Philip Martin v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00202-CR

Philip Martin, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. D-1-DC-08-500185, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

OPINION

A jury found appellant Philip Martin guilty of one count of continuous sexual abuse

of a young child, six counts of sexual assault of a child, two counts of indecency with a child by

contact, and three counts of indecency with a child by exposure. See Tex. Penal Code Ann.

§§ 21.02, 21.11, 22.011 (West Supp. 2010). The trial court assessed punishment at fifty years’

imprisonment for the continuous sexual abuse count, twenty years’ imprisonment for each count of

sexual assault and indecency by contact, and ten years’ imprisonment for each count of indecency

by exposure. With respect to the fifty-year sentence, appellant is not eligible for parole. See Tex.

Gov’t Code Ann. § 508.145(a) (West Supp. 2010).

Appellant contends that the continuous sexual abuse statute violates the constitutional

and statutory requirement of a unanimous jury verdict. He also asserts that the jury charge contained

egregiously harmful error, and that his convictions on several counts are either without sufficient
evidentiary support or constitute double jeopardy. Finally, appellant challenges the constitutionality

of the statute denying parole to persons convicted of continuous sexual abuse of a young child. We

overrule these contentions and affirm the convictions.

BACKGROUND

The complaining witness, J.W., is appellant’s stepdaughter. J.W. was born on

January 27, 1994, and was fifteen years old at the time of trial. J.W. made her first outcry on

April 10, 2008, when she was fourteen. At that time, she was living with appellant, her mother, and

her four younger half-siblings.

J.W. testified that appellant began touching and penetrating her sex organ with his

fingers when she was six years old. On occasion, appellant would penetrate her with a vibrator or

dildo. When she was ten, appellant began to penetrate J.W.’s anus with his penis. When J.W. was

twelve, appellant began to penetrate her sex organ with his penis. J.W. testified that appellant often

bound her to her parents’ bed while naked and spanked her with a wooden paddle. He would also

bind her to a chair and put his penis in her mouth, often ejaculating. At least once, appellant gave

J.W. an enema. J.W. testified that most of this conduct happened at night in her bedroom, her

parents’ bedroom, or the garage, while her mother was working.

J.W. testified extensively regarding appellant’s abusive conduct during the 2006-07

school year, when she was in the sixth grade. She testified that during that school year, appellant

touched her sex organ with his hand four or five times a week, penetrated her sex organ with his

fingers two or three times a month, and penetrated her “butt” with his penis once or twice a week.

He also licked her sex organ “[t]wo times a week; sometimes none.” J.W. testified that appellant

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repeatedly penetrated or caused her to penetrate her sex organ with a vibrator or dildo during this

school year, once saying that this happened “at most two times a week” and later saying that it

happened “[t]hree times a month probably.” Appellant also asked J.W. to insert a dildo in his “butt”

at least once during this school year. During this same time period, appellant had J.W. touch his

penis and “[m]ake me go up and down.” This happened “[a] lot more than once.” J.W. testified that

appellant stopped putting his penis in her mouth for a period of several months during 2006, but that

he resumed this conduct in December 2006 and continued it for the remainder of the 2006-07 school

year and throughout calendar year 2007, briefly stopping again in December 2007. J.W. stated that

between December 2006 and December 2007, appellant put his penis in her mouth “[t]wo to

three times a week. Sometimes not at all, though.”

J.W. turned fourteen on January 27, 2008. She testified that at this time, appellant

was “still doing those things” she had described. J.W. testified that between January 27, 2008 and

her outcry in April 2008, appellant put his penis in her mouth four or five times a week and

penetrated her sex organ with his penis more than once. She testified that during this time period,

appellant also penetrated her sex organ with his fingers, licked her sex organ, touched the inside and

outside of her “butt,” and touched her “boobs,” but she did not expressly state how often those

acts occurred. Finally, J.W. testified that appellant asked her to insert a dildo in his “butt” at least

once after she turned fourteen.

Dr. Beth Nauert, a pediatrician with expertise in child sexual abuse cases, examined

J.W. following her outcry. Nauert briefly recounted statements made to her by J.W. that were

3
consistent with the child’s testimony. Nauert testified that J.W.’s hymen was torn, which indicated

penetration but did not indicate the manner of penetration. The doctor said that J.W.’s rectum

appeared normal.

Other State witnesses testified to the circumstances surrounding J.W.’s outcry and

described the course of the investigation. There was testimony regarding the discovery of two dildos

in a dresser drawer at the family’s residence. Investigators also found child pornography on

appellant’s computer, including a link to a web site featuring photographs of a young woman with

the same first name as J.W.

The defense sought to undermine the credibility of J.W.’s testimony. For example,

J.W. testified that appellant had on numerous occasions bound her to her parents’ bed with straps

stapled to the wooden bed frame. After the State introduced photographs of this bed, defense

counsel cross-examined the sponsoring witness regarding the absence of staple marks in a number

that would correspond to J.W.’s testimony, and the defense later offered testimony providing an

alternative explanation for the staple marks that were present. The defense also introduced testimony

challenging J.W.’s reputation for truthfulness.

INDICTMENT

Count one alleged that “on or about the 1st day of October, 2007 through the 26th day

of January, 2008 . . . during a period that was 30 days or more in duration, [appellant] committed

two or more acts of sexual abuse against [J.W.], a child younger than 14 years of age . . . .” See

id. § 21.02(b) (elements of offense). The specific underlying acts of sexual abuse alleged to have

been committed by appellant against J.W. during this time period were:

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 •indecency with a child by touching J.W.’s genitals

•indecency with a child by causing J.W. to touch appellant’s genitals

•aggravated sexual assault by causing J.W. to touch appellant’s anus

•aggravated sexual assault by contacting J.W.’s sex organ with his sex organ

•aggravated sexual assault by penetrating J.W.’s sex organ with his sex organ

•aggravated sexual assault by penetrating J.W.’s anus with an unknown object

•aggravated sexual assault by contacting J.W.’s sex organ with his mouth

•aggravated sexual assault by penetrating J.W.’s sex organ with his mouth

•aggravated sexual assault by penetrating J.W.’s mouth with his sex organ

•aggravated sexual assault by penetrating J.W.’s sex organ with his finger

•sexual performance by a child by inducing J.W. to engage in sexual conduct with
appellant.

See id. § 21.02(c) (defining “act of sexual abuse”); see also id. §§ 21.11(a)(1), (c); 22.021(a)(1)(B),

(2)(B); 43.25(a)(2), (b).

Counts two and three alleged that appellant sexually assaulted J.W. by contacting and

penetrating her sex organ with his sex organ on or about April 5, 2008. See id. § 22.011(a)(2)(A),

(C). Counts four and five alleged that appellant sexually assaulted J.W. by contacting and

penetrating her mouth with his sex organ on or about April 5, 2008. See id. § 22.011(a)(2)(B), (E).

Counts six and seven alleged that appellant sexually assaulted J.W. by contacting and penetrating

her sex organ with his mouth on or about April 9, 2008. See id. § 21.011(a)(2)(A), (C).

Count eight was abandoned by the State.

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 The remaining counts alleged indecency with a child. Count nine alleged that

appellant exposed his genitals to J.W. with the intent to arouse or gratify his sexual desire on or

about April 5, 2008. See id. § 21.11(a)(2)(A). Counts ten and eleven alleged that appellant, with

the same intent, caused J.W. to expose her genitals to him on April 5 and 9, 2008. See id.

§ 21.11(a)(2)(B). Counts twelve and thirteen alleged that appellant, with the same intent, touched

J.W.’s breasts and genitals on or about April 5, 2008. See id. § 21.11(a)(1), (c)(1).

The jury returned guilty verdicts on all twelve submitted counts.

JURY UNANIMITY

A person commits the offense of continuous sexual abuse of a young child if, during

a time period of thirty or more days, that person commits two or more acts of sexual abuse

against a child. Id. § 21.02(b)(1). At the time each act of sexual abuse is committed, the actor must

be seventeen years of age or older, and the victim or victims must be younger than fourteen.

Id. § 21.02(b)(2). An “act of sexual abuse” is an act that violates one or more specified penal laws,

among them indecency with a child by contact, aggravated sexual assault of a child, sexual assault

of a child, and sexual performance by a child. Id. § 21.02(c). A jury is “not required to agree

unanimously on which specific acts of sexual abuse were committed by the defendant or the exact

date when those acts were committed. The jury must agree unanimously that the defendant, during

a period that is 30 or more days in duration, committed two or more acts of sexual abuse.”

Id. § 21.02(d).

The trial court’s jury charge included an instruction on unanimity consistent with

section 21.02(d). In applying the law to the facts, the court authorized appellant’s conviction for

6
continuous sexual abuse if the jurors unanimously found that he committed two or more of the

alleged acts of sexual abuse, but the charge did not require the jurors to unanimously agree as to the

specific acts appellant committed.

Appellant contends that by failing to require jury unanimity as to the specific acts of

sexual abuse committed by the accused, section 21.02, both on its face and as applied to him in

this case, violates the right to a unanimous jury verdict guaranteed by the United States and

Texas constitutions and by Texas statute. See U.S. Const. amends. VI, XIV; Tex. Const. art. V, § 13;

Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 2010). For the same reason, appellant urges

that section 21.02 denies due process and due course of law on its face and as applied to him.

See U.S. Const. amend. XIV; Tex. Const. art. I, § 19.

Appellant first raised the jury unanimity issue in his motion for new trial. The State

urges that this was not timely and failed to preserve the issue for appeal. Whether or not the jury

unanimity issue was preserved for appeal in this case, this Court has already upheld section 21.02

against a substantially identical challenge. Jacobsen v. State, 325 S.W.3d 733, 739 (Tex.

App.—Austin 2010, no pet.). In Jacobsen, we held that section 21.02 does not violate due process

by permitting a conviction based on a jury’s unanimous finding that the defendant engaged in a

course of conduct consisting of repeated acts of sexual abuse, but without requiring jury unanimity

as to the individual acts that made up that course of conduct. Id. We also held that because the jury

in that case (like the jury in this case) was required to unanimously find that the defendant committed

two or more of the alleged acts of sexual abuse, the defendant’s right to a unanimous jury verdict was

not violated. Id.

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 Appellant acknowledges our holding in Jacobsen. He also acknowledges that other

courts of appeals have concluded that section 21.02 does not violate the jury unanimity requirement.

See Reckart v. State, 323 S.W.3d 588, 600-01 (Tex. App.—Corpus Christi 2010, pet. ref’d);

Render v. State, 316 S.W.3d 846, 856-58 (Tex. App.—Dallas 2010, pet. ref’d); Coker

v. State, No. 12-09-00331-CR, 2010 Tex. App. LEXIS 9740 (Tex. App.—Tyler Dec. 8, 2010,

no pet.) (mem op., not designated for publication); State v. Espinoza, No. 05-09-01260-CR,

2010 Tex. App. LEXIS 4952 (Tex. App.—Dallas June 30, 2010, pet. ref’d) (not designated for

publication). Appellant urges that Jacobsen and the other opinions were incorrectly decided and

should be reconsidered.

We have considered appellant’s arguments, which largely track the arguments raised

by the defendant in Jacobsen. At appellant’s urging, we have also considered the opinion of the

Hawaii Supreme Court striking down that state’s analogous continuous sexual abuse statute on jury

unanimity grounds. State v. Rabago, 81 P.3d 1151 (Haw. 2003). The analysis in Rabago ultimately

turned on an application of prior case law from that court, and not on the constitutional issues urged

by appellant. Insofar as Rabago is inconsistent with our analysis in Jacobsen, we respectfully

disagree with it. For the reasons stated in Jacobsen, we overrule issues two, three, and four.

CHARGE

Appellant contends that the trial court erred by instructing the jurors in its charge:

With regard to the offenses of Continuous Sexual Abuse of a Young Child,
Aggravated Sexual Assault of a Child, Sexual Assault of a Child and Indecency with
a Child by Contact or Exposure, you are charged as a part of the law in this case that
the [S]tate is not required to prove the exact dates alleged in the indictment but may

8
 prove the offenses, if any, to have been committed at any time prior to the
presentment of the indictment.

It is a longstanding rule that the State is not required to prove that an offense was committed on the

date alleged in the indictment (whether or not the words “on or about” are used) but may prove that

the offense was committed on any date prior to the return of the indictment and within the period of

limitations. See Klein v. State, 273 S.W.3d 297, 304 n.5 (Tex. Crim. App. 2008); Mireles v. State,

901 S.W.2d 458, 464-66 (Tex. Crim. App. 1995) (Meyers, J., dissenting); see also 43 George E. Dix

& Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 31.191 (2d ed. 2001).

Appellant contends, however, that the trial court erred by instructing the jury that this rule applied

to his prosecution for continuous sexual abuse of a young child.

Under the circumstances presented in this case, the State had to prove that the

continuous sexual abuse offense alleged in count one was committed between September 1, 2007

and January 26, 2008. Section 21.02, defining the offense of continuous sexual abuse of a young

child, became effective September 1, 2007, and it does not apply to an offense committed before that

date. Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007 Tex. Gen. Laws 1120,

1127, 1148. An offense is committed before the effective date of the statute if any element of the

offense occurs before that date. Id. Further, section 21.02 applies only to the continuous sexual

abuse of a child younger than fourteen. Penal Code § 21.02(b)(2). Thus, in order to lawfully convict

appellant of continuous sexual abuse of a young child, the State had to prove that the period of abuse

occurred between September 1, 2007, when the statute became effective, and January 27, 2008,

J.W.’s fourteenth birthday. The indictment reflected this limitation, alleging that the period of abuse

occurred between October 1, 2007 and January 26, 2008.

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 At trial, J.W. testified extensively regarding acts of sexual abuse committed by

appellant beginning when she was six years old and continuing through the 2006-07 school year and

calendar year 2007. J.W. testified that the conduct stopped briefly in December 2007, then resumed

and continued until her outcry in April 2008. Appellant contends that by instructing the jury that the

State was not required to prove the exact dates alleged but could instead prove that the offense was

committed at any time prior to the presentment of the indictment, the court’s charge permitted the

jurors to convict him under count one based on the sexually abusive conduct shown to have occurred

before the effective date of section 21.02 and after J.W. turned fourteen.

The error asserted by appellant does not lie in what the challenged instruction said,

but in what the instruction failed to say. It was not incorrect to instruct the jurors that in a

prosecution for continuous sexual abuse of a young child, the State is not bound to prove the exact

dates alleged in the indictment. In this case, for example, the State was not required to prove that

the period of abuse began on October 1, 2007 and ended on January 26, 2008, the dates alleged

in count one. The State had only to prove that a thirty-day period of abuse occurred between

September 1, 2007 and January 26, 2008. No error is presented if the trial court’s charge qualified

the instruction regarding the nonbinding nature of the alleged dates by otherwise informing or

requiring the jury to find that the offense alleged in count one had to have been committed after

September 1, 2007 and before January 27, 2008.

Appellant did not object to the charge. Thus, even if the claimed charge error is

present, the error does not call for a reversal of the conviction unless it was so egregiously harmful

under the circumstances as to have denied appellant a fair and impartial trial. Delgado v. State,

235 S.W.3d 244, 249 (Tex. Crim. App. 2007); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

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App. 1985) (op. on reh’g). Charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State,

218 S.W.3d 706, 719 (Tex. Crim. App. 2007). To determine if charge error was egregiously

harmful, we examine the record as a whole, including the remainder of the charge, the

evidence, including the contested issues and weight of the probative evidence, and the arguments

of counsel. Id.

The State argues that the charge as a whole was correct because the application

paragraph authorizing appellant’s conviction under count one required the jury to find that the

continuing sexual abuse occurred on or about October 1, 2007 through January 26, 2008. This

argument is not responsive to appellant’s contention, which is based on the trial court’s instruction

that the State was not bound by those dates. We must assume that the jurors read and understood

the charge as a whole, and that they took the challenged instruction into account when reading the

application paragraph. See Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996).

We agree with the State, however, that the court’s charge was otherwise adequate to

assure that the jury did not convict appellant of continuous sexual abuse based on conduct occurring

after J.W.’s fourteenth birthday. The court instructed the jury that the offense of continuous sexual

abuse of a young child applies only to children younger than fourteen years of age. The application

paragraph for count one required the jury to find that J.W. was younger than fourteen when the acts

of abuse occurred. The jury knew from the evidence that J.W. turned fourteen on January 27, 2008.

Thus, notwithstanding the court’s instruction regarding the nonbinding nature of the dates alleged

in the indictment, the jurors were required to find that the period of continuous sexually abusive

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conduct occurred before J.W.’s fourteenth birthday in order to convict appellant under count one.

Considered as a whole, the court’s charge was not erroneous in this respect.

The problem remains that aside from the application paragraph, there was nothing in

the court’s charge that limited the instruction regarding the nonbinding nature of the alleged dates

to specifically require the jurors to find that the period of continuous sexual abuse began on or

after September 1, 2007, or that otherwise directed the jurors not to convict appellant under

count one based on a finding of sexually abusive conduct prior to September 1, 2007. The State’s

closing jury argument echoed the jury charge:

Now, the allegations in this case, the charges in this case are basically divided
into two different time frames. Count one alleges continuous ongoing sexual abuse
of a child, specifically [J.W.], at the hands of the defendant, Phillip Martin. Count
1 alleges the dates or the date range of October 1st 2007 through January 26th
of 2008.

As the court’s charge reflects, the law is that the state does not have to prove
the exact date or dates on which the conduct occurred. What the state does have to
prove is that the conduct occurred at some point in time prior to the return of the
indictment, which was June 30, 2008.

Count 1 of state’s indictment, the ongoing continuous sexual abuse of the
child, alleges those dates that existed prior to [J.W.’s] 14th birthday. Counts 2, all
the way to the end of the indictment, Count 13, counts 2 through court 13 allege dates
of April 5, 2008 and April 9, 2008, which occurred or existed after [J.W.’s]
14th birthday.

This argument told the jurors that count one was concerned with continuous sexual abuse committed

before J.W.’s fourteenth birthday, but it also reminded the jurors that the State was not required to

prove the exact dates alleged. The argument failed to inform the jurors that count one did not

encompass appellant’s sexually abusive conduct before September 1, 2007.

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 The charge in this cause is analogous to the charge at issue in Taylor v. State,

Nos. PD-0266-09, PD-0267-09, and PD-0268-09, 2011 Tex. Crim. App. LEXIS 326 (Tex. Crim.

App. Mar. 9, 2011). The defendant in Taylor was charged by three separate indictments with

aggravated sexual assault. The complainant testified to sexually assaultive conduct committed by

the defendant both before and after the defendant’s seventeenth birthday. Id. at *3. Although the

indictments alleged that the offenses were committed on dates that followed the defendant’s

seventeenth birthday, the court’s charge instructed the jurors that the State was not bound by the

specific dates alleged and that they could convict the defendant if the offenses were committed at

any time within the period of limitations. Id. at *9. Further, the charge did not contain a section

8.07(b) instruction; that is, the jurors were not told that the defendant could not be convicted for

conduct committed before his seventeenth birthday. Id. at *4; see Tex. Penal Code Ann. § 8.07(b)

(West Supp. 2010) (“a person may not be prosecuted for or convicted of any offense committed

before reaching 17 years of age”).

The court of criminal appeals held that under the circumstances, section 8.07(b) was

law applicable to the case on which the trial court had a duty to instruct the jury even in the absence

of a request or objection by the defendant. Taylor, 2011 Tex. Crim. App. LEXIS 326, at *12. The

court concluded that the absence of a section 8.07(b) instruction, when combined with the evidence

of the defendant’s conduct while a juvenile and the instruction that a conviction could be based on

any conduct within the limitations period, “resulted in inaccurate charges that omitted an important

portion of the law applicable to the case.” Id.

As in Taylor, given the evidence of appellant’s sexually abusive acts prior to the

effective date of section 21.02, the trial court’s unqualified instruction that the dates alleged in the

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indictment were not binding and that the State could prove that the offenses had been committed at

any time prior to the return of the indictment “present[ed] the jury with a much broader

chronological perimeter than is permitted by law” with respect to count one. Id. Both the United

States and Texas constitutions prohibit ex post facto laws, and there can be few rights more

valuable or more basic to our system of justice than that a person cannot be punished as a criminal

for conduct that was innocent when done. See Collins v. Youngblood, 497 U.S. 37, 42-44 (1990);

Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim. App. 2002). This was law applicable to the case,

and the trial court had a duty to instruct the jurors on its own motion that they were not permitted

to convict appellant under count one for acts committed before September 1, 2007. We agree with

appellant that the charge was erroneous in this respect.

We conclude, however, that the charge error was not egregiously harmful. Although

the jury could not lawfully convict appellant for continuous sexual abuse based on his conduct prior

to September 1, 2007, the jury could consider that conduct as circumstantial evidence of appellant’s

conduct between September 1, 2007 and J.W.’s fourteenth birthday. See Tex. Code Crim. Proc.

Ann. art. 38.37 (West Supp. 2010). Moreover, appellant’s defense was that J.W.’s testimony was

not credible and that no acts of sexual abuse occurred at any time. If the jurors believed J.W., and

it is plain that they did, it is unlikely that they believed that appellant’s sexually abusive acts stopped

before September 1, 2007. Finally, there is a plethora of evidence to support a finding beyond a

reasonable doubt that appellant committed two or more acts of sexual abuse against J.W. during a

period of thirty or more days beginning on or after September 1, 2007 and ending no later than her

fourteenth birthday. J.W. specifically testified that appellant penetrated her mouth with his penis as

often as three times a week throughout calendar year 2007, except for the month of December. This

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testimony alone is sufficient to support appellant’s conviction under count one. Thus, the jurors

could have lawfully convicted appellant for continuous sexual abuse of a young child even if they

had been properly instructed not to base a conviction on his conduct prior to September 1, 2007.

Because the evidence of appellant’s sexually abusive conduct before

September 1, 2007 could be considered by the jury as circumstantial proof of his conduct after that

date, because appellant did not seek to defend himself under count one on the ground that

any continuous sexual abuse ended before September 1, and because there is legally sufficient

evidence of appellant’s sexually abusive conduct after September 1 to support his conviction under

count one, we are satisfied that the charge error presented was not so egregiously harmful as to deny

appellant a fair trial. Issue one is overruled.

EVIDENCE SUFFICIENCY AND DOUBLE JEOPARDY

In eight issues, appellant contends that the evidence is legally insufficient to support

his convictions under counts two, four, six, nine, ten, and eleven. Alternatively, appellant contends

that his convictions under both those counts and counts three, five, seven, twelve, and

thirteen constitute double jeopardy. Although the subject of double jeopardy was briefly discussed

at the charge conference, the violations appellant complains of were first asserted in his motion for

new trial. Because these double jeopardy claims were not raised at or before the time the charge

was submitted to the jury, the violations must be apparent on the face of the record. See

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Gonzalez v. State, 8 S.W.3d 640, 642-45 (Tex. Crim. App. 2000); Duvall v. State, 59 S.W.3d 773,

776-77 (Tex. App.—Austin 2001, pet. ref’d).1

Appellant bases these contentions on the opinions of this Court and the court

of criminal appeals in Patterson v. State, 96 S.W.3d 427 (Tex. App.—Austin 2002),

aff’d, 152 S.W.3d 88 (Tex. Crim. App. 2004).2 In Patterson, the evidence showed that the defendant

twice penetrated the complainant’s anus with his penis. 96 S.W.3d at 432. Based on this conduct

alone, the defendant was convicted of aggravated sexual assault by penetrating the child’s anus with

his penis, aggravated sexual assault by contacting the child’s anus with his penis, indecency with a

child by touching the child’s anus, and indecency with a child by exposing the defendant’s genitals.

Id. at 431-32. We affirmed the defendant’s convictions for aggravated sexual assault, holding that

the two acts of penetration supported the convictions for penetrating and contacting the

complainant’s anus with his penis. Id. at 432. We reversed the defendant’s convictions for

indecency with a child, however, because the only exposure of the defendant’s genitals and the only

touching of the child’s anus shown by the evidence were incident to the penetrations. Id. On those

1
Appellant contends that in resolving his challenges to the sufficiency of the evidence, we must
consider only the evidence of his conduct on or after January 27, 2008, J.W.’s fourteenth birthday.
He urges that the evidence of his conduct before that date can only support his conviction for
continuous sexual abuse of a child under count one. This is correct only with respect to appellant’s
conduct between September 1, 2007 and January 26, 2008. See Tex. Penal Code Ann. § 21.02(e)
(West Supp. 2010). As discussed with respect to the jury charge, section 21.02 does not apply to
conduct committed before September 1, 2007. Therefore, neither section 21.02(e) nor
double jeopardy principles prohibit consideration of appellant’s conduct prior to that date in support
of his convictions under counts two through thirteen.
2
We have since acknowledged error in our Patterson opinion, but not with respect to the holding
on which appellant relies. See Sledge v. State, 262 S.W.3d 492, 496 (Tex. App.—Austin 2008,
pet. ref’d).

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facts, the acts of indecency were included within the sexual assaults, and the convictions for both

aggravated sexual assault and indecency with a child constituted double jeopardy. Id. at 432-33.

The court of criminal appeals affirmed this holding, stating that the legislature did not authorize

“stop-action” prosecutions. 152 S.W.3d at 92. The court held that the touching and exposure had

been subsumed within the penetrations of which they were an inherent part. Id.

Appellant argues that there is no evidence of contact between J.W.’s sex organ and

his sex organ except as incident to the penetration of J.W.’s sex organ by his penis, no evidence of

contact between J.W.’s mouth and his sex organ except as incident to the penetration of J.W.’s

mouth by his penis, and no evidence of contact between J.W.’s sex organ and his mouth except as

incident to the penetration of J.W.’s sex organ by his mouth. Appellant argues that in each instance,

the contact was subsumed within the penetration of which it was a necessary incident. Therefore,

he contends that there is no evidence to support his convictions for the sexual assaults by contact

alleged in counts two, four, and six. Alternatively, and for the same reason, appellant contends that

his convictions for both sexual assault by contact under those counts and the corresponding sexual

assaults by penetration alleged in counts three, five, and seven constitute double jeopardy.

These arguments fail because the State proved that the penetrations alleged in counts

three, five, and seven were committed repeatedly. Any one act of penetration supports appellant’s

conviction for sexual assault by penetration, while any other act of penetration supports appellant’s

conviction for sexual assault by the contact incident to the penetration. See Patterson, 96 S.W.3d at

432; see also Barnes v. State, 165 S.W.3d 75, 88 (Tex. App.—Austin 2005, no pet.). Because the

convictions for the penetrations alleged in counts three, five, and seven and the contacts alleged in

17
counts two, four, and six do not necessarily rest on the same conduct, there is no apparent double

jeopardy violation. See Patterson, 96 S.W.3d at 432. Issues seven through twelve are overruled.

Appellant raises analogous contentions regarding his convictions for indecency with

a child. He argues that the exposure of his genitals alleged in count nine and the exposures of J.W.’s

genitals alleged in counts ten and eleven were subsumed within the touchings alleged in counts

twelve and thirteen. Appellant contends that there is therefore no evidence to support his convictions

for the exposures or, alternatively, that his convictions for both the exposures and the touchings

constitute double jeopardy.

There is no evidence that appellant touched J.W.’s breasts with any part of his body

other than his hands. Thus, contrary to appellant’s argument, the exposure of his genitals alleged

in count nine was not subsumed within the touching of J.W.’s breasts alleged in count twelve. The

evidence also shows that appellant touched J.W.’s genitals with his hands. Thus, the exposure of

appellant’s genitals was not necessarily subsumed within the touching of J.W.’s genitals alleged

in count thirteen. Appellant’s contention that his convictions under counts nine, twelve, and

thirteen constitute double jeopardy is without merit.

Appellant exposed his genitals each time he penetrated J.W.’s mouth, sex organ, or

anus with his penis. For the reasons previously discussed, any one of those penetrations will support

appellant’s conviction for indecency by exposure under count nine. Similarly, appellant caused J.W.

to expose her genitals each time he penetrated her sex organ with his penis or his mouth, and any

two of those penetrations will support appellant’s convictions for indecency by exposure under

counts ten and eleven. And given the many acts of penetration shown, there is no apparent

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double jeopardy violation because the convictions for sexual assault and for indecency with a child

by exposure do not necessarily rest on the same conduct. Issues five and six are overruled.

DENIAL OF PAROLE

In his final issue, appellant challenges the constitutionality of government code

section 508.145(a), which provides that a person serving a sentence for continuous sexual abuse of

a young child is not eligible for release on parole. Tex. Gov’t Code Ann. § 508.145(a) (West Supp.

2010). Appellant contends that on its face and as applied to him, this provision violates the

constitutional guarantee of equal protection of the laws. U.S. Const. amend. XIV; Tex. Const.

art. I, § 3.

Appellant does not contend that parole is a fundamental right or that persons

convicted of continuous sexual abuse of children under fourteen constitute a suspect class.

Therefore, we review section 508.145(a) to determine whether it is rationally related to a legitimate

governmental purpose. Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 458 (1988); Black v. State,

26 S.W.3d 895, 897 (Tex. Crim. App. 2000). This standard of review is applied under both the

federal and state equal protection clauses. Combs v. STP Nuclear Operating Co., 239 S.W.3d 264,

275 (Tex. App.—Austin 2007, pet. denied).

Appellant contends that section 508.145(a) is irrational because it denies parole to

a person convicted under section 21.02 but does not deny parole to a person convicted of the

individual offenses defined as “acts of sexual abuse” under section 21.02(c), even if the victim was

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a child younger than fourteen.3 In this case, for example, if appellant had been directly convicted

for two or more of the aggravated sexual assaults or acts of indecency by contact he was shown to

have committed against J.W. when she was younger than fourteen, he would be eligible for parole.

But because those offenses were instead alleged as “acts of sexual abuse” under section 21.02, he

is ineligible for parole under the terms of section 508.145(a). In effect, appellant argues that the

legislature could rationally deny parole to all persons convicted of a sex offense against a child

younger than fourteen, but it could not rationally deny parole only to persons convicted of continuous

sexual abuse of a child younger than fourteen.

Section 21.02 is unique in that it requires proof that the defendant engaged in a

continuing pattern of sexual abuse against a child or children younger than fourteen. We believe that

the legislature could rationally conclude that persons who have manifested such a pattern of sexually

abusive behavior are particularly dangerous and should be ineligible for parole, while continuing to

allow parole for those persons found guilty of individual sex offenses against young children. It is

true, of course, that this statutory distinction is not perfect. A person who engages in a pattern of

sexually abusive behavior that would constitute an offense under section 21.02 may nevertheless be

tried and convicted only for one or more of the underlying offenses and thereby remain eligible for

parole. But in determining whether a statute is rationally related to a legitimate governmental

purpose, courts must be deferential to legislative determinations and may invalidate the statute only

3
This is not entirely true. Section 508.145(a) also denies parole to a person convicted of
aggravated sexual assault of a child and punished under section 22.021(f). Tex. Gov’t Code Ann.
§ 508.145(a) (West Supp. 2010); see Tex. Code Crim. Proc. Ann. art. 22.021(f) (West Supp. 2010)
(enhancing punishment if victim was younger than six or if victim was younger than fourteen and
certain aggravating circumstances are present).

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if it draws a distinction that simply makes no sense. Andrews v. State, 47 S.W.3d 60, 66 (Tex.

App.—Houston [14th Dist.] 2001, pet. ref’d). As the Supreme Court has noted:

In the area of economics and social welfare, a State does not violate the Equal
Protection Clause merely because the classifications made by its laws are imperfect.
If the classification has some reasonable basis, it does not offend the Constitution
simply because the classification is not made with mathematical nicety or because in
practice it results in some inequality. The problems of government are practical ones
and may justify, if they do not require, rough accommodations— illogical, it may be,
and unscientific. A statutory discrimination will not be set aside if any state of facts
reasonably may be conceived to justify it.

Dandridge v. Williams, 397 U.S. 471, 485 (1970) (quotation marks and citations omitted).

We believe that there is a rational basis for the legislature to deny parole to persons

convicted for continuous sexual abuse of a child but to allow parole to persons convicted of other

sexual offenses against children younger than fourteen. Therefore, appellant’s thirteenth and final

issue is overruled.

The judgments of conviction are affirmed.

__________________________________________

Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed

Filed: March 16, 2011

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