Summary
holding that face of record did not demonstrate a multiple-punishments violation in part because appellant began sexually molesting his daughter in 2005, continued to do so for two years, and admitted that he had molested her so many times that he had lost count
Summary of this case from Collins v. StateOpinion
No. 05-08-00144-CR
Opinion Filed May 18, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-81660-07.
Before Justices RICHTER, LANG, and MURPHY.
OPINION
Glen Bracy pleaded guilty to three counts of aggravated sexual assault of a child and two counts of indecency with a child. The trial court assessed punishment, enhanced by a prior felony conviction, at life imprisonment on each of the five counts, with the sentences to run consecutively. In a single issue, appellant argues the assessment of multiple punishments for the commission of a single act violates the Double Jeopardy Clause of the United States Constitution. We affirm the trial court's judgment.
Background
Appellant pleaded guilty to three counts of aggravated sexual assault of a child and two counts of indecency with a child. Count III of the indictment alleged that appellant intentionally and knowingly caused the penetration of the female sexual organ of A.B., a child younger than fourteen (14) years of age and not the spouse of the appellant by means of appellant's finger. Count IV of the indictment alleged that appellant intentionally and knowingly, with the intent to arouse and gratify the sexual desire of any person, engaged in sexual contact by touching part of the genitals of A.B., a child younger than seventeen (17) years and not the spouse of appellant with appellant's hand. At the punishment hearing, appellant acknowledged he committed the offenses in the indictment. Appellant testified that he began sexually molesting his daughter when she was 3 ½ years' old and this continued for a two-year period until the time of his indictment. Officer Billy Lanier testified about the video-taped statement appellant voluntarily gave to the police which was admitted into evidence without objection. Appellant told officer Lanier he performed oral sex on his daughter and had penetrated her vagina with his penis and finger. Appellant did not know the exact number of times he sexually molested his daughter because he had lost count, but stated it could be as much as fifty times. Appellant also testified about his previous convictions for sexual offenses against children.Discussion
Appellant argues that the trial court's judgment of conviction for Counts III and IV, occurring within a single episode or event constitute double jeopardy. The Double Jeopardy Clause protects a person from multiple punishments for the same offense. U.S. Const. Amend V; Saenz v. State, 166 S.W.3d 270, 272 (Tex.Crim.App. 2005). To determine whether a prosecution violates the protection against multiple punishments, courts apply the test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932). Specifically, the Blocburger court stated:[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.Id. 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); Ex parte Infante, 151 S.W.3d 255, 261 (Tex.App.-Texarkana 2004, no pet.). But when the facts giving rise to the indecency charge are not the same as the facts supporting the prosecution for aggravated sexual assault, the former will not be deemed a lesser-included offense of the latter, and both may be prosecuted without violating the Double Jeopardy Clause. See Bottenfield v. State, 77 S.W.3d 349, 358 (Tex.App.-Fort Worth 2002, pet. ref'd). Appellant did not claim a double jeopardy violation below. However, a double jeopardy claim may be raised for the first time on appeal if the undisputed facts show the violation is clearly apparent on the face of the record and enforcement of the ususal rules of procedural default serves no legitimate state interest. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000). A double jeopardy multiple-punishment violation is clearly apparent on the face of the record when the record affirmatively shows multiple punishments resulting from the commission of a single act that violate two separate penal statutes, one of which is, on its face, subsumed in the other. See 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, no pet.). Here, the face of the record does not reflect a multiple-punishments violation. There is no indication that appellant touched his daughter's genitals with his hand as part of the same incident in which he penetrated her female sexual organ with his finger. There is no testimony concerning any one particular incident. Instead, appellant testified that he began sexually molesting his daughter in 2005 and continued to do so until he was indicted two years later. Appellant admitted he had done this so many times he lost count. In his statement to the police, appellant stated he had sexually molested his daughter up to fifty times, in many different ways. As a result, we conclude that it is not clearly apparent on the face of the record that appellant has suffered multiple punishments for the same conduct in violation of the Double Jeopardy Clause. We resolve appellant's issue against him and affirm the trial court's judgments.