Price, Jimmy Don

agreed and if the State had to that re- Jimmy PRICE, Appellant Don then the trial court could have

quest, plea the motion and undone the granted Undoing plea agreement agreement.1 The STATE of Texas. not be as favorable to the State as

might it pursuing proceedings, revocation but No. PD-1460-13. give would the State chance to seek a incarceration. sentence of Appeals Court of Criminal of Texas. The State could also have avoided its June plea agreement current if the predicament right had included a waiver of the to file a

motion for new trial. We have that a held can,

defendant in at least some circum-

stances, right appeal part waive the to as State,2 agreement though

of an with the post-conviction

the waiver of remedies

be ineffective in the face of a claim that anticipated

could not have been at the time Logically,

the waiver occurred.3 right

should be true of the to file a motion

for new trial. In the allega- absence of an

tion, trial, in the motion for new of an claim,

unforeseeable the waiver would ren-

der the motion ineffective with to

delaying finality judgment.

1. See Restatement agree appellant’s the State could to motion (Second) of Contracts Appellant might § 283. have withdrawn his cancelling for new trial as a method of motion for new trial when faced with the Id.., contract. See cmt.a. If the State can it, willingness agree but then the manner, plea agreement cancel the in this motion for new trial would have been ineffec- might option defendant not have the of with- purpose extending tive for the proba- drawing the motion for new trial. appellant's ap- tion start date. And because (as peal purpose was ineffective for that (Tex. parte Broadway, 2. Ex 301 S.W.3d 694 opinion explains), appellant Court’s then Crim.App.2009). facing possi- would be revocation. It is also argue appellant ble that the State could (Tex.Crim. parte Reedy, 3. Ex 282 S.W.3d 492 plea agreement by filing breached the a notice App.2009). breach, appeal as a result of the

OPINION ALCALA, J., opinion delivered the Keller, P.J., MEYERS, in which Court PRICE, JOHNSON, KEASLER, HERVEY, COCHRAN, JJ„ and joined. case, In this we address whether the defining statute the offense of continuous young permits sexual abuse of a child defendant be convicted both of that offense and of to com- mit a offense under that statute. Parham, Hempstead, R. Jeanette See Tex. Penal Code 15.01(a); 21.02(b), §§ Appellant. (e).1 (c), appeals The court of answered Goldstein, Stacey Prosecuting State At- that in the negative by examining Austin, McMinn, torney, Lisa the statute’s C. and determining Austin, Attorney, for the State. that the Legislature could not have intend- (7) penalizing trafficking 1. The statute continuous sexual persons of under Section child, young part, 20A.02(a)(7) (8); abuse of a in relevant or and states: (8) compelling prostitution under Section (b) person 43.05(a)(2). A commits an offense if: (1) during period days that is 30 or more (d) fact, jury If a is the trier of members of duration, person in commits two or jury required agree are not unani- abuse, regardless more acts of sexual of mously specific on which acts of sexual whether the acts of sexual abuse are com- by were abuse committed the defendant or victims; against mitted one or more the exact date when those acts were com- (2) at the time of the of commission each of jury agree unanimously mitted. The must abuse, the acts of sexual the actor is 17 defendant, during period that is years age or older and the victim is a duration, days 30 or more in committed years younger age. child than 14 two or more acts of sexual abuse. section, (c) purposes For of this "act of (e) may A defendant not be in convicted any sexual abuse” means act that is a viola- same criminal action of an offense listed following penal tion of one or more of the (c) under Subsection the victim of which is laws: the same victim as a victim of the offense (1) aggravated kidnapping under Section (b) alleged under Subsection unless the of- 20.04(a)(4), if the actor committed the of- (c): fense listed Subsection fense with the intent to violate or abuse the alternative; (1) charged in the sexually; victim (2) occurred outside the in which (2) indecency awith child under Section (b) 21.11(a)(1), alleged the offense under Subsection if the actor committed the of- committed; was by touching, fense a manner other than or (3) including touching through clothing, is considered the trier of fact to be a child; breast of a lesser included offense of the offense al- 22.011; (3) sexual assault under Section (4) aggravated sexual assault under Section (b). leged under Subsection (f) may charged A defendant with (b) more than one count under Subsection 22.021; (5) 30.02, burglary under Section if the of- specific if all of the acts of sexual abuse that (d) punishable fense is under Subsection alleged are to have been committed are section and actor committed the to have been committed offense with the intent to commit an offense single victim. (l)-(4); listed in Subdivisions 21.02(b)-(f) (West Tex. Penal Code Ann. (6) performance by a child under 2013). 43.25; Section disputed whether appeal, parties On because both convictions ed to consti- dual violate a defendant’s would outcome would jeopardy. double rights against for the offenses of continuous tutional convictions 158, 163-64 Price v. attempted aggravated See sexual abuse 2013). Accordingly, (Tex.App.-Beaumont Appellant asserted that sexual assault. the conviction appeals vacated the court is a attempted aggravated sexual assault sexual assault attempted aggravated aggravated offense of sexu- lesser-included Price, See Jimmy appellant. Don assault, enumerated al which is appeals’s with the court of agree id. We as one of the conviction judgment vacating appellant’s the offense of continu- be used to establish ultimate attempt and with its for criminal sexual abuse. See Tex.Code ous Crim. both convic- permitting that assessment 37.09(4); Tex. art. Proc. Penal Code rights would violate his constitutional tions (c)(4). 15.01(a); 21.02(b), §§ Because the id. We jeopardy. double See of- attempt offense is a lesser-included conclusion, however, by first reach that predicate aggravated-sexual- fense of the ambigu- the statute’s text is deciding that offense, appellant argued up- assault that respect to whether both convic- ous with holding his convictions for both permitted, and we then tions should be rights against would violate his double extra-textual fac- pertinent consider the the jeopardy. responded The State 21.02(c); tors. See Tex. Penal Code plain language of the continuous-sexual- affirm the 311.023. We Tex. Gov’t Code only aggravated references abuse statute judgment appeals. of the court of assault, attempted aggravated not therefore, assault, and a defendant Background I. may be convicted for both continuous sex- ten-year- complainant appellant’s attempted is ual abuse and the lesser of- 21.02(c). at stepdaughter. appel- old She testified fense. See Tex. Penal Code that from March approximately lant’s trial appeals agreed appel- The court of with 2010, January he committed multi- 2009 to Price, lant. 413 S.W.3d at 163. It held her, acts in- ple, repeated sexual language expressed the that the statute’s cluding genital penetration of her anus and intent to convictions Legislature’s disallow mouth, of her digital penetration and oral for both continuous sexual abuse and a genitals, touching of her breasts. She predicate offense that could be used to during the same time also testified that offense. Id. at 162-63. The establish her period, appellant penetrate tried to acknowledged court the State’s claim that geni- and with his genitals with a vibrator charged attempting was with appellant jury These facts resulted in a con- tals. commit, rather than with the commission offenses, only victing appellant of four two of, a offense and that the statute pertinent appeal: of which are to this mention criminal at- does not for continuous sexual abuse that conviction the absence of tempt. Despite Id. at 162. was to have occurred on or about any mention of criminal in the 29, 2010, 1, 2009, through January June statute, the court determined attempted aggravat- and the conviction for Legislature would not have intended to child that was al- ed sexual assault of a violate dual convictions that would on or about Janu- leged to have occurred jeopar- 29, rights against a defendant’s double ary 2010. See Tex. Code (a)(2)(B). 21.02(b); 22.021(a)(1)(B), dy. §§ Id. at 163-64. appeals’s pur- the court of dual convictions under these Challenging circumstances would violate ported apply plain language failure to scheme set statute, Legislature. forth petition of the the State’s dis- argues that cretionary review because Ambiguous A. The is Statute to commit a offense is Applicable Determining not included the acts of sexual abuse Law for statute, Language enumerated in the Whether Ambiguous intended to dual convictions for sexual abuse for an at- continuous statute, In construing a tempt offense under Court must seek to effectuate the “collec suggests the statute.2 The State further tive” intent or purpose legislators attempted if the even offense oc- who enacted legislation. Reynolds curred of time as State, 423 S.W.3d 382 (Tex.Crim.App. giving the conduct rise to the conviction 2014); Boykin v. abuse, appel- for continuous sexual both of (Tex.Crim.App.1991). In interpreting upheld lant’s convictions should be because statutes, we presume Legislature that the the facts show that he committed both intended for the entire statutory scheme to completed acts of abuse the com- State, Mahaffey be effective. v. plainant as well as a failed to 908, 913 (Tex.Crim.App.2012). statu When penetrate Appellant her with a vibrator. tory language is clear and unambiguous, responds by including in the statuto- give we effect plain meaning to its unless ry language provision that expressly dis- to do so would lead to absurd conse allows convictions for offenses quences Legislature that could not when defendant is convicted under the Valdez, have possibly parte intended. Ex statute, Legis- continuous-sexual-abuse 401 (Tex.Crim.App.2013); S.W.3d 655 signaled protect against lature its desire to Boykin, 818 S.W.2d at 785. A statute is and, therefore, double-jeopardy violations ambiguous statutory when the it would be absurd read the statute as may by be understood reasonably well- convictions, permitting both which would persons informed in two or more different double-jeopardy result in a violation. senses; conversely, a unambigu statute is ous when it permits only one reasonable II. The Did Not Intend to State, understanding. Bryant See v. 391 Permit Dual Convictions for Con- 86, 92 (Tex.Crim.App.2012). S.W.3d tinuous Sexual Abuse and a Lesser- Included Offense Clearly 2. Statute Disallows Dual Convictions for Continuous Sexu- After reviewing statutory language, al Abuse and Enumerated Acts we decide that it ambiguous is as to wheth- er it permits dual convictions for the of- The statutory language reflects fenses of continuous sexual abuse and at- that intended to tempted aggravated sexual assault. We one conviction for continuous sexual abuse then consider the extra-textual repeated factors be- based on the acts of sexual abuse ultimately deciding permitting fore that period that occur over an extended of time asks, ground 2. The qualify State's for review ed offenses that an “act of as sexual violation, purposes establishing abuse” for the of- finding jeopardy In did the appeals court of violate construc- fense of continuous sexual abuse the at- by adding complet- tempt completed tion canons to the list of offenses of those offenses? an sexual abuse and for if the for continuous even single complainant, against a act of sexual abuse unless unanimity as to each enumerated lacks jury oc- their time of a different acts or latter occurred particular sexual currence, jury members long as so time. dur- two acts occurred that at least

agree days in thirty or more that is ing period Ambiguous as to the The Statute 21.02(b), (d), Tex. Penal Code duration. Omitting Lan- Legislature’s Intent (f). are specifi- of sexual abuse” The “acts Attempts guage on Criminal are lesser-included cally enumerated and discretionary In re its brief on the offense of continuous offenses of view, the fact that the State focuses on State, 21.02(c); Soliz v. Id. abuse. the “acts of sexual abuse” (Tex.Crim.App.2011) S.W.3d in the do not mention enumerated statute offense listed [predicate] (holding “a[ ] ” to commit those acts. attempts (c) always be a under Subsection will 21.02(c). Relying on the absence of abuse of continuous sexual lesser offense language, argues the State “is, very the latter its defini- because Legislature must have intended tion, under certain circum- the commission dual convictions for continuous more of the offenses stances of two or abuse and for an (c)”) (internal quota- in Subsection listed sup enumerated act of sexual abuse. As omitted). tions port, it relies on Parfait further reflects interpreted which this Texas Penal Court Legislature clearly intended to 3.03, governs which sentenc Code Section dual convictions for the offense disallow arising out of ing multiple for and for offenses continuous sexual abuse episode, to determine the same abuse” when enumerated as “acts of sexual attempt whether a sentence for a criminal against conduct the same child based on could be stacked to commit a sex offense during period the same of time. See Tex. sex of completed with sentences for 21.02(e). § defendant Penal A Code fenses, despite attempt the fact that was charged with continuous sexual abuse who not enumerated as a stackable for an is tried in the same criminal action 120 offense under the statute. S.W.3d enumerated offense based on conduct com- (Tex.Crim.App.2003) (citing 349-50 against mitted the same victim 3.03(b)(2)(A)). Tex. Penal Code This unless the lat- convicted for both offenses held that a defendant’s sentence Court period occurred outside the ter offense not attempted qualify for an offense did the continuous-sexual-abuse time which Id. at 350-51. as a stackable offense. Excepting offense was committed. Id. Legislature explained The Court different of time periods situation where reasonably distinguished could have be issue, are at a fact finder could find a tween, hand, mandatory concur on one guilty defendant either of continuous sexu- sentencing for sex-offense convic rent abuse, or, alternatively, al an enumerated and on the other including attempts, tions act or acts of sexual abuse or lesser hand, discretionary cumulation for convic offense or offenses of the enumerated act involving only completed tions offenses. or id. conclude that acts. See We statutory provi Id. at 351. Unlike the statutory language plain providing is did not indi that, sions at issue in commit- when the acts were Parfait child, permit clear intent to single Legislature legislative ted cate a here the permit stacking, did not intend to dual convictions intent to to plain regarding Legislature’s prohibit intended dual con disallow dual convictions for continuous victions for continuous sexual abuse and a an enumerated of- sexual abuse lesser-included offense of criminal attempt single child fense committed to commit an enumerated offense. See id. 533-34; (cit time. See Tex. Valdez, at 401 S.W.3d at 655 21.02(e). Parfait, 311.023). there- ing After- Code Tex. Gov’t Code fore, resolving little provides guidance wards, consequences we address the of the appeal. proposed construction and conclude permitting more than one conviction A ex- reasonably person well-informed under the circumstances of this case would amining of the continuous- appellant’s violate rights against double sexual-abuse statute could determine that jeopardy. 533-34; Druery, at S.W.3d per- its silence with to whether Valdez, 655; 401 S.W.3d at see also Littrell may be simultaneously son convicted of (Tex.Crim. that offense and of a criminal App.2008). analysis Based on an suggests commit a offense pertinent factors, extra-textual we ulti the Legislature intended to those mately determine that did Alternatively, dual convictions. another not intend to dual convictions for reasonably person examin- well-informed both continuous sexual abuse and for crim ing the entire scheme could de- inal attempt to commit a offense. termine expressly because the statute prohibits dual both convictions for continu- (1) Object Sought Attained, to Be acts, ous sexual abuse and its enumerated the Circumstances Under Which the the Legislature must have also intended to Enacted, Legisla- Statute Was and the disallow dual convictions for continuous History tive abuse and a criminal The statute’s circumstances of enact- act, commit an even though enumerated ment and history show that the expressly say statute does not so. In Legislature intended the statute to “adapt light of the existence of these two reason- [the to the common Code] factual statute, interpretations able of the and be- scenario of ongoing crime involving an cause the text itself does not abusive sexual relationship of a child[.]” issue, speak to this we determine that the State, (Tex. 731, Dixon v. 737 ambiguous statute is respect, this (Cochran, J., Crim.App.2006) concurring). analysis we must resort to an of extra- enactment, Prior to the statute’s Judge textual factors. Cochran in Dixon described the common Analysis B. Extra-Textual Indicates cases, occurrence in child sex as follows: Legislative Intent to Dual Disallow Con- young repeatedly child is [A] molested victions by an authority figure usually a step- — parent, grandparent,

We consider uncle or caregiver; de novo several (or not) extra-textual factors to discern the there is Legis medical evidence of * contact; Druery lature’s intent. sexual and the child is too 523, (Tex.Crim.App.2013). S.W.3d young We to be able to differentiate one begin by contact, the addressing object sought to instance of exposure, sexual or statute, by be attained penetration circum from another or have an understanding stances under which the statute was enact of arithmetic sufficient to ed, and the legislative history, accurately statute’s all indicate the number of of- ease, which of lead us to the conclusion that the fenses. inAs “he did it 100 for a lesser-included offense. this crim- defendant gravamen real of times.” stated, sexual- the existence of a inal behavior is She young relationship with ly abusive that if the actor is specifies [The statute] nu- by continuous and ... marked child offense, of a lesser a lesser guilty found abuse of the same acts of sexual merous sexual offense within continuous varieties. or different assault, they may prosecuted be despite noted that such Id. at 736-37. She criminal action. that offense in the same easily facts, Texas law does not “current not have to be a retrial as There will generic, prosecution accommodate within the confines of the long as it’s undifferentiated, ongoing acts of assault[.] continuous sexual Id. at 737. As young children.” abuse (Mar. 20, 2007, 41:10-2:02); Id. at see result, wreck” predicted that a “train she Jurispru House on Criminal Committee to likely appears result from “what would 436, dence, Analysis, Bill Tex. C.S.H.B. at both a attempt” be a futile to accommodate (2007). Leg., 80th R.S. “rights specific to a verdict defendant’s act” and the fact that specific one Judge descriptions of the Cochran’s really at issue is not “the criminal conduct sought to be addressed problem moment.” specific one act at one specific statute, rela- ongoing sexually abusive con- proposed She that the tionship, Shapiro’s and Senator similar ref- statute that “enacting penal sider a new repetitive to a course of conduct erence of con- upon continuing focuses course period sug- an extended of time each over sexually relation- duct crime—a abusive objective that the of the statute was gest by pattern or course ship that is marked criminally to hold a defendant liable of conduct of various sexual acts.” Id. single conviction for all of the through a responded to her call for Lawmakers him transpiring sexual acts between legisla- In legislation. hearings about designated period the victim tion, Shapiro, Senator Florence the author- Furthermore, Shapiro’s time. Senator dis- Bill which intro- ing sponsor Senate sug- cussion of lesser-included offenses framework, stated, duced the statute’s per- gests intended creating that we’re “This new offense mit a fact finder to convict a defendant for of a prosecution this bill will allow for the offense, in- a lesser-included which would an ex- repetitive course of conduct over commit a clude the tended of time. It does not have to offense, only but as an alternative to con- event, specific nor specify date viction for continuous sexual assault. Hearing event.” See on Tex. specific that this earlier We also observe Court’s S.B. 78 Before the Senate Criminal Justice in analysis statutory of this scheme Soliz (Mar. Committee, 20, 2007, Leg., 80th R.S. with v. State is instructive 40:14), at http://www. at available 39:08— per- whether the intended to senate.state.tx.us/avarchive/?yr=2007 & to a any mit other conviction addition Although Shapiro mo=03. Senator did conviction for continuous sexual abuse. whether dual con- not address at The issue in See 353 S.W.3d 853-54. victions for continuous sexual abuse and a was whether the Soliz attempt to commit a lesser-includ- as to lesser-included offenses meant that it permitted, ed offense would be she did whether an jury was the that decided of- concept jury that a that was discuss the offense, a or fense constituted lesser unconvinced the continuous-sexual- about of alternatively convict a whether that issue was rather a matter abuse offense could by law to be determined the trial court. continuous sexual abuse and a criminal 21.02(e), (discussing Tex. Penal Code predicate to commit a offense. “may which states that a defendant (2) Consequences The of a Particular convicted” in same criminal action of enu- Construction is, merated offense unless that offense among things, by other “considered Jeopardy a. Double trier of fact to be a lesser included offense offenses under Subsection The Fifth Amendment guarantee (b)”). issue, resolving In jeopardy protects “against Court double noted that the purpose” statute’s “avowed multiple punishments for the same of was the a crime that States, “establish[ment of] fense.” Whalen United 445 U.S. pattern focuses on the of abuse over a 684, 688, 1482, 1436, 100 S.Ct. 63 L.Ed.2d (citations period of time.” Id. at 858 and (1980) (quoting North Carolina v. omitted). quotations Because the statute’s Pearce, 711, 717, 395 U.S. 89 S.Ct. abuse, pattern focus was on a we ex- 2076, (1969)); 23 L.Ed.2d 656 see U.S. plained language prohib- V, amends In pertinent part, CONST. XIV. “carv[ing] ited the State from individual multiple-punishments claim can arise when pattern offenses out of that and thus rein- (1) person punished for: troduc[ing] the problems the statute was twice, primary offense “once for the basic designed to address.” Id. Our comments conduct, second time for that same carving Soliz about the out of more,” (2) plus conduct or the same crimi applies equally carving to the out nal act twice under distinct two statutes of lesser-included offenses. See id. “when the legislature intended the conduct object Examination of the sought punished only to be to be Langs v. onee[.]” statute, attained by the the circumstances 685 (Tex.Crim.App. enacted, 2006). under which it legisla- was and its history

tive reveals that the Legislature in whether an intended to one conviction con- punished dividual be for the same tinuous sexual abuse for conduct commit- criminal act under two distinct statutes is single complainant ted during a Littrell, legislative a matter of intent. specified period. time The statute facili- S.W.3d at 276. To determine whether the by tated this intent allowing the Legislature would have intended a particu jury broadly to more multiple consider lar course of conduct to subject be acts of abuse over an extended multiple punishments separate under two time disallowing other convictions statutory provisions, we look first to the acts of sexual abuse that statutory language. The “starting point” would be considered lesser-included of- analysis for such an is the Blockburger fenses of continuous sexual abuse. See test, used to determine 21.02(b)-(e). whether each of Tex. Penal Code A criminal requires the offenses proof of an element offense is a that the other (citing does not. Block predicate lesser-included offense of that States, 299, 304, burger v. United 284 offense and is subsumed within com- U.S. that (1932)). 180, pleted 52 76 upon offense commission. See id. S.Ct. L.Ed. 306 If two (c). 15.01(a), separately Consequently, we defined offenses have the “same conclude legislative Blockburger, that it would defeat the elements” under purpose judi then a underlying the statute if a fact finder were cial presumption arises that the offenses permitted to convict a defendant purposes both are the same for of double jeop-

610 abuse. See ed offense of continuous sexual and, sign a clear absent

ardy, 37.09(4); Tex. Proc. art. “may Tex.Code Crim. an accused contrary, the intent to Soliz, 21.02(b), (c); (ex 353 See id. for both.” punished not be Penal Code therefore, may, pre- S.W.3d at 854. We presumption of judicial once plaining attempt that the and continuous- sume pur double-jeopardy for arises sameness offenses are the same sexual-abuse “whether then becomes poses, double-jeopardy purposes and clearly expressed has Legislature to multi- permit did not intend should that the accused contrary intention Littrell, 271 S.W.3d ple punishments. See greater for both the punished in fact be that, in (observing multiple- at 275-76 offenses”) (cita and the lesser-included context, may be “two offenses punishments omitted). test is a Blockburger The tions in the same if one offense stands relation and is not rule construction offense,” to the other as lesser-included determining if two the exclusive test for “may arises that accused presumption same, and it cannot be the offenses are both”). judicial punished The authorizing punishments two basis for Legislature did not presumption that the clearly intended where the multiple punishments intend to allow State, only Bigon one. See v. 252 S.W.3d clearly this context is not overridden 360, (Tex.Crim.App.2008); Ervin v. 371 contrary. intention to the See expressed State, 804, (Tex.Crim.App. S.W.2d 807 991 therefore, agree, id. at 276. We with the 1999). intent can also Legislature’s court of it would violate a appeals by “a list of non-exclusive be discerned rights against jeopardy defendant’s double help courts in the ab designed factors to convictions for both continuous the of guidance,” including sence of clear attempt and an to commit a abuse prosecution. fenses’ allowable unit of Gar com- predicate act with conduct (Tex. S.W.3d 59-60 fias dur- complainant mitted same Here, ap the court of Crim.App.2014). Price, ing of time. peals’s determination that the State’s con 163; Soliz, S.W.3d at see 353 S.W.3d at punish multiple struction would constitute relied, ments for the offense “same” at part, on its observation Renaming b. of Offenses Would tempts share the same allowable unit of Legislative Intent Defeat com prosecution corresponding as their light In of the fact that a defendant Price, pleted offenses. at 162 S.W.3d attempted be of an offense even convicted Milner, (citing parte Ex it, though actually completed he has (Tex.Crim.App.2013)). 508-09 reading of the statute suggested Applying principles these to the completed would it to rename a context, present we conclude that our in offense as an terpretation the continuous-sexual-abuse offense and obtain a conviction protecting statute conforms with law a de conjunction for the latter offense in with a jeopardy. rights against fendant’s double conviction for continuous sexual abuse. 15.01(c) (it Because is a lesser-included of is “no See Tex. Code abuse, completed fense of the act of sexual prosecution defense to for criminal at- act of sexual completed attempted because the offense was ac- tempt that committed”). abuse is a lesser-included offense of contin Because the facts es- tually abuse, of a tablishing from this it follows that the commission uous a conviction for attempt support is also a lesser-includ- offense would also offense offense, to the to commit statute’s enumerated of- suggested reading would under- attempts fenses and to criminal to commit design statutory mine the scheme to those offenses. We affirm the permit only one conviction for continuous judgment of the appeals. court of sexual abuse for acts committed a specified single child PRICE, J., concurring opinion filed a in 21.02(e).

time. See id. This is a conse- COCHRAN, J., joined. which the State’s quence proposed construc- possibly leg- tion that could not have been J., WOMACK, concurred in the islatively intended. judgment for the reasons stated in the PRICE, opinion of J.

(3) Consideration of All Pertinent Ex- tra-Textual Factors PRICE, J., filed concurring opinion relevant Reviewing the extra-textual fac- COCHRAN, J., which joined. novo, Legisla- tors de we conclude that the ture intended to disallow Whether defendant be twice pun- dual convictions ished for two stemming under statute continuous sexual offenses from a offense, single prosecution, abuse and for a lesser-included consistent with the Clause, including Double Jeopardy is a object, offense. legislative legislative intent.1 requires This us to en- history, gage and circumstances of the statute’s in construction of the relevant stat- legislative enactment all reflect a intent to utes to statutory determine what the lan- provide single for a punishment under the guage legislature’s reveals about the intent statute where the conduct at issue is regarding availability multiple pun- complainant within the Typically, ishments. same time frame. Additionally, this con- proves facially unrevealing with struction accords with double-jeopardy precise question, this and we must resort principles. By applying pertinent ex- to certain statutory methods of construc- factors, tra-textual Legis- we hold that the tion to legislative divine the intent. Princi- lature did not intend to dual convic- pal among those methods —at least when tions under these circumstances and that dealing double-jeopardy implica- with the appellant’s criminal-attempt conviction punishing tions of a defendant twice in the was, therefore, statutorily prohibited. prosecution same for two offenses that de- separate rive from sections of the Penal

III. Conclusion Code—is traditional indicium of ... “[t]he legislative intent is the Having [which] held that so-called the statute’s ‘same elements’ test of ambiguous, Blockburger upon consideration of factors, United States.”2 If pertinent separately extra-textual two de- we con- clude that fined are legislative statute’s intent the “same” punishment was to one under the Blockburger where con- lesser-included-of- analysis, tinuous sexual fense alleged against judicial abuse is then “the presump- single specified they victim within a time frame. tion is that are the same for double- also jeopardy We conclude that this intent extends purposes and that the accused See, 273, States, e.g., (citing Blockburger 1. Littrell v. v. United ("Sameness (Tex.Crim.App.2008) (1932)). U.S. 52 S.Ct. 76 L.Ed. 306 intent.”). context is a matter of Leg- that the presumption. We know ger for both.”3 That punished defeated, course, punish- multiple did not intend islature may be presumption abuse of for both continuous sexual intent to the con- ments clearly expressed by a offense, including any predicate relevant stat- a child and of the trary in the assault, subsumed sexual aggravated ute or statutes.4 aggravated sexual as- Attempted therein. here, Section The statute aggra- offense of sault is a lesser-included Code,5 actually does Penal 21.02 of the assault; they are the “same” vated sexual did not make it clear If double-jeopardy purposes.8 for offense (and be convicted intend that a defendant did not intend that an ongoing for this of- both punished) hence be for both continuous punished accused any of the identified and also for fense any abuse and for of the named sexual (against the same victim predicate (and offenses, then extension predicate period of time as entertaining Blockburger presump- of the continuous- purposes tion), may safely Leg- assume that the we offense) that statu- sexual-abuse-of-a-child did not intend that an accused be islature of sexual abuse.”6 comprise an “act torily susceptible punishment for both contin- of a child is to be sexual abuse Continuous uous sexual abuse of a child and also for offense, dou- as the “same” regarded (because offense that is the same as any any par- as ble-jeopardy purposes, of) any lesser-included offense it. comprise offenses that predicate ticular offenses.9 named aggra- offenses is One of those 22.021 assault under Section vated sexual remarks, I supplemental join these With Legisla- But the Penal Code.7 did opinion. the Court’s any lesser-included ture also intend any predicate offenses offense of of those

(such attempted aggravated sexual as an

assault) regarded the “same” should be as

as the continuous-sexual-abuse-of-a-child double-jeopardy purposes?

offense for expressly speak

Section 21.02 does not question. any contrary expres-

In the absence of 21.02,

sion of intent Section Blockbur- primary

our consideration offense.”); charged or an otherwise included 3. Id. Littrell, 271 S.W.3d at 277 n. 18. Id.; 4. 351-52 Garza (Tex.Crim.App.2007). application 9. This is but an of the transitive = = = b, c, property: If a and b then a c. If 5. Tex. 21.02. Code abuse of a child is the same continuous sexual aggravated offense as offense (e). 6. assault, aggravated sexual sexual assault is the same offense as its lesser-included of- (c)(4) 22.021). (listing Id§ Tex Penal Code assault, aggravated attempted fense of ("An 37.09(4) a child is the then continuous sexual abuse of 8. See Tex.Code Crim. Proc. art. attempted aggravated offense included offense if ... it same as offense is lesser to commit the offense assault. consists of

Case Details

Case Name: Price, Jimmy Don

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 25, 2014

Citation: 434 S.W.3d 601

Docket Number: PD-1460-13

Court Abbreviation: Tex. Crim. App.