Caleb Logan Hart v. State , 2015 Tex. App. LEXIS 11964 ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-14-00371-CR
No. 07-14-00372-CR
No. 07-14-00373-CR
No. 07-14-00374-CR
No. 07-14-00375-CR
________________________
CALEB LOGAN HART, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 31st District Court
Gray County, Texas
Trial Court Numbers 9662, 9663, 9664, 9665, & 9666;
Honorable Steven R. Emmert, Presiding
Novem ber 19, 2015
OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Following pleas of not guilty in each case, a jury found Appellant, Caleb Logan
Hart, guilty of five sexually-related offenses proscribed by the Texas Penal Code. In
each case the jury assessed sentence and the trial court entered separate judgments
as depicted below:
No. 9662 Aggravated Sexual Assault § 22.021(a)(1)(B)(i), 99 years confinement
(a)(2)(B)
(Penetration of the sexual organ of
A.H., a child under 14 years of age, 1st Degree Felony
by defendant’s sexual organ on or
about June 15, 2013)
No. 9663 Indecency with a Child § 21.11(a)(1) 20 years confinement
(Sexual contact by touching A.H., a 2nd Degree Felony
child under 17 years of age, with
defendant’s sexual organ on or about
September 15, 2011)
No. 9664 Aggravated Sexual Assault § 22.021(a)(1)(B)(i), 99 years confinement
(a)(2)(B)
(Penetration of the sexual organ of
A.H., a child under 14 years of age, 1st Degree Felony
by defendant’s sexual organ on or
about September 16, 2011)
No. 9665 Aggravated Sexual Assault § 22.021(a)(1)(B)(i), 99 years confinement
(a)(2)(B)
(Penetration of the anus of A.H., a
child under 14 years of age, by 1st Degree Felony
defendant’s sexual organ on or about
January 5, 2012)
No. 9666 Prohibited Sexual Conduct of § 25.02(a)(1) 20 years confinement
Ancestor/Descendant
2nd Degree Felony
(Engaging in sexual intercourse with
a person defendant knew to be his
niece on June 15, 2013)
See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2015), §
21.11(a)(1) (West 2011), § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2015), §
22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2015), § 25.02(a)(1) (West 2011).
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All five sentences were ordered to run consecutively. By his original brief,
Appellant presents a single issue asserting a double jeopardy violation based upon his
belief that his conviction for indecency with a child by sexual contact in Cause Number
9663 was subsumed by the offense of aggravated sexual assault in Cause Number
9664, due to the fact that both offenses were based on a single incident or transaction.
By his supplemental brief filed pursuant to an order of this court,1 Appellant contends
that his conviction in Cause Number 9666 is “void” because there was no evidence to
support his conviction for “prohibited sexual conduct with an ancestor or descendant.”
Alternatively, he further contends the sentence imposed in Cause Number 9666 is an
illegal sentence.
In its supplemental brief, the State agrees that Appellant’s sentence in Cause
Number 9666 is illegal; however, it does not address Appellant’s argument concerning a
void conviction. Appellant does not present a challenge regarding his convictions in
Cause Numbers 9662 or 9665. We affirm Appellant’s conviction in all five cases;
however, we reverse the judgment entered in Cause Number 9666, and we remand that
case for a new punishment hearing and entry of a corrected judgment.
BACKGROUND
Appellant was the paternal uncle of the victim, A.H., a child who was under 14
years of age at the time each offense occurred. Appellant was accused of illegal sexual
conduct with A.H. beginning when she was eleven years old and continuing until she
was thirteen. His double jeopardy argument stems from offenses which occurred in
1
Hart v. State, No. 07-14-00375-CR, 2015 Tex. App. LEXIS 9842, at *2-3 (Tex. App.—Amarillo
Sept. 21, 2015, order) (not designated for publication).
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September of 2011. Except as it peripherally relates to his argument that the verdict in
Cause Number 9666 is void, Appellant does not raise a challenge to the sufficiency of
the evidence; thus, only the facts necessary to disposition of his double jeopardy
argument will be presented.
A.H. was fourteen years old at the time of trial and she testified. According to her
testimony, in September 2011, she and her sister customarily went to their
grandmother’s house after school while their mother was at work. When their
grandmother was unavailable to supervise the girls, Appellant would watch after them.
According to A.H.’s testimony, on one occasion Appellant asked her to speak with him
upstairs. She testified that they proceeded upstairs, whereupon Appellant disrobed her
and “put his unmentionable spot in my unmentionable spot.”2 The prosecutor followed
up with “that time when you were 11 years old, upstairs, did [Appellant] touch you in any
other way . . . with his unmentionable spot?” A.H. answered, “[y]es, he put his
unmentionable spot on my chest” and “rubbed it on my chest.” The jury convicted
Appellant of both aggravated sexual assault and indecency with a child based upon the
events A.H. described as having occurred at her grandmother’s house in September of
2011.
DOUBLE JEOPARDY ANALYSIS
There are three constitutional protections against double jeopardy: (1) protection
against a second prosecution for the same offense after an acquittal; (2) protection
against a second prosecution for the same offense following a conviction; and (3)
2
The record reflects that A.H. used her hand to point to her female sexual organ as her
unmentionable spot. She described Appellant’s unmentionable spot as his private area.
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protection against multiple punishments for the same offense. Garfias v. State, 424
S.W.3d 54, 58 (Tex. Crim. App. 2014). Essentially, Appellant is complaining that he
received multiple punishments for conduct that occurred in a single incident. The
remedy, he contends, is to retain the most serious offense and vacate the lesser
offense. The State argues there was no double jeopardy violation because Appellant
committed two separate and distinct acts. We agree with the State.
What constitutes the “same” offense for double jeopardy purposes in the
multiple-punishments context is strictly a matter of legislative intent. In that context, we
must ask ourselves, under the facts of this case, how many different offenses did the
Legislature contemplate an accused should be susceptible to being punished for?
Gonzales v. State, 304 S.W.3d 838, 845 (Tex. Crim. App. 2010). Thus, the true inquiry
in a multiple-punishments case is whether the Legislature intended to authorize the
separate punishments. Garfias, 424 S.W.3d at 58 (citing Ervin v. State, 991 S.W.2d
804, 814 (Tex. Crim. App. 1999)). When, as here, the offenses in question stem from
different statutory sections of the Penal Code—sections 21.11(a)(1) and
22.021(a)(2)(B), we conduct an “elements” analysis to determine legislative intent.
Garfias, 424 S.W.3d at 58.
In Cause Number 9663, charging Appellant with indecency with a child by
contact, the indictment read as follows: “Defendant . . . did then and there, with the
intent to arouse or gratify the sexual desire of said Defendant, intentionally or knowingly
engage in sexual contact with A.H., a child younger than 17 years of age, by touching
A.H. with Defendant’s sexual organ . . . .” In Cause Number 9664, charging Appellant
with aggravated sexual assault, the indictment read: “Defendant . . . did then and there
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intentionally or knowingly cause the penetration of the sexual organ of A.H., a child who
was then and there younger than 14 years of age, by Defendant’s sexual organ.”
Relying on Cunningham v. State, 726 S.W.2d 151, 155 (Tex. Crim. App. 1987),
Appellant maintains that the indictment for indecency with a child was subsumed as a
lesser included offense of aggravated sexual assault because sexual contact was a
component part of the penetration alleged in Cause Number 9664. Under certain
circumstances, indecency with a child is a lesser included offense of aggravated sexual
assault of a child when both offenses are predicated on a single act of molestation.
Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009).
In Evans, the defendant was charged with aggravated sexual assault of a child
and indecency with a child by contact committed against the same victim on the same
date. Count One was charged as follows: Evans “did intentionally and knowingly cause
the SEXUAL ORGAN of [the complainant], a child who was younger than 14 years, to
CONTACT AND PENETRATE the MOUTH of THE DEFENDANT.” Count Two charged
that Evans “did intentionally and knowingly engage in sexual contact with [the
complainant], A MALE CHILD YOUNGER THAN SEVENTEEN (17) YEARS by touching
the PART OF THE GENITALS of [the complainant] with the intent to arouse or gratify
the sexual desire of any person.” In reaching its conclusion in a case where the
appellant and complainant were both male, the Court stated “we cannot imagine how it
would be even theoretically possible to commit this particular form of penetration without
an intent to arouse or gratify one’s sexual desire.” Id. at 140 n.3. Hence, under the
facts of that case, because the factual elements of indecency with a child by contact
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were contained within the factual elements of aggravated sexual assault, the lesser
charge was subsumed by the greater charge.
Appellant also cites Ochoa v. State, 982 S.W.2d 904 (Tex. Crim. App. 1998), to
support his argument that his conviction for indecency with a child should be vacated.
In Ochoa, the appellant asserted he was improperly convicted of two offenses stemming
from one criminal act. Id. at 907. The Fourth Court of Appeals agreed and vacated the
most serious offense. Ochoa v. State, 955 S.W.2d 389, 392 (Tex. App.—San Antonio
1997), aff’d, 982 S.W.2d 904 (Tex. Crim. App. 1998). The facts, however, are
distinguishable.
Ochoa was charged with five counts of aggravated sexual assault against his six-
year-old niece alleged to have occurred on five separate dates and five counts of
indecency with his niece also alleged to have occurred on the same five dates. He was
convicted of one count of aggravated sexual assault and one count of indecency with a
child allegedly occurring on the same date. The evidence showed Ochoa touched and
penetrated the victim’s sexual organ. Id. at 392. Resultantly, if the State proved
penetration, it also proved the necessary elements for the corresponding count of
indecency with a child. Id. The Fourth Court of Appeals found that the trial court’s
failure to instruct the jury on the lesser included offense resulted in Ochoa being
convicted of two crimes arising from the same criminal act or transaction.
The holdings in Evans and Ochoa are inapposite to the facts in this case.
Notwithstanding that Appellant was charged with offenses occurring during a single
incident, he committed two separate and distinct acts. According to the evidence, he
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violated section 22.021(a)(2)(B) of the Penal Code by causing his sexual organ to
penetrate A.H.’s sexual organ. He then violated section 21.11(a)(1) by rubbing his
sexual organ on A.H.’s chest. The Legislature intended that Appellant’s conduct be
punishable as two separate and distinct acts. Unlike the facts in Evans and Ochoa, the
indecency with a child by contact offense was not subsumed in the aggravated sexual
assault offense and cannot be characterized as a lesser included offense entitling
Appellant to have his conviction for indecency with a child vacated. Appellant’s issue is
overruled.
VOID CONVICTION ANALYSIS
Appellant further contends that his conviction in Cause Number 9666 is “void”
because there was no evidence to support the jury’s verdict finding him “guilty of the
offense of prohibited sexual conduct with an ancestor or descendant, as charged in the
indictment.” Appellant contends the evidence is insufficient because the evidence
showed sexual conduct with his niece, not an ancestor or descendant. While the
heading of the indictment in Cause Number 9666 does refer to the offense charged as
“PROH SEXUAL CONDUCT WITH ANCESTOR/DESCENDANT,” a second degree
felony, the substantive allegations of the indictment were that Appellant “did intentionally
or knowingly engage in sexual intercourse with A.H., a person [Appellant] knew to be,
without regard to legitimacy, [Appellant’s] niece.” Because the substantive allegations
of the indictment correctly charge the offense of Prohibited Sexual Conduct, a third
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degree felony, the additional language in the heading was merely inapposite
surplusage.3 See TEX. PENAL CODE ANN. § 25.02(a)(5), (c).
While the Court’s Charge on guilt or innocence did repeat this misnomer, the
application paragraph tracked the indictment. As such, the jury was not misled and the
evidence was legally sufficient to support its finding of guilt as to the offense
substantively charged in the indictment, to-wit: the third degree felony offense of
Prohibited Sexual Conduct. To the extent that the judgment entered misidentifies the
offense charged and applicable range of punishment, it is in error and should be
reformed.
ILLEGAL SENTENCE ANALYSIS
As stated above, the offense charged was the third degree felony offense of
Prohibited Sexual Conduct. Because the Court’s Charge on Punishment incorrectly
recites Appellant “has been found guilty by you of the offense of PROHIBITED SEXUAL
CONDUCT WITH ANCESTOR OR DESCENDANT, a felony of the Second Degree,” it
is erroneous. Because the charge further instructs the jury that the range of punishment
applicable to Appellant’s offense is “confinement . . . for not less than 2 years nor more
than 20 years,” the judgment entered in response to that charge is reversible. 4
While the offense of prohibited sexual conduct with an actor’s ancestor or
descendant by blood or adoption is indeed a second degree felony, id. at § 25.02(a)(1),
3
There is no offense entitled “Prohibited Sexual Conduct with Ancestor or Defendant.” The
offense is simply “Prohibited Sexual Conduct.” See TEX. PENAL CODE ANN. § 25.02(a) (West 2011).
4
Where, as here, the issue is that of an illegal sentence, preservation of error was not required in
the trial court. See Mizell v. State, 119 S.W.3d 804, 806 n.6 (Tex. Crim. App. 2006).
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(c), that is not the offense applicable in this case. Appellant was charged and convicted
of the offense of prohibited sexual conduct with his niece, a third degree felony. Id. at
(a)(5), (c). Punishment for a third degree felony is “any term of not more than 10 years
or less than 2 years.” Id. at § 12.34(a). A sentence outside the range of punishment
authorized by law is an illegal sentence, Ex Parte Parrott, 396 S.W.3d 531, 534 (Tex.
Crim. App. 2013), which is void and must be reversed. Farias v. State, 426 S.W.3d
198, 200 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (holding that a sentence
outside the statutory range of punishment for an offense is void and must be reversed,
citing Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim. App. 1994)). Because
Appellant’s sentence exceeds the maximum sentence allowed by law, it is an illegal
sentence. Accordingly, we reverse that sentence and remand this cause to the trial
court for a new punishment hearing.
CONCLUSION
The trial court’s judgments in Cause Numbers 9662, 9663, 9664, and 9665 are
affirmed. In Cause Number 9666, that portion of the judgment pertaining to conviction
is affirmed. That portion of the judgment pertaining to punishment is reversed and the
cause is remanded to the trial court for a new punishment hearing and entry of a
corrected judgment.
Patrick A. Pirtle
Justice
Publish.
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