Rutilio Fuentes, Jr. v. State ( 2004 )

  NUMBER 13-03-176-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG   

RUTILIO FUENTES, JR.,                                                             Appellant,

v.

THE STATE OF TEXAS,                                                     Appellee.

On appeal from the 36th District Court of Aransas County, Texas.  

MEMORANDUM OPINION  

Before Justices Yañez, Rodriguez, and Garza  

Memorandum Opinion by Justice Garza

          Appellant, Rutilio Fuentes, Jr., was convicted of two counts of sexual misconduct: (1) aggravated sexual assault of a child and (2) indecency with a child. His respective prison sentences for these convictions, thirty years and twenty years, are running concurrently. On appeal to this Court, appellant raises two errors: (1) the evidence is factually insufficient to support his conviction for aggravated sexual assault and (2) his sentence for indecency violates his freedom from double jeopardy. We hold that the evidence is sufficient to support the aggravated-sexual-assault-of-a-child conviction, but we conclude that the sentence for indecency with a child violates appellant’s freedom from double jeopardy. Accordingly, we vacate the conviction for indecency with a child and affirm the conviction and sentence for aggravated sexual assault.

1. Factual-Sufficiency Challenge

          Evidentiary sufficiency is measured against the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State’s burden of proof. Id.

          In a factual sufficiency review, the evidence is viewed in a neutral light, favoring neither party. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, we determine whether “the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A clearly wrong and unjust verdict occurs where the jury’s finding “shocks the conscience” or “clearly demonstrates bias.” Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App. 1997).

          In his first issue, appellant contends that the evidence is factually insufficient to support his conviction for aggravated sexual assault of a child because it does not show that appellant penetrated the victim’s sexual organ. We hold that the evidence is sufficient to show penetration. At trial, the eight-year-old victim testified that appellant penetrated her sexual organ with his finger. A certified sexual assault nurse examiner confirmed the victim’s story by testifying that the victim’s sexual organ had suffered trauma consistent with the type of penetration alleged. Although appellant produced evidence tending to show that he did not penetrate the victim’s sexual organ—including appellant’s testimony, the testimony of the victim’s eleven-year-old cousin, and the testimony of the victim’s aunt—that evidence does not greatly outweigh the proof of guilt. Nor does the verdict shock the conscience or clearly demonstrate bias. Appellant’s sufficiency issue is overruled.

2. Double-Jeopardy Challenge

          The double jeopardy clause embodies three essential guarantees: it protects against (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. Ex parte Kelley, 89 S.W.3d 213, 214 (Tex. App.—Corpus Christi 2002, no pet.). Appellant claims that his sentence for indecency with a child violates the third protection because it is a second punishment for aggravated sexual assault of a child. We agree.

          The guarantees enumerated above apply only if the offenses are the same. Greater inclusive and lesser included offenses are the same for jeopardy purposes. Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994). Thus, a defendant cannot be punished for both a greater inclusive offense and a lesser included offense. See id. In such cases, the court of appeals must vacate the conviction for the lesser included offense and affirm the conviction for the greater inclusive offense. See Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998).

          Appellant argues that, at most, he committed only one act of sexual misconduct. He contends that both charges against him involve the same alleged act of misconduct—his penetration of the victim’s sexual organ with his finger. The State’s brief concedes that the charge of indecency with a child was likely a lesser included offense of aggravated sexual assault. We agree with appellant and the State. The State could not prove sexual assault of a child in this case without also proving indecency with a child. Thus, indecency with a child was a lesser included offense of aggravated sexual assault, and appellant’s sentence for indecency violates his double jeopardy protection.

3. Conclusion

          The trial court’s judgment is ordered modified as follows: appellant’s conviction for indecency with a child is vacated. The trial court’s judgment is affirmed as modified.    

                                                                                      _______________________  

                                                                                      DORI CONTRERAS GARZA,

                                                                                      Justice

Do not publish.

Tex.R.App.P. 47.2(b)  

Memorandum Opinion delivered

and filed this the 12^th day of August, 2004.