John Anthony Saldivar v. State ( 2010 )

 Opinion issued May 6, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00336-CR

________________

JOHN ANTHONY SALDIVAR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 359th District Court

Montgomery County, Texas

Trial Court Cause No. 08-03-03139-CR[1]

MEMORANDUM OPINION

          A jury convicted appellant, John Anthony Saldivar, of two counts of aggravated sexual assault of a child, and the court assessed punishment at life imprisonment on each count to run consecutively.  See Act of May 15, 2001, 77th Leg., R.S., ch. 459, § 5, 2001 Tex. Gen. Laws 893, 898 (amended 2003) (current version at Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2009)).  On appeal, appellant argues that the trial court erred by (1) allowing the State to comment about and introduce evidence of appellant’s pre-arrest silence, which violated his state and federal constitutional rights against self-incrimination, and (2) stacking the two sentences, violating the double jeopardy clauses of the United States and Texas Constitution.  We affirm.

BACKGROUND

In 2005, appellant met and started dating Yolanda, A.C.’s mother.  After a few months of dating, appellant moved into the apartment Yolanda shared with her children.  Yolanda had four children from previous relationships, three boys and one girl, A.C.  At first, appellant was “really great” with Yolanda’s children and would take them on outings.  Yolanda and appellant were eventually married.

At some point, Yolanda noticed that appellant treated A.C. differently than the other children.  Appellant treated A.C. more favorably than her brothers, and he was vigilant of the clothes A.C. wore.  He would look at A.C. suggestively when he thought she was not looking.  Yolanda described that sometimes “his looks were more longing.”  While in the car, appellant would occasionally adjust the rearview mirror so he could look at A.C.

Years after appellant first began living with Yolanda and her family, A.C. told her mother that appellant had been sexually abusing her.  Yolanda found A.C. on the floor of the master bedroom crying. A.C. told Yolanda that appellant had hurt her.  Yolanda testified that A.C. told her that, at first, appellant would “rub her all over” and kiss her mouth and body.  A.C. told her that appellant “put his penis in her mouth” and “[w]hen she would push away, he would pull [A.C.]’s hair so that she wouldn’t move away from him.”  A.C. said that appellant had “put his penis in her vagina.” A.C. recalled several instances ranging from when she was about seven to ten years old.  A.C. was very scared of appellant because he told her not to tell anyone and she was scared he was going to do worse things.  

A.C. described the abuse at trial.  Shortly after moving in with the family, appellant became very “touchy” towards A.C. and would touch her in places she did not want to be touched.  Appellant would touch her chest, vagina, and buttocks, while she was wearing clothing and asked if she liked it.  A.C. described an instance when appellant forced her to watch pornography, then put his penis in her vagina, and then in her mouth.  A.C. testified that it happened about four or five times.  After every instance, appellant always told A.C. to take a shower.  Appellant told A.C. never to tell because if he left her mother, their family would be on the street.  A.C. finally told her mother about the abuse shortly before her 15th birthday, six years after the abuse first started.

Appellant was indicted in a two-paragraph indictment listing two counts of aggravated sexual assault of a child.  One count related to appellant’s intentionally and knowingly causing the mouth of A.C. to contact his sexual organ.  The second count related to appellant’s intentionally and knowingly causing the sexual organ of A.C. to contact his sexual organ.  The indictment alleged that both offenses were committed by appellant on or about September 24, 2001, when A.C. was a child younger than 14 years of age.  Before trial, the State filed a motion requesting that the sentences be run consecutively.  Appellant never objected on double jeopardy grounds at trial.

DISCUSSION

A. Pre-Arrest Silence

          In his first issue, appellant challenges the constitutionality of the prosecutor’s opening statement and introduction of evidence that appellant refused to cooperate with the police investigation prior to appellant’s arrest.    In his brief, appellant quotes portions of the prosecutor’s opening statement and testimony of several witnesses, arguing that the comments violate his right to remain silent.  All of the instances related to appellant’s demeanor and refusal to cooperate in the investigation before he was arrested. 

          To preserve an issue for appellate review, the trial record must reflect that appellant made a timely objection stating the specific legal basis.  Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1); Layton v. State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). Usually, a defendant procedurally defaults a claim of error when he fails to raise it in the trial court.  Saldano v. State, 70 S.W.3d 873, 886–87 (Tex. Crim. App. 2002).  However, certain fundamental errors may be raised for the first time on appeal.  Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App.1993).

Appellant did not object to any of the complained of instances at trial.  We conclude appellant failed to preserve this issue for appeal.  See Tex. R. App. P. 33.1(a); Rodriguez v. State, 137 S.W.3d 228, 230 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding that appellant failed to preserve error concerning use of his pre-arrest silence by failing to object at trial).

Appellant argues that the error was so fundamental to the judicial process that it requires reversal, despite his failure to make a proper trial objection. However, appellant has not cited any authority holding that a prosecutor’s comment or evidence relating to a defendant’s pre-arrest silence is the type of error that is so fundamental it can be raised for the first time on appeal. 

It is well established that a complaint concerning the admission of evidence of defendant’s silence is waived in the absence of an objection.  Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994) (complaint concerning admission of evidence of defendant’s post-arrest silence waived in absence of objection); Ransom v. State, 789 S.W.2d 572, 584–85 (Tex. Crim. App. 1989) (failure to object to comments on defendant’s post arrest silence results in waiver of right to complain on appeal); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (comment on accused’s exercise of right against self-incrimination is not fundamental error and may be waived by failure to object); Rodriguez v. State, 137 S.W.3d 228 (Tex. App.—Houston [1st Dist] 2008, pet. ref’d) (holding that appellant failed to preserve error concerning use of his pre-arrest silence by failing to object at trial).  We therefore overrule appellant’s first issue.

          B.  Double Jeopardy

          In his second issue, appellant argues that the trial court subjected him to double jeopardy by running his two life sentences consecutively rather than concurrently.  Specifically, appellant argues that the court could not stack the two sentences because the convictions arose from the same criminal episode.

1.     Applicable Law       

          There are three distinct types of double-jeopardy claims: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.  Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006).  To successfully raise a “multiple punishment” double-jeopardy claim for the first time on appeal, the face of the trial record must clearly show a double-jeopardy violation.  Id. at 682.  

A double-jeopardy claim of multiple punishments for the same offense can arise in two contexts: (1) when a greater offense also meets the elements of a lesser-included offense, and the same conduct is punished twice; and (2) punishing the same criminal act twice under two distinct statutes when the legislature intended the conduct to be punished only once (for example, causing a single death by committing both intoxication manslaughter and involuntary manslaughter). Id. at 685.  “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”  Gonzales v. State, No. PD-0337-09, 2010 WL 625056, at *4 (Tex. Crim. App. Feb. 24, 2010) (quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673 (1983)).  “The question is whether the Legislature intended that he could be subjected to such multiple punishments.”  Id.

The Texas Legislature has expressly provided for multiple punishment for multiple violations of Section 21.021 (Aggravated Sexual Assault) committed against a victim younger than 17 years of age, arising out of the same criminal episode and prosecuted in a single criminal action.[2]  Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 2, 1997 Tex. Gen. Laws 2250, 2251 (amended 2005) (current version at Tex. Penal Code Ann. § 3.03(b) (Vernon Supp. 2009)).  Further, the Legislature expressly provided that “the sentences may run concurrently or consecutively” if each sentence is for a conviction of Section 21.021 (Aggravated Sexual Assault) committed against a victim younger than 17 years of age.  Id.

The Court of Criminal Appeals held that there was no double-jeopardy violation when the appellant was convicted in a single trial under two counts of an indictment for penetration of a child’s anus and penetration of the child’s sexual organ during a single incident.  Gonzales, 2010 WL 625056, at *8.  The Court in Gonzales explained:

The Legislature intended that penetration of a child’s anus should be regarded as a distinct offense from penetration of her sexual organ even if they occur during the course of the same incident or transaction.  Because the appellant has suffered no greater punishment than the Legislature intended, the Double Jeopardy Clause is not implicated.

Id.  Similarly, in Vick v. State, the Court held that there was no double-jeopardy violation for multiple prosecutions for aggravated sexual assault “based on the same transaction, but different manners of committing the offense.”  See 991 S.W.2d 830, 833–34 (Tex. Crim. App. 1999) (holding that “two indictments alleged violations of separate and distinct statutory aggravated sexual assault offenses” and were separate offenses that could be separately prosecuted).  The Court in Vick explained:

The penetration offense alleged in the first indictment clearly required a separate and distinct act (involving appellee’s sexual organ with the child's female sexual organ) from the act alleged in the second indictment (which involved appellee’s mouth with the child's sexual organ). . . . That conduct [alleged in the second indictment] constituted a separate and distinct statutory offense from the alleged penetration of the child’s sexual organ by appellee’s sexual organ, despite the fact both are violations of a single statute. 

Id. at 833.  The inquiry for double jeopardy purposes ends once it is determined that two separate and distinct statutory violations are alleged that involve separate and distinct acts.  Id.   

2.     Analysis

Appellant was convicted of two counts of aggravated sexual assault of A.C., a child younger than 14 years of age at the time of the offense.  Count 1 alleged that appellant intentionally and knowingly caused A.C.’s mouth to contact his sexual organ, an offense under Section 22.021(a)(1)(B)(v).  See Tex. Penal Code Ann. § 22.021.  Count 2 alleged that appellant intentionally and knowingly caused A.C.’s sexual organ to contact his sexual organ, an offense under Section 22.021(a)(1)(B)(iii). See id.  The two counts were two separate and distinct statutory violations that involved separate and distinct acts; appellant’s contact of his sexual organ with A.C.’s mouth was a separate offense from contact of his sexual organ with A.C.’s sexual organ.  See Vick, 991 S.W.2d at 833 (holding that contact of accused’s sexual organ with victim’s sexual organ was separate offense from contact of his mouth with victim’s sexual organ); see also Gonzales, 2010 WL 625056, at *8. 

Appellant cites to Patterson and Saldana in support of his double-jeopardy argument.  See Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004) (“Just as a conviction for a completed offense bars prosecution for an attempt to commit the same offense, a conviction for an offense set out in § 3.03 bars conviction for conduct that, on the facts of the case, is demonstrably part of the commission of the greater offense.”); Saldana v. State, 287 S.W.3d 43, 56–57 (Tex. App—Corpus Christi 2008, no pet.). Patterson held that, under the facts of that case, the offense of indecency with a child by exposure was committed as part of the aggravated assault offense, and thus, the indecency offense was not subject to prosecution as a separate offense.  Id. at 92.  The Court in Patterson explained that the indecent exposure of the appellant’s genitals was demonstrably part of the commission of the greater offense of aggravated sexual assault by penetrating the anus of the child victim with his sexual organ because he necessarily had to expose his genitals in order to commit the greater offense.  Id.  Similarly, Saldana observed, “a conviction for a completed sexual assault bars conviction for conduct that is demonstrably part of the commission of that offense.”  Saldana, 287 S.W.3d at 57 (quoting Barnes v. State, 165 S.W.3d 75, 87 (Tex. App.—Austin 2005, no pet.)).  In Saldana, the court held that the appellant was punished twice for the same offense, where the record demonstrated that the indecency with a child by contact was based on the same conduct as the greater offense of aggravated sexual assault by penetration of the victim’s sexual organ. Id. at 58.

Unlike Patterson and Saldana, each count alleged in the present case is a distinct act.  Appellant was convicted of two counts of aggravated sexual assault under Section 22.021 of the Texas Penal Code.  Appellant first caused the victim’s mouth to contact his sexual organ, and second, caused the victim’s sexual organ to contact his sexual organ.  Neither act can be subsumed by the other. 

Accordingly, we conclude that appellant’s two convictions for aggravated sexual assault related to two distinct acts, and the trial court did not err in assessing consecutive sentences.  See Tex. Penal Code Ann. §§ 3.03, 22.021.  Because each count of aggravated sexual assault alleged separate offenses, neither of which could be subsumed by the other, no double-jeopardy violation is apparent from the record.  We overrule appellant’s second issue.

CONCLUSION

          We affirm the judgment of the trial court.

George C. Hanks, Jr.

                                                          Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Do not publish.  See Tex. R. App. P. 47.2(b).

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[1]  Originally appealed to the Ninth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Ninth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

[2] At the time of the offense alleged in the indictment, Section 3.03 provided in relevant part:

(a) When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.

(b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of: . . .

(2) an offense:

(A) under Section 21.11, 22.011, 22.021, 25.02, or 43.25 committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section[.]

Act of May 31, 1997, 75th Leg., R.S., ch. 667, § 2, 1997 Tex. Gen. Laws 2250, 2251 (amended 2005) (current version at Tex. Penal Code Ann. § 3.03(b) (Vernon Supp. 2009)).