Opinion
No. 05-05-00457-CR
Opinion Filed June 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-80591-03. Affirm.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
OPINION
Rickey Baccus Taylor appeals his jury convictions for aggravated sexual assault of a child and indecency with a child. In three points of error, Taylor asserts the two convictions violate the double jeopardy guarantee against multiple punishments for the same offense, the evidence is factually insufficient to support the aggravated sexual assault conviction, and the trial judge erred in allowing the prosecutor during closing argument in the punishment phase to comment on his failure to testify. Finding against Taylor, we affirm.
Background
Taylor was charged after his twelve year old stepdaughter, A.D., disclosed to her school liaison officer that Taylor had "sexually harassed" her. In a single indictment, the State alleged in Count I that on or about November 1, 2001 Taylor (a) penetrated A.D.'s sexual organ with his sexual organ and (b) caused A.D.'s sexual organ to contact his sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i),(iii), (2)(B) (Vernon Supp. 2005). In Count II, the State alleged that on or about November 1, 2001 Taylor also engaged in sexual contact with A.D. by (a) having A.D.'s hand touch his genitals, (b) touching A.D.'s genitals with his hands, and (c) touching A.D.'s breasts with his hands. See id. § 21.11(a)(1),(c) (Vernon 2003). At trial, A.D. testified that she was about seven years old when her mother married Taylor. During the first few years, Taylor "treated her like a daughter" but as she approached adolescence he started "doing things [she] didn't like." A.D. testified that the abuse began with "inappropriate touching" and escalated over the course of two years to his undressing himself on two different occasions and "positioning" her, also undressed, "facing him on his lap with her legs wrapped around him." According to A.D., "multiple instances" of touching occurred during the two-year period and, although she could not recall whether penetration actually occurred, there was at a minimum mutual contact of the sexual organs twice. Testifying in his defense, Taylor denied the allegations.Double Jeopardy
In his first point of error, Taylor asserts his conviction for both aggravated sexual assault of a child and indecency with a child violate the constitutional guarantee against double jeopardy. Taylor takes the position that because the indictment alleged both offenses occurred "on or about" November 1, 2001 and alleged under both counts contact of the genitals or sexual organ, the indictment alleged that both offenses occurred on the same date and arose from one single instance of conduct. Because indecency with a child can be a lesser included offense of aggravated sexual assault of a child, see Cunningham v. State, 726 S.W.2d 151 (Tex.Crim.App. 1987), Taylor argues for the first time on appeal that he was convicted and punished twice for the same conduct or offense in violation of the Double Jeopardy Clause. In response the State argues that Taylor failed to preserve error because he failed to object at trial and fails to present on appeal a record showing on its face a valid multiple-punishments violation. We agree with the State. A double jeopardy claim based on multiple punishments for the same criminal conduct may be raised for the first time on appeal when the double jeopardy violation is "clearly apparent on the face of the record" and when enforcement of the usual rules of procedural default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000). We will find a multiple-punishments double jeopardy violation "clearly apparent on the face of the record" when the record shows multiple punishments resulting from the commission of a single act that violated two separate penal statutes, one of which is subsumed in the other. See Blockburger v. United States, 284 U.S. 299, 304 (1932); Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App. 1991); Hanson v. State, 180 S.W.3d 726, 732-33 (Tex.App. Waco 2005, no pet.). For double jeopardy purposes, greater inclusive and lesser included offenses can be the same offense, and indecency with a child by touching the genitals can be a lesser included offense of aggravated sexual assault of a child by penetration of the child's sexual organ if the same act is used to prove both the touching and the penetration. Elder v. State, 132 S.W.3d 20, 23 (Tex.App. Fort Worth 2004, pet. ref'd), cert. denied, 544 U.S. 925 (2005). When separate means for committing an offense are alleged, one of which would not violate the Double Jeopardy Clause, and the jury, authorized to convict upon a finding of commission of any of the means, returns a general verdict, we will not find a double jeopardy violation clearly apparent on the face of the record. See Gonzalez, 8 S.W.3d at 641-42; Elder, 132 S.W.2d at 23-25. This is so because the jury's verdict could have relied on the means that would not violate the Double Jeopardy Clause. See Gonzalez, 8 S.W.3d at 641-42; Elder, 132 S.W.2d at 23-25. Here, the face of the record fails to show a multiple-punishments violation. First, the face of the record does not clearly reveal the State was relying upon the same act to prove both offenses. In fact, the clerk's record contains a letter from the prosecutor to defense counsel stating that A.D. had disclosed multiple instances of touching separate from any penetration. Second, the record reveals that the jury returned a general verdict based on a charge which, in accordance with the indictment, authorized conviction on the indecency charge upon a finding that Taylor either caused the contact of A.D.'s genitals or touched her breasts. Although indecency by contact of the genitals may be a lesser included offense of aggravated sexual assault by contact of the sexual organ, indecency by touching the breasts is not. See Francis v. State, 36 S.W.3d 121, 125 (Tex.Crim.App. 2000). As such, a conviction based on this means would not violate the Double Jeopardy Clause. Because the jury returned a general verdict, we cannot determine whether the verdict in the indecency case rested on a finding that Taylor caused the contact of A.D.'s genitals or touched her breasts. See Gonzalez, 8 S.W.3d at 645. And, because the verdict in the indecency case could have been based on Taylor's touching A.D.'s breasts which would not result in a double jeopardy violation, we cannot conclude error is clearly apparent on the face of the record. We overrule Taylor's first point of error.Closing Argument
Taylor's second point of error stems from the prosecutor's closing argument during punishment. Relevant to this issue, the record reflects that Taylor sought probation. Although he had testified at the guilt-innocence phase, Taylor chose not to testify in the punishment phase. Instead, he called A.D.'s maternal grandparents who testified they did not believe Taylor had committed the offenses and that Taylor was a "good person," had "never been in trouble" and was "salvageable." During closing argument, appearing to reference not only the testimony adduced at punishment but also Taylor's testimony at guilt-innocence, the prosecutor stated in pertinent partIf he's on probation, you have to be able to trust him. You have to trust that he's going to do the right things to get the help that he needs so he won't ever touch a child again. If you give him some minimal amount of pen time, you have to be able to trust that he'll get the help that he needs; that when he finally gets out, he won't ever do this again.
Now, the problem that you have is what evidence do you have before you that is going to make you trust him? What evidence do you have that says to you, you know what, I'm sorry for what I've done. I have a problem. I need help. I'm never gonna do this again. The answer is, you've got nothing. You've got a guy who says I didn't do it; who tells everybody around him, I didn't do it.Because he had not testified at punishment, Taylor objected that the italicized remarks amounted to a comment on his failure to testify. The trial judge overruled his objection and Taylor now asserts the court's ruling was error. However, Taylor did not object when the prosecutor subsequently made the following similar remarks
He won't admit he has a problem, and that makes him dangerous. You can't trust him to be around children.To preserve a complaint of improper jury argument on appeal, a defendant must object each time impermissible argument is made. Cooks v. State, 844 S.W.2d 697, 728 (Tex.Crim.App. 1992); Wilson v. State, 179 S.W.3d 240, 249 (Tex.App. Texarkana 2005, no pet.); Barnes v. State, 70 S.W.3d 294, 307 (Tex.App. Fort Worth 2002, pet. ref'd). By not objecting to these remarks, Taylor waived any error. We overrule Taylor's second point of error.