IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0203-19
MATTHEW JOSEPH ALLEN, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
COLLIN COUNTY
WALKER, J., delivered the opinion of the Court in which KELLER, P.J.,
and HERVEY, RICHARDSON, YEARY, NEWELL, KEEL, and MCCLURE, JJ., joined.
SLAUGHTER, J., dissented.
OPINION
A jury found Matthew Joseph Allen, Appellant, guilty of committing Continuous Sexual
Abuse of a Young Child, Indecency with a Child by Exposure, and Indecency with a Child by
Contact. Appellant challenged the sufficiency of the evidence, and the court of appeals upheld the
convictions for Continuous Sexual Abuse of a Young Child and Indecency with a Child by Contact
but reversed the Indecency with a Child by Exposure conviction. In upholding the Indecency with
a Child by Contact conviction, the court of appeals modified the judgment to state that the offense
2
was committed in December 2011, which is within the October 1, 2009–August 15, 2012 time period
that the indictment alleged for the Continuous Sexual Abuse of a Young Child offense. We hold that
Appellant’s conviction for Indecency with a Child by Contact violates § 21.02(e)(2) of the Penal
Code. The evidence supporting the Indecency with a Child by Contact offense shows that it occurred
within the time period the Continuous Sexual Abuse of a Young Child offense was committed. We
affirm the judgment of the court of appeals in part, reverse the judgment of the court of appeals in
part, and we vacate Appellant’s conviction for Indecency with a Child by Contact.
I — Background
When A.H. was ten years old and in the fourth grade,1 her stepfather, Appellant, made her
touch his penis by grabbing her hand and having her touch him over his clothes. Although A.H.
could not remember exactly how many times this occurred or over how long a period it occurred,
it happened more than once and occurred about once a month until the family moved from Texas to
Iowa during the summer of 2009, between A.H.’s fourth and fifth grade school years. The level of
abuse escalated and became more frequent in Iowa, ultimately leading to Appellant penetrating her
vagina with his finger. The family moved back to Texas when A.H. was in the middle of the seventh
grade, in December 2011. Back in Texas, Appellant made A.H.’s hand touch his penis over his
clothing once or twice more, and then the abuse stopped.
Appellant was charged in a nine-count indictment alleging sexual offenses committed against
A.H. After the State rested and before Appellant testified in his own defense, Appellant moved for
a directed verdict on Counts I–V, VII, and VIII. The motion was denied as to Counts I and II, but the
1
Although the victim was eighteen years old at the time of trial, she was a minor at the time
of the offense and we will refer to her by her initials.
3
trial court “granted” the motion as to the other counts after the State abandoned them as well as
Count IX.2 As a result of the motion hearing, Counts I, II, and VI were left. Count I alleged that
Appellant committed the offense of Continuous Sexual Abuse of a Young Child on or about October
1, 2009 through August 15, 2012.3 Count II alleged that Appellant committed the offense of
Indecency with a Child by Exposure on or about October 1, 2009.4 Count VI alleged that Appellant
committed the offense of Indecency with a Child by Contact on or about September 25, 2009.5 The
jury returned a guilty verdict on the three remaining counts, and Appellant was sentenced to thirty-
five years, five years, and fifteen years for the three offenses, respectively.
II — At the Court of Appeals
On appeal, Appellant challenged the sufficiency of the evidence supporting the convictions.
Allen v. State, No. 05-17-00226-CR, 2018 WL 3434545, at *1 (Tex. App.—Dallas July 17, 2018)
(mem. op., not designated for publication). Even though the evidence regarding the Continuous
Sexual Abuse of a Young Child conviction was conflicting, the court of appeals determined that the
jury resolved the conflict on evidence that A.H. responded affirmatively to questions referring to
multiple instances of touching, on A.H.’s testimony that the touching began in the middle of fourth
grade and occurred about once a month, and on A.H.’s mother’s testimony that the family moved
out of Texas during the summer before A.H. started fifth grade. Id. at *1–2. The court of appeals
determined that the Indecency with a Child by Exposure conviction, however, was not supported by
2
Rep. R. vol. 5, 14–15.
3
See TEX. PENAL CODE Ann. § 21.02(b).
4
See TEX. PENAL CODE Ann. § 21.11(a)(2)(A).
5
See TEX. PENAL CODE Ann. § 21.11(a)(1).
4
sufficient evidence because there was no evidence in the record that Appellant exposed his genitals
to A.H. Id. at *2. Finally, the court of appeals found that the Indecency with a Child by Contact
conviction was supported by A.H.’s testimony that, after they moved back to Texas and during the
December when A.H. was in seventh grade, Appellant caused her to touch his genitals over his
clothing. Id. at *5. Noting that A.H.’s seventh grade school year was in 2011, the court of appeals
modified the judgment to reflect an offense date of December 2011 instead of the date entered by
the trial court on the Judgment of Conviction: October 1, 2009. Id.
Because December 2011 is within the October 1, 2009–August 15, 2012 time period alleged
in Count I of the indictment for Continuous Sexual Abuse of a Young Child, Appellant and the State
filed cross-motions for rehearing, both arguing that Penal Code § 21.02(e) and Appellant’s right
against double jeopardy were violated.6 The court of appeals denied both motions and, instead of
changing the date on the judgment, withdrew its earlier opinion and delivered a new opinion. Allen
v. State, No. 05-17-00226-CR, 2018 WL 6065095, at *1 (Tex. App.—Dallas Nov. 20, 2018, op. on
reh’g) (mem. op., not designated for publication). In this new opinion, the court of appeals again
upheld the Continuous Sexual Abuse of a Young Child conviction as supported by sufficient
evidence, namely, that A.H. responded affirmatively to questions referring to multiple instances of
touching, on A.H.’s testimony that the touching began in the middle of fourth grade and occurred
about once a month, and on A.H.’s mother’s testimony that the family moved out of Texas during
the summer before A.H. started fifth grade. Id. at *1–2. The court of appeals explained that the
evidence supporting the Continuous Sexual Abuse of a Young Child conviction showed that the
6
Appellant’s motion also reasserted that the evidence was insufficient to support the two
convictions.
5
offense was committed between the middle of the 2008–2009 school year and the summer of 2009,
before the family moved out of Texas. Id.
Appellant’s petition for discretionary review challenges the court of appeals’s judgment
upholding the Indecency with a Child by Contact conviction. According to Appellant, because the
evidence shows the offense occurred during the time alleged for the Continuous Sexual Abuse of a
Young Child offense, the court of appeals was required to affirm either the Continuous Sexual Abuse
of a Young Child conviction or the Indecency with a Child by Contact conviction, but not both;
otherwise, the dual convictions would violate § 21.02(e) and the Double Jeopardy Clause of the Fifth
Amendment.
III — Section 21.02(e)
In determining the operation of the statute, we begin by examining its literal text. Boykin v.
State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). Section 21.02(e) provides:
(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).
TEX PENAL CODE Ann. § 21.02(e). The issue before us is whether Appellant’s dual convictions are
allowed under the § 21.02(e)(2) exception. It is without question that Appellant’s Indecency with a
Child by Contact offense, which involved causing A.H. to touch his genitals over his clothing, is “an
6
offense listed under Subsection(c).” TEX. PENAL CODE Ann. § 21.02(c)(2). Similarly, there is no
doubt that Appellant was convicted of the offense in the same criminal action or that the victim
involved in both offenses is the same. The next part, however, is disputed.
Appellant points to the fact that although the Indecency with a Child by Contact offense was
alleged in the indictment to have occurred on or about September 25, 2009, the State at trial and on
appeal relied on evidence of conduct in December 2011, and the court of appeals similarly relied
upon evidence showing the offense was committed in December 2011. The court of appeals’s
reliance was then made patently clear when it modified the judgment to reflect an offense date of
December 2011. According to Appellant, because the Indecency with a Child by Contact offense
occurred in December 2011, it cannot be upheld as it is within the October 1, 2009–August 15, 2012
time period alleged in the indictment for the Continuous Sexual Abuse of a Young Child offense.7
Appellant’s argument appears to depend upon the use of the word “alleged” in § 21.02(e)(2).
From the indictment, “the period in which the offense alleged under Subsection (b)” is October 1,
2009–August 15, 2012. However, the court of appeals determined that the evidence was sufficient
for the jury to conclude that the offense “was committed” between the middle of the 2008–2009
school year and the summer of 2009. Allen, 2018 WL 6065095, at *2. If the “alleged” time frame
is controlling, Appellant’s dual convictions in this case violate the statute. But if the “was
committed” time frame is controlling, the convictions are legal and there is no error.
The full text of § 21.02(e)(2) states the exception applies if the § 21.02(c) offense “occurred
7
While the apparent agreement between the State, the court of appeals, and Appellant that
the Indecency with a Child by Contact offense was committed in December 2011 does not
necessarily establish when the offense was actually committed, it does point toward a conclusion that
the evidence showed that the offense was indeed committed during the month of December 2011.
7
outside the period in which the offense alleged under Subsection (b) was committed . . . .” TEX.
PENAL CODE Ann. § 21.02(e)(2). We initially note the statute uses the words “was committed”
instead of “was alleged.” This choice compels a construction that does not give controlling effect
to “alleged.” The statute does not say “occurred outside the period in which the offense was alleged
to have been committed under Subsection (b).”
Furthermore, when construing statutes, we give effect to every word, phrase, clause, and
sentence when reasonably possible. Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App.
2020); State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997). If “alleged” was controlling,
“was committed” would be rendered inert. On the other hand, if “was committed” was controlling,
“alleged under Subsection (b)” would still serve a purpose, albeit a minor one. It would serve to self-
identify or self-reference the continuous abuse offense under consideration. Because giving
controlling effect to “was committed” gives substance to both phrases, this is a strong indication that
“was committed” should be controlling instead of “alleged.”
We also note that § 21.02(e) begins by saying that a defendant “may not be convicted” of a
§ 21.02(c) offense instead of “may not be charged.” Thus the § 21.02(e) prohibition against dual
convictions, and therefore any exception to § 21.02(e), presupposes that the defendant has been
convicted of a continuous abuse offense in the first place. Such a conviction itself depends on
evidence from which the fact finder could find the defendant guilty. Such evidence would show
when the continuous abuse offense was committed. Of course, to be convicted a defendant must first
be charged with a crime, and the charge must include a date allegation. See Hess v. State, 528
S.W.2d 842, 843 (Tex. Crim. App. 1975) (“An indictment to be sufficient must give the day, month,
and year of the commission of the offense.”); accord Hill v. State, 544 S.W.2d 411, 413 (Tex. Crim.
8
App. 1976); see also TEX. CODE CRIM. PROC. Ann. art. 21.02(6) (time mentioned in indictment
“must be some date anterior to the presentment of the indictment, and not so remote that the
prosecution of the offense is barred by limitation”). However, the particular date alleged in the
indictment is not binding on the prosecution, and a conviction may be had based on evidence
showing a completely different date than that alleged in the indictment. Sledge v. State, 953 S.W.2d
253, 255–56 (Tex. Crim. App. 1997). Section 21.02(e)’s threshold statement that a defendant “may
not be convicted” is a further indication that the time period when the continuous abuse offense “was
committed” should be controlling, not the time period alleged in the indictment.
Appellant, in his brief, points to Price v. State, 434 S.W.3d 601 (Tex. Crim. App. 2014), in
which we previously construed § 21.02(e). According to Appellant, under Price “the fact finder
would only be able to find Appellant guilty of either the continuous sexual abuse of a child, or,
alternatively, indecency with a child by sexual contact, but not both.”8
Appellant’s reliance on Price is misplaced. The issue we were concerned with in Price was
whether an attempt to commit a § 21.02(c) offense counts for the purposes of § 21.02(e), because
§ 21.02(e) makes no mention of “attempt.” Price, 434 S.W.3d at 604, 606. This was a source of
ambiguity that we resolved by examining extratextual factors such as legislative intent. Id. at 607.
We held that the § 21.02(e) prohibition included attempts to commit § 21.02(c) offenses, and we
affirmed the court of appeals’s judgment vacating the attempt conviction where the defendant had
been convicted of both a continuous abuse offense and an attempt to commit a § 21.02(c) offense.
Id. at 611, 604. In this case, Appellant was convicted of committing Continuous Sexual Abuse of
a Young Child and committing an offense listed in § 21.02(c). Appellant was not convicted of
8
Appellant’s Br. at. 27.
9
committing Continuous Sexual Abuse of a Young Child and attempting to commit an offense listed
in § 21.02(c).
The second problem with Appellant’s reliance on Price is that our discussion in Price
supports the court of appeals’s judgment upholding the Indecency with a Child by Contact
conviction. With regard to § 21.02(e) when the § 21.02(c) offense is actually committed and not
merely attempted, we explained that “[t]he statutory language further reflects that the Legislature
clearly intended to disallow dual convictions for the offense of continuous sexual abuse and for
offenses enumerated as ‘acts of sexual abuse’ when based on conduct against the same child during
the same period of time.” Id. at 606 (emphasis added). We did not say “when based on allegations
of conduct . . . during the same period of time” or “when based on conduct . . . alleged to have
occurred during the same period of time.”
Our discussion in Price continued:
A defendant charged with continuous sexual abuse who is tried in the same criminal
action for an enumerated offense based on conduct committed against the same
victim may not be convicted for both offenses unless the latter offense occurred
outside the period of time in which the continuous-sexual-abuse offense was
committed.
Id. (emphasis added).
“We conclude[d] that the statutory language is plain in providing that, when the acts alleged
were committed against a single child, the Legislature did not intend to permit dual convictions for
continuous sexual abuse and for an enumerated act of sexual abuse unless the latter occurred during
a different period of time.” Id. (emphasis added). Whether the § 21.02(c) offense occurred during
a different period of time depends not only on evidence showing when the § 21.02(c) offense
occurred but also on evidence showing that the enumerated act was committed outside of the period
10
that the § 21.02(c) offense was committed.
Based upon the foregoing, we conclude that “was committed” controls. We hold that in
determining whether a defendant may be convicted for a continuous abuse offense and an offense
listed in § 21.02(c) in the same criminal action and against the same victim, the proper consideration
is whether the evidence shows that the § 21.02(c) offense occurred outside of the period that the
continuous abuse offense was committed. The determination does not consider whether the §
21.02(c) offense occurred outside the time period alleged in the indictment for the continuous abuse
offense.
Returning to Appellant’s case, the first question is when the Continuous Sexual Abuse of a
Young Child offense was committed. The date an offense was committed cannot be determined by
looking at an indictment, it must be determined by looking at the evidence presented at trial. The
court of appeals determined that the evidence supported a time frame of the middle of the 2008–2009
school year to the summer of 2009. But the evidence showed not only those instances of abuse. The
totality of the evidence also showed that the abuse continued after the family moved out of Texas
to Iowa, and that, after returning to Texas, the abuse continued in December 2011. The court of
appeals improperly excluded the December 2011 incident from the continuing abuse period. To be
clear, Appellant cannot be held liable in Texas for the acts committed in Iowa. See TEX. PENAL CODE
Ann. § 1.04. But the acts committed in Texas, before the move away and after the return, are part
of the same long, continuous offense.9 The evidence supporting the jury’s guilty verdict shows that
9
It may be a different case if the evidence shows a clear period of continuing abuse, and,
after several years during which no abuse occurred, an isolated incident of abuse. Whether the
continuing sexual abuse time period can include the isolated incident in such a case will have to wait
until the proper case presents itself.
11
the Continuous Sexual Abuse of a Young Child offense was committed from the middle of the
2008–2009 school year through December 2011. Our review of the record leads us to conclude that
the evidence supporting the jury’s guilty verdict on the Indecency with a Child by Contact offense
shows that the offense occurred some time between the middle of the 2008–2009 school year and
December 31, 2011,10 which is the longest span of continuous sexual abuse that is supported by the
record. Because the Indecency with a Child by Contact offense did not occur outside the period in
which the Continuous Sexual Abuse of a Young Child offense was committed, Appellant’s dual
convictions for both offenses violate § 21.02(e)(2).
Accordingly, Appellant’s conviction for Indecency with a Child by Contact cannot be upheld,
and the conviction is reversed. Because we reverse Appellant’s conviction for Indecency with a
Child by Contact on statutory grounds, we need not address Appellant’s alternate argument that the
dual convictions violate the Double Jeopardy Clause of the Fifth Amendment.
IV — Section 21.02(d) and Ramos v. Louisiana
After the Supreme Court’s recent decision in Ramos v. Louisiana, 140 S.Ct. 1390 (2020),
Appellant was granted leave to file a post-submission ground for review in which he asks whether
the jury must be unanimous on which particular acts of sexual abuse were committed despite the
language of § 21.02(d) providing otherwise. Upon further consideration by this Court, we conclude
that our decision to grant Appellant’s motion for leave to file his post-submission ground for review
was improvident. We therefore dismiss Appellant’s post-submission ground for review as
improvidently granted.
10
The State, Appellant, and the court of appeals apparently agree that the evidence shows
the Indecency with a Child by Contact offense was committed in December 2011, which is between
the middle of the 2008–2009 school year and December 31, 2011.
12
V — Conclusion
In conclusion, in upholding Appellant’s conviction for Indecency with a Child by Contact
as supported by sufficient evidence, when that evidence showed that the offense occurred within the
time period that the Continuous Sexual Abuse of a Young Child offense was committed, the court
of appeals erred. The judgment of the court of appeals is affirmed in part and reversed in part, and
Appellant’s conviction for Indecency with a Child by Contact is vacated.
Delivered: April 21, 2021
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