Opinion
Nos. 11-03-00109-CR, 11-03-00110-CR.
February 5, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeals from Dallas County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
This appeal is from two separate convictions of aggravated sexual assault. Appellant pleaded guilty to both charges before a jury. After a hearing, the jury assessed punishment at confinement for 20 years and a $10,000 fine for each offense. We modify and affirm. Appellant was charged under two indictments. Each indictment alleged separate but identical offenses that took place on or about July 1, 2001. Each indictment provided that appellant did:
[U]nlawfully then and there intentionally and knowingly cause the penetration of the female sexual organ of [V.M.], a child, who was not then the spouse of defendant, by an object, to-wit: the sexual organ of said defendant.Appellant complains in his sole issue on appeal that the State violated his constitutional right against double jeopardy when it convicted and punished him twice for the same offense. Appellant did not raise this issue at trial or when he was sentenced to consecutive terms of confinement. See TEX.R.APP.P. 33.1. A double jeopardy violation could be raised for the first time on appeal if the record on its face showed multiple punishments for one offense. Gonzalez v. State, 8 S.W.3d 640 (Tex.Cr.App. 2000). Here, the record on its face does not show that there was a double jeopardy violation. The indictments allege two separate assault violations. Appellant pleaded guilty and signed judicial confessions for each violation. Appellant's double jeopardy claim should have been raised at trial, and he waived it by raising it for the first time on appeal. Furthermore, there was not a violation of appellant's double jeopardy rights. Double jeopardy is prohibited under both Amendment V of the United States Constitution, and Article I, section 14 of the Texas Constitution. The double jeopardy clause embodies three essential guarantees: (1) it protects against a successive prosecution for the "same offense" after acquittal;
(2) it protects against a successive prosecution for the "same offense" after conviction; and (3) it protects against multiple punishments for the "same offense." See Iglehart v. State, 837 S.W.2d 122, 126-27 (Tex.Cr.App. 1992). When a defendant is convicted of two or more crimes in a single trial, only the multiple punishment clause is implicated. See Ex parte Herron, 790 S.W.2d 623, 624 (Tex.Cr.App. 1990). When a defendant is charged with multiple violations of the same statute, the "same elements test" set out in Blockburger v. United States, 284 U.S. 299 (1932), does not apply. Ex parte Hawkins, 6 S.W.3d 554 (Tex.Cr.App. 1999); Montgomery v. State, 91 S.W.3d 426 (Tex.App.-Eastland 2002, pet'n ref'd). Instead, we determine if each alleged violation was a separate "allowable unit of prosecution." If each violation of the statute alleged is a separate "allowable unit of prosecution," then there is no double jeopardy violation. Ex parte Hawkins, supra; Montgomery v. State, supra. An "allowable unit of prosecution" is a "distinguishable discrete act that is a separate violation of the statute." Ex parte Hawkins, supra at 556.A person commits the offense of aggravated sexual assault if the person knowingly or intentionally causes the penetration of the sexual organ of a child by any means. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (Vernon Supp. 2004). Several acts of aggravated sexual assault over a period of time is not a single offense. Each separate assault against the same victim is a separate punishable offense. Goodbread v. State, 912 S.W.2d 336 (Tex.App.-Houston [14th Dist.] 1995), aff'd, Ex parte Goodbread, 967 S.W.2d 859 (Tex.Cr.App. 1998); David v. State, 808 S.W.2d 239 (Tex.App.-Dallas 1991, no pet'n). V.M. testified that appellant had sexually assaulted her both in her room and in his room. She also testified that he sexually assaulted her in a hotel room in Dallas. Appellant pleaded guilty to both charges and signed a judicial confession admitting that he had committed two separate sexual assaults against V.M. Appellant also testified that he had had sex with V.M. in several different rooms in the Dallas apartment. There is evidence of two different sexual assaults of V.M. The trial court did not assess multiple punishments for one offense and did not violate appellant's constitutional right against double jeopardy. Appellant's sole issue on appeal is overruled. The judgment in both cases contain language that appellant was to begin each sentence after he had completed the other. The trial court announced on the record that the sentence in 11-03-00110-CR would begin first and that the sentence in 11-03-00109-CR would start only after appellant had completed the sentence in 11-03-00110-CR. The judgment in Cause No. 11-03-00109-CR is modified to delete the language stating that the sentence would begin after the sentence in Cause No. 11-03-00110-CR ended and to show that this sentence began on February 19, 2003. As modified, the judgment in Cause No. 11-03-00109-CR is affirmed. The judgment in Cause No. 11-03-00110-CR is affirmed.