Harris, Owen Thomas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0945-10

OWEN THOMAS HARRIS, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
NUECES COUNTY

H ERVEY, J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, J OHNSON, K EASLER, C OCHRAN, and A LCALA, JJ., joined. K ELLER, P.J.,
filed a dissenting opinion.

OPINION

Appellant, Owen Thomas Harris, was convicted of three offenses of indecency

with a child by exposure. T EX. P ENAL C ODE § 21.11(a)(2)(A). The court of appeals

affirmed, rejecting Appellant’s double jeopardy argument that he received multiple

punishments for the same offense. Harris v. State, No. 13-08-537-CR, 2010 Tex. App.

LEXIS 2766 (Tex. App.—Corpus Christi April 15, 2010) (not designated for
 Harris–2

publication). We exercised our discretionary authority to review this decision, and we

will reverse the judgment of the court of appeals and remand the case to reform the

judgment and sentence.

I. FACTS

Pursuant to a three-count indictment, Appellant entered an open plea of guilty, and

he was convicted in a single proceeding of three offenses of indecency with a child by

exposure. These three convictions arise out of a single act or criminal episode during

which Appellant masturbated in his car knowing that a six-year-old girl and two nine-

year-old girls were present.1 After a punishment hearing, the trial court sentenced

Appellant to ten years’ imprisonment for each count, with counts 1 and 2 running

consecutively, and the sentence for count 3 running concurrently with counts 1 and 2.

II. CORPUS CHRISTI COURT OF APPEALS

On direct appeal, Appellant argued that the trial court erred in the conviction and

punishment of three separate counts of indecency by exposure, arising from the same

criminal episode, when the offense is a non-victim-based crime for which double

jeopardy bars multiple prosecutions.2 The Corpus Christi Court of Appeals disagreed and

1
Each count of the indictment was identical, except for the child’s name: Appellant “did
then and there with the intent to arouse and gratify the sexual desire of the defendant,
intentionally or knowingly expose the defendant’s GENITALS knowing that [the victim], the
child younger than 17 years of age and not the spouse of the defendant, was present.”
2
Appellant raised a total of three issues on appeal: “(1) the evidence is insufficient to
support his guilty plea; (2) double jeopardy barred multiple prosecutions and punishments for the
same offense; and (3) he received ineffective assistance of counsel.” Harris, 2010 Tex. App.
LEXIS 2766, at *1.
 Harris–3

affirmed the trial court’s judgment. Harris, 2010 Tex. App. LEXIS 2766, at *10-14.

The court of appeals noted that “the Double Jeopardy Clause ‘does not restrict a

legislature from carving as many offenses as it chooses from one transaction so long as

each offense requires proof of a fact which the other does not.’” Id. at *11-12 (quoting

Phillips v. State, 787 S.W.2d 391, 394 (Tex. Crim. App. 1990)). Then, relying on Baggett

v. State, 860 S.W.2d 207 (Tex. App.—Houston [1st Dist.] 1993, no pet.) (op. on reh’g),

the court decided that Section 21.11(a)(2)(A) “provides a distinct offense against each

child present by a single act of exposure.” Harris, 2010 Tex. App. LEXIS 2766, at *13.

It explained that “[p]roof of an identifiable child as an additional element of the statute is

required, and thus an offense against each child present would constitute a separate

crime.” Id. at *13-14. Hence, the court reasoned that, because three different children

were involved in this case, double jeopardy did not bar multiple prosecutions for the same

act of indecency with a child. Id. at *14.

We granted Appellant’s petition for discretionary review to determine whether his

right against double jeopardy was violated. Specifically, the ground upon which we

granted review states the following:

Did the Court of Appeals err in requiring the child’s name as a necessary
element of proof for the crime of indecency with a child by exposure, unlike
the lesser charge of indecent exposure, which does not require the victim’s
name as an element of the crime, affecting appellant’s double jeopardy
claim?

III. ARGUMENTS OF THE PARTIES
 Harris–4

A. Appellant’s Argument

Appellant contends that he was subjected to multiple punishments for the same

offense in violation of the Double Jeopardy Clause of the United States Constitution.

Although he notes that it “fell short of completely disposing of Appellant’s

particular double jeopardy issue,” Appellant asserts that our ruling in Ex parte Amador,

326 S.W.3d 202 (Tex. Crim. App. 2010), which upheld the continuing validity of the

holding in Briceno v. State,3 “inadvertently pre-determined the ultimate outcome in this

case.” According to Appellant, to be consistent with Briceno, we “must hold that

multiple counts for each child victim in one single act of exposure for the offense of

Indecency with a Child by Exposure cannot carry multiple punishments.”

Appellant asserts that the statute defining indecency with a child by exposure does

not require the name of the child as a separate element of the crime, relying on Yanes v.

State, 149 S.W.3d 708, 710-12 (Tex. App.—Austin 2004, pet. ref’d). In Yanes, the

defendant was accused of exposing himself in the presence of several children. Id. at

709. His subsequent indictment for the offense of indecency with a child by exposure

contained one count that did not specify who the victim was. Id. Although the defendant

complained that the omission of a named child victim left him vulnerable to double

jeopardy, the Austin Court of Appeals concluded that “only one crime results regardless

of how many children are present to the exposure.” Id. at 712. The court emphasized the

3
Briceno v. State, 580 S.W.2d 842 (Tex. Crim. App. 1979).
 Harris–5

act of exposure itself as the gravamen of the crime: “Indecency with a child by exposure

centers on the mental state and actions of the perpetrator and not on the harm done to the

victim.” Id. at 711-12.

B. State’s Argument

The State responds that the court of appeals properly decided that there was no

double jeopardy violation in this case because the plain language of Section

21.11(a)(2)(A) indicates that the child victim is the allowable unit of prosecution for the

offense of indecency with a child by exposure. In making this argument, the State, like

the Corpus Christi Court of Appeals, refers to Baggett, 860 S.W.2d 207. In that case, the

defendant was accused of exposing himself to two children and two adults. Id. at 208.

After he pled guilty to the offense of indecent exposure, the defendant was indicted on

two counts of indecency with a child by exposure. Id. The First Court of Appeals

rejected the defendant’s complaint that this prosecution was barred by double jeopardy:

The State would have been justified in indicting, prosecuting, and punishing
him for four acts of indecent exposure or two acts of indecent exposure and
two acts of indecency with a child. The essence of this multiple prosecution
is that each offense required proof of a fact that the others did not: the
identity of the victim. Because each victim in the two convictions was
different, each conviction was based on a separate offense. Therefore,
appellant’s right to be protected against multiple prosecutions and
punishments for the same offense was not violated.

Id. at 209.

The State also notes Presiding Judge Keller’s dissenting opinion in Amador, 326

S.W.3d at 210 (Keller, P.J., dissenting). While the State concedes that the particular issue
 Harris–6

of this case was not before the Court in Amador, it argues that the dissenting opinion’s

units of prosecution discussion is pertinent to this case. In particular, the State relies on

the statute’s requirements regarding (1) the presence of “a child” and (2) the defendant’s

awareness regarding the presence of “the child” indicate “that a particular child victim is

contemplated, in turn indicating that the child victim defines the unit of prosecution.” See

id. at 214-15.

IV. ANALYSIS

The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution provides that no person shall “be subject for the same offense to be twice put

in jeopardy of life or limb.” U.S. C ONST. amend. V. This constitutional protection is

violated if a defendant suffers multiple punishments for the “same offense.” Ex parte

Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006).

The Legislature has the power to establish and define crimes. Ex parte Hawkins, 6

S.W.3d 554, 556 (Tex. Crim. App. 1999). It also defines whether offenses are the same

by prescribing the allowable unit of prosecution, which is “a distinguishable discrete act

that is a separate violation of the statute.” Cavazos, 203 S.W.3d at 336; Hawkins, 6

S.W.3d at 556-57. The United States Supreme Court has described this broad legislative

power:

It is Congress, and not the prosecution, which establishes and defines
offenses. Few, if any, limitations are imposed by the Double Jeopardy
Clause on the legislative power to define offenses. But once Congress has
defined a statutory offense by its prescription of the “allowable unit of
 Harris–7

prosecution,” that prescription determines the scope of protection afforded
by a prior conviction or acquittal. Whether a particular course of conduct
involves one or more distinct “offenses” under the statute depends on this
congressional choice.

Sanabria v. United States, 437 U.S. 54, 69-70 (1978) (citations omitted).

In determining whether a particular course of conduct involves one or more

distinct offenses under a single statute, we must ascertain the “allowable unit of

prosecution” under the statute.4 Bigon v. State, 252 S.W.3d 360, 371-72 (Tex. Crim. App.

2008); Saenz v. State, 166 S.W.3d 270, 272 (Tex. Crim. App. 2005). “Although this

inquiry resolves the double jeopardy analysis, it is purely one of statutory construction.”

Jones v. State, 323 S.W.3d 885, 888 (Tex. Crim. App. 2010); accord Hawkins, 6 S.W.3d

at 556.

Statutory construction is a question of law, and we review the record de novo.

Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App. 2009). In construing a statute, we

must “seek to effectuate the ‘collective’ intent or purpose of the legislators who enacted

the legislation.” Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We look

first to the statute’s literal text, and “we read words and phrases in context and construe

them according to the rules of grammar and usage.” Lopez v. State, 253 S.W.3d 680, 685

(Tex. Crim. App. 2008). We must “presume that every word in a statute has been used

for a purpose and that each word, phrase, clause, and sentence should be given effect if

4
In cases involving multiple violations of the same statute, the “same elements” test for
the purposes of a double jeopardy analysis does not apply. Ex parte Goodman, 152 S.W.3d 67,
70 n.5 (Tex. Crim. App. 2004); Ex parte Rathmell, 717 S.W.2d 33, 35 (Tex. Crim. App. 1986).
 Harris–8

reasonably possible.” State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997).

Only if the statutory language is ambiguous, or leads to absurd results that the Legislature

could not have possibly intended, may we consult extra-textual sources. Boykin, 818

S.W.2d at 785.

In the instant case, Appellant was found guilty of three offenses under the same

statute (indecency with a child by exposure), so we must determine the allowable unit of

prosecution for that statute in order to decide how many offenses Appellant committed.

See Jones, 323 S.W.3d at 888. Texas Penal Code Section 21.11 provides, in pertinent

part,

A person commits an offense if, with a child younger than 17 years of age,
whether the child is of the same or opposite sex, the person . . . with intent
to arouse or gratify the sexual desire of any person . . . exposes the person’s
anus or any part of the person’s genitals, knowing the child is present.

T EX. P ENAL C ODE § 21.11(a)(2)(A).

We first look to see if the legislative intent can be derived from the plain text.

Absent an explicit statement that “the allowable unit of prosecution shall be such-and-

such,” the best indicator of legislative intent regarding the unit of prosecution is the

gravamen or focus of the offense. Jones, 323 S.W.3d at 889; Huffman v. State, 267

S.W.3d 902, 907 (Tex. Crim. App. 2008).

One aid in identifying the gravamen of the offense is grammar. Jones, 323 S.W.3d

at 890-91; Huffman, 267 S.W.3d at 906-07. An analysis of the elements of indecency

with a child by exposure under Section 21.11(a)(2)(A) reveals that the subject is “a
 Harris–9

person” (or the defendant), the verb is “exposes,” and the direct object is “the person’s

anus or any part of the person’s genitals.” The remaining elements are prepositional and

adverbial phrases that define the circumstances in which the act of exposure amounts to

an offense; that is, the Legislature placed limitations on the conduct by criminalizing

exposure only in specific circumstances. Hence, this grammatical analysis suggests that

the act of exposure is the focus of the offense and, thus, the unit of prosecution is each

exposure.

Another aspect of grammar indicating the gravamen of the offense “is that a

legislative reference to an item in the singular suggests that each instance of that item is a

separate unit of prosecution.” Jones, 323 S.W.3d at 891. Generally, such singularity

refers to or modifies the direct object of the sentence. See id.; see also Vineyard v. State,

958 S.W.2d 834, 837 (Tex. Crim. App. 1998); Ex parte Rathmell, 717 S.W.2d 33, 35

(Tex. Crim. App. 1986). For example, in Jones, we analyzed the statute proscribing the

offense of “false statement to obtain property or credit.” See T EX. P ENAL C ODE § 32.32.

In concluding that each “materially false or misleading written statement” made

constituted a separate unit of prosecution, one of the factors upon which we relied was the

statute’s use of the singular. Jones, 323 S.W.3d at 891-92. We identified the main

structure of the sentence and emphasized the singularity of the direct object: “A person

commits an offense if he intentionally or knowingly makes a materially false or

misleading written statement to obtain property or credit for himself or another.” T EX.
 Harris–10

P ENAL C ODE § 32.32 (emphasis added); Jones, 323 S.W.3d at 891.

In this case, we recognize the use of the singular forms of “the child” and “a child”

in Section 21.11(a)(2)(A). See Amador, 326 S.W.3d at 214-15 (Keller, P.J., dissenting).

However, that singularity does not relate to the direct object of the statute (the person’s

anus or any part of the person’s genitals), so it does not control our unit of prosecution

analysis.

Yet another aid in determining the gravamen of an offense is to identify “the

offense element that requires a completed act.” Jones, 323 S.W.3d at 890; see also

Cavazos, 203 S.W.3d at 337; Hawkins, 6 S.W.3d at 559-60; Rathmell, 717 S.W.2d at 35.

To illustrate, in Cheney v. State, 755 S.W.2d 123 (Tex. Crim. App. 1988), we held that

the gravamen of the offense of “false statement to obtain property or credit” of Section

32.32 is the act of “making” a materially false statement, rather than the acquisition of

property or credit. In so holding, one factor we emphasized was that the “actual

acquisition of property or credit is not a required element of the offense.” 5 Id. at 129.

Consequently, “[t]he offense is complete once the written, deceptive statement relevant to

obtaining property or credit is made.” Id.

Here, the offense of indecency with a child by exposure is complete once the

defendant unlawfully exposes himself in the required circumstances. In Ex parte

5
We subsequently relied on this reasoning in Jones, 323 S.W.3d 885, discussed supra.
 Harris–11

Amador,6 we established that indecency with a child by exposure does not depend upon

the child suffering any harm from seeing the defendant’s genitals. Amador, 326 S.W.3d

at 207, 208. “[I]t is the society that is ‘offended or alarmed’ by the fact that its children

should be subjected to such exposure.” Id. at 208. The child need only be “present” for

the offense to be effectuated; the child does not even have to be aware of the exposure.

As Judge Cochran stated in her concurring opinion, “The offense is based on the

defendant’s actions and mental state, not the other person’s comprehension.” See id. at

209 (Cochran, J., concurring) (citing Uribe v. State, 7 S.W.3d 294, 297 (Tex.

App.—Austin 1999, pet. ref’d) (upholding a conviction for indecency with a child by

exposure even though the child did not see the defendant’s genitals)). Accordingly, the

forbidden conduct of Section 21.11(a)(2)(A) is the exposure of the defendant’s anus or

genitals under the proscribed circumstances. As such, this factor suggests that the act of

exposure is the unit of prosecution.

After considering all of these factors, we believe that the clear language of Section

21.11(a)(2)(A) indicates that the exposure, not the number of children present, constitutes

6
In Amador, we held that indecent exposure, as set out in Section 21.08(a) of the Texas
Penal Code, is a lesser-included offense of indecency with a child by exposure under Section
21.11(a)(2)(A) when these two offenses arise out of the same act. Amador, 326 S.W.3d at 204,
208. Amador expressly left open, and noted that it was not deciding, the specific question
presented in this case of whether “two counts of indecency with a child by exposure can be based
upon a single exposure if there are two child victims.” Id. at 207.
 Harris–12

the unit of prosecution.7

Our holding is consistent with Wallace v. State, 550 S.W.2d 89 (Tex. Crim. App.

1977). In Wallace, we held that “to whom the exposure is directed is not an essential

element of the offense of indecent exposure.” Id. at 91; see T EX. P ENAL C ODE §

21.08(a).8 Consequently, we held that the failure to plead the specific person to whom an

accused exposed himself did not render an indictment or information fundamentally

defective. Id. As the dissent itself acknowledges, Wallace “leads to the inescapable

conclusion that the offense of indecent exposure has no complaining witness or victim

that would define a unit of prosecution for the offense.” See Amador, 326 S.W.3d at 213

(Keller, P.J., dissenting). Therefore, the act of exposure must be the gravamen of the

indecent exposure.

The dissent argues that the unit of prosecution should be each child victim because

a culpable mental state (knowing) is required to attach to a particular circumstance (a

child’s presence). See Huffman, 267 S.W.3d at 908; see also McQueen v. State, 781

S.W.2d 600, 603 (Tex. Crim. App. 1989). However, if the dissent’s argument was

correct, then indecent exposure would also be defined by the victim since a mental state

7
If the Legislature intended otherwise, we encourage it to reconsider the language of the
statute.
8
Section 21.08(a) of the Penal Code provides, “A person commits an offense if he
exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of
any person, and he is reckless about whether another is present who will be offended or alarmed
by his act.”
 Harris–13

(reckless) attaches to a circumstance (whether another who will be offended or alarmed

by his act is present). Such a result would be contrary to Wallace. Indecent exposure and

indecency with a child by exposure are both “circumstances of conduct” offenses, in

which a mental state is required to a specific circumstance. As we have previously

recognized,

[their] elements are identical except that indecency with a child requires the
defendant to know that a child is present, where indecent exposure requires
that the defendant is reckless as to the presence of another person . . . .
Thus, indecency with a child requires, in addition to proving all the
elements of indecent exposure, a showing of the higher culpable mental
state and that the person is a child.

Briceno v. State, 580 S.W.2d 842, 844 (Tex. Crim. App. 1979) (citations omitted).

Accordingly, because Wallace leads to the conclusion that the act of exposure is the

gravamen of indecent exposure, the gravamen of indecency with a child by exposure

should also be the act of exposure.

In conclusion, the gravamen of the offense of indecency with a child by exposure

is the act of exposure. The allowable unit of prosecution for the offense is the act of

exposure, and consequently, the child-victim’s name is not a necessary element of proof.9

Appellant committed only one offense under Section 21.11(a)(2)(A) when he exposed

himself to three children at the same time.

9
“Although it is better practice to plead, where applicable, an accused exposed himself to
a specified person or persons, failure to allege this would not render an indictment or information
fundamentally defective.” Wallace, 550 S.W.2d at 91. We recognize that this was stated in an
indecent exposure case, but we believe it is equally applicable here.
 Harris–14

VI. CONCLUSION

Appellant’s right against double jeopardy was violated when he was convicted on

three counts of indecency with a child by exposure that resulted from a single act of

exposure. The judgment of the court of appeals is reversed, and the case is remanded to

the trial court to reform the judgment and sentence in accordance with this opinion.

Hervey, J.

Delivered: November 9, 2011

Publish