COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00479-CR
CHARLES WAYNE HOLBROOK APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CR13-0038
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MEMORANDUM OPINION 1
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A jury convicted Appellant Charles Wayne Holbrook of continuous sexual
abuse of a child as alleged in count I of the indictment; aggravated sexual assault
of a child as alleged in count II of the indictment; and indecency with a child as
alleged in counts IV and V of the indictment. The jury assessed his punishment
at confinement for life on counts I and II and at twenty years’ confinement on
1
See Tex. R. App. P. 47.4.
counts IV and V. The trial court sentenced him accordingly, stacking the
sentences for counts II, IV, and V onto the sentence for count I, so that Appellant
would serve his life sentence for count I before the others began to run
concurrently. Appellant brings two points on appeal, arguing that the trial court
reversibly erred by denying his motion to quash the indictment and that
convicting and sentencing him for the offenses alleged in counts II, IV, and V
constituted double jeopardy because those offenses were included in the offense
set out in count I. Appellant does not challenge the sufficiency of the evidence.
Because the trial court did not reversibly err, we affirm the trial court’s
judgment.
Denial of Motion to Quash
Count I of the indictment alleged that Appellant committed continuous
sexual abuse of a child during a period beginning September 1, 2007 and ending
August 23, 2012. The remaining offenses were alleged to have been committed
on or about January 1, 2012 or August 2, 2012.
Appellant filed a pretrial motion to quash the indictment, contending that
penal code section 21.02(d) is unconstitutional because it does not require jury
unanimity, depriving the defendant of due process and due course of law, and
because it violates the Separation of Powers Clause of the Texas Constitution
and subjects the defendant to unconstitutional double jeopardy. As the Texas
Court of Criminal Appeals has explained,
2
The sufficiency of an indictment is a question of law. When the
resolution of a question of law does not turn on an evaluation of the
credibility and demeanor of a witness, then the trial court is not in a
better position to make the determination, so appellate courts should
conduct a de novo review of the issue.2
In his first point, Appellant appears to argue that his motion to quash the
indictment should have been granted because the underlying statute is
unconstitutional. The constitutionality of a statute is also a question of law which
is reviewed de novo. 3 The current state of the law in Texas is that a statute that
does not implicate First Amendment freedoms can be held unconstitutional on its
face only if it is unconstitutional in all of its applications. 4 Otherwise, the accused
must show the statute is unconstitutional as applied to him.
An “as applied” challenge is brought during or after a trial on
the merits, for it is only then that the trial judge and reviewing courts
have the particular facts and circumstances of the case needed to
determine whether the statute or law has been applied in an
unconstitutional manner. Since a contention that a statute is
unconstitutional as applied requires a recourse to evidence, it cannot
be properly raised by a pretrial motion to quash the charging
instrument. 5
2
State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
3
See Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App.
2007), cert. denied, 553 U.S. 1007 (2008).
4
See State v. Rosseau, 396 S.W.3d 550, 557–58 (Tex. Crim. App. 2013);
Scott v. State, 322 S.W.3d 662, 669–71 (Tex. Crim. App. 2010), cert. denied, 131
S. Ct. 2096 (2011).
5
State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011)
(citations and selected internal quotation marks omitted).
3
While Appellant complained in his pretrial motion to quash that the statute
is unconstitutional as applied to him, a pretrial motion to quash does not preserve
that complaint. 6 And Appellant directs us to no place in the record where he later
timely raised this complaint.
To the extent that Appellant complains about jury unanimity, this court has
already addressed and rejected that argument. 7 Finally, although Appellant
mentions the Almanza 8 egregious harm standard for charge error, we do not
understand his complaints to include charge error. Based on the record before
us, we overrule Appellant’s first point on appeal as we understand it.
Double Jeopardy
The first count of the indictment alleged the acts constituting
continuing sexual abuse of a child between September 1, 2007 and
August 23, 2012:
a. Penetration of the child’s anus with the sexual organ of Appellant;
b. Penetration of the child’s anus with a vibrating device;
c. Penetration of the child’s anus with Appellant’s fingers;
d. Penetration of the child’s sexual organ with a vibrating device;
6
See id.
7
See Pollock v. State, 405 S.W.3d 396, 405 (Tex. App.—Fort Worth 2013,
no pet.).
8
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on
reh’g).
4
e. Penetration of the child’s sexual organ with Appellant’s sexual
organ;
f. Touching the child’s genitals with intent to arouse or gratify
Appellant’s sexual desire; and
g. Touching the child’s anus with intent to arouse or gratify Appellant’s
sexual desire.
All seven allegations were submitted to the jury in the jury charge on
guilt.
Counts II, IV, and V of the indictment charged that Appellant did
II. Penetrate the child’s anus with Appellant’s sexual organ on or about
August 2, 2012;
IV. Cause the child to contact his genitals, with intent to arouse or gratify
Appellant’s sexual desire, on or about January 1, 2012; and
V. Touch the child’s breast with intent to arouse or gratify Appellant’s sexual
desire on or about January 1, 2012.
In his second point, Appellant argues that he was denied double jeopardy
protections guaranteed by state and federal constitutions when the jury was
allowed to convict him of both the allegations in count I of the indictment and
those in counts II, IV, and V. As our sister court in Beaumont noted in Price v.
State, the Texas Legislature expresses its intent regarding multiple punishments
for continuous sexual abuse in the statute itself. 9 The statute provides,
(e) A defendant may not be convicted in the same criminal
action of an offense listed under Subsection (c) the victim of which is
9
413 S.W.3d 158, 162 (Tex. App.—Beaumont 2013), aff’d, 434 S.W.3d 601
(Tex. Crim. App. 2014).
5
the same victim as a victim of the offense alleged under Subsection
(b) unless the offense listed in Subsection (c):
(1) is charged in the alternative;
(2) occurred outside the period in which the offense
alleged under Subsection (b) was committed; or
(3) is considered by the trier of fact to be a lesser
included offense of the offense alleged under Subsection (b).
(f) A defendant may not be charged with more than one count
under Subsection (b) if all of the specific acts of sexual abuse that
are alleged to have been committed are alleged to have been
committed against a single victim. 10
The Price court explained,
An offense listed under section 21.02(c) will always be a
lesser included offense of the offense alleged under Subsection (b).
Based on the language in section 21.02(c), it appears the
Legislature did not intend to allow a defendant convicted of
continuous sexual abuse to also be convicted for the aggravated
sexual assault of the same child if the aggravated sexual assault at
issue and the continuous sexual abuse both occurred within the
same time periods. 11
Contrary to Appellant’s assertions, count V does not repeat the allegations
of count I or of any other count. Specifically, section 21.02(c)(2) provides, in
pertinent part, that acts of sexual abuse include “(2) indecency with a child under
Section 21.11(a)(1), if the actor committed the offense in a manner other than by
10
Tex. Penal Code Ann. § 21.02(e), (f) (West Supp. 2014).
11
Price, 413 S.W.3d at 162 (internal quotation marks and citations omitted)
(relying in part on Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim. App.
2011)); see also Tex. Penal Code Ann. § 21.02(b)–(c) (West Supp. 2014).
6
touching, including touching through clothing, the breast of a child.” 12 But count
II of the indictment does repeat the allegations of count I(a), and count IV of the
indictment repeats the allegations of count I(a) and (e).
In response to Appellant’s request that the State make an election and
after many discussions between the parties, however, the State separated the
time periods covered by Counts II and IV from the time period covering Count I.
The State points out that the jury charge limited Counts II and IV to the nine
months preceding the continuous sexual abuse statute’s becoming law, or from
December 7, 2006, until August 31, 2007. The continuous sexual abuse count
covers the same period of time as contained within the indictment, or from
September 1, 2007, until August 23, 2012. In addition to the jury charge
reflecting the different time periods, the State also explained during its closing
argument that under the charge as to counts II and IV, the jury was only to
consider the evidence of events which occurred from December 7, 2006, until
August 31, 2007, and for the charge on count I, the jury was to consider only
evidence of events which occurred from September 1, 2007, until August 23,
2012. The State also explained that for the jury to consider post-September 1,
2007 evidence in determining counts II and IV “would violate double jeopardy.”
Because the State’s election insulated the jury verdict from a double jeopardy
12
Tex. Penal Code Ann. § 21.02(c).
7
challenge on counts II and IV 13 and because Count V had no double jeopardy
risk, we overrule Appellant’s second point on appeal.
Conclusion
Having overruled Appellant’s two points, we affirm the trial court’s
judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 20, 2014
13
See Phillips v. State, 193 S.W.3d 904, 909–10 (Tex. Crim. App. 2006).
8