State

                             NO. 12-04-00304-CR

                     IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                TYLER, TEXAS

JESSE WARREN CARROLL,                      '                 APPEAL FROM THE 8TH

APPELLANT

V.                                                                         '                 JUDICIAL  DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                       '                 RAINS COUNTY, TEXAS

                                                      MEMORANDUM OPINION

Jesse Warren Carroll was convicted by a jury of three counts of aggravated sexual assault of a child.  The jury sentenced him to ninety-nine years of imprisonment and assessed a $10,000 fine for each of the three counts.  We affirm.

Background

Twenty-three year old Appellant and his fifteen year old cousin, James, met two thirteen year old girls, J.N.W. and B.N., who were cousins.  The girls went with Appellant and James to James=s trailer house.  After drinking some liquid that smelled of alcohol, James went to a bedroom with B.N. and had sexual relations with her.  After kissing J.N.W. for a while, Appellant removed J.N.W.=s pants and underwear and had sexual relations with her, penetrating her sexual organ with his finger and his penis and also penetrating her anus with his finger.  Appellant=s Afiancé@ arrived and beat on the door of the trailer until James opened the door. Appellant=s fiancé started yelling at Appellant, at which time the two girls left the trailer.  The girls were picked up shortly thereafter by their aunt and grandmother, who, after hearing what had happened, called the police and took J.N.W. to the hospital for a medical examination.  Appellant was subsequently charged by indictment with four counts of aggravated sexual assault of a child.

At trial, J.N.W. testified about the facts of the aggravated sexual assault.  James testified that he saw Appellant on top of J.N.W. with her pants off and that Appellant told him he had sex with J.N.W.  Appellant=s fiancé  testified Appellant admitted to her that he had penetrated J.N.W. with his finger.  A nurse testified about J.N.W. being examined to determine whether she had been sexually assaulted.  The medical report indicated there was penetration of J.N.W.=s sexual organ and anus.

Appellant testified that he kissed J.N.W., but did not remove her clothing or penetrate her with either his finger or his penis. However, he admitted he attempted to achieve an erection. Appellant also identified his penitentiary packages containing documentation of his prior convictions, including two burglary of a habitation convictions and one burglary of a building conviction for which he was sentenced to a total of three years of imprisonment and a possession of marijuana conviction for which he was confined in the county jail.

The jury convicted Appellant of three of the four counts.  The jury sentenced Appellant to imprisonment for ninety-nine years and a $10,000 fine on each count.  The State moved to have the sentences for counts one and three served consecutively. The court imposed the sentence assessed by the jury, but ordered the sentences for counts one and three to be served consecutively.  This appeal followed.

Multiple Convictions

Appellant contends in his first issue that the trial court erred in rendering a judgment and sentence on each of the three counts because only one offense was committed.  Appellant contends that the alleged offenses all occurred at the same time, arose from the same transaction, and required the same common facts for their completion.  Therefore, he argues, he should have been convicted of only one offense. 

Applicable Law

Appellant was charged with four counts of aggravated sexual assault of a child.  See Tex. Pen. Code Ann. ' 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2005). A person commits aggravated sexual assault of a child

            (1) if the person:

                        (B) intentionally or knowingly:       (i)       causes the penetration of the anus or sexual organ of a child by any means;

                          (ii)       causes the penetration of the mouth of a child by the sexual organ of the actor;

                          (iii)      causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

                          (iv)      causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

                        (v)      causes the mouth of a child to contact the anus or sexual organ of another person, including the actor; and

(2) if:

(B) the victim is younger than 14 years of age. . . .

Id.

In Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999), the defendant was first acquitted of aggravated sexual assault of a child where the indictment alleged he Acause[d] the penetration of the female sexual organ of [the child victim], by defendant=s sexual organ.@  He was then reindicted for aggravated sexual assault on the same child in the same criminal episode.  In the second indictment, the State alleged he Acause[d] contact of the female sexual organ of [the child victim] by [appellee=s] sexual organ@ and Acause[d] the female sexual organ of [the child victim] to contact the mouth of [appellee].@  Id. at 831.  The defendant filed a motion to dismiss contending that he had been acquitted of the offense alleged in the second indictment.  The trial court agreed and granted the motion to dismiss.  The court of appeals upheld the trial court=s decision that double jeopardy barred the second prosecution.  However, the court of criminal appeals reversed and remanded the case to the trial court.^[1]

In its analysis, the court noted that it is bound by decisions from the United States Supreme Court in interpreting the scope of the Double Jeopardy Clause of the United States Constitution, but that the determination of what constitutes an Aoffense@ is largely a matter of state law.  Id. at 832.  The court also stated that few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses.  Id.  The court then analyzed the statute and determined that the legislature intended to permit multiple prosecutions under section 22.021 of the Penal Code.  Id. at 833.  The court reasoned that section 22.021

is a conduct-oriented offense in which the legislature criminalized very specific conduct of several different types.  Also, the statute expressly and impliedly separates the sections by "or," which is some indication that any one of the proscribed conduct provisions constitutes an offense.  The statute criminalizes many types of sexually assaultive conduct with a child. Yet, each section usually entails different and separate acts to commit the various, prohibited conduct. This specificity reflects the legislature's intent to separately and distinctly criminalize any act which constitutes the proscribed conduct. An offense is complete when a person commits any one of the proscribed acts.

Id. 832-33.  Where the legislature has met after a particular statute has been judicially construed, but did not change the statute, the courts presume the legislature intends the same construction to continue to be applied to that statute.  See Pettigrew v. State, 48 S.W.3d 769, 772 n.20 (Tex. Crim. App. 2001).

Analysis

Count One of the indictment alleged that Appellant Adid then and there intentionally or knowingly cause the penetration of the female sexual organ of [the child] . . . by the defendant=s sexual organ.@   Count Three alleged that Appellant Adid then and there intentionally or knowingly cause the penetration of the female sexual organ of [the child] . . . by the defendant=s finger.@ Count Four alleged that Appellant Adid then and there intentionally or knowingly cause the penetration of the anus of [the child] . . . by the defendant=s finger.@ 

Applying the court=s holding in Vick, we conclude that each of these counts describes a distinct offense. The jury heard the evidence and found Appellant guilty of all three counts. Although the three convictions were for crimes committed against the same victim during a single criminal episode, section 22.021 authorizes such individual convictions.  We hold that the trial court did not err in rendering judgments and pronouncing sentences on three separate offenses. Appellant=s first issue is overruled.

Violation of Eighth Amendment by Cumulation

In his second issue, Appellant contends the trial court violated the Eighth Amendment to the  United States Constitution by granting the State=s motion to cumulate counts one and three. Appellant acknowledges that cumulation alone does not constitute cruel and unusual punishment.  However, he argues that, in the present case, the sentence imposed through cumulation of the two sentences Ais grossly disproportionate to the offense for which [he] was convicted and, thus, violates the >expansive= language= of the Eighth Amendment.@

Applicable Law

We initially note that in his argument, Appellant cites only to Roper v. Simmons, 543 U.S. 551, 560-61, 125 S. Ct. 1183, 1190, 161 L. Ed. 2d 1 (2005), a United States Supreme Court case which barred the execution of a person who was seventeen years of age at the time the crime was committed.  Appellant refers to the Court=s description of the Eighth Amendment=s prohibition of Acruel and unusual punishment@ as Aexpansive language.@  Roper, 543 U.S. at 560, 125 S. Ct. at 1190. However, Appellant does not explain how or why his sentence violated the Aexpansive language@ of the Eighth Amendment.  Where an appellant makes no argument and cites no authority to support his proposition, we will decline to make his arguments for him.  See Tex. R. App. P. 38.1(h); Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000).  By failing to make any argument or cite any authority supporting his assertion that his sentence constitutes cruel and unusual punishment, Appellant has waived this issue.  See Tex. R. App. P. 38.1(h).

Even if the issue had not been waived, however, the result would not change.  When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, the sentences may run consecutively or concurrently if each sentence is for a conviction of certain enumerated offenses. Tex. Pen. Code Ann. ' 3.03(a) (Vernon Supp. 2005).  Appellant was convicted of three counts of aggravated sexual assault.  In the jury=s view, each of these first degree felony convictions merited a ninety-nine year sentence.  Consecutive sentences are expressly allowed for aggravated sexual assault of a child. Id. ' 3.03(b)(2)(A).  As Appellant admits, the cumulation of sentences does not constitute cruel and unusual punishment under the Eighth Amendment.  Dixon v. State, No. 06-03-00200-CR, 2004 WL 1301224, at *1 (Tex. App.BTexarkana June 14, 2004, pet. ref=d) (mem. op.) (not designated for publication). We see nothing in the record that would cause us to conclude that the cumulation of two of Appellant=s three ninety-nine year sentences resulted in an unconstitutionally disproportionate punishment.  Appellant=s second issue is overruled.

Conclusion

Having overruled Appellant=s issues one and two, we affirm the judgment of the trial court.

 SAM GRIFFITH   

Justice

Opinion delivered March 31, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

                                                             (DO NOT PUBLISH)

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^[1] The second indictment included two counts, but the State did not challenge the trial court=s dismissal of the first count.