Aekins v. State

• Decision Date: 22 October 2014
• Docket Number: NO. PD–1712–13,PD–1712–13
• Citation: 447 S.W.3d 270
• Parties: Donald Aekins, Appellant v. The State of Texas
• Court: Texas Court of Criminal Appeals

447 S.W.3d 270

Donald Aekins, Appellant

v.The State of Texas

NO. PD–1712–13

Court of Criminal Appeals of Texas.

Delivered: October 22, 2014

Donald Aekins, pro se.

Christopher P. Morgan, Austin, for Appellant.

Lisa McMinn, for the State.

OPINION

Cochran, J., delivered the opinion of the Court in which Meyers, Womack, Johnson and Alcala, JJ., joined.

A jury found appellant, Donald Aekins, guilty of three counts of sexual assault. The court of appeals held that his convictions for both contacting and penetrating the adult victim's sexual organ with his mouth violated his right against multiple punishments for the same offense because the contact and penetration were based on the same act. We granted the State Prosecuting Attorney's petition for discretionary review¹ to clarify that (1) when a single exposure or contact offense is “incident to and subsumed by” a penetration offense, the offenses are the “same” for double-jeopardy purposes, and (2) the Texas Legislature has not manifested its intent to allow multiple punishments for those “same” offenses, so (3) multiple convictions for those “same” offenses violate double-jeopardy principles. We conclude that the court of appeals properly vacated the conviction for the “contact” sexual-assault count, and we affirm its judgment.²

I.

Appellant and his wife, Amanda, first met Jessica Parnell (a pseudonym), at a downtown Austin Salvation Army shelter in October of 2010. Amanda and Jessica became friends at the shelter and helped each other with their children. But Jessica was uncomfortable around appellant because he was flirtatious, he kissed her neck, and he “always had a lot of perverted comments.” Jessica finally told Amanda that if appellant did not stop hitting on her, they could no longer be friends.

The Aekins family later left the Salvation Army shelter and moved into a house, while Jessica and her children moved to another shelter. Jessica started babysitting the Aekins's two children, based on Amanda's promise that appellant would not be there when she came over.

Amanda asked Jessica if she would babysit her children on February 2, 2012, because Amanda had school and appellant would be out job hunting. Jessica agreed, and Amanda picked her up early that morning and brought her back to the Aekins's house.

When Amanda and Jessica arrived, appellant was lying in bed with his infant son. Amanda told Jessica that he was “fixing to get up and get dressed and leave.” Instead, appellant stayed in bed after Amanda left for school. Jessica was with her two children and the Aekins's oldest child in the front room when appellant called her into the bedroom and asked her to bottle-feed the baby.

Jessica propped herself up against the back of the bed to feed the baby, who was lying next to her with his bottle. Appellant got up, closed the door, “pushed stuff in front of it,” and then came back over to Jessica's side of the bed. He climbed on top of her and started to take her pants off. “He was telling me he just wanted to taste me.... I was trying to push him off me, but he just kept telling me to feed the baby and it just scared me, like I really didn't know what to do.” Appellant performed oral sex on Jessica against her will, and he also put his fingers inside her vagina against her will.

A few minutes later, Jessica's daughter knocked on the bedroom door, so Jessica got up, got away, left the house, and went next door to a neighbor's home. She texted Amanda and told her that “she wasn't going to watch the kids anymore because Donald had just sexually assaulted her.” Then she called the police. Appellant, meanwhile, came over to the neighbor's home and yelled, “[A]in't nobody going to believe you anyway.”

Appellant was charged in a three-count indictment:

Count 1: causing the penetration of Jessica Parnell's female sexual organ by the defendant's finger,

Count 2: causing the penetration of Jessica Parnell's female sexual organ by the defendant's mouth and/or tongue, and

Count 3: causing Jessica Parnell's female sexual organ to contact defendant's mouth.

The jury convicted appellant of all three counts-two penetration offenses and one contact offense—and sentenced him to 55 years' imprisonment on each count, to run concurrently.

On appeal, appellant argued that his conviction under Count 3 violated the Double Jeopardy Clause because contacting and penetrating Jessica Parnell's sexual organ with his mouth constituted a single criminal act. The court of appeals agreed. Citing Patterson v. State,³ and Barnes v. State,⁴ the court concluded that appellant's conviction for sexual assault by contact was barred by double-jeopardy principles because it was based on the same act for which he was convicted of sexual assault by penetration.⁵ The court of appeals vacated the trial court's judgment for sexual assault under Count 3.⁶

The correctness of the appellate court's holding depends on the validity of what has become known as the Patterson “incident to and subsumed by” doctrine. We reaffirm this doctrine (which, in some jurisdictions is called “the merger doctrine”) and reiterate that it is well grounded in the Fifth Amendment guarantee against double jeopardy.⁷

II.

The Fifth Amendment provides, “No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb[.]” In North Carolina v. Pearce,⁸ the Supreme Court stated that the guarantee against double jeopardy consists of three separate constitutional protections: first, it protects against a second prosecution for the same offense after acquittal; second, it protects against a second prosecution for the same offense after conviction; and third, it protects against multiple punishments for the same offense.⁹ This case involves a multiple-punishments issue.

A multiple-punishments double-jeopardy violation may arise either in the context of lesser-included offenses (when the same conduct is punished under both a greater and a lesser-included statutory offense) or when the same criminal act is punished under two distinct statutory provisions, but the legislature intended only one punishment.¹⁰

The first step “in determining the troublesome question of what constitutes the ‘same offense’ ”¹¹ is to apply the two different Blockburger¹² tests. The second test, “which focuses upon the statutory language creating the criminal offense,” is the better known.¹³ Under that second aspect of Blockburger,

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.¹⁴

To decide if conviction on multiple counts stemming from a single criminal act is constitutionally permitted, we compare the elements of the two offenses to determine if each requires proof of an element that the other does not. “If so, the statutory offense is presumably not the same and both offenses generally may be prosecuted.”¹⁵

The first, less famous, Blockburger test asks whether each criminal act is a separate and distinct one, separated by time.¹⁶ If the offense is a single continuous act, with a single impulse, in which several different statutory provisions are necessarily violated along that continuum, the offenses merge together. This is variously called “the merger doctrine,”¹⁷ “the single impulse doctrine,”¹⁸ or, here in Texas, “the doctrine of subsumed acts.”¹⁹ If more than one statutory offense is necessarily committed by that single criminal act and impulse, then the offenses merge and the defendant may be punished only once. This “single impulse” aspect of Blockburger is United States Supreme Court law, not some peculiar doctrine thought up by Texas judges. We are not permitted to ignore or denigrate it. As a lower court, we are bound by Supreme Court reasoning on federal constitutional issues. Although one could argue that this aspect of Blockburger is confusing or complicated, other state courts have not found it so.²⁰ This well-established Supreme Court doctrine is, of course, wholly unrelated to the discredited “carving doctrine” which was properly jettisoned in Ex parte McWilliams.²¹

The Blockburger facts exemplify the two separate tests. There, a druggist was convicted of three counts of selling morphine improperly to the same buyer.²² He made one sale on Monday and another sale on Tuesday. The morphine was improperly sold on both days because it was not in its original tax-stamped package,²³ and the morphine sale on Tuesday was also not made pursuant to a written order of the purchaser.²⁴ The druggist argued that the morphine sales to the same person on two days constituted a single offense and that the Tuesday sale, which violated two separate statutes—improper packaging and without a written order—was just one act; it was one sale and therefore could be punished only once. The druggist wanted his three convictions reduced to one.

The Supreme Court upheld all three convictions. The first Blockburger test was whether the two separate morphine sales on two separate occasions to the same customer were two offenses or one.²⁵ The Court stated that the distinction between the two separate sales in this case “and an offense continuous in its character is well settled,” noting that “ ‘when the impulse is single, but one indictment lies, no matter how long the action may continue.’ ”²⁶ The Court explained, “In the present case, the first transaction, resulting in a sale, had come to an end. The next sale was not the result of the original impulse, but of a fresh one-that is to say, of a new bargain.”²⁷ This was unlike “continuous crimes,” which are necessarily committed over a period of time and may involve separate acts that are incidental to, or “part and parcel” of, the single completed offense.²⁸

The Supreme Court—applying the second test—then rejected the druggist's argument that the Tuesday sale, which violated two separate ...