Jerry Hippe v. State ( 2002 )

                       NUMBERS 13-00-043-CR, 13-00-044-CR,

                        13-00-045-CR, AND 13-00-046-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI B EDINBURG

JERRY WAYNE HIPPE,                                                          Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

                          On appeal from the 278th District Court

                                   of Grimes County, Texas

                                   O P I N I O N

                    Before Justices Dorsey, Rodriguez, and Baird^[1]

                                   Opinion by Justice Baird

Appellant was charged in four separate indictments with the offense of aggravated sexual assault.  The cases were tried jointly.  A jury convicted appellant of each offense and assessed punishment for each conviction at forty years confinement in the Texas Department of Criminal Justice--Institutional Division, and a fine of $10,000. Appellant raises four points of error. We affirm.

I.  Jeopardy.

The first point of error contends appellant has been subjected to multiple punishments in violation to the Jeopardy Clause of the Fifth Amendment to the United States Constitution.  That clause 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.  This provision is applicable to the states via the Due Process Clause of the Fourteenth Amendment.  Illinois v. Vitale, 447 U.S. 410, 415 (1980).  The double jeopardy clause embodies three essential protections against: (1) a successive prosecution for the "same offense" after acquittal; (2) a successive prosecution for the "same offense" after conviction; and, (3) multiple punishments for the "same offense."  Id.  When, as in the instant case, the defendant is convicted of two or more crimes in a single trial, only the multiple punishment clause is implicated.  Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990).

Appellant argues that the four indictments before us allege the Asame offense,@ therefore, his four separate sentences constitute multiple punishments.  We disagree. These indictments allege the offense of aggravated sexual assault on the same complainant on four separate dates. The legislature defines whether offenses are the same by prescribing the allowable unit of prosecution, which is "a distinguishable discrete act that is a separate violation of the statute."  Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex. Crim. App. 1999).  In Ex parte Goodbread, 967 S.W.2d 859 (Tex. Crim. App. 1998), the court stated: "For Double Jeopardy purposes, '[t]he same offense means the identical criminal act, not the same offense by name.' "  Id. at 860 (citing Luna v. State, 493 S.W.2d 854 (Tex. Crim. App. 1973)). 

In the instant cases, appellant assaulted the same complainant on four separate and distinct occasions.  The first occurred on or about May 30, 1996, the second on or about June 30, 1996, the third on or about July 30, 1996, and the fourth on or about August 30, 1996.  Thus appellant committed four distinguishable, discrete assaults which amounted to four separate violations of the same statute.  Therefore, appellant did not receive multiple punishments for the Asame offense.@  Rather, he received four punishments for four separate offenses committed against the same complainant.  The first point of error is overruled.

II.  Article 38.22(3)(a)(5) of the Code of Criminal Procedure.

The second point of error contends the trial court erred in admitting appellant's electronically recorded oral statement.  Specifically, appellant contends the statement was not admissible because he was not provided with a copy of the statement.

Article 38.22 of the code of criminal procedure provides:

Sec. 3(a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

 * * * * * *

(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article. (Emphasis added.)

Tex. Code Crim. Proc. art. 38.22, ' 3(a)(5)(Vernon Supp. 2002).

Appellant argues this section was violated because he was not provided with a copy of his electronically recorded oral statement. In Lane v. State, 933 S.W.2d 504, 514 (Tex. Crim. App. 1996), the court held that the word "provide" meant to "make available."  Id.  The court explicitly held that article 38.22 did not require the State to physically deliver a copy of the recording to the defense; instead, the statute merely placed upon the State a duty to inform the defense of the existence of a recording and permit reasonable access to a copy of it.  Id. at 516.  The record reflects the State informed defense counsel of appellant=s statement and arranged a meeting for counsel to listen to the statement.^[2]  However, defense counsel canceled the meeting.  We will not find a statutory violation by either the State or the trial judge when defense counsel failed to attend the meeting scheduled for a time to comply with the statute.  The second point of error is overruled.

III.  Good Conduct Time Instruction.

The third and fourth points of error contend the appellant contends the trial court erred in instructing the jury, as mandated by article 37.07, section 4(a) of the code of criminal procedure, regarding the availability of good conduct time.  Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(a) (Vernon Supp. 2002).  Appellant argues the instruction violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Due Course of Law provisions of the Texas Constitution because he was not, in fact, eligible for release on mandatory supervision. Tex. Gov't Code Ann. ' 508.149(a)(8) (Vernon Supp.2002).  After the filing of appellant=s brief in these cases the Court of Criminal Appeals rejected these precise arguments.  Luquis v. State, 72 S.W.3d 355, 365 (Tex. Crim. App. 2002).  Accordingly, the third and fourth points of error are overruled.

The judgments of the trial court are affirmed.

CHARLES F. BAIRD

Justice

Do not publish. 

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 8th day of August, 2002.

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^[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

^[2] These findings are taken from the record comments made by the prosecutor at a pretrial hearing when defense counsel was notifying the trial judge of his intention to object to the admission of appellant=s statement.  In this context, the unobjected, undisputed observations made by the prosecutor constitute valid proof.  Emerson v. State, 820 S.W.2d 802, 804 (Tex. Crim. App. 1991).