In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-11-00592-CR
____________________
JIMMY DON PRICE, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. 21122
________________________________________________________ _____________
OPINION
In this appeal, we are asked to decide whether double jeopardy principles bar
the appellant’s conviction for attempted aggravated sexual assault where, based on
acts that occurred in the same time frame and where the alleged sexual assault
involved the same child, the jury found the appellant guilty on multiple counts, one
of which was continuous sexual abuse occurring between June 1, 2009, and
January 29, 2010. We affirm Price’s conviction for continuous sexual abuse, but
1
we also conclude that double-jeopardy principles require us to reform the judgment
and to vacate Price’s conviction for attempted aggravated sexual assault.
A four count indictment charged Price with sexually abusing a child, his
stepdaughter. The jury found Price guilty on one count of continuous sexual abuse
of his stepdaughter, two counts of indecency that involved his stepdaughter, and
one count of attempted aggravated sexual assault, which also involved his
stepdaughter. 1 In his first issue, Price argues that attempted aggravated sexual
assault is a lesser included offense of continuous sexual abuse, given the period
that the acts comprising the offense were alleged to have occurred; he concludes
that as a result, he should not have been separately sentenced on both offenses.
To the extent Price complains that he was charged separately with
continuous sexual abuse and with attempted aggravated sexual assault, the record
does not show that Price objected to the form of the indictment before his trial
commenced. Because Price failed to file pre-trial objections to the indictment, his
complaints about the indictment have been waived. See Tex. Code Crim. Proc.
Ann. art. 1.14(b) (West 2005).
1
In his appeal, Price has not challenged his convictions under Counts Two
and Three, which were for indecency with a child by contact. See Tex. Penal Code
Ann. § 21.11 (West 2011).
2
Additionally, Price never filed a motion or objected when his case was
before the trial court that he was ineligible for a separate sentence based on his
conviction for attempted aggravated sexual assault. See Tex. R. App. P. 33.1. Price
also did not object to the charge. Nevertheless, Price may raise a double-jeopardy
claim that is apparent on the face of the record for the first time on appeal. See
Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). The Double
Jeopardy Clause of the Fifth Amendment, applicable to the states through the
Fourteenth Amendment, protects an accused from being punished more than once
for the same offense in a single prosecution. Gonzales v. State, 304 S.W.3d 838,
845 (Tex. Crim. App. 2010); see also U.S. Const. amends. V, XIV. “In the
multiple-punishments context, two offenses may be the same if one offense stands
in relation to the other as a lesser-included offense, or if the two offenses are
defined under distinct statutory provisions but the Legislature has made it clear that
only one punishment is intended.” Littrell v. State, 271 S.W.3d 273, 275-76 (Tex.
Crim. App. 2008). “Sameness in this context is a matter of legislative intent.” Id. at
276.
Section 21.02 of the Texas Penal Code, setting out the offense of continuous
sexual abuse, provides:
A person commits an offense if:
3
(1) during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse, regardless of whether
the acts of sexual abuse are committed against one or more
victims; and
(2) at the time of the commission of each of the acts of sexual
abuse, the actor is 17 years of age or older and the victim is a
child younger than 14 years of age.
Tex. Penal Code Ann. § 21.02(b) (West Supp. 2012). An “‘act of sexual abuse’”
described in section 21.02(c) includes “any act that is a violation of one or more of
the following penal laws:”
(1) aggravated kidnapping under Section 20.04(a)(4), if the actor
committed the offense with the intent to violate or abuse the victim
sexually;
(2) indecency with a child under Section 21.11(a)(1), if the actor
committed the offense in a manner other than by touching, including
touching through clothing, the breast of a child;
(3) sexual assault under Section 22.011;
(4) aggravated sexual assault under Section 22.021;
(5) burglary under Section 30.02, if the offense is punishable under
Subsection (d) of that section and the actor committed the offense
with the intent to commit an offense listed in Subdivisions (1)-(4);
(6) sexual performance by a child under Section 43.25;
(7) trafficking of persons under Section 20A.02(a)(7) or (8); and
(8) compelling prostitution under Section 43.05(a)(2).
Id. § 21.02(c).
4
Within section 21.02, the Legislature included language expressing its intent
regarding multiple punishments for continuous sexual abuse, providing:
(e) A defendant may not be convicted in the same criminal action of
an offense listed under Subsection (c) the victim of which is the same
victim as a victim of the offense alleged under Subsection (b) unless
the offense listed in Subsection (c):
(1) is charged in the alternative;
(2) occurred outside the period in which the offense alleged
under Subsection (b) was committed; or
(3) is considered by the trier of fact to be a lesser included
offense of the offense alleged under Subsection (b).
(f) A defendant may not be charged with more than one count under
Subsection (b) if all of the specific acts of sexual abuse that are
alleged to have been committed are alleged to have been committed
against a single victim.
Id. § 21.02(e), (f).
An offense listed under section 21.02(c) “will always be ‘a lesser included
offense of the offense alleged under Subsection (b).’” Soliz v. State, 353 S.W.3d
850, 854 (Tex. Crim. App. 2011) (quoting Tex. Penal Code Ann. § 21.02(e)(3)).
Based on the language in section 21.02(c), it appears the Legislature did not intend
to allow a defendant convicted of continuous sexual abuse to also be convicted for
the aggravated sexual assault of the same child if the aggravated sexual assault at
5
issue and the continuous sexual abuse both occurred within the same time periods.
See Tex. Penal Code Ann. § 21.02(c)(4), (e); Littrell, 271 S.W.3d at 276.
However, in Price’s case, Price was convicted of attempted aggravated
sexual assault and continuous sexual abuse; he was not convicted of aggravated
sexual assault. And, attempted aggravated sexual assault is not included among the
acts of sexual abuse that are found in section 21.02(c) of the Penal Code. The State
argues that by not including attempted aggravated sexual assault in section
21.02(c) of the Penal Code, the Legislature intended to allow a defendant to be
punished if convicted of both continuous sexual abuse and attempted aggravated
sexual assault. But, if the act occurred in one criminal episode, an attempted sexual
assault is a lesser included offense of an aggravated sexual assault when the
offenses are based on the same alleged facts. See Tex. Code Crim. Proc. Ann. art.
37.09(1), (4) (West 2006); see also Tex. Penal Code Ann. § 15.01 (West 2011).
Generally, “criminal-attempt offenses acquire their allowable unit of
prosecution from the offense attempted.” Ex parte Milner, 394 S.W.3d 502, 508-09
(Tex. Crim. App. 2013). It is well settled that a “greater offense is . . . by definition
the ‘same’ for purposes of double jeopardy as any lesser offense included in it.”
Brown v. Ohio, 432 U.S. 161, 168 (1977). Additionally, a conviction for a
completed offense bars prosecution for an attempt to commit the same offense. See
6
Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004). For example, the
Court of Criminal Appeals has explained that aggravated robbery and attempted
aggravated robbery are the same for double-jeopardy purposes. Littrell, 271
S.W.3d at 276-77 & n.18.
The Legislature made aggravated sexual assault a lesser included offense of
continuous sexual abuse by defining “‘act of sexual abuse’” to expressly include
aggravated sexual assault. See Tex. Penal Code Ann. § 21.02(c)(4), (e)(3). In the
statutory scheme defining continuous sexual abuse, the Legislature also expressed
its intention that only one punishment was intended in cases of continuous sexual
abuse where the specific acts of sexual abuse for which the defendant was
convicted occurred against the same victim and within the period the continuous
sexual abuse occurred. See id. § 21.02(e). “When a defendant is convicted of two
offenses and those convictions violate double-jeopardy protections, the conviction
for the more serious offense is retained, and the other is set aside.” Ex parte
Denton, 399 S.W.3d 540, 547 (Tex. Crim. App. 2013).
A multiple punishments claim, a distinct type of double-jeopardy claim, can
arise when the State attempts to punish a defendant for committing the same
criminal act twice under two distinct statutes. See Langs v. State, 183 S.W.3d 680,
685 (Tex. Crim. App. 2006). Based on the manner that Price’s offenses were pled
7
and submitted to the jury, we conclude that Price’s conviction for attempted
aggravated sexual assault should be treated in the same manner as a conviction for
aggravated sexual assault for double-jeopardy purposes under the continuous
sexual abuse statute. See Tex. Penal Code Ann. § 21.02(e), (f); see also Soliz, 353
S.W.3d at 854 (“Subsection (e) was designed as an anti-carving provision but,
without the lesser-included-offense provision, it would have had the side effect of
banning lesser-included offenses.”).
“When a defendant is subjected to multiple punishments for the same
conduct, the remedy is to affirm the conviction for the most serious offense and
vacate the other convictions.” Bigon v. State, 252 S.W.3d 360, 372 (Tex. Crim.
App. 2008). “[T]he ‘most serious’ offense is the offense of conviction for which
the greatest sentence was assessed.” Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex.
Crim. App. 2006). Price received a thirty-two year sentence based on his
conviction of continuous sexual abuse, and a concurrent twenty year sentence
based on his conviction of attempted aggravated sexual assault. Therefore, his most
serious offense was for continuous sexual abuse. See Denton, 399 S.W.3d at 547.
The State suggests that attempted aggravated sexual assault is not in itself an
“act of abuse” defined by section 21.02(c) unless it is charged as a separately
punishable offense; according to the State, adopting Price’s construction of the
8
statute prevents a defendant from being prosecuted for attempted acts when that
defendant is also being prosecuted for continuous sexual abuse.
We disagree that Price’s construction of the statute prevents the State from
prosecuting a defendant for attempted sexual abuses. The attempted aggravated
sexual assault could have been submitted conditionally. The continuous sexual
abuse statute contemplates that in some cases a jury may reject a claim of
continuous sexual abuse and return a verdict on separate acts or attempted acts of
sexual abuse. See Tex. Penal Code Ann. § 21.02(e)(3). For instance, had the jury
chosen to acquit Price of continuous sexual abuse, the charge allowed the jury to
consider five lesser included offenses.2 See id.
Based on the manner the State pled its case, we conclude that punishing
Price for attempted aggravated sexual assault and for continuous sexual abuse
results in a double-jeopardy violation. We sustain issue one. We need not reach
Price’s other issue one arguments since resolving them would not afford Price
greater relief. See Tex. R. App. P. 47.1. In light of our resolution of issue one on
double-jeopardy grounds we retain the continuous sexual abuse conviction and set
aside Price’s conviction for attempted aggravated sexual assault.
2
Five counts of aggravated sexual assault and one count of indecency with a
child were submitted to the jury in this fashion.
9
In issue two, Price seeks to raise a due process and equal protection claim
that concerns section 21.02(d) of the Penal Code. See Tex. Penal Code Ann. §
21.02(d).3 Price failed to assert these challenges to the statute when his case was
before the trial court. A facial challenge to the constitutionality of a statute is a
forfeitable right that is waived if the defendant fails to raise the issue before the
trial court. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009).
Likewise, to preserve error a defendant must make a specific, timely challenge to
the constitutionality of a statute as applied to him. Curry v. State, 910 S.W.2d 490,
496 (Tex. Crim. App. 1995). Because Price failed to preserve error on issue two, it
is overruled. See Tex. R. App. P. 33.1.
Because we have sustained Price’s double-jeopardy complaint, we reverse
and vacate the trial court’s judgment as to Count Four, and we affirm the judgment
as to Counts One, Two, and Three. As modified, the judgment is affirmed.
3
Section 21.02(d) provides:
If a jury is the trier of fact, members of the jury are 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.
10
AFFIRMED AND MODIFIED.
________________________________
HOLLIS HORTON
Justice
Submitted on June 7, 2013
Opinion Delivered September 18, 2013
Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
11