Hendrix, William Curtis v. State

Affirmed in Part, Reversed and Remanded in Part; Majority and Concurring Opinions filed November 16, 2004

Affirmed in Part, Reversed and Remanded in Part; Majority and Concurring Opinions filed November 16, 2004.

In The

Fourteenth Court of Appeals

____________

NOS. 14-03-00950-CR

          14-03-00951-CR

          14-03-00952-CR

          14-03-00953-CR

          14-03-00954-CR

____________

WILLIAM CURTIS HENDRIX, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232^nd District Court

Harris County, Texas

Trial Court Cause Nos. 955,262 through 955,266

CONCURRING OPINION

I fully join the majority=s holding regarding the unanimity of the jury=s verdict as to Acontact@ in cause numbers 955,262; 955,263; 955,265; and 955,266. I concur in the judgment with respect to those convictions, however, to express my view that Acontact@ and Apenetration@ are merely alternative means of committing the same offense.  With regard to cause number 955,264, I likewise concur with the majority=s holding that the trial court committed charge error with respect to that cause.  Our decision is grounded upon controlling precedent of the Texas Court of Criminal Appeals, namely, its decision in Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999).  As an intermediate court, we must abide by such precedent, but I write separately to respectfully express my doubts about its cogency.

In Vick, the defendant was originally charged with aggravated sexual assault by penetrating the complainant=s female sexual organ with his sexual organ.  Id. at 831.  The defendant was tried and acquitted of this charge.  After the defendant was found not guilty, the State reindicted the defendant for the aggravated sexual assault of the same victim in the same transaction as had been alleged in the previous indictment.  Id.  However, in the new indictment the State alleged the defendant committed aggravated sexual assault by (1) contacting the complainant=s female sexual organ with his sexual organ and (2) contacting the complainant=s female sexual organ with his mouth.  Id.  Both the trial court and the court of appeals held the second indictment charged the defendant with the same offense for which he already had been tried and acquitted. Id. at 831B32. The Court of Criminal Appeals, however, disagreed.  The court held the defendant had been charged with a new and different offense in the second indictment because Aeach section [of the statute] entails different and separate acts to commit the various, prohibited conduct.@ Thus, the court opined that this Aspecificity reflects the legislature=s intent to separately and distinctly criminalize any act which constitutes the proscribed conduct.@  Id. at 833.

For reasons set forth below, I fear the Court of Criminal Appeals has (1) seriously eroded the double jeopardy protections afforded by our state and federal constitutions, (2) unjustifiably construed the sexual assault statute differently from every other penal statute, (3) imposed an unrealistic burden upon the State to precisely predict and anticipate the evidence to be adduced at trial, and (4) created confusion and uncertainty in criminal pleadings that the legislature sought to avoid by its 1973 amendment of the Code of Criminal Procedure and its adoption of the modern penal code.

Joinder and Pleadings under the Common Law

A universal maxim in the common law of England was Athat no man is to be brought into jeopardy of his life, more than once, for the same offense.@  4 William Blackstone, Commentaries *329. The ageless difficulty with this noble precept, however, is attempting to define the parameters of an Aoffense.@

Perhaps the first test ever devised under English common law for ascertaining the limits on an offense was the Asame evidence test.@  Ashe v. Swenson, 397 U.S. 436, 453 (1970).  Under the Asame evidence test,@ if substantially the same witnesses, testimony, and evidence were used in the prosecution of two separate and distinct criminal statutes, they were considered to be one offense and, thus, only one conviction could be obtained.  See Byrd v. State, 235 S.W. 891, 893 (Tex. Crim. App. 1921) (holding that where only one transaction is involved, only one conviction can result).

An ancillary, and perhaps inevitable, concept arising from the Asame evidence test@ was the idea of a Acriminal transaction.@  A Acriminal transaction@ is Aan act, or a series of acts, proceeding from one wrongful impulse of the will@^[1] or in which there is Aa single guilty intent@ running through and connecting the acts.^[2]  A criminal Aoffense,@ as that term was used in analyzing jeopardy issues, was synonymous with the phrase Acriminal transaction.@  In each Acriminal transaction@ a defendant conceivably could violate several penal statutes.^[3] 

However, because the proof of these violations would require the Asame evidence,@ (and thus proof of the same offense) only one conviction could be obtained out of each Acriminal transaction.@

This concept was further refined by what became known in Texas as the Acarving doctrine.@  Under the Acarving doctrine,@ the State Acould carve but one offense out of the transaction.@  Curtis v. State, 3 S.W. 86, 88 (Tex. Ct. App. 1886).  Thus, the prosecutor was permitted to carve as large a statutory violation out of a single transaction as he could, but he could Acut only once.@  Staples v. State, 175 S.W. 1056, 1058 (Tex. Crim. App. 1915).^[4]  For jeopardy purposes, therefore, an Aoffense@ tended to have temporal and spatial limits.  For example, if the defendant stole two horses from different owners but the horses were stolen at the same time and place, a conviction for the theft of one horse would bar prosecution for the theft of the other horse because the State could not Apunish twice for the same offense.@  See Wright v. State, 40 S.W. 491, 492 (Tex. Crim. App. 1897).

A bewildering phenomenon arose in that the term Aoffense@ had two distinct and entirely different meanings based on its context.  An Aoffense@ was sometimes used to mean the violation of a criminal statute, e.g., theft, conversion by a bailee, shoplifting, etc.^[5]  On other occasions, the term Aoffense@ was used to mean the constitutional parameters of criminal conduct for double jeopardy purposes, e.g., theft, conversion by a bailee, and

shoplifting could constitute one offense if perpetrated in the same criminal transaction.^[6]  Thus, Texas jurisprudence is filled with such confusing statements as, AThere must not only be prior offenses [i.e., statutory violations] but prior convictions, not of the same offense [i.e., jeopardy limited conduct], but of an offense [i.e., statutory violation] of a like character as that for which the accused is being tried.@  Brittian v. State, 214 S.W. 351, 352 (Tex. Crim. App. 1919) (emphasis added).^[7]

Another difficulty presented by this scheme is that it put a tremendous burden upon the prosecution to correctly anticipate variances in the evidence.  For example, a defendant might commit two penal violations in a single act as where he commits both rape and incest at the same moment.  See Hunt v. State, 59 S.W.2d 836, 840 (Tex. Crim. App. 1933).  In this circumstance, if he were charged only with rape, the defendant might offer some evidence that the act was consensual, but if he were charged only with incest, the defendant might produce some evidence challenging the familial relationship between himself and the victim. Exacerbating this problem was the common law rule that only one offense could be alleged (and, thus, only one conviction could be obtained) in a single indictment.  Watson v. State, 900, S.W.2d 60, 63 (Tex. Crim. App. 1995).^[8]     

To promote justice, the Texas legislature provided that allegations of several statutory violations, all committed in the same Acriminal transaction@ and, thus, all qualifying as the same offense, could be pled in separate counts in the same indictment.^[9]  From 1879 until 1966, the Code of Criminal Procedure provided that an indictment Amay contain as many counts, charging the same offense, [i.e., the same transaction] as the attorney who prepares it may think necessary to insert.@^[10]  In 1966, the Code of Criminal Procedure was altered slightly to provide that an indictment Amay contain as many counts charging the same offense as the attorney who prepares it, acting in good faith, may think necessary to insert, but may not charge more than one offense.@^[11]  The rationale being that the State ought to be permitted to allege all of the various statutory violations arising in a single criminal transaction (i.e., in a single Aoffense@) in one indictment to meet the contingencies of evidence that might develop in trial with the view of securing but one conviction.^[12]

Thus, for more than a century, the State was permitted to include in one indictment as many distinct penal violations occurring during the same criminal transaction as it, in good faith, believed necessary and prudent to meet all the possible contingencies of the evidence.  The State could not, however, join in one indictment offenses alleged to have been committed in different criminal transactions.  The general rule was that only one conviction could be obtained in a single trial.^[13]

The 1973 Amendments

In 1973, the rules regarding joinder were dramatically altered when the legislature adopted a new penal code and amended the code of criminal procedure.  A variety of interests were served by the new legislation.  Judicial resources were conserved in that different offenses, for the first time, could be included in a single indictment.  Thus, multiple convictions could be obtained in one trial. Variances between the allegata and the probata were reduced by granting the State the flexibility to allege in a single count all the various

manner and means by which the proof might show the defendant committed the offense.^[14]  Technical pleading errors were lessened by the legislature=s broad definitions of penal offenses.  Finally, this was achieved without impinging upon the defendant=s constitutional right to be apprised of the specific offense with which he has been accused.

At the heart of its reforms, the legislature drafted penal violations so broadly that each violation constitutes a single offense for jeopardy purposes. The new penal code, for example, consolidated the former prohibitions against Atheft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property@ into the single offense of theft.  Tex. Pen. Code Ann. ' 31.02 (Vernon 1994).  This innovation eliminated the former linguistic confusion regarding the term Aoffense.@  Now, a statutory Aoffense@ is ordinarily intended to be synonymous with the parameters of a jeopardy limited Aoffense.@

Today, two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode.  Tex. Code Crim. Proc. Ann. art. 21.24 (a) (Vernon 1989).^[15]  A count may contain as many separate paragraphs charging the same offense as necessary, but no paragraph may charge more than one offense.  Tex. Code Crim. Proc. Ann. art. 21.24 (b)

(Vernon 1989). The new scheme preserves the defendant=s right to insist upon a separate trial for each count, but it also encourages judicial efficiency by providing the incentive of concurrent punishments if the defendant agrees to the joinder of multiple offenses.  Tex. Pen. Code Ann. '' 3.03 & 3.04 (Vernon 1994).  These innovative reforms, however, were gravely undermined by the decision in Vick v. State.

Vick v. State

In Vick, the Court of Criminal Appeals turned back the clock.  Instead of one offense of sexual assault, the Court of Criminal Appeals has now created at least eight (and perhaps more) distinct crimes, i.e., (1) sexual assault by penetration of the sexual organ or anus of an adult victim, (2) sexual assault by penetration of the mouth of an adult victim with the defendant=s sexual organ, (3) sexual assault by causing one adult person=s sexual organ to contact or penetrate the mouth, anus, or sexual organ of another adult person, (4) sexual assault by penetration of the anus or sexual organ of a child by any means, (5) sexual assault by penetration of the mouth or a child with the defendant=s sexual organ, (6) sexual assault by causing the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, (7) sexual assault by causing the anus of a child to contact the mouth, anus, or sexual organ of another person, and (8) sexual assault by causing the mouth of a child to contact the anus or sexual organ of another person.  Surely, this was not the intent of the legislature.

The Court of Criminal Appeals based its opinion on the fact that each of the foregoing descriptions of sexual assault is set out in a separate paragraph of the statute.  This is true, however, of numerous offenses.  For example, using Vick=s rationale, we also could hold the legislature intended to create six different and distinct offenses of aggravated kidnapping because the statute lists in separate paragraphs that the offense may be committed by (1) holding the victim for ransom or reward, (2) using the victim as a shield or hostage, (3) using the victim to facilitate the commission of a felony, (4) inflicting bodily injury on the victim,

(5) terrorizing the victim, or (6) using the victim to interfere with the performance of a governmental function.  Every reason recited in Vick for interpreting Sections 22.011 and 22.021 as containing distinct offenses is equally true of murder, capital murder, aggravated kidnapping, indecency with a child, injury to a child, endangering a child, terroristic threat, bigamy, interference with child custody, arson, criminal mischief, robbery, burglary, theft of trade secrets, forgery, bribery, disorderly conduct, and many other offenses in the Penal Code too numerous to mention here.  However, in every other instance, outside of sexual assault, these statutory descriptions have been interpreted as various manner and means by which the offense may be committed, not a list of separate and specific offenses.

In Vick, the Court of Criminal Appeals did what the United States Supreme Court has said it may not do.  While a State has wide latitude to define crimes and to prescribe the punishment for a given crime,

. . . the Constitution does not permit a State to punish as two crimes conduct that constitutes only one Aoffence@ within the meaning of the Double Jeopardy Clause. For whenever a person is subjected to the risk that he will be convicted of a crime under state law, he is Aput in jeopardy of life or limb.@ If the prohibition against being Atwice put in jeopardy@ for Athe same offence@ is to have any real meaning, a State cannot be allowed to convict a defendant two, three, or more times simply by enacting separate statutory provisions defining nominally distinct crimes. If the Double Jeopardy Clause imposed no restrictions on a legislature=s power to authorize multiple punishment, there would be no limit to the number of convictions that a State could obtain on the basis of the same act, state of mind, and result. A State would be free to create substantively identical crimes differing only in name, or to create a series of greater and lesser‑included offenses, with the first crime a lesser‑included offense of the second, the second a lesser‑included offense of the third, and so on.

Missouri v. Hunter, 459 U.S. 359, 370B71 (1983).

For example, if a defendant is convicted of murder by intentionally and knowingly causing the death of the deceased, can he later be prosecuted for murder of the same victim

by intentionally committing a felony involving an act clearly dangerous to human life that caused the death of the deceased?  He cannot, and there is no logical reason this rule should not also apply with respect to sexual assaults.

If a defendant stabs, pistol whips, and shoots the complainant, can he be convicted of multiple aggravated assaultsConce by causing serious bodily injury with a knife, once by causing serious bodily injury with a gun, and once again for assault while exhibiting a deadly weapon?  Absolutely not, and while a sexual assault may be committed (like conventional assault) in a variety of ways, it is but one assault.

In addition to violating the defendant=s protections under the Double Jeopardy Clause of the Fifth Amendment, Vick works a great hardship upon the State as well. Prior to Vick, the State could indict a defendant for a sexual assault and allege all of the various manner and means listed in the statute that the prosecutor reasonably believed the evidence might show and, thus, be prepared to meet all the possible contingencies in a single trial.  Suppose, in a hypothetical case, that the victim was unconscious, blindfolded, incompetent, or a very young minor at the time of the assault.  Physical evidence might show definite penetration of the victim=s vagina.  However, due to the victim=s lack of knowledge, it might be equally plausible that the penetration was by the defendant=s sexual organ, the sexual organ of an accomplice, a finger, a mop handle, or any number of similar objects.  Yet, after Vick, the State must allege, at its peril, the precise method of penetration because at least three distinct and separate offenses may have been committed. These offenses either must be alleged in separate counts or contained in separate indictments.  In any event, the defendant has the absolute right to a separate trial in each case giving him the opportunity at each successive trial to suggest to the jury that penetration was by some method other than that presently alleged in the indictment.

Here, the evidence shows the defendant committed numerous assaults over a period of many months.  The State prosecuted appellant for several of these assaults, alleging the various manner and means in separate paragraphs.  Vick requires us, however, to view the

indictments not as containing paragraphs alleging different manner and means of committing the same offense, but as counts alleging different offenses.  This interpretation does violence to the Fifth Amendment, the Texas Penal Code, and the Texas Code of Criminal Procedure.  If writing on a clean slate, I would find each of the indictments presented here contain two or more paragraphs alleging different manner and means of committing an offense.

Because we are an intermediate appellate court and are bound by the holding in Vick, I respectfully concur in the judgment.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Majority and Concurring Opinions filed November 16, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.

Publish C Tex. R. App. P. 47.2(b).

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^[1]  Whitford v. State, 6 S.W.  537, 537 (Tex. Ct. App. 1887); also Kalish v. State, 662 S.W.2d 595, 598 (Tex. Crim. App. 1983).

^[2]  Leal v. State, 711 S.W.2d 702, 707 (Tex. App.CCorpus Christi 1986), aff=d in part, rev=d in part on other grounds, 782 S.W.2d 844 (Tex. Crim. App. 1990).

^[3]  The Court of Appeals reasoned:

. . . there may be any number of distinct [statutory] crimes in a single criminal transaction.  This comes from the fact that, the words of our language being limited, while the transactions of life may almost be termed infinite in variety, and the lines to be drawn around specific offenses being necessarily incomparably more limited than the words, it is impossible that there should be an exact outline of crime whose circumference shall exactly coincide with every criminal transaction.

Whitford, 6 S.W. at 537.

^[4]  Under the carving doctrine the Ageneral rule@ was Aa party may in a criminal proceeding be held to answer for any offense, great or small, which can be legally carved out of a transaction.@  Jackson v. State, 43 Tex. 421, 423 (1875).

^[5]  For example, Awe find that all of the elements necessary to charge the offense of assault with intent to rob are contained in the indictment charging the offense of robbery by assault against the principal.@  Tomlin v. State, 233 S.W.2d 303, 304 (Tex. Crim. App. 1950) (emphasis added).

^[6]  For example, AUnder the doctrine of carving in this State the prosecuting attorney may carve as large an offense out of a single transaction as he can, but he must cut only once, and the State can carve but one conviction for the same offense.@  Fleming v. State, 330 S.W.2d 457, 459 (Tex. Crim. App. 1959) (emphasis added).

^[7]  Despite this unfortunate linguistic imprecision, it is manifest in common law that several statutory offenses may constitute the same offense for jeopardy purposes.  For example, Blackstone observes that Aa conviction of manslaughter, on an appeal, is a bar even in another appeal, and much more in an indictment, of murder; for the fact prosecuted is the same in both, though the offenses differ in colouring and in degree.@  Id. at *330.  To lessen the confusion, I shall hereafter refer to statutory Aviolations@ and jeopardy limited Aoffenses.@

^[8]  This doctrine was colorfully and emphatically embraced by the Court of Appeals:

 Can defendant be convicted of two felonies under the same indictment, and be punished for each?  The learned trial judge admits in his argument that there is no precedent for such a proceeding as the one at bar to be found in the Texas decisions, nor, indeed, can any well‑considered case be found in any state except in those courts in which the judge assesses the punishment,

and where he is limited in the aggregate to the highest punishment that can be given upon any one count.  We have no such law in Texas.  We have no desire to establish any such precedent. . . .  If that could be done, a man could be crushed by accumulating charges, or injured by their solemn presentation to the jury.

Crawford v. State, 19 S.W. 766, 767 (Tex. Ct. App. 1892)

^[9]  AThe object in inserting various counts in an indictment is not to secure separate convictions for as many counts, but to meet the various phases of the testimony; and it is permissible and proper to charge all the felonies which go to make up the offense committed by the defendant, but not to charge different offenses committed at different times and in different transactions.  * * *  Where two or more felonies are charged in the same indictment, the presumption is they are parts of the same transaction, and are to be sustained by the same evidence; and while they all may be submitted to a jury, there can be but one conviction which, as it were, appropriates the guilty intent which runs through and connects these several acts or offenses and makes them one. @  Crawford, 19 S.W. at 767.

^[10]  Revised Statutes of Texas, 16^th Leg. (1879) (emphasis added).  Article 433 of the 1879 Code of Criminal Procedure provided:

An indictment or information may contain as many counts, charging the same offense, as the attorney who prepares it may think necessary to insert, and an indictment or information shall be sufficient if any one of its counts be sufficient.

Id.  This language was carried forward in the 1895, 1911, and 1925 Codes of Criminal Procedure.  See Art. 469 C.C.P., Revised Civil Statutes of the State of Texas, 24^th Leg. (1895); Art. 481 C.C.P., 2 Vernon=s Criminal Statutes of Texas (1916); Art. 417 C.C.P., 1928 Complete Texas Statutes (Vernon 1928).

^[11]  Acts 1965, 59^th Leg. p. 317, ch. 722, '1, eff. Jan. 1, 1966.

^[12]  AIn theory every count is an indictment for a distinct offense; but in fact several counts are resorted to and the offense stated in different forms and in different circumstances to meet the evidence adduced on the trial, but in no event could there be in such cases more than a single punishment.@  Crawford, 19 S.W. at 767.  For example, in Johnson v. State, 107 S.W. 52, 53 (Tex. Crim. App. 1907), the court held that in the case of a burglary committed at twilight it was permissible for the State to allege burglary at night and burglary in the daytime in the same indictment (although these were distinct offenses at that time) to meet all the possible contingencies that might arise under the facts developed at trial.

^[13]  See Caldwell v. State, 56 S.W.2d 883, 885 (Tex. Crim. App. 1932) (holding it is Athe general rule that the accused cannot be convicted for two felonies on one trial under one indictment.@); see also Crawford, 19 S.W. at 767 (AIn an indictment for felony different counts are drawn with a view to one and the same transaction, so that some one count may be found on the trial to be in accordance with the evidence.  This is legitimate, but it sometimes happens that the prosecutor=s object in inserting different counts is really to prosecute the defendant for separate offenses by one indictment.  This he has no right to do, and when ascertained before the trial the court will defeat his design.@)

^[14]  For example, if the evidence shows the victim died of blunt trauma to the brain, and there is found near the body a liquor bottle, a stick, and other household objects like pots and pans, how should the State proceed?  If the State alleges the murder was committed by striking the deceased with the liquor bottle, the defendant might testify at trial that he actually used the stick. If the State alleges the murder was committed by striking the deceased with the stick, the jury might have some doubt as to whether or not the defendant used a frying pan.  In such a case it is permissible for the indictment to allege that the defendant caused the death of the deceased Aby striking his head with a glass bottle and by striking his head with a piece of wood and by means and manner unknown to the Grand Jury.@  See Zanghetti v. State, 618 S.W.2d 383, 384 (Tex. Crim. App. 1981).

^[15]  Thus, Acriminal episode@ has replaced the former concept of Acriminal transaction.@  Under the current penal code, a Acriminal episode@ means the commission of two or more offenses (1) committed pursuant to the same transaction; (2) committed pursuant to two or more transactions that are connected or constitute a common scheme or plan; or (3) that are the repeated commission of the same or similar offense. Tex. Pen. Code Ann. ' 3.01 (Vernon 2003).