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holding that the charged and extraneous offenses were sufficiently similar where both: involved young females; occurred while the defendant was an adult; and involved sexual contact between the defendant and complainants
Summary of this case from Joiner v. StateOpinion
No. 14–15–00023–CR
05-12-2016
Emmett Jeffrey Banks, Appellant v. The State of Texas, Appellee
Gina Jones, Susan Schoon, New Braunfels, TX, for Appellant. Lisa C. McMinn, Austin, TX, Joshua Presley, Laura Bates, New Braunfels, TX, for State.
Gina Jones, Susan Schoon, New Braunfels, TX, for Appellant.
Lisa C. McMinn, Austin, TX, Joshua Presley, Laura Bates, New Braunfels, TX, for State.
Panel consists of Justices Jamison, Donovan, and Brown. (Jamison, J., dissenting).
MAJORITY OPINION
Marc W. Brown, Justice
Appellant was charged with two counts of aggravated sexual assault of a child and two counts of indecency with a child by contact. Tex. Penal Code Ann. §§ 21.11(a)(1), 22.021(a)(1)(B)(i) (West 2015). The indictment contained an enhancement paragraph for a previous sexual abuse conviction. The jury found appellant guilty on all four counts. The jury also found the enhancement to be true and assessed punishment at life in prison. See id. § 12.42(c)(2) (West 2015).
This appeal was transferred to this court from the Third Court of Appeals. In cases transferred from one court of appeals to another, the transferee court must decide the case in accordance with the precedent of the transferor court if the transferee court's decision would have been inconsistent with the precedent of the transferor court. See Tex. R. App. P. 41.3.
Appellant appeals his convictions, raising three issues. First, appellant contends the trial court erred when it allowed extraneous offense evidence of a prior conviction for a sexual offense to be admitted during the guilt/innocence phase of trial. Because the extraneous acts were relevant to rebut the defensive theory of fabrication, and because the evidence was more probative than prejudicial, we overrule appellant's first issue. Second, appellant argues two of his convictions in this case violate the prohibition against double jeopardy. We overrule this issue because the State proved the commission of four separate and distinct sexual offenses. Finally, in his third issue, appellant contends the trial court failed to determine whether his prior conviction was “substantially similar” to a Texas offense for enhancement purposes. We disagree and therefore affirm the trial court's judgments.
I. Factual and Procedural Background
Appellant and his girlfriend, S.O., moved together from West Virginia to Comal County, Texas. The complainant and her sister, M.O., lived in the new home with their mother S.O., appellant, appellant's son Q.B., and T.B., who was the infant son of S.O. and appellant.
In April 2013, when the complainant was 11 years old, she came home from school and sat on the couch next to appellant. S.O. was asleep on the adjacent couch, having taken a sleeping pill. Appellant began rubbing the top of the complainant's blue jeans on her “private part.” The complainant tried to back away but appellant told her to stop. Appellant then unbuttoned the complainant's blue jeans, put his hand underneath her underwear, and began rubbing the inside and outside of her sexual organ “up and down.” Appellant then instructed the complainant to change into shorts. The complainant left the couch, changed into her shorts, and returned to the couch. Once the complainant returned to the couch, appellant again touched her on and underneath her shorts, this time rubbing the inside and outside of her sexual organ in a “sideways” direction.
A few months later, the complainant told M.O. that appellant had touched her. The complainant stated that she did not want to tell anyone at first because she was afraid appellant would hurt her or her mother or sister. M.O. later told their grandmother, S.M., that appellant had touched the complainant. S.M. asked the complainant what happened and the complainant told S.M. appellant touched her. S.M. informed S.O. that appellant touched the complainant, and the next day they confronted appellant with the allegations.
During the confrontation, appellant yelled at the complainant and called her a liar. A couple of days later, the complainant told S.M. that she made up the allegations “because [she] was scared that [she] would get taken away by CPS and stuff and never see [her] mom again.” S.M. called the police on two different occasions to report the abuse. On both occasions, she told the police officer that the complainant had recanted so no official police report was made.
One week after the confrontation, appellant moved back to West Virginia with Q.B. and T.B. S.M. retained a lawyer to assist S.O. with custody of T.B. and filed a police report about appellant's sexual conduct with the complainant.
Appellant was indicted for two counts of aggravated sexual assault of a child and two counts of indecency with a child by contact. The indictment also contained an enhancement paragraph regarding appellant's previous third degree sexual abuse conviction in West Virginia.
The State called Doug Phillips, a detective in Comal County, to testify about appellant's prior conviction. Phillips was responsible for keeping sex offender registration files up to date for the Comal County Sheriff's Office. During the guilt/innocence phase of trial, Phillips' testimony was limited to his identification of appellant as the same individual who was convicted of the West Virginia sexual abuse offense. Later, during the punishment phase of trial, Phillips testified that he knew appellant was the same individual convicted of the prior offense because appellant had registered as a sex offender.
The jury found appellant guilty of all counts in the indictment and found the enhancement paragraph to be true. Appellant was sentenced to confinement for life in the Texas Department of Criminal Justice Institutional Division.
Appellant timely appealed.
II. Analysis
Appellant presents three issues. Because double jeopardy is a rendition point that would entitle appellant to a partial judgment of acquittal, we address that issue first. See Tex. R. App. P. 43.3.
A. Double Jeopardy
Appellant contends his double jeopardy protections were violated when he was convicted of both aggravated sexual assault of a child and indecency with a child by contact. We disagree. The record supports four separate and distinct sexual offenses committed by appellant.
1. Waiver
As an initial matter, the State argues that appellant waived his complaint of double jeopardy by not raising it at trial. A double jeopardy claim generally must be raised in the trial court to preserve error for appellate review. Gonzalez v. State , 8 S.W.3d 640, 642 (Tex.Crim.App.2000). However, lack of objection is not a bar to presenting the issue on appeal when “(1) the undisputed facts show that the double jeopardy violation is clearly apparent on the face of the record and (2) enforcement of usual rules of procedural default serves no legitimate state interests.” Id. at 643.
Although appellant did not raise a double jeopardy claim at trial, he now argues that the genital contact/touching alleged in Counts II and IV of the indictment were incident to, and therefore subsumed within, the acts of penetration alleged in Counts I and III. The evidence presented at trial, however, established that appellant touched the complainant's sexual organ over her jeans, stopped, and proceeded to penetrate her sexual organ under her jeans. He then requested the complainant change into shorts and proceeded to repeat his actions, touching the complainant both on and underneath her shorts.
If the record supports separate and distinct acts, even if committed in close temporal proximity, the incidents may lawfully give rise to a conviction for each separate act. See Maldonado v. State , 461 S.W.3d 144, 147, 149–50 (Tex.Crim.App.2015) ; Loving v. State , 401 S.W.3d 642, 650 (Tex.Crim.App.2013) (Cochran, J., concurring). Because the record establishes four separate and distinct acts that support appellant's four convictions, no double jeopardy violation is clearly apparent. Therefore, appellant cannot raise his double jeopardy claim for the first time on appeal. See Gonzalez , 8 S.W.3d at 643.
2. Analysis
Even absent waiver, appellant's double jeopardy claims lack merit. The double jeopardy prohibitions protect against (1) a second prosecution for the same offense after an acquittal, (2) a second prosecution for the same offense after a conviction, and (3) multiple punishments for the same offense. Illinois v. Vitale , 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) ; Lopez v. State , 108 S.W.3d 293, 295–96 (Tex.Crim.App.2003). This case involves the issue of multiple punishments resulting from a single prosecution. Appellant argues his double jeopardy rights were violated because he is being punished twice for the same offense. We disagree.
The United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const.amend. V.
The Texas Constitution contains a similar provision: “No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.” Tex. Const. art. I, § 14. These double jeopardy constitutional protections are substantially identical. Ex parte Mitchell , 977 S.W.2d 575, 580 (Tex.Crim.App.1997), cert. denied , 525 U.S. 873, 119 S.Ct. 172, 142 L.Ed.2d 140 (1998).
A person commits aggravated sexual assault of a child when that person causes the penetration of the sexual organ of a child by any means. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i). An actor is guilty of indecency with a child by contact when that person engages in sexual contact with a child who is younger than 17 years of age. Id. § 21.11(a)(1). Sexual contact is defined as the touching by a person, in cluding through the clothing , of the breast, anus, or genitals of a child, with the intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c)(1) (West 2015).
The question is whether the “convictions are based on the same act” or whether each violation is predicated on a separate act. Barnes v. State , 165 S.W.3d 75, 88 (Tex.App.–Austin 2005, no pet.) ; see also Patterson v. State , 152 S.W.3d 88, 92 (Tex.Crim.App.2004) (where penetration necessarily required contact, the convictions were based on the same act). We conclude appellant's convictions are based on four separate and distinct sexual acts.
We note that Patterson was resolved on the basis of statutory construction rather than double jeopardy.
Although the Texas Court of Criminal Appeals has held that indecency with a child can be a lesser-included offense of sexual assault of a child, that holding is contingent on the fact that the offenses are predicated on the same conduct. See Evans v. State , 299 S.W.3d 138, 143 (Tex.Crim.App.2009) ; Vick v. State , 991 S.W.2d 830, 834 n. 2 (Tex.Crim.App.1999). For example, “penile contact with [the] mouth, genitals or anus in the course of penile penetration will be subsumed.” Patterson , 152 S.W.3d at 92. However, a person who commits more than one sexual act against the same victim may be convicted and punished for each separate act, even if these acts were committed “in close temporal proximity.” Loving , 401 S.W.3d at 650 (Cochran, J., concurring); Vick , 991 S.W.2d at 833.
Where, as here, the complainant testifies to separate incidents of both contact outside and penetration inside, the contact is not subsumed within the penetration. Rather, the complainant has suffered two separate acts with two separately formulated intents. See Maldonado , 461 S.W.3d at 147, 149–50.
Here, the complainant testified at trial that appellant began rubbing her “private area” while his hand was on the outside of her blue jeans. An individual may be convicted for indecency with a child even when the child is clothed. See Resnick v. State , 574 S.W.2d 558, 560 (Tex.Crim.App.1978). The complainant then stated that appellant “unbuttoned [her] jeans and went under” her blue jeans and underwear and proceeded to rub “up and down” on the “inside and out[side]” of her sexual organ. After appellant perpetrated the first two sexual offenses on the complainant, he asked the complainant to change into shorts. When the complainant returned with shorts on, the complainant told appellant that Q.B's door was still open. Appellant then told the complainant to close the door. The complainant went to close the door to Q.B.'s room, telling Q.B., “your dad told me to close your door.” The complainant then went back to appellant. At that time, appellant put his hand on the complainant's shorts and “touched [her] again.” Appellant put his hand under the complainant's shorts, touched both the inside and outside of her sexual organ, and “rubbed it sideways.”
The complainant's testimony supports the jury's determination that four separate and distinct offenses occurred. Therefore, appellant's reliance on Patterson is misplaced. There, the Court of Criminal Appeals upheld the ruling that sexual contacts between the appellant and the complainant were incident to the penetrations and therefore the indecency offenses were part of the aggravated assault offenses and not subject to prosecution as separate offenses. Patterson , 152 S.W.3d at 92. This case is distinguishable.
Unlike the case in Patterson, where it was necessary for the perpetrator to make contact with the complainant's anus in the course of penetrating the complainant's anus, appellant made the decision to touch the outside of complainant's sexual organ including through her clothing and made a separate decision to go underneath her clothing and digitally penetrate inside her sexual organ. Cf. id. (stating that the lesser-included offense will be subsumed in the greater offense when it occurs as part of the commission of the greater offense). This involved two separately formulated intents by appellant. See Maldonado , 461 S.W.3d at 147 (“Even separate acts that occur close in time can be separate offenses if each involves a separate impulse or intent.”). We are not saying, as the dissent suggests, that appellant could be separately prosecuted for each movement of his hand. Nor are we reaching this conclusion based on some intellectual exercise. Rather, as in Maldonado, we are determining whether the jury was presented evidence of and therefore reasonably could have found four separate and distinct acts. See id. at 149 (explaining Patterson properly applies only where “under the facts of the case, the jury could not have found separate offenses or separate acts”). Because the record supports the jury's finding of four separate acts of sexual perpetration against the complainant, we overrule appellant's second issue.
B. Admission of extraneous evidence
Having overruled appellant's rendition point, we turn to his first issue, in which he contends the trial court abused its discretion in allowing the State to introduce extraneous offense evidence. We disagree.
The State contends appellant waived his objection to the admission of rule 404(b) evidence when he failed to object to the evidence on four separate occasions. Because an objection that is ruled upon outside the presence of the jury does not need to be repeated before the jury, and here the parties discussed the admissibility of the evidence in a hearing outside the presence of the jury and the trial court specifically “overrule [d] the 404(b) objection,” appellant sufficiently preserved his challenge. See Tex. R. Evid. 103(b) ; Lopez v. State , 253 S.W.3d 680, 684 (Tex.Crim.App.2008).
The admissibility of evidence is within the discretion of the trial court. Moses v. State , 105 S.W.3d 622, 627 (Tex.Crim.App.2003). We uphold the trial court's evidentiary ruling as long as it was within the zone of reasonable disagreement. Id. (citing Montgomery v. State , 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh'g)). We cannot simply substitute our own decision for the trial court's and should reverse only for a clear abuse of discretion. See id.
Generally, extraneous offense evidence that does not have relevance apart from character conformity is inadmissible during the guilt/innocence phase of trial. Tex. R. Evid. 404(b). However, such evidence is admissible when the extraneous act is: (1) relevant to a fact of consequence in the case aside from its tendency to show action in conformity with character and (2) its probative value is not substantially outweighed by the danger of unfair prejudice. Hedrick v. State , 473 S.W.3d 824, 829 (Tex.App.–Houston [14th Dist.] 2015, no pet.) ; see Tex. Rs. Evid. 401, 402, 403, 404(b). Additionally, the State must provide reasonable notice to the defendant before trial that it intends to introduce extraneous offense evidence. See Tex. R. Evid. 404(b) ; Tex. Code. Crim. Proc. Art. 37.07 § 3(g) (West 2015). We defer to the trial court's determinations of whether extraneous evidence has relevance apart from character conformity and whether the probative value is substantially outweighed by the danger of unfair prejudice. See Moses , 105 S.W.3d at 627.
Rule 404(b) provides:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case-in-chief.
Tex. R. Evid. 404(b).
Approximately one year before trial, the State provided appellant with notice of its intent to use extraneous offense evidence under rule 404(b) and article 37.07.
Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action. Tex. R. Evid. 401. Even if the extraneous evidence is relevant, the trial court may properly exclude it under rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, misleading the jury, undue delay, or needlessly presenting cumulative evidence. See id. R. 403. “When Rule 403 provides that evidence ‘may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,’ it simply means that trial courts should favor admission in close cases, in keeping with the presumption of admissibility of relevant evidence.” Montgomery , 810 S.W.2d at 389.
1. Rebutting fabrication theory
Extraneous offense evidence may be admissible for other purposes besides character conformity. Tex. R. Evid. 404(b). Rebuttal of a defensive theory is one of these “other purposes.” See Williams v. State , 301 S.W.3d 675, 687 (Tex.Crim.App.2009) ; see also Bass v. State , 270 S.W.3d 557, 563 (Tex. Crim. App. 2008) (stating that “other purposes” includes rebutting the defensive theory that a complainant fabricated her allegations against defendant). Therefore, appellant's defensive opening statement—although not evidence—opens the door to the admission of extraneous offense evidence to rebut his fabrication theory presented during the opening statement. Hedrick , 473 S.W.3d at 832.
Appellant does not dispute that he argued the defense of fabrication. Appellant argues, however, that he raised the fabrication defense merely in response to the State's opening statement suggesting that the complainant's recantation was not true, and thus the extraneous offense evidence is not admissible. See Wheeler v. State , 67 S.W.3d 879, 885 (Tex.Crim.App.2002) (stating, as a general rule, the defensive theory that the State wishes to rebut through the use of extraneous offense evidence may not be elicited by prompting or maneuvering by the State).
In the State's opening, the prosecutor stated the facts that he expected to prove during the course of trial. He told the jury the evidence would show that the complainant recanted after making her initial outcry. In a hearing outside the presence of the jury, the prosecutor argued he brought up the complainant's recantation to prevent appellant from impeaching the complainant for a prior inconsistent statement. He did not do so in order to elicit a theory of fabrication.The trial court determined the State's opening statement regarding the recantation did not rise to the level of “prompting or maneuvering” as contemplated by the Court of Criminal Appeals in Wheeler. Rather, the court found it was appellant, in his opening and during cross-examination of the complainant, who went well beyond raising discrepancies in testimony to the point of raising fabrication.
In appellant's opening, he advanced different theories and explanations as to why the complainant recanted. The first theory was that the complainant recanted “to get rid of [appellant].” Second, she recanted because her mother and grandmother were upset that appellant took T.B. back to West Virginia. Appellant again raised both theories during his cross-examination of the complainant. The court determined that by advancing these theories appellant went beyond attacking the complainant's credibility and consequently opened the door for rebuttal evidence from the State regarding extraneous evidence. Based on our review of the record, we conclude the trial court did not abuse its discretion in finding the extraneous offense was admissible to rebut the defensive theory of fabrication brought by appellant.
2. Similarity of extraneous offense
Appellant also contends the evidence was insufficient to show that the extraneous offense was similar to the charged offenses. An extraneous offense must share common characteristics with the offense for which the defendant is currently on trial in order to be admissible. Rickerson v. State , 138 S.W.3d 528, 531 (Tex.App.–Houston [14th Dist.] 2004, pet. ref'd). The similarities, however, do not have to be exact. See Wheeler , 67 S.W.3d at 886–88 ; Dennis v. State , 178 S.W.3d 172, 179 (Tex.App.–Houston [1st Dist.] 2005, pet. ref'd).
Here, the record reveals both the extraneous offense and the charged offenses involved young females between the ages of 11 and 15 at the time of the perpetration; both occurred while appellant was an adult; and both involved sexual contact between appellant and the complainants. There are enough common characteristics between the current charges and the prior conviction to support that the trial court did not abuse its discretion in admitting the prior conviction. See Newton v. State , 301 S.W.3d 315, 320 (Tex.App.–Waco 2009, pet. ref'd).
3. Rule 403
We next consider whether the trial court abused its discretion by determining that the probative value of this evidence was not substantially outweighed by unfair prejudice. We conclude that it did not.
Evidence that is admissible under rule 404(b) may nevertheless be inadmissible under rule 403. See Mozon v. State , 991 S.W.2d 841, 846 (Tex.Crim.App.1999). We will reverse a trial court's determination that the prejudicial effect of evidence does not outweigh its probative value only for an abuse of discretion. Id.
When conducting a rule 403 analysis, courts must balance: (1) the inherent probative force of the proffered item of evidence, along with (2) the proponent's need for that evidence, against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State , 210 S.W.3d 637, 641–42 (Tex.Crim.App.2006).
We presume that the probative value of relevant evidence outweighs any danger of unfair prejudice. See Hammer v. State , 296 S.W.3d 555, 568 (Tex.Crim.App.2009).
a. Inherent probative force
Because appellant's prior extraneous offense occurred 13 years prior to the charged offense, the trial court reasonably could have found that its inherent probative force was reduced. The evidence presented outside the presence of the jury, however, illustrated the similarities between the two offenses. Therefore, the trial court could have found its probative force was bolstered. See Newton , 301 S.W.3d at 318 (“Rule 404 does not impose any presumptive time limitation which must be met for an extraneous offense to have probative value.”). Accordingly, at most, the first factor somewhat favors exclusion.
b. State's need for evidence
Because the State was required to show appellant made sexual contact with the complainant and because there were no eyewitnesses to the sexual abuse or any physical evidence, the trial court reasonably could have concluded that the State's need for evidence was considerable. See Gigliobianco , 210 S.W.3d at 642 ; Newton , 301 S.W.3d at 320 (State's need for extraneous offense evidence was considerable because State had no physical evidence or eyewitness testimony). Accordingly, this factor favors admission.
c. Tendency of evidence to suggest decision on an improper basis
The extraneous offense evidence did have a tendency to arouse hostility for one side and “to suggest a verdict on an improper basis because of the inherently inflammatory and prejudicial nature of crimes of a sexual nature committed against children.” Newton , 301 S.W.3d at 320. However, when a trial court gives a proper limiting instruction regarding the extraneous offense to the jury, it lessens the prejudicial impact of this factor. Id. Here, the trial court gave a limiting instruction to the jury. Accordingly, this factor somewhat favors exclusion.
The trial court instructed the jury:
If you find that the State has proven the defendant's involvement in any such act or acts, if any, you may only consider this testimony as it may aid you, if it does, to rebut the defensive theories of fabrication, frame-up and/or retaliation in relation to the offense on trial. You may not consider these other acts for any other purpose.
d. Tendency of evidence to confuse or distract jury
Because the extraneous offense evidence in this case was limited, direct, and relevant, this factor weights in favor of admission. See Bass , 270 S.W.3d at 562–63 (agreeing with the State's claim that when a defendant stands accused of abusing one child, evidence that he abused other children in a similar fashion is relevant).
e. Tendency of evidence to be given undue weight by jury
The extraneous offense evidence in this case was straightforward and easily understood by the jury. See Gayt a n v. State , 331 S.W.3d 218, 228 (Tex.App.–Austin 2011, pet. ref'd). Phillips' testimony was limited to the identification of appellant as the same individual who was convicted for the extraneous offense in 2001. Therefore, this factor weighs in favor of admission. f. Likelihood that evidence will be too time-consuming or repetitive
Phillips' testimony was brief, and he was the only witness to testify regarding the prior conviction. His testimony comprised five pages of the approximately 267 pages contained in the transcript of the guilt/innocence phase of trial. This factor favors admission. See id. (citing Lane v. State , 933 S.W.2d 504, 520 (Tex.Crim.App.1996) (factor weighed in favor of admission where extraneous offense testimony amounted to “less than one-fifth” of trial testimony)).
g. Conclusion
Although factors one and three weigh slightly in favor of excluding the evidence of the extraneous offense, the danger of unfair prejudice must substantially outweigh the probative value of the evidence. Montgomery , 810 S.W.2d at 389. On our review of the record, we conclude that the trial court did not abuse its discretion by determining that the probative value of evidence of appellant's prior conviction was not substantially outweighed by the danger of unfair prejudice.
4. Harm
Even assuming that the trial court erred, we conclude appellant did not suffer harm. Error from the admission of an extraneous offense does not constitute constitutional error and should be disregarded unless it affected the appellant's substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State , 953 S.W.2d 266, 271 (Tex.Crim.App.1997).
Here, appellant's substantial rights were not affected by the admission of the extraneous offense evidence. Given the complainant's testimony, the defensive theory of fabrication, the notice provided by the State of its intent to use the prior offense, the brevity of the testimony about the offense, and the trial court's limiting instruction, no harm exists when viewed in the light of the entire jury charge, the evidence, and the record as a whole. See id.
We overrule appellant's first issue.
C. Substantial similarity of the prior conviction used for enhancement
In his third issue, appellant essentially argues that the enhancement in this case is invalid because there was no explicit analysis or finding on the record of substantial similarity. See Tex. Penal Code Ann. § 12.42(c)(2)(B)(v) (West 2015). We disagree.
Appellant does not argue that he is not the person who committed the enhancement conviction. He also does not argue that assuming the trial court determined that the elements of the West Virginia statute at issue, W. Va. Code Ann. § 61–8B–9(a), are substantially similar to those of indecency with a child by contract, Tex. Penal Code § 21.11(a)(1), for purposes of section 12.42(c)(2)(B)(v), that such finding was incorrect, much less provide any explanation as to how.
Section 12.42(c)(2)(B)(v) provides:
(2) Notwithstanding Subdivision (1), a defendant shall be punished by imprisonment in the Texas Department of criminal Justice for life if:
...
(B) the defendant has been previously convicted of an offense:
...
(v) under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv).
Tex. Penal Code Ann. § 12.42(c)(2)(B)(v) ; see id. § 12.42(c)(2)(B)(ii) (listing section 21.11 ).
Hardy v. State , 187 S.W.3d 232 (Tex.App.–Texarkana 2006, pet. ref'd), is instructive. There, although the record did not explicitly show that the trial court took judicial notice of and determined that a California sexual offense was substantially similar for purposes of section 12.42(c)(2)(B), the Hardy court assumed judicial notice and the substantial similarity finding. 187 S.W.3d at 236. The Hardy court did so “because the trial court could not charge the jury on the enhancement, or impose a mandatory life sentence, without making such a determination.” Id.
See also Suares v. State , No. 05–07–00862–CR, 2008 WL 2747186, at *2 (Tex.App.–Dallas July 16, 2008, pet. ref'd) (mem. op., not designated for publication); Green v. State , No. 14–06–00535–CR, 2007 WL 2265787, at *9 (Tex.App.–Houston [14th Dist.] Aug. 9, 2007, no pet.) (mem. op., not designated for publication) (applying Hardy where punishment tried to court).
Here, during the guilt/innocence phase, the trial court discussed with the parties outside the jury's presence the similarity between the elements of the West Virginia and Texas statutes. In addition, during its closing during punishment, the State read from the West Virginia statute at issue without objection and argued that it was virtually identical to the Texas indecency statute. The court submitted the charge with the enhancement paragraph. The charge further instructed the jury to assess a sentence of “life” if it found the enhancement paragraph true. Appellant did not object to the charge. When the jury returned its verdict, the trial court sentenced appellant to life imprisonment. The trial court could not have charged the jury on the enhancement, or imposed a mandatory life sentence, without analyzing and making a determination of substantial similarity. See id . Therefore, we assume the trial court took judicial notice of the West Virginia statute and implicitly found that the Texas and West Virginia statutes were substantially similar. Because the court's finding was implied, it need not have been expressly stated in the record. See id.
Accordingly, we overrule appellant's third issue.
III. Conclusion
Having overruled each of appellant's issues, we affirm the trial court's judgments.
Martha Hill Jamison, Justice, dissenting
The Texas Legislature clearly and understandably intends to be “tough on crime” when it comes to sexual offenses against children. That does not mean, however, that the State may unconstitutionally over charge an offender or that this court may find waiver where it does not exist. Because the majority permits this overreach, I respectfully dissent.
Double–Jeopardy
The jury determined that appellant committed four distinct sexual offenses. It is undisputed that the actions on which these offenses were predicated occurred on the same day and on the same couch and most likely within a 45–minute time span. They also all involved appellant using his hand to touch complainant's sexual organ. By any definition, they occurred during the course of one horrible episode. The majority concludes that the jury properly found appellant had four separately-formulated intents or impulses in committing these acts. I cannot agree that the evidence, nor any reasonable inference, supports this conclusion. The complainant testified about the incident as follows:
As will be discussed below, the majority's holding rests alternatively on waiver and a determination that there was no double jeopardy violation in this case. I would hold that there was no waiver of the issue and the four convictions violated the prohibition against double jeopardy.
Q: Okay. Can you tell us what you're talking about?
A: [Appellant] touched me.
Q: Okay. Where?
A: On my private.
....
Q: Okay. Do you remember that day?
A: Yes.
....
Q: Okay. So sitting [on the couch] at 4:00 when you first go sit down, what happened after that?
A: I sat down. Me and [appellant] were watching American Idol....
Q: So when you're sitting on the couch watching American Idol, where is [appellant]?
A: Sitting next to me.
....
Q: Okay. After that [appellant licked complainant's neck], what happened?
A: He rubbed the top of my jeans.
....
Q: Did he saying [sic] anything else to you?
A: I started backing up and he told me to stop backing up.
....
Q: Okay. Did he say anything else that you remember?
A: No. He—he pulled the blanket down and told me to go change into some shorts.
Q: Okay.... What happened immediately after you—he said stop backing away?
A: I stopped backing away and he rubbed up and down.
Q: Where was his hand at that point?
A: On my private part.
....
Q: [I]n relation to your pants, where was his hand?
A: On top of my jeans.
Q: Okay. Did that change there?
A: Yes.
Q: Okay. How?
A: He unbuttoned my jeans and went under.
....
Q: What did he go under?
A: My underwear and my jeans.
Q: And what happened immediately after that?
A: He touched—rubbed up and down.
....
Q: Okay. How long did he rub up and down?
A: For about ten to 20 minutes [sic].
Q: How were you able to tell how long it took?
A: Well, because when he told me to go get changed, it was about 4:30.
Q: Okay. So when was it that you said it had started?
A: Like 4:15.
Q: [W]hen you say he rubbed up and down, was he touching the inside or the outside of your part?
A: Both.
Q: After that, what happened?
A: When he told me to get shorts, I put on my shorts and I went back.
....
As the majority points out, complainant further testified at this point that after she changed into shorts at appellant's direction, she also closed appellant's son's door, also as instructed by appellant, before returning to the couch.
As the majority points out, complainant further testified at this point that after she changed into shorts at appellant's direction, she also closed appellant's son's door, also as instructed by appellant, before returning to the couch.
Q: Okay. And what happened when you went back?
A: He did it again.
....
Q: What happened first when you got back to the couch?
A: I got back and he put his hand on my shorts; and he put his hand under my shorts and touched me.
....
Q: Okay. Where did he touch you ...?
A: Right here on my private.
Q: When it first started, was it over the clothes or under the clothes?
A: Under.
Q: How did he touch you that second time?
A: He like—like sideways.
....
Q: Okay. Did he touch the inside or outside?
A: Both.
....
Q: What happened to make it stop?
A: [Appellant's son] walked out [of his room] to get some tea and food and asked me if I wanted any. I said yes. So I got up and got some and [appellant's son] went and sat on the couch.
While the Court of Criminal Appeals has concluded that separate sexual acts during one assault can result in separate punishments when evidence demonstrates that the defendant truly performed multiple, separate, completed acts, the Court has also cautioned against the “hypertechnical division of what was essentially a single continuous act.” Aekins v. State, 447 S.W.3d 270, 277–79, 281, 283 (Tex.Crim.App.2014). I believe the majority engages in just such a hypertechnical division when it concludes that appellant engaged in four separate and distinct sexual offenses occasioned by four separate and distinct intentions. To the contrary, the facts in this case indicate that appellant intended to molest complainant by using one instrument, his hand, to touch and penetrate one body part, her genitals, all while avoiding detection by others in the room. He began by touching her through her clothing, escalated his behavior by moving his hand inside her clothing, then instructed her to change into shorts before continuing the same conduct. See id. at 281 (“In short, in Texas, as in many other jurisdictions, a defendant may not be convicted for a completed sexual assault by penetration and also for conduct (such as exposure or contact) that is demonstrably and inextricably part of that single sexual assault.”). In no reasonable sense did appellant complete a sexual act before formulating a “fresh impulse” and determining to pursue a new course of conduct, much less doing so multiple times. See id. at 282. Although his actions escalated during the assault (going from outside her clothes to inside and from touching to penetration), his intention remained the same and the entirety of the encounter constituted but one assault. See id. (“A rape is one act from beginning to end ....”). Although touching can certainly be a separate offense from penetration, here the touching was merged into or subsumed within the ultimate act of penetration as they were part of the same escalating conduct. See id.
The prosecution and the majority appear to divide appellant's conduct into touching complainant outside her jeans, penetrating complainant inside her jeans, touching complainant outside her shorts, and penetrating her inside her shorts. However, just because we can intellectually perform such an exercise does not mean that we should. We could further imagine that each movement of appellant's hand had a separate intention behind it; he certainly was in control of his hand and decided each movement of his fingers. Following the majority's logic, could each of these movements be a separate offense? The Legislature has not manifested an intent to authorize “stop-action” prosecutions (and therefore multiple punishments) for a single complete act of sexual assault. Id. at 281 ; see also Patterson v. State, 152 S.W.3d 88, 92 (Tex.Crim.App.2004) (“The [legislative] scheme encompasses escalation of abuse; no matter where in the range the perpetrator stops, the offense is complete at that point.... While it is clear from the plain language of the various statutes that the legislature intended harsh penalties for sexual abuse of children, there is nothing in the language to suggest that it intended to authorize ‘stop-action’ prosecution.”).
Appellant was indicted and convicted for two counts of aggravated sexual assault of a child under Penal Code section 22.021 and two counts of indecency with a child by contact under Penal Code section 21.11(a)(1). Tex. Penal Code Ann. §§ 22.021, 21.11(a)(1). This case therefore involves analyzing both whether double jeopardy protections bar convictions for violation of both statutes under the facts of this case as well as whether those protections bar convictions for two violations of each separate statute. See Blockburger v. United States, 284 U.S. 299, 301–02, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (considering double jeopardy implications of prosecution under separate statutes); Speights v. State, 464 S.W.3d 719, 722–24 (Tex.Crim.App.2015) (discussing “units of prosecution” under a single statute); Aekins, 447 S.W.3d at 274–75 (discussing Blockburger as well as concepts of “single impulse” and the “doctrine of subsumed acts”).
Arguably, the break in the assault occasioned by complainant changing from jeans to shorts could have caused a break in appellant's intent or impulse such that when the complainant returned to the couch, appellant committed a second assault. See Patterson at 434, (affirming conviction of two “essentially identical assaults, separated by a short period of time” where defendant penetrated complainant's anus with his penis before she left her bed and went to the bathroom and penetrated her anus with his penis again after she returned to her bed from the bathroom). However, I think this unlikely as the clothing change occurred at appellant's direction; thus, appellant had not completed any impulse or reached a “fork in the road” regarding his conduct. Aekins, 447 S.W.3d at 282 ; see also Spain v. United States, 665 A.2d 658, 660 (D.C.1995) (concluding, under similar facts, the issue is whether there was evidence to show that the defendant reached a decision point, a “fork in the road” leading to a “new impulse,” resulting in a different offense). Regardless, even if this break is viewed as restarting the assault, there would still be two convictions too many in this case as the indecency by touching offenses were subsumed in the aggravated sexual assault offenses.
Certainly the duration of an assault can be considered by the jury in determining the appropriate punishment. If tried and convicted for only one of the greater offenses charged in this case, aggravated sexual assault of a child, a first degree felony, appellant still could have been sentenced to life in prison, the same punishment he ultimately received with four convictions and an enhancement. See Tex. Penal Code Ann. §§ 12.32 (providing punishment range for first degree felonies), 22.021(e) (defining aggravated sexual assault of a child as a first degree felony). Dividing sexual assault into ever-more-detailed units of prosecution threatens to overcomplicate jury charges, distract jurors, and change the focus of victim testimony.
Although the Court of Criminal Appeals has used restrictive language in some recent double jeopardy cases, those cases are factually distinguishable from the present case. For example, in Maldonado v. State, the Court stated, “An offense may be factually subsumed when there is a single act that cannot physically occur in the absence of another act.” 461 S.W.3d 144, 149 (Tex.Crim.App.2015). The Court then held that the two indecency convictions at issue were not subsumed within the greater aggravated sexual assault convictions because the evidence demonstrated multiple instances of conduct involving different acts over a span of many years. Id. As detailed above, the evidence in the present case established one incident of about 45 minutes duration, occurring on one couch, and involving escalating conduct, not separate incidents involving different completed acts at different times.
I acknowledge that this language can be analyzed in terms of physics or in terms of intent. If no “rubbing” precedes penetration, the contact offense is subsumed as a matter of physics. If “rubbing” precedes penetration as an inextricable part of the sexual assault, the contact offense is subsumed as one continuous act and one continuous intention.
In Speights v. State and Loving v. State, the respective defendants were convicted for both indecency by exposure and indecency by contact. Speights, 464 S.W.3d 719, 721 (Tex.Crim.App.2015) ; Loving, 401 S.W.3d 642, 643 (Tex.Crim.App.2013). Evidence in the cases supported the conclusion that each defendant first exposed himself and masturbated in front of the child victim or victims before then causing sexual contact with a child. Speights, 464 S.W.3d at 721 ; Loving, 401 S.W.3d at 643. Although the two offenses in each case occurred in close temporal proximity, the contact in both cases was not part of the masturbation; thus, the Court of Criminal Appeals concluded that the exposure offenses were not subsumed within the contact offenses. Speights, 464 S.W.3d at 722–24 ; Loving, 401 S.W.3d at 647–49. Here, however, appellant only used one instrument, his hand, to touch and penetrate one body part, complainant's genitals, during a relative short period of escalating conduct. Appellant did not engage in multiple types of conduct at multiple times and thus should not have been charged or convicted of four separate offenses. In holding otherwise, the majority goes well beyond the demands of Court of Criminal Appeals' precedent and unduly restricts the Constitutional right of Texans to be free from multiple punishments for one offense.
Waiver
I additionally disagree with the majority's assessment that appellant waived his double-jeopardy claim by failing to raise it in the trial court. As the majority acknowledges, the lack of a trial objection is not a bar to presenting the issue on appeal “when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000). A double-jeopardy claim is apparent on the face of the trial record if resolution of the claim does not require further proceedings for the purpose of introducing additional evidence in support of the double-jeopardy claim. Ex parte Denton, 399 S.W.3d 540, 544 (Tex.Crim.App.2013) ; Ex parte Knipp, 236 S.W.3d 214, 216, n. 3 (Tex.Crim.App.2007) ; Gonzalez, 8 S.W.3d at 643. Here, appellant's double-jeopardy claim is based on the record of the proceedings below; it does not require any new or additional proceedings or the creation of a new record. See Gonzalez, 8 S.W.3d at 644 (analyzing Supreme Court cases United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) and Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) ); see also Denton, 399 S.W.3d at 544–45. Moreover, enforcement of the usual rules of procedural default would serve no purpose here as the proper remedy for the double jeopardy violations would simply be reversal of certain convictions. See Denton, 399 S.W.3d at 547 (“When a defendant is convicted of two offenses and those convictions violate double-jeopardy protections, the conviction for the more serious offense is retained, and the other conviction is set aside.”); see also Patterson, 152 S.W.3d at 89, 92 (affirming court of appeal's reversal of convictions where indecency by exposure offense was subsumed by greater aggravated sexual assault offense). Accordingly, I would hold that no waiver occurred in this case.
For the foregoing reasons, I respectfully dissent.