Maldonado v. State No. PD-0542-14

Case Summary written by Petrus Wassdorf, Staff Member.
By Texas Tech Law Review
May 13, 2015

JUDGE MEYERS delivered the opinion of the court.

A jury convicted Anthony Maldonado of twelve counts of aggravated sexual assault of a child and indecency with a child. He was sentenced to life in prison. On appeal, Mr. Maldonado argued double jeopardy; that two counts of indecency with a child were subsumed by the aggravated sexual assault convictions.

The court of appeals agreed with Maldonado, citing Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004). Explaining its ruling, the court of appeals found that no offense of indecency with a child was committed “separate and apart from” the aggravated sexual assault offenses. The court of appeals modified the judgment, vacating two of the convictions for indecency with a child by contact.

Two issues were brought before the Court of Criminal Appeals: (1) whether the subsumption theory of Patterson v. State is still valid; and (2) if it is valid, whether an offense alleging sexual contact is subsumed by an offense alleging sexual penetration, even where the evidence points to multiple separate instances of penetration any of which could have formed the basis for each offense.

The court found that the subsumption theory under Patterson is still valid. Explaining its decision in Patterson, the court found that it was a narrow holding based on the specific facts of the case. The court distinguished the single act in Patterson from the facts surrounding Maldonado, finding that there were many “acts of both contact and penetration” that occurred over a matter of years. The court went further in analyzing and distinguishing Aekins v. State, 447 S.W.3d 270 (Tex. Crom. App. 2014), explaining that that case held double jeopardy “barred multiple convictions that were based on a single continuous act.”

Upholding Maldonado’s conviction, the court found support in Loving v. State, 401 S.W.3d 642 (Tex. Crim. App. 2013). In Loving, the court found that two convictions of indecency with a child could be sustained where they occurred from separate acts. The court held that Loving was the controlling precedent that should have been followed by the court of appeals, not Patterson. The factual situation in Patterson was too dissimilar from the multiple indecency offenses occurring at different times from the penetration offenses. For these reasons the Court of Criminal Appeals reversed the judgment of the court of appeals and affirmed the judgment of the trial court.

PRESIDING JUDGE KELLER concurred in the opinion of the court.

Justice Keller examined an “elements” and “units” analysis of double jeopardy. Justice Keller determined that in order for a double jeopardy violation to occur, the offenses must be considered the same offense under both an elements and units analysis. In completing the analyses, Justice Keller determined that indecency with a child and aggravated sexual assault are the same under an elements scheme but different under a units analysis based on the “[d]iscrete acts that occur on separate days,” invalidating a double jeopardy claim.