Aaron Michael Marshall v. the State of Texas ( 2024 )


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  •                     In the
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    No. 06-23-00160-CR
    AARON MICHAEL MARSHALL, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 5th District Court
    Cass County, Texas
    Trial Court No. 2022F00022
    Before Stevens, C.J., van Cleef and Rambin, JJ.
    Memorandum Opinion by Justice Rambin
    MEMORANDUM OPINION
    A Cass County jury convicted Aaron Michael Marshall of sexual assault of a child and
    assessed a sentence of ten years’ imprisonment.             See TEX. PENAL CODE ANN. § 22.011(f)
    (Supp.), § 25.02. In his sole point of error on appeal, Marshall argues that his conviction for this
    offense violated double jeopardy because he was also convicted of continuous sexual abuse of a
    young child.1     Because no double-jeopardy violation is shown on this record, we overrule
    Marshall’s sole point of error and affirm the trial court’s judgment.
    I.      No Double-Jeopardy Violation Is Shown
    The Fifth Amendment guarantee against double jeopardy protects “against multiple
    punishments for the same offense.” Whalen v. United States, 
    445 U.S. 684
    , 688 (1980) (quoting
    North Carolina v. Pearce, 
    395 U.S. 711
    , 717 (1969)). Initially, we address the State’s argument
    that Marshall failed to preserve his double-jeopardy complaint. While we agree that Marshall
    did not raise his specific complaint with the trial court, “when the error is clearly apparent from
    the face of the record, a double jeopardy violation can be raised for the first time on appeal.”
    Alberts v. State, 
    302 S.W.3d 495
    , 500 (Tex. App.—Texarkana 2009, no pet.) (citing Bigon v.
    State, 
    252 S.W.3d 360
    , 369 (Tex. Crim. App. 2008)). As a result, we will examine the record to
    address Marshall’s complaint.
    In our companion case 06-23-00158-CR, we discussed the evidence admitted at the
    consolidated trial on all of Marshall’s charges. In 06-23-00158-CR, the State alleged that
    1
    In companion cause number 06-23-00158-CR, Marshall appeals from a conviction for continuous sexual assault of
    a young child. In companion cause number 06-23-00159-CR, Marshall appeals from another conviction of sexual
    assault of a child. In companion cause numbers 06-23-000161-CR through 06-23-00166-CR, Marshall appeals from
    six other convictions for indecency with a child.
    2
    Marshall committed continuous sexual abuse of Alice Owens2 by committing two or more acts
    of sexual abuse against her from August 1, 2015, through May 31, 2017. The State alleged that
    the predicate offenses for continuous sexual assault were indecency with a child and aggravated
    sexual assault of a child by penetration of her sexual organ.
    It is true that a defendant “charged with continuous sexual abuse who is tried in the same
    criminal action for an enumerated offense based on conduct committed against the same victim
    may not be convicted for both offenses unless the latter offense occurred outside the period of
    time in which the continuous-sexual-abuse offense was committed.” Jackson v. State, 
    567 S.W.3d 405
    , 407 (Tex. App.—Texarkana 2018, no pet.) (quoting Price v. State, 
    434 S.W.3d 601
    ,
    606 (Tex. Crim. App. 2014)). Here, the record shows that Marshall was not tried for an offense
    enumerated in the State’s continuous sexual assault indictment and that the offense alleged here
    occurred outside the period of time in which the continuous sexual abuse against Owens was
    committed.
    The State’s indictment in this case alleged that,
    on or about the 1st day of September, 2019, . . . AARON MICHAEL
    MARSHALL, did then and there, intentionally and knowingly cause the
    penetration of the sexual organ of Alice Owens (pseudonym), a child who was
    younger than 17 years of age, by defendant’s finger, and Alice Owens
    (pseudonym) was a person whom the defendant was prohibited from engaging in
    sexual intercourse or deviate sexual intercourse under Section 25.02 of the Texas
    Penal Code.
    2
    To protect her identity, we will use the State’s assigned pseudonym for the child complainant. See TEX. R. APP. P.
    9.10.
    3
    As a result, whereas the continuous sexual assault allegation involved aggravated sexual assault
    before Owens’s fourteenth birthday on June 1, 2017, the offense alleged here was sexual assault
    occurring when Owens was sixteen.
    Moreover, at the consolidated trial, Owens testified that Marshall penetrated her vagina
    with his fingers on a total of two occasions. Because she could not testify that those occasions
    were before her fourteenth birthday, we found that the testimony could not support the use of
    sexual assaults as predicate offenses occurring within the statutory timeframe of continuous
    sexual abuse of a young child. Instead, that testimony supported the finding of a separate sexual
    assault of a child offense in this case and in companion cause number 06-23-00159-CR. Further,
    this case differs from 06-23-00159-CR because the offense date of that case was “on or about
    September 1, 2018,” whereas the offense date in this case was “on or about September 1, 2019.”
    Because there is no double-jeopardy violation apparent on the face of this record, we
    overrule Marshall’s sole point of error in this appeal.
    II.    Disposition
    We affirm the trial court’s judgment.
    Jeff Rambin
    Justice
    Date Submitted:        July 5, 2024
    Date Decided:          July 12, 2024
    Do Not Publish
    4
    

Document Info

Docket Number: 06-23-00160-CR

Filed Date: 7/12/2024

Precedential Status: Precedential

Modified Date: 7/17/2024