Loving v. State

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1334-12

AUSTIN LOVING, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
TRAVIS COUNTY

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

OPINION

Appellant, Austin Loving, was convicted of three counts of indecency with a child

by contact and two counts of indecency with a child by exposure involving two sisters.

See T EX. P ENAL C ODE § 21.11(a)(1), (a)(2). He was sentenced to seven years’

imprisonment for each of the indecency-by-contact counts and ten years’ imprisonment,
 Loving–2

probated for ten years, on the indecency-by-exposure counts. The Austin Court of

Appeals vacated one of Appellant’s convictions for indecency by exposure on double-

jeopardy grounds, and it affirmed the remainder of his convictions. Loving v. State, Nos.

03-11-00074-CR, 03-11-00075-CR, 2012 WL 3601127, at *6 (Tex. App.—Austin Aug.

17, 2012) (memo. op.) (not designated for publication). We granted the State’s petition

for discretionary review to determine if Appellant’s vacated exposure conviction is barred

by double jeopardy. We will reverse the judgment of the court of appeals in part and

affirm its judgment as modified.

I. BACKGROUND

Appellant, a nineteen-year-old man, was accused of indecent behavior with two

sisters. The victims, ages eight and nine, were invited to play video games in Appellant’s

bedroom at his mother’s apartment. While the sisters were playing video games,

Appellant went to a computer near the living room and opened a pornographic website on

the computer. The girls came out of the bedroom and saw the pornography on the

computer. While the girls were present, Appellant went to the couch in the living room,

exposed his genitals, and began masturbating. The girls then left the living room to play

more video games. After the sisters reentered the living room, and while Appellant was

still masturbating, he touched the youngest girl. After he finished masturbating, he

touched the older girl and asked her to touch his penis, but she testified that she “punched

it” instead.
 Loving–3

In a consolidated trial, Appellant was convicted on three counts of indecency with

a child by contact and two counts of indecency with a child by exposure. One contact and

one exposure conviction were for his actions regarding the younger sister. The other three

convictions were for his indecent behavior with the older sister. The issues presented in

this case address only Appellant’s convictions for indecency with a child by exposure for

exposing his genitals to the older sister and indecency with a child by contact for causing

the older sister to touch his genitals. We do not address any of Appellant’s other

convictions.

The court of appeals affirmed the convictions relating to the younger girl and the

contact count alleging Appellant touched the older girl’s breast. As to the other counts,

the appellate court vacated Appellant’s conviction for exposure of his genitals, and it

affirmed the contact conviction for causing her to touch his penis. The court held that

Appellant’s exposure conviction violated double-jeopardy principles because it was

factually subsumed by the contact offense. Loving, 2012 WL 3601127, at *5; see U.S.

C ONST. amend. V. The court concluded that the exposure was subsumed because the

offenses were the same, and the Legislature did not clearly intend for two punishments to

be imposed based on the facts of the case. Thus, Appellant’s exposure conviction was

barred by double jeopardy.

We granted the State’s Petition for Discretionary Review to address the following

issues:
 Loving–4

1. Did the Legislature intend to allow separate punishments for indecency
with a child by exposure and contact committed against the same victim
when the exposure precedes the contact?

2. Was the exposure in this case subsumed by the sexual contact?

II. Arguments of the Parties

A. State’s Argument

The State argues that the court of appeals reached the wrong result because it

incorrectly concluded that indecency by exposure in this case is a lesser-included offense

of indecency with a child by contact and is factually subsumed. The State also contends

that when a proper double-jeopardy analysis is performed, indecency with a child by

exposure and contact do not have the same elements under Blockburger, and the offenses

are not the same under the cognate-pleadings approach adopted in Hall v. State, 225

S.W.3d 524, 535 (Tex. Crim. App. 2007). See Blockburger v. United States, 284 U.S.

299, 304 (1932). The offenses are not the same under Blockburger, the State argues,

because they have different abstract elements, and they are not the same under Hall,

because the exposure was not alleged in the allegations of the indictment, nor could it be

deduced from the face of the indictment. Id. Moreover, the State argues that the court of

appeals expressly relied on the facts of the case to reach its conclusion, but the facts of

the case are irrelevant in a cognate-pleadings analysis. See Hall, 225 S.W.3d at 535–36.

The State also argues that if two offenses are not the same under Blockburger, it is

presumed that the Legislature intended to allow multiple punishments, absent a clear
 Loving–5

manifestation of intent to the contrary. See Gonzales v. State, 304 S.W.3d 838, 845 (Tex.

Crim. App. 2010); see also Blockburger, 284 U.S. at 304. And the State contends that, if

the Legislature’s intent is unclear as to whether multiple punishments are authorized in

this case, the list of nonexclusive factors set out by this Court in Ex parte Ervin, 991

S.W.2d 804, 814 (Tex. Crim. App. 1999), should be considered.1

Addressing the gravamen-of-the-offense factor in Ervin, the State asserts that the

focus of the indecency with a child statute is the prohibited conduct, which shows that the

Legislature intended for the State to be able to punish a criminal defendant multiple

times. To support its argument, the State cites three related cases. See Gonzales, 304

S.W.3d at 848 (“[I]f the focus of the offense is the conduct—that is, the offense is a

‘nature of conduct’ crime—then different types of conduct are considered to be different

offenses.”); Pizzo v. State, 235 S.W.3d 711, 717 (Tex. Crim. App. 2007) (holding in a

jury-unanimity case that indecency with a child by contact is a conduct-oriented offense);

see also Vick v. State, 991 S.W.2d 830, 832–33 (Tex. Crim. App. 1999) (holding in a

multiple-punishment case that aggravated sexual assault focuses on prohibited conduct).

1
Those factors include (1) whether the provisions are contained within the same statutory
section, (2) whether the offenses are phrased in the alternative, (3) whether the offenses are
named similarly, (4) whether the offenses have common punishment ranges, (5) whether the
offenses have a common focus (i.e., whether the “gravamen” of the offense is the same), (6)
whether that common focus tends to indicate a single instance of conduct, (7) whether the
elements that differ between the offenses can be considered the “same” under an imputed theory
of liability which would result in the offenses being considered the same under Blockburger (i.e.,
a liberalized Blockburger standard utilizing imputed elements), and (8) whether there is
legislative history containing an articulation of an intent to treat the offenses as the same or
different for double-jeopardy purposes. Ex parte Ervin, 991 S.W.2d at 814.
 Loving–6

Finally, the State argues that indecency with a child is not a continuum case under

this Court’s decisions in Weinn v. State, 326 S.W.3d 189 (Tex. Crim. App. 2010) and

Lopez v. State, 108 S.W.3d 293 (Tex. Crim. App. 2003), in which this Court held that

when the gravamen of a statute is to prevent a continuum of behavior, a person cannot be

convicted for violating multiple offenses within that continuum in a single action for a

single act.

B. Appellant’s Arguments

Appellant argues that the Legislature did not clearly intend for multiple

punishments to be imposed for acts of indecency with a child by exposure and contact

when the acts were committed against the same victim at the same time. He asserts that

under the cognate-pleadings approach, the elements of indecency with a child by

exposure and contact are functionally the same because “[s]ubsumed within both methods

[of sexual contact] is either direct genital contact or genital contact through clothing.”

Appellant’s Brief on Discretionary Review at 8, Loving v. State, No. PD-1334-12 (Tex.

Crim. App. Mar. 4, 2013); see McKithan v. State, 324 S.W.3d 582, 588 (Tex. Crim. App.

2010) (quoting Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009)). Appellant

also contends that the offenses are the same for cognate-pleading purposes because the

indictment merely alleges that Appellant caused the victim to touch his genitals and does

not specifically state that the touching happened over his clothing.

Appellant also argues that, notwithstanding the gravamen of the statute, under an
 Loving–7

analysis of the other Ervin factors described by this Court, the two offenses in question

are substantially the same for double-jeopardy purposes. Ex parte Ervin, 991 S.W.3d at

814. Specifically, Appellant contends that the offenses are contained in the same statute,

are similarly named, the provisions are separated in the alternative using the word “or,”

the provisions share a common focus, and the offenses tend to indicate a single instance

of conduct. However, Appellant concedes that the punishment ranges for these offenses

are different. Nonetheless, Appellant concludes that the Ervin factors support his

assertion that the Legislature did not intend to authorize separate punishments in this case.

III. The Law

Both parties’ arguments are predicated on the assumption that the proper analysis

includes the application of the Blockburger test and the cognate-pleadings approach.

However, we employ that analysis only when the charged conduct involves multiple

offenses in different statutory provisions that are the result of a single course of conduct.

See Vick, 991 S.W.2d at 830 (holding that, when the Legislature intends to punish

separate acts, even ones in close temporal proximity, the Blockburger test does not apply

“because the precondition for employing that test (that the two offenses involve the same

conduct) is absent”). In this case, the proper analysis is to determine whether the

Legislature intended for the separate statutory subsections in a single statute to constitute

distinct offenses.2 In other words, we must determine the allowable unit of prosecution

2
This analysis should be distinguished from a multiple-punishments case in which two
separate statutes are at issue. In those cases, the Blockburger test and a modified version called
 Loving–8

for indecency with a child by exposure and contact. In making this determination, we rely

on the plain language of the statute and our caselaw interpreting that plain language. See

Gonzales, 304 S.W.3d at 849 (relying on the phrasing of the statute and our decision in

Vick to reach the conclusion that the Legislature intended for an accused to be punished

twice under those circumstances); see Vick, 911 S.W.2d at 832–33 (interpreting the

language of the aggravated-sexual-assault statute to determine its focus); see also Harris

v. State, 359 S.W.3d 625, 630 (Tex. Crim. App. 2011); Pizzo, 235 S.W.3d at 715.

When Appellant was charged with committing these crimes,3 the indecency with a

child statute read, in part:

§ 21.11. Indecency with a Child
(a) A person commits an offense if, with a child younger than 17 years,
whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child to
engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:

the cognate-pleadings approach are applied to the offenses to determine if they should be treated
the same for double-jeopardy offenses. See Vick, 991 S.W.2d at 835 (Meyers, J., concurring,
joined by Mansfield and Johnson, JJ.) (stating that the Blockburger test is employed when
multiple offenses for the same act in the same transaction are at issue, not when multiple acts
constitute multiple offenses in the same transaction). In those analyses, we can also consider
other factors to determine, despite the outcome of the Blockburger and cognate-pleadings test, if
the Legislature intended to authorize multiple punishments. Compare Missouri v. Hunter, 459
U.S. 359, 369–69 (1983) (authorizing multiple punishments, if it is the intent of the Legislature,
despite the Blockburger test indicating the offenses are the same for double-jeopardy
purposes), with Ex parte Ervin, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999) (holding that
because the ultimate question is legislative intent, “the Blockburger test cannot authorize two
punishments where the [L]egislature clearly intended only one”).
3
In the relevant indictment, Appellant was charged with committing these crimes on or
about February 1, 2010. The indecency-with-a-child statute was last amended in 2009. Therefore,
the current statute applies to Appellant’s actions.
 Loving–9

(A) exposes the person’s anus or any part of the person’s genitals,
knowing the child is present; or
(B) causes the child to expose the child’s anus or any part of the
child’s genitals.

* * *

(d) An offense under Subsection (a)(1) is a felony of the second degree
and an offense under Subsection (a)(2) is a felony of the third degree.

T EX. P ENAL C ODE § 21.11.

The Double Jeopardy Clause of the Fifth Amendment prohibits the punishment of

an accused in a second trial when the accused has already been convicted or acquitted of

that crime, and it forbids punishing an accused more than once for the same offense in a

single prosecution. See U.S. C ONST. amend. V; Gonzales, 304 S.W.3d at 845; Bigon v.

State, 252 S.W.3d 360, 369–70 (Tex. Crim. App. 2008); see also Harris, 359 S.W.3d at

629. This is a multiple-punishments case. The relevant inquiry in a multiple-punishments

double-jeopardy case is always whether the Legislature intended to permit multiple

punishments. Hunter, 459 U.S. at 368.

However, because two subsections of a single statute are at issue in this case, we

must first “ascertain whether [the] alleged conduct violates two distinct statutory

provisions within one statute.” Vick, 991 S.W.2d at 832 (holding that multiple

prosecutions for aggravated sexual assault based on different statutory subsections are

permissible because the Legislature defined the “allowable unit of prosecution” as each

completed act); Gonzales, 304 S.W.3d at 847–48 (holding that two punishments imposed
 Loving–10

under the same statutory subsection in a single trial were permissible where the

subsection prohibits separate acts in separate phrases). “Whether a particular course of

conduct involves one or more distinct ‘offenses’ under the statute depends on [the

Legislature’s] choice.” Sanabria v. United States, 437 U.S. 54, 70 (1978). The allowable-

unit-of-prosecution inquiry is necessary because, although we are bound by the decisions

of the United States Supreme Court interpreting the Double Jeopardy Clause, state

legislatures define offenses and can reject grouping offenses in a statute by transaction.

See Vick, 991 S.W.3d at 833; see also Spradling v. State, 773 S.W.2d 553, 556 (Tex.

Crim. App. 1989).

Absent an express statement defining the allowable unit of prosecution, the

gravamen of an offense best describes the allowable unit of prosecution. Gonzales, 304

S.W.3d at 847–48; Vick, 991 S.W.2d at 832. We have recognized that the gravamen of an

offense can be (1) the result of the conduct, (2) the nature of the conduct, or (3) the

circumstances surrounding the conduct. T EX. P ENAL C ODE § 6.03; see Tovar v. State, 978

S.W.2d 584, 585 n.3 (Tex. Crim. App. 1998); see e.g., Young v. State, 341 S.W.3d 417,

423 (Tex. Crim. App. 2011) (examining all three general categories of crime). To

determine the gravamen of a statutory provision, we have used various tools, including a

focus on grammar, and when examining the statute, we focus on sentence syntax and

whether the statute refers to an item in the singular or plural (usually the direct object).

See Jones v. State, 323 S.W.3d 885, 888 (Tex. Crim. App. 2010); Huffman v. State, 267
 Loving–11

S.W.3d 902, 906 (Tex. Crim. App. 2008) (citing Stuhler v. State, 218 S.W.3d 706, 718

(Tex. Crim. App. 2007)). We have also held that the unit of prosecution can be defined by

the element of the offense requiring a completed act and that, if each statutory provision

protects a victim from a different type of harm, that is evidence that the Legislature

intended for each commission of a prohibited act to be punished separately. See Jones,

323 S.W.3d at 890; Haight v. State, 137 S.W.3d 48, 50–51 (Tex. Crim. App. 2004).

IV. Analysis

We first address whether indecency with a child by exposure and contact are

separate and distinct offenses. See Pizzo, 235 S.W.3d at 711; Vick, 991 S.W.2d at 830. In

Vick, the appellee was acquitted of aggravated sexual assault for allegedly penetrating the

child victim’s female sexual organ. Later, and for the same conduct, the appellee was

charged with causing his penis to contact the child victim’s sexual organ and causing the

child victim’s sexual organ to contact his mouth. Compare T EX. P ENAL C ODE

§ 22.011(a)(2)(B)(I), with § (a)(2)(B)(ii) & (iii). All of the alleged offenses were

contained within separate subsections of the same statute. Id. § 22.011; Vick, 991 S.W.3d

at 832. The trial court granted the appellee’s motion to dismiss based on double-jeopardy

grounds, and the court of appeals affirmed that judgment. After ascertaining the

gravamen of the statute, we held that,

The penetration offense alleged in the first indictment clearly required a
separate and distinct act (involving appellee’s sexual organ with the child’s
female sexual organ) from the act alleged in the second indictment (which
involved appellee’s mouth with the child’s sexual organ). In this case the
 Loving–12

second indictment alleged that appellee caused the child’s sexual organ to
contact his mouth. That conduct constituted a separate and distinct statutory
offense from the alleged penetration of the child’s sexual organ by
appellee’s sexual organ, despite the fact both are violations of a single
statute.

Vick, 991 S.W.2d at 833 (emphasis supplied). Thus, we determined that there was no

difficulty in concluding that the Legislature authorized two punishments when the

accused violated different subsections of the same statute, in the same transaction,

because the gravamen of the statute was to proscribe certain specific types of conduct

(i.e., the nature of the appellee’s conduct). Id. We reached this conclusion because the

level of detail in the statute reflected the Legislature’s intent that discreet acts constitute

separate offenses. Id. at 849; see also Haight, 137 S.W.3d at 51 (holding that the

Legislature can define separate offenses within the same statutory subsection, even if the

acts are in close temporal proximity).

Turning to this case, the gravamen of the indecency with a child statute is the

prohibited conduct. Appellant concedes to this view, the plain language of the statute

supports it, and so does our caselaw. See Harris, 359 S.W.3d at 630 (stating that a

grammatical analysis suggests that the unit of prosecution for indecency with a child by

exposure is the exposure and, ultimately, adopting that viewpoint); Pizzo, 235 S.W.3d at

718 (holding that three phrases contained within the same subsection of the

indecency-with-a-child statute defined three separate offenses for jury-unanimity

purposes when separated in the disjunctive); see also Wallace v. State, 550 S.W.2d 89, 91
 Loving–13

(Tex. Crim. App. 1977).

This Court has previously addressed the indecency-with-a-child statute as it refers

to sexual contact. See Pizzo, 235 S.W.3d at 718. In Pizzo, we had to decide, for jury-

unanimity purposes, whether different types of conduct under the same statutory

subsection were separate offenses, even though they occurred during the same

transaction. Id. at 716. After examining the grammar of the statute, we held that

indecency with a child by contact is a conduct-oriented offense and that, “sexual contact”

as charged in that case, “criminalizes three separate types of conduct—touching the anus,

touching the breast, and touching the genitals with the requisite mental state.” Id. at 719.

We concluded that, because the subsection prohibits the commission of any one of those

acts, each act is a separate offense, and the allowable unit of prosecution for indecency

with a child by contact is the commission of the prohibited touching. Id. This outcome is

similar to Harris, 359 S.W.3d at 631, in which we held that the allowable unit of

prosecution for indecency with a child by exposure is each exposure.

Although the definition of sexual contact has changed,4 the new definition

reinforces our conclusion that the various types of activity found in the statute are

separate offenses. “Sexual contact” now expressly includes touching through the clothing,

and the definition divides prohibited sexual contact into two categories: first, it prohibits

4
See Pizzo, 235 S.W.3d at 715 n.23. In Pizzo, the subsection defining sexual contact
stated, “Any touching of the anus, breast, or any part of the genitals of another person with intent
to arouse or gratify the sexual desire of any person.” Id. at 715.
 Loving–14

any touching by a person of a child’s anus, breast, or genitals; second, it prohibits any

touching of any part of a child’s body with the anus, breast, or genitals of any person.

T EX. P ENAL C ODE § 21.11(c)(1), (2). Both categories of prohibited touching also require

the requisite mental state. See id. § 21.11(c). Therefore, the plain language of the statute

forbade the touching at issue here because Appellant caused the older sister to touch his

genitals when she punched his penis. In addition, the plain language of the statute

supports that once an actor commits the prohibited conduct, the offense is complete.

Moreover, indecency with a child by exposure and by contact protect children from

different potential harms. These are indicia that the Legislature intended to punish the

prohibited conduct.

When Pizzo, Vick, and Harris are read together, we can draw two conclusions.

First, the gravamen of the indecency-with-a-child statute is the nature of the prohibited

conduct, regardless of whether the accused is charged with contact or exposure. Second,

because the commission of each prohibited act determines how many convictions may be

had for a particular course of conduct, Appellant’s conduct in this case violated the

indecency-with-a-child statute two separate times.

V. CONCLUSION

We conclude that Appellant’s exposure conviction was not barred by double-

jeopardy principles because the Legislature intended to allow separate punishments under

these circumstances. We reverse the judgment of the court of appeals vacating
 Loving–15

Appellant’s conviction for indecency with a child by exposure in Count III of the

indictment regarding the older sister, and we affirm its judgment as modified.

Hervey, J.

Delivered: June 26, 2013

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