Carlos Eusebio Gomez v. the State of Texas ( 2024 )

NUMBER 13-23-00088-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CARLOS EUSEBIO GOMEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM 206TH DISTRICT COURT
OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Tijerina and Peña
Memorandum Opinion by Chief Justice Contreras
A jury convicted appellant Carlos Eusebio Gomez of one count of continuous
sexual abuse of a young child, a first-degree felony; two counts of aggravated sexual
assault, a first-degree felony; and two counts of indecency with a child, a second-degree
felony. See TEX. PENAL CODE ANN. §§ 21.02, 21.021, 21.11. Gomez argues that the trial
court violated § 21.02(e) of the Texas Penal Code and his right against double jeopardy
when it allowed the State to submit indecency with a child by contact and aggravated
sexual assault as independent counts to the jury. We affirm in part and vacate in part.
I. BACKGROUND
Gomez was charged by indictment for five sex offenses: continuous sexual abuse
of a young child (Count 1), indecency with a child by contact (Counts 2 and 5), and
aggravated sexual assault of a child (Counts 3 and 4). Each charge was an individual
offense against the same child victim. At the charge conference, Gomez’s trial counsel
objected to Counts 2 through 5 of the State’s jury charge, arguing they constituted double
jeopardy violations. She further argued that the State was required under § 21.02(e) to
either charge the counts in the alternative or submit them as lesser included offenses to
Count 1. See id. § 21.02(e). The trial court overruled the objection and allowed the State
to submit all five counts as independent offenses to the jury.
The indictment charged Count 1 as having occurred between September 1, 2013,
through May 15, 2018; Count 2 on or about August 1, 2016; Count 3 on or about August
1, 2013; Count 4 on or about March 1, 2014; and Count 5 on or about May 1, 2015.
Pertinent here, the indecency counts alleged that Gomez engaged in sexual contact with
the complainant “by touching the breast of [the complainant]” (Count 2) and “by causing
the complainant to touch [his] genitals” (Count 5).
The jury found Gomez guilty of all counts and assessed punishment as follows:
fifty years on Count 1; five years on Count 2; thirty-five years on Count 3; thirty-five years
on Count 4; and ten years on Count 5. The trial court sentenced Gomez in accordance
with the jury’s verdicts and ordered all five sentences to run concurrently. This appeal
followed.
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II. DISCUSSION
Gomez argues “that the predicate offenses of indecency by contact and
aggravated sexual assault should not have been submitted to the jury as separate,
distinct offenses, since they were all subsumed within the continuous sexual [abuse]
allegation.” As such, the trial court “failed to comply with [§] 21.02(e) of the Texas Penal
Code” and violated Gomez’s double jeopardy rights. 1 See U.S. CONST. amend. V, XIV;
TEX. PENAL CODE ANN. § 21.02(e).
A. Standard of Review & Applicable Law
“The Fifth Amendment guarantee against double jeopardy protects ‘against
multiple punishments for the same offense.’” Price v. State, 434 S.W.3d 601, 609 (Tex.
Crim. App. 2014) (quoting Whalen v. United States, 445 U.S. 684, 688 (1980)); see U.S.
CONST. amend. V, XIV. A claim that a defendant was subjected to multiple punishments
arises if a defendant “is punished for: (1) the same primary offense twice, ‘once for the
basic conduct, and a second time for that same conduct plus more,’ or (2) the same
criminal act twice under two distinct statutes ‘when the legislature intended the conduct
to be punished only once.’” Id. (quoting Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim.
App. 2006)).
A person over the age of seventeen commits the offense of continuous sexual
abuse of a young child if, “during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse” against a child younger than fourteen years
of age. TEX. PENAL CODE ANN. § 21.02(b). Courts have interpreted this durational
language to mean that there must be at least twenty-eight days between the first and last
1 The State did not file a brief in this appeal.
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act of sexual abuse. See, e.g., Smith v. State, 340 S.W.3d 41, 50–51 (Tex. App.—
Houston [1st Dist.] 2011, no pet.); see also Perez v. State, No. 13-22-00292-CR, 2024
WL 715326, at *9 (Tex. App.—Corpus Christi–Edinburg Feb. 22, 2024, no pet.) (mem.
op., not designated for publication) (Contreras, C.J., concurring). For purposes of this
offense, the term “acts of sexual abuse” includes “aggravated sexual assault under
[§] 22.021” and “indecency with a child under [§] 21.11(a)(1), if the actor committed the
offense in a manner other than by touching . . . the breast of a child.” TEX. PENAL CODE
ANN. § 21.02(c)(2), (4).
Under § 21.02(e), when continuous sexual abuse of a young child is alleged, a
defendant may not be convicted in “the same criminal action” of an individual “act of
sexual abuse” against the same child victim, unless the latter offense: (1) is charged in
the alternative; (2) occurred outside the period in which the continuous child sexual abuse
offense was committed; or (3) is considered by the trier of fact to be a lesser included
offense of continuous child sexual abuse. Id. § 21.02(e); Price, 434 S.W.3d at 606 (finding
the language of § 21.02(e) “reflects that the Legislature clearly intended to disallow dual
convictions for the offense of continuous sexual abuse and for offenses enumerated as
‘acts of sexual abuse’ when based on conduct against the same child during the same
period of time”).
B. Analysis
We turn to Gomez’s convictions for Counts 2 through 5. Here, the conviction on
Count 2 is not barred by § 21.02(e) or double jeopardy because it alleged indecency with
a child “by touching the breast of [the complainant],” which is not an “act of sexual abuse”
as defined in § 21.02(c). See TEX. PENAL CODE ANN. § 21.02(c)(2), (e); Carbajal v. State,
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659 S.W.3d 164, 185 (Tex. App.—El Paso 2022, pet. ref’d); see also Killinger v. State,
No. 13-17-00016-CR, 2020 WL 728305, at *2 (Tex. App.—Corpus Christi–Edinburg Feb.
13, 2020, pet. ref’d) (mem. op., not designated for publication) (finding that “indecency
with a child under [§] 21.11(a)(1)” is not an act of sexual abuse under the continuous-
sexual-abuse statute if the actor committed the offense by touching the breast of a child).
Count 3 is also not barred because it alleged that Gomez committed aggravated
sexual assault on or about “the 1st day of August, 2013,” which is outside the time period
of Count 1. See TEX. PENAL CODE ANN. § 21.02(e); Price, 434 S.W.3d at 606; Soliz v.
State, 353 S.W.3d 850, 853 (Tex. Crim. App. 2011).
As to Counts 4 and 5, we agree with Gomez that they were subsumed within the
continuous sexual abuse allegation. Counts 4 and 5 alleged aggravated sexual assault
and indecency with a child by contact, respectively, against the same child complainant
as the continuous sexual abuse offense. And, Counts 4 and 5 were charged in the same
criminal action as the continuous sexual abuse offense, yet they were not “charged in the
alternative,” they did not occur “outside the period in which the continuous child sexual
abuse offense was committed,” and they were not “considered by the trier of fact to
be . . . lesser included offense[s].” See TEX. PENAL CODE ANN. § 21.02(e). Accordingly,
Gomez’s convictions on Counts 4 and 5 violated § 21.02(e) and his double jeopardy
rights. See U.S. CONST. amend. V, XIV; TEX. PENAL CODE ANN. § 21.02(e); Allen v. State,
620 S.W.3d 915, 922 (Tex. Crim. App. 2021); Soliz, 353 S.W.3d at 853.
Generally, when a defendant is convicted in a single criminal trial of two offenses
that are considered the same for double jeopardy purposes, the remedy is to retain the
conviction for the “most serious offense” and vacate the other conviction. Bien v. State,
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550 S.W.3d 180, 188 (Tex. Crim. App. 2018); Cisneros v. State, 622 S.W.3d 511, 519
(Tex. App.—Corpus Christi–Edinburg 2021, no pet.). The “most serious offense” is the
one for which the “greatest sentence was assessed.” Ex parte Cavazos, 203 S.W.3d 333,
338 (Tex. Crim. App. 2006). In this case, the greatest punishment assessed was for Count
1, the continuous sexual abuse conviction. Accordingly, we vacate the judgments of
conviction for Counts 4 and 5.
III. CONCLUSION
We vacate the judgments of conviction for Counts 4 and 5. We affirm the
judgments in all other respects.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
5th day of July, 2024.
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