COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00498-CR
PHILLIP DWAIN SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
A jury found Appellant Phillip Dwain Smith guilty of continuous sexual
abuse, two counts of aggravated sexual assault, and three counts of indecency
with a child. The trial court sentenced Appellant to sixty years‟ confinement for
three of the convictions and twenty years‟ confinement for the other three
convictions and pronounced that the sentences would run concurrently.
Appellant raises three issues on appeal; he argues that the judgment on one of
1
See Tex. R. App. P. 47.4.
the aggravated sexual assault convictions incorrectly recites that the sentence for
that conviction is to run consecutively, that the trial court‟s judgments violate
double jeopardy, and that the jury‟s verdicts for two of his convictions were not
unanimous. For the reasons set forth below, we will sustain Appellant‟s first
issue and overrule his second and third issues.
Concerning Appellant‟s first issue, the State agrees that the judgment on
count 2 for the offense of aggravated sexual assault of a child under fourteen
years of age should be modified to delete the imposition of consecutive
sentencing and that this sentence should run concurrently with the sentences on
counts 1, 3, 4, 5, and 6, as pronounced by the trial court in open court. See, e.g.,
Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (holding oral
pronouncement of sentence controls over information in written judgment). We
sustain Appellant‟s first issue.
In his second issue, Appellant complains that his convictions for indecency
with a child by contact in counts 3 and 4 are jeopardy-barred by his conviction in
count 2 for aggravated sexual assault of a child. In count 2, Appellant was found
guilty of aggravated sexual assault of a child by intentionally or knowingly
causing the penetration of the female sexual organ of the victim, a child younger
than fourteen years of age who was not the spouse of Appellant, by inserting his
finger into her female sexual organ. Appellant was found guilty of indecency by
contact in count 3 by intentionally, with the intent to arouse or gratify his sexual
desire, engaging in sexual contact by touching the breast of the victim, a child
2
younger than seventeen years of age and not his spouse, with his hand. He was
found guilty of indecency by contact in count 4 by intentionally, with the intent to
arouse or gratify his sexual desire, engaging in sexual contact by touching the
breast of the victim, a child younger than seventeen years of age and not his
spouse, with his mouth or tongue. Each of these counts was alleged to have
occurred “on or about July 6, 2009.”
The victim, who was twelve years old at the time of trial, testified that
Appellant began touching her vagina when she was eight years old; first, he
touched her over her clothes, and then he began putting his hand under her
clothes. He inserted his finger into her female sexual organ. She testified that
Appellant would do this about once a week. When she was nine-and-a-half
years old, Appellant began touching her on her breasts, too. He did this every
few days. He would kiss her breasts. He continued to insert his finger into her
female sexual organ and to touch and kiss her breasts, and when she was ten
years old and eleven years old, the frequency of Appellant‟s assaults increased
to almost daily.
The trial court charged the jury that “[f]or the offenses of indecency with a
child and aggravated sexual assault of a child, you are further instructed that the
State is not bound by the specific date on which the offense, if any, is alleged in
the indictment to have been committed, but conviction may be had upon proof
that the offense, if any, was committed any time prior to the presentment of the
indictment.”
3
Generally, to preserve a double jeopardy claim, a defendant must object at
or before the time the charge is submitted to the jury. Gonzalez v. State, 8
S.W.3d 640, 642 (Tex. Crim. App. 2000). An appellant is excused from the
preservation requirement, however, when (1) the undisputed facts show that the
double jeopardy violation is clearly apparent on the face of the record and (2)
enforcement of usual rules of procedural default serves no legitimate state
interests. Id. at 643.
The Double Jeopardy Clause bars the State from putting a person in
jeopardy twice for the same offense. U.S. Const. amends. V, XIV. “For Double
Jeopardy purposes, „[t]he same offense means the identical criminal act, not the
same offense by name.‟” Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim.
App. 1998). Thus, each distinct instance of sexual assault may be separately
indicted and tried. Id. at 861. Moreover, the State is not bound by the “on or
about” date alleged in the indictment. Id. at 860. It is well settled that the “on or
about” language of an indictment allows the State to prove a date other than the
one alleged in the indictment as long as the date is prior to the presentation of
the indictment and not so remote that prosecution is barred by the statute of
limitations. See Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997);
Cabral v. State, 170 S.W.3d 761, 763 (Tex. App.––Fort Worth 2005, pet. ref‟d).
Here, Appellant was indicted for three separate offenses in counts 2, 3,
and 4; all were alleged to have occurred on or about July 6, 2009. A conviction
for sexual assault by finger-vaginal penetration is not based on the same conduct
4
as a conviction for indecency by hand-breast or oral-breast contact. See
Hutchins v. State, 992 S.W.2d 629, 633 (Tex. App.––Austin 1999, pet. ref‟d,
untimely filed) (explaining that “[b]ecause appellant has not shown that his
conviction for indecency with a child by contact was based on the same conduct
underlying his conviction for aggravated sexual assault of a child, his contention
that these convictions constitute multiple punishments for the same offense is
without merit”). Additionally, the jury was charged, without objection by
Appellant, that for the offenses of indecency with a child and aggravated sexual
assault of a child, they could convict Appellant upon proof that these offenses, if
any, were committed any time prior to the presentment of the indictment.
The victim testified that Appellant penetrated her female sexual organ with
his finger on a weekly basis for years and then later on an almost daily basis.
The victim testified that Appellant touched her breasts and kissed her breasts
beginning when she was nine-and-a-half years old and that this contact occurred
on a weekly and later daily basis. The evidence therefore established hundreds
of finger-vaginal penetrations and hundreds of hand-breast and oral-breast
contacts, all before the date the indictment was presented on July 27, 2009.
Thus, no double jeopardy violation is apparent on the face of the record before
us; the face of the record does not support Appellant‟s contention that his
indecency with a child by contact convictions in counts 3 and 4 are jeopardy-
barred by his conviction in count 2 for aggravated sexual assault of a child by
finger-vaginal penetration. See Cabral, 170 S.W.3d at 763; Hutchins, 992
5
S.W.2d at 633. Appellant has failed to meet the first prong of Gonzalez, as
required to assert a double jeopardy violation for the first time on appeal. See 8
S.W.3d at 643. We overrule Appellant‟s second issue.
In his third issue, Appellant argues that the two aggravated sexual assault
convictions (for counts 2 and 5) were not based on unanimous jury verdicts due
to the trial court‟s jury instructions. The court‟s charge properly defined the
elements of aggravated sexual assault. The court‟s charge contained proper
application paragraphs for counts 2 and 5, explaining,
[I]f you find from the evidence beyond a reasonable doubt that
on or about the 6th day of July, 2009, in Tarrant County, Texas the
defendant, Phillip Dwain Smith, did then and there intentionally or
knowingly cause the penetration of the female sexual organ or
vagina of [the victim], a child younger than 14 years of age who was
not the spouse of said defendant by inserting his finger into the
female sexual organ or vagina of [the victim], then you will find the
Defendant guilty of aggravated sexual assault of a child as charged
in Count Two of the Indictment.
....
[I]f you find from the evidence beyond a reasonable doubt that
on or about the 1st day of January 2009, in Tarrant County, Texas
the defendant, Phillip Dwain Smith, did then and there intentionally
or knowingly cause the penetration of the female sexual organ or
vagina of [the victim], a child younger than 14 years of age who was
not the spouse of said defendant by inserting his finger into her
female sexual organ or vagina, then you will find the Defendant
guilty of aggravated sexual assault of a child as charged in Count
Five of the Indictment.
The court‟s charge submitted each count of the indictment to the jury on a
separate verdict form. The jury specifically found Appellant guilty of aggravated
sexual assault of a child as charged in count 2 of the indictment. The jury also
6
specifically found Appellant guilty of aggravated sexual assault of a child as
alleged in count 5 of the indictment.
Appellant complains however, of a portion of an abstract paragraph in the
court‟s charge that was submitted with the instructions to the jury concerning the
offense of continuous sexual abuse of a child. The charge explained that “[f]or
purposes of Count One, our law provides that a person commits the offense of
indecency with a child if the person intentionally, with the intent to arouse or
gratify the person‟s sexual desire, engages in sexual contact with a child.” The
next paragraph provided, in part,
For purposes of Counts Two through Six, our law provides
that a person commits the offense of indecency with a child if the
person intentionally, with the intent to arouse or gratify the person‟s
sexual desire engages in sexual contact.
This is the sentence that Appellant claims authorized a nonunanimous verdict on
counts 2 and 5, the aggravated sexual assault offenses.
But the complained-of sentence was not incorrect. Its language explaining
when a person commits the offense of indecency with a child was simply not
applicable to the aggravated sexual assault offenses charged in counts 2 and 5.
No language in the complained-of sentence authorized the jury to convict
Appellant of counts 2 and 5 by finding only indecency with a child by contact. To
the contrary, the charge properly defined the elements of aggravated sexual
assault, contained a proper application paragraph concerning counts 2 and 5,
and submitted separate verdict forms to the jury on each count; the jury found
7
Appellant guilty of all six counts on six separate verdict forms. The complained-
of sentence in the court‟s charge did not authorize a nonunanimous verdict on
counts 2 and 5. See Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App.
2000) (“A[] unanimous jury verdict ensures that the jury agrees on the factual
elements underlying an offense.”); Colburn v. State, 966 S.W.2d 511, 520 (Tex.
Crim. App. 1998) (explaining presumption that jury follows the trial court‟s
instructions in the manner presented). We overrule Appellant‟s third issue.
Having sustained Appellant‟s first issue, we modify the judgment on count
2 for the offense of aggravated sexual assault of a child under fourteen years of
age by deleting the imposition of consecutive sentencing and providing, “This
sentence shall run concurrently with sentences imposed in counts 1, 3, 4, 5, and
6 of this cause.” Having overruled Appellant‟s second and third issues, we affirm
the trial court‟s judgments as modified.
PER CURIAM
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 3, 2011
8
Phillip Dwain Smith v. State
Combined Opinion