IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0543-14
BILLY WAYNE SPEIGHTS, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
BOWIE COUNTY
Y EARY, J., delivered the opinion for a unanimous Court.
OPINION
Appellant was convicted of two counts of indecency with a child—one count of
indecency by contact and one count of indecency by exposure. On appeal he contended that
his conviction for indecency with a child by exposure improperly subjected him to double
jeopardy. Speights v. State, No. 06-12-00137-CR, 2014 WL 1246074, at *7 (Tex.
App.—Texarkana Mar. 26, 2014) (not designated for publication). The court of appeals
Speights — 2
agreed and seemed to hold—categorically—that the offense of indecency by exposure
“would necessarily be subsumed” within the offense of indecency by contact. Id. at *9-10.
We granted the State Prosecuting Attorney’s (SPA) petition for discretionary review to
decide whether, for purposes of the Double Jeopardy Clause, indecency by exposure is
“necessarily subsumed” within indecency by contact when, during the same incident, the
defendant first exposes himself and masturbates in front of the child victim and then causes
the child victim to touch his penis.1 We now reverse the court of appeals’s judgment.
BACKGROUND
Appellant was charged by an indictment with three offenses: 1) aggravated sexual
assault of a child;2 2) indecency with a child by sexual contact and; 3) indecency with a child
by exposure, all perpetrated against S.O., a child younger than seventeen.3 With respect to
1
The SPA’s petition presents two issues: (1) “Is the subsumption theory of Patterson v.
State[, 152 S.W.3d 88 (Tex. Crim. App. 2004)] still valid in light of this Court’s more recent case
law?,” and (2) “If Patterson is still valid, is indecency by exposure incident to and subsumed by
indecency by contact when the defendant masturbates in front of the victim and causes the victim
to touch the defendant’s penis?”
2
Appellant was also convicted of the aggravated sexual assault against the same child
victim, and the jury assessed a sixty year sentence for that offense. But, according to the evidence
at trial, this offense occurred on a different date than the two instances of indecency with a child.
Appellant does not complain about the aggravated sexual assault conviction in this petition for
discretionary review.
3
As of the time Appellant committed these offenses, in 2007, TEX . PENAL CODE § 21.11
read:
(a) A person commits an offense if, with a child younger than 17 years
and not the person’s spouse, whether the child is of the same or
Speights — 3
the charge of indecency by contact, Appellant was alleged to have engaged in sexual contact
with S.O. by causing S.O. to touch Appellant’s genitals. As for the indecency by exposure,
Appellant was charged with exposing his genitals knowing that S.O. was present. Although
the indictment alleged that these two indecency offenses occurred “on or about” different
dates, the evidence at trial provided only one occasion that could have given rise to both the
contact and the exposure charges.
At trial, Nora Mitchell, S.O.’s custodial guardian, testified that S.O. told her that, on
that particular occasion, Appellant had taken S.O. into the bathroom and “played with him
while he was playing with himself.” Karrah Dickeson, S.O.’s assault counselor, testified that
S.O. described the same bathroom incident to her in this way: “Billy [Appellant] was playing
with himself and then he played with me.” For his part, when S.O. was asked about the
bathroom incident, he testified that Appellant had pulled his penis out and made S.O. touch
it. Although the record is no more enlightening than this regarding how much time passed
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:
(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.
Speights — 4
between the initial exposure and the contact, there is at least some basis in this testimony for
the jury to conclude that Appellant exposed himself in front of S.O., initially masturbated
himself, and only then did he cause S.O. to touch his (Appellant’s) penis. The jury returned
a verdict finding Appellant guilty of both indecency charges. It then assessed a twenty-year
sentence for the indecency by contact offense, and a ten-year sentence for the indecency by
exposure offense.
On appeal, Appellant claimed that, consistent with double jeopardy principles, he
could not be punished for both indecency with a child by contact and indecency with a child
by exposure stemming from the same incident. Speights, 2014 WL 1246074, at *7. The court
of appeals ultimately agreed. First, the court of appeals noted Appellant had not raised any
objection in the trial court to multiple punishments. Id. at *8. But, recognizing this Court’s
holding that, “when a double-jeopardy violation is clearly apparent from the face of the
record, it can be raised for the first time on appeal[,]” the court of appeals reached the merits
of Appellant’s jeopardy claim. Id. The court of appeals concluded that, because “[e]xposure
of [Appellant’s] genitals” during the same criminal act “would be necessarily subsumed
within the count[] alleging . . . indecency with a child by contact as alleged[,]” punishment
for both indecency by exposure and indecency by contact was constitutionally intolerable.
Id. at *9-10. Consequently, the court of appeals rendered a judgment of acquittal on the
charge of indecency by exposure. Id. at *10. In her petition for discretionary review, the SPA
Speights — 5
argues that this holding cannot be squared with our recent precedents, most pointedly, Loving
v. State, 401 S.W.3d 642 (Tex. Crim. App. 2013). We agree.
ANALYSIS
Multiple Punishments: Same Statute
The constitutional proscription against double jeopardy provides three types of
protection: 1) protection against a second prosecution for the same offense after an acquittal;
2) protection against a second prosecution for the same offense following a conviction; and
3) protection against multiple punishments for the same offense. Garfias v. State, 424 S.W.3d
54, 58 (Tex. Crim. App. 2014). This case involves a claim relating to the third of these
protections, multiple punishments. We have said that what constitutes the “same” offense for
double jeopardy purposes in the multiple-punishments context is strictly a matter of
legislative intent: how many different offenses did the Legislature contemplate an accused
should be susceptible to being punished for? Id.; Gonzales v. State, 304 S.W.3d 838, 845
(Tex. Crim. App. 2010). We have also said that the Legislature’s intent concerning multiple
punishments for different offenses defined within the same statute can be ascertained by
resort to a “unit[s] of prosecution” analysis. Garfias, 424 S.W.3d at 58 (footnotes omitted).
Units of Prosecution: The Benson Test
In the recent case of Ex parte Benson, we described the analysis for determining
allowable units of prosecution in this way:
A “units” analysis consists of two parts: (1) what the allowable unit of
Speights — 6
prosecution is, and (2) how many units have been shown. The first part of the
analysis is purely a question of statutory construction and generally requires
ascertaining the focus or gravamen of the offense. The second part requires an
examination of the trial record, which can include the evidence presented at
trial.
459 S.W.3d 67, 73-74 (Tex. Crim. App. 2015). What conclusion does this analysis generate
in the instant case?
Benson Part One: What are the Allowable Units of Prosecution Under the
Statute? Appellant complains that he was improperly punished under two subsections of the
same statutory provision: Section 21.11(a)(1) and Section 21.11(a)(2)(A) of the Texas Penal
Code. In a multiple punishments analysis such as this one, “the protection against double
jeopardy is not violated if the [the Legislature intended that the] offenses constitute separate
allowable units of prosecution.” Ex parte Benson, 459 S.W.3d at 73. See also, Maldonado
v. State, ___ S.W.3d ___, No. PD-0542-14, 2015 WL 2251205, at *6 (Tex. Crim. App. May
13, 2015) (Keller, P.J., concurring). With respect to the first part of the Benson analysis, we
have previously addressed the question of legislative intent with respect to allowable units
of prosecution in Section 21.11 of the Penal Code. In Loving v. State, we held that “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[.]” 401 S.W.3d at 649.
We concluded that the Legislature intended that a defendant should be susceptible to
punishment for each—even when, as in Appellant’s case, “the exposure precedes the
Speights — 7
contact[.]” Id. at 644, 649.4
Contrary to the apparent assumption of the court of appeals in this case, “exposure”
under Section 21.11(a)(2)(A), is not “necessarily subsumed” within “sexual contact” under
Section 21.11(a)(1). Speights, 2014 WL 1246074, at *9. For purposes of our Indecency with
a Child statute, “sexual contact” may be accomplished by way of “any touching by a person,
including touching through clothing[.]” T EX. P ENAL C ODE § 21.11(c)(1); Loving, 401 S.W.3d
at 648. Thus, it is possible to commit indecency with a child by sexual contact without
necessarily committing indecency with a child by exposure. It is also possible to commit
indecency with a child by exposure without necessarily committing indecency with a child
by sexual contact because a person can commit the required exposure and never advance to
the point of engaging in contact. By these two distinct prohibitions, the Legislature has
proscribed two distinct types of conduct.
In Loving, we explained, “indecency with a child by exposure and by contact protect
children from different potential harms.” Id. at 649. In this regard, the relationship of
“exposure” to “contact” within our indecency with a child statute is similar to the relationship
between different kinds of contact involving different parts of the body within that same
statute, i.e., anus, breast, or genitals. Compare T EX. P ENAL C ODE § 21.11(a) with T EX. P ENAL
4
In Loving, the appellant exposed his genitals in the living room and began to masturbate
himself in front of the child victim. The child victim left the room, but later she returned. After she
had returned, the appellant “finished masturbating” and asked the child victim to touch his penis. She
“punched it” instead. 401 S.W.3d at 643.
Speights — 8
C ODE § 21.11(c). As we explained in Loving, “because the subsection prohibits the
commission of any one of those acts, each act is a separate offense,” and as such, a discrete
allowable unit of prosecution. Loving, 401 S.W.3d at 648 (comparing Pizzo v. State, 235
S.W.3d 711, 719 (Tex. Crim. App. 2007)).
Without acknowledging Loving,5 the court of appeals concluded that “[e]xposure of
Speights’ genitals would be necessarily subsumed within the counts alleging . . . indecency
with a child by contact as alleged.” Speights, 2014 WL 1246074, at *9. It is this holding by
the court of appeals that is at the heart of the SPA’s second issue, which asks: whether
“indecency by exposure [is] incident to and subsumed by indecency by contact when the
defendant masturbates in front of the victim and causes the victim to touch the defendant’s
penis.” We answer that question here.
The first part of the Benson analysis focuses on the statutory language, the purpose
being to determine legislative intent. As we have construed the statute, both in Loving and
again today, under a proper Benson Part One analysis, Section 21.11(a)(1) and Section
21.11(a)(2)(A) of the Penal Code admit of separate allowable units of prosecution (and
hence, punishment) for both the offense of indecency with a child by sexual contact and the
offense of indecency with a child by exposure. When both offenses are committed, they both
may be tried, and the defendant may be convicted and sentenced for both in a single
5
Loving was decided on June 26, 2013. The court of appeals decided Speights on March 26,
2014, some nine months later.
Speights — 9
prosecution as well.
Benson Part Two: How Many Units of Prosecution Here? The second part of the
Benson analysis asks “how many units have been shown” by the evidence at trial. We have
already concluded from our Benson Part One analysis that the Legislature intended that both
theories of indecency with a child may be pled and punished, even when the exposure
precedes the contact and even when both acts occur within the same transaction. When that
is the case, under Part Two of the Benson analysis, all we need to ask about the facts is
whether the evidence presented would actually support conviction and punishment under
each theory of the offense.6 Here the evidence plainly established that Appellant committed
both indecency with a child by exposure and indecency with a child by sexual contact. As
summarized above, the evidence shows that Appellant both exposed his penis and caused
S.O. to contact it. Thus, although Appellant has unquestionably been punished separately for
both offenses, his double jeopardy right to avoid being punished twice for the same offense
is not offended.7
6
See Loving, 401 S.W.3d at 649 (“[B]ecause 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.”).
7
The SPA’s petition also asks whether “the subsumption theory of Patterson v. State [is] still
valid in light of this Court’s more recent case law?” In Patterson v. State, 152 S.W.3d 88 (Tex. Crim.
App. 2004), we addressed the question of whether aggravated sexual assault, which involved anal
penetration of the victim, subsumed other charged offenses that preceded that penetration. This Court
recently acknowledged that, at least when the greater offense involves penetration, lesser preceding
conduct such as contact may be subsumed. See Maldonado v. State, ___ S.W.3d ___, No. PD-0542-
14, 2015 WL 2251205, at *3 (Tex. Crim. App. May 13, 2015). Appellant was not charged with any
Speights — 10
CONCLUSION
Accordingly, we reverse the judgment of the court of appeals to the extent that it
rendered a judgment of acquittal for the offense of indecency with a child by exposure; we
otherwise affirm its judgment.
DELIVERED: July 1, 2015
PUBLISH
offense involving penetration, however, and we need not again address the continuing viability of
Patterson here. Loving controls.