense.14 Technical errors were attorney prepares may might contingencies who think arise under the facts insert, necessary to and an indictment developed at trial. information shall be if sufficient one of counts be its sufficient. 13. See Caldwell v. 122 Tex.Crim. language was Id. This carried in the forward (1932) (holding it is "the 1895, 1911, and 1925 Codes Criminal Pro- general rule that accused cannot con- C.C.P., cedure. See Art. victed for two on one under Revised Civil felonies trial Leg. 24th indictment.”); Texas, State Crawford, Statutes see also 19 S.W. at C.C.P., (1895); Art. 481 2 Vernon’s Criminal ("In felony an indictment for different (1916); C.C.P., Art. 417 Statutes Texas are a view counts drawn with to one (Vernon 1928). Complete transaction, Texas Statutes so some one count be found on the trial be in accordance with Leg. p. § 11. Acts 59th ch. *19 legitimate, the evidence. This it some- is but eff. Jan. 1966. happens prosecutor’s object times that the inserting prose- really to different counts theory every count is "In an indictment for 12. separate by offense; cute the defendant for but a distinct in fact several counts do, right he one indictment. This has no to the stated are resorted to and offense in dif- and when ascertained before the trial the ferent forms and in different circumstances to design.”) defeat trial, court will the adduced meet evidence on the but in no event could be there in such cases more single Crawford, punishment.” example, a 14. than For if the evidence shows the brain, example, at S.W. 767. For in Johnson v. victim died of blunt trauma to the bottle, body liquor S.W. there found a a Tex.Crim. near the (1907), stick, objects pots the court held that the case a other household like of twilight burglary permis- pans, proceed? at the State committed it how should If allege burglary night alleges to sible for the State the State the murder was committed striking liquor burglary daytime by the deceased with the bot- the in- tle, might testify (although these distinct the defendant at trial that he dictment were of- time) possible actually alleges used at that to meet all the the stick. If the State fenses 1989). de- preserves the The new scheme by legislature’s the broad defini- lessened Finally, right upon separate a penal of offenses. this was fendant’s to insist tions upon count, the de- impinging encourages achieved without trial for each but also ap- right fendant’s constitutional by the incen- judicial efficiency providing prised specific offense with which punishments if the de- tive of concurrent accused. has been multiple joinder agrees fendant §§ 3.03 & offenses. Ann. Tex. Pen.Code reforms, legisla- of its At heart 1994). (Vernon re- These innovative 3.04 broadly penal so ture drafted violations forms, however, undermined gravely were a of- single constitutes that each violation by decision in Vick v. State. purposes. for The new jeopardy fense code, penal example, consolidated the “theft, by prohibitions against former theft v. State Vick bailee, a theft pretext, by
false conversion Vick, Criminal Appeals the Court of person, shoplifting, acquisition from the clock. Instead of one turned back threat, swindling, swindling property assault, the Court of offense of sexual check, embezzlement, extortion, worthless now at least Appeals Criminal has created receiving concealing proper- or embezzled more) crimes, (and eight perhaps distinct ty, receiving concealing prop- or stolen i.e., (1) erty” single into the of theft. Tex. sexual assault 1994). (2) (Vernon victim, § 31.02 organ sexual or anus of adult Ann. Pen.Code the former lin- This innovation eliminated the mouth by penetration assault sexual guistic “of- regarding confusion term of an adult with the defendant’s victim Now, statutory ordi- (3) fense.” “offense” is by causing organ, sexual sexual assault narily synonymous intended to be with the person’s organ one adult sexual contact parameters of a limited jeopardy “offense.” mouth, anus, penetrate or or sexual (4) organ person, sexual another adult
Today, may or two more offenses by penetration assault anus or sexu- information, joined single indictment, in a (5) means, by any al of a child sexual organ complaint, or with each offense stated by penetration of mouth or assault count, if out of the offenses arise (6) organ, sexual child with the defendant’s episode. criminal Tex.Code 21.24(a) (Vernon by causing organ sexual assault the sexual CRim. PROC. Ann. art. the' 1989).15 or penetrate of a child to contact many A count contain as mouth, anus, organ sexual of another separate paragraphs charging the same person, by causing assault necessary, paragraph no offense as but anus, mouth, anus to contact the may charge more than child one offense. Tex. 21.24(b) (Vernon person, Ann. art. of another Code Crim. PROC. Thus, replaced the by striking episode” the murder was committed "criminal has stick, concept juiy might of "criminal transaction.” deceased with have former code, penal *20 as to whether not defen- Under the current "criminal some doubt or episode” of two or frying pan. a a case it means commission dant used In such (1) allege pursuant to the permissible more offenses committed for the indictment transaction; (2) pursuant to de- committed caused the death of the same the defendant glass that are connected "by striking his a two or more transactions ceased head with plan; or or by striking piece with or constitute a common scheme bottle and head a (3) repeated are by unknown to commission wood and means manner Jury.” Zanghetti v. offense. Tex. Pen.Code the Grand See same similar Ann. (Vernon 2003). § (Tex.Crim.App.1981). 3.01 by sexual assault causing the mouth aof only constitutes one “offence” with- child to contact the sexual organ anus or meaning Jeopardy the Double person. another Surely, this was not the person Clause. For whenever a is sub- legislature. intent of the jected risk that will be convict- law, ed of a crime under “put state he is Appeals The Court Criminal based its jeopardy life or If pro- limb.” opinion on the fact that each the forego- against put hibition being “twice in jeop- ing descriptions of sexual assault is set out ardy” for “the same offence” is to have in a separate paragraph of the statute. meaning, real a State cannot be true, however, This is of numerous of- two, allowed to convict a defendant fenses. For example, using Vick’s ratio- three, or more simply by times enacting nale, also legislature we could hold the separate statutory provisions defining intended to create six different and dis- nominally distinct If the crimes. Double tinct offenses of aggravated kidnapping Jeopardy imposed Clause no restrictions separate because the statute para- lists legislature’s a power to authorize graphs may that the offense be committed multiple punishment, there would be no (1) by holding the for victim ransom or limit to the number of convictions that a (2) reward, using the victim as a shield or State could obtain on the basis of the (3) hostage, using the victim to facilitate act, mind, state of and result. A felony, commission of a inflicting State would free to create substan- victim, (5) bodily injury on the terrorizing tively differing identical crimes only in victim, victim using the to inter- name, toor create a of greater series performance fere with the of governmen- a offenses, and lesser-included with the tal Every function. reason recited Vick first crime a lesser-included offense of for interpreting 22.011 Sections and 22.021 second, the second a lesser-included containing distinct is equally offenses third, offense of on. so murder, murder, true of capital aggravated Hunter, 359, 370-71, Missouri v. child, U.S. kidnapping, indecency injury with (1983). child, S.Ct. L.Ed.2d child, to a endangering a terroristic threat, bigamy, with interference child cus- For if example, defendant convicted arson, tody, mischief, criminal robbery, intentionally murder and knowingly secrets, burglary, theft of forgery, trade causing deceased, death of can he conduct, bribery, disorderly many oth- prosecuted later be for murder of the same er the Penal too Code numer- victim by intentionally committing felony However, ous to mention here. in every act involving clearly dangerous to hu- instance, assault, other outside of sexual man life that caused the death of the de- statutory these descriptions have been in- cannot, ceased? logical He and there is no terpreted as various manner means reason apply this rule should not also committed, which may the offense not a respect to sexual assaults. specific
list of offenses. stabs, If a pistol whips, Vick, Appeals the Court of Criminal complainant, shoots the can he be convict- did Supreme what the United States Court ed of multiple aggravated assaults —once has said it do. a State While has by causing injury bodily serious with a wide latitude define crimes and to pre- knife, once causing bodily injury serious crime, punishment given scribe the for gun, and once again assault *21 ... the Constitution not permit exhibiting does a while a deadly weapon? Abso- punish not, State lutely to as two crimes conduct may and while a sexual assault assault) (like does violence interpretation This conventional offenses. be committed Amendment, Texas Penal ways, Fifth variety a it is one assault. to the but Code, Texas of Criminal and the Code violating to In addition defendant’s slate, I on a clean writing If Procedure. Jeopardy protections under the Double pre- of the indictments would find each Amendment, Vick Clause of the Fifth more para- contain two or sented here great hardship upon a State as works different manner graphs alleging Vick, the indict well. Prior to State could committing an offense. means of allege a a defendant for sexual assault and all manner and means listed various appel- are an intermediate Because we prosecutor reason- in the statute that the holding in late are bound court and and, ably might evidence show believed Vick, judg- I concur in the respectfully thus, prepared possible be to meet all the ment.
contingencies single trial. Suppose, a case, hypothetical
a the victim was
unconscious, blindfolded, incompetent, minor at time
very young as- Physical might show defi-
sault. evidence penetration vagina.
nite victim’s
However, to the victim’s lack knowl- due edge, might equally that the plausible TEMPEST BROADCASTING penetration bywas defendant’s sexual CORPORATION, organ, accomplice, of an Appellant, handle, finger, mop number of Vick, Yet, similar objects. after State allege, peril, precise
must its meth- Booth, Christopher D. IMLAY and penetration od of because at least three Imlay Freret, Tepper, P.C., & separate distinct and have Appellees. been committed. These offenses either 14-04-00080-CV. No. alleged separate or con- must counts separate tained in indictments. Texas, Appeals Court of event, right the defendant has the absolute (14th Dist.). Houston giving him trial in each case opportunity at each successive trial to Nov. suggest
by some method other than that presently
alleged in the indictment.
Here, the evidence shows peri-
committed numerous assaults over many prosecuted
od months. State assaults, al-
appellant for several these and means in
leging the various manner us, requires Vick
separate paragraphs.
however, the indictments view paragraphs alleging different
containing committing
manner and means of
offense, alleging as counts different but