Carmichael v. State

• Decision Date: 19 October 2016
• Docket Number: No. 04-15-00572-CR,04-15-00572-CR
• Parties: Terrence CARMICHAEL, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

505 S.W.3d 95

Terrence CARMICHAEL, Appellant

v.The STATE of Texas, Appellee

No. 04-15-00572-CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: October 19, 2016

Discretionary Review Refused February 1, 2017

Julie B. Pollock, Hitchings & Pollock, San Antonio, TX, for Appellant.

Jennifer Rossmeier, Bexar County Assistant District Attorney, San Antonio, TX, for Appellee.

Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Jason Pulliam, Justice

OPINION

Opinion by: Jason Pulliam, Justice

A jury convicted Terrence Carmichael of one count of the offense of continuous sexual abuse of a child, one count of the offense of aggravated sexual assault of a child, and two counts of the offense of indecency with a child. The trial court assessed Carmichael's punishment at life imprisonment for the offenses of continuous sexual abuse of a child and aggravated sexual assault of a child and twenty years' imprisonment for each count of the offense of indecency with a child. The trial court ordered Carmichael to serve the punishments concurrently. On appeal, Carmichael contends his conviction for aggravated sexual assault of a child offends double jeopardy, and in the alternative, argues the evidence supporting his conviction for aggravated sexual assault of a child is insufficient. Carmichael additionally contends the trial court erroneously admitted outcry and extraneous offense testimony during the guilt/innocence phase, failed to ensure Carmichael's appointed counsel provided effective representation, and erroneously charged the jury it could convict him even if all jurors did not unanimously agree on the specific acts of abuse committed or the exact dates on which the acts were committed. Finally, Carmichael contends section 21.02(d) of the Texas Penal Code unconstitutionally permits a jury to convict a person of continuous sexual abuse even if the jury does not unanimously agree on the specific acts of abuse committed or the exact dates on which the acts were committed. The trial court's judgment is affirmed in part and vacated in part.

BACKGROUND

Carmichael is the biological father of the complainants, AC and MC, and the stepfather of DT. Carmichael and the girls' mother ("VC") divorced in 2009. VC was awarded custody of the girls, but they visited their father. In June 2013, AC wrote VC a note, which stated: "He touched me in places I don't want to be touched. I say no, but he don't (sic) listen." MC also reported to her mother that Carmichael touched her. VC contacted authorities, and Officer Tiffany Stewart from San Antonio Police Department ("SAPD") interviewed AC and MC. Later, DT additionally reported to VC that Carmichael touched her inappropriately when she was a young child. Further investigation resulted in an indictment that charged Carmichael with five counts of sexual offenses and listed three complainants, AC, MC, and DT.

Prior to trial, the State abandoned Count III of the indictment, which alleged aggravated sexual assault committed against DT. The State proceeded to trial on four counts, which listed AC and MC as the complainants. The jury found Carmichael guilty of all four counts, and Carmichael elected for the trial court to assess punishment. The trial court sentenced Carmichael to two terms of life imprisonment and two terms of twenty years' imprisonment to be served concurrently.

This appeal followed.

ANALYSIS

Double Jeopardy

Carmichael contends Count II alleges a discrete offense which should have been alleged as part of the continuous sexual abuse charged in Count I, and therefore, his conviction for the aggravated sexual assault alleged by Count II is barred by double jeopardy and should be vacated. Carmichael did not file a motion or object when this case was before the trial court that he was ineligible for a separate sentence based on his conviction for aggravated sexual assault. See TEX. R. APP. P. 33.1. Carmichael also did not object to the charge. Nevertheless, Carmichael may raise a double-jeopardy claim that is apparent on the face of the record for the first time on appeal. 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.

The continuous sexual abuse statute provides a defendant may not be convicted of both continuous sexual abuse and of an offense listed as a predicate offense in the statute, unless the predicate offense "occurred outside the period in which the [continuous sexual abuse] offense alleged ... was committed[.]" TEX. PENAL CODE ANN. § 21.02(e)(2) (West 2015). An offense listed under section 21.02(c) is a lesser-included offense of continuous sexual abuse, and is considered a "predicate" offense under the continuous sexual abuse statute. Price v. State , 434 S.W.3d 601, 606 (Tex. Crim. App. 2014) ; Soliz v. State , 353 S.W.3d 850, 854 (Tex. Crim. App. 2011). 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 be also convicted for aggravated sexual assault of the same child if the aggravated sexual assault at issue and the continuous sexual assault both occurred within the same time periods. TEX. PENAL CODE ANN. § 21.02(c)(4) (West 2015); Littrell , 271 S.W.3d at 275–76.

In this case, the offense alleged in Count I charged Carmichael with the continuous sexual abuse of a child from June 1, 2011 through June 14, 2013. Count I alleged six different acts, two committed against AC and four committed against MC. Count II alleged Carmichael committed aggravated sexual assault of the complainant AC on June 15, 2011. The jury found Carmichael guilty of both counts.

The event that gave rise to the conviction of aggravated sexual assault in Count II occurred during the time period of the continuous sexual abuse alleged in Count I. Additionally, aggravated sexual assault of a child is listed as an offense on which a continuous sexual abuse charge can be predicated. Finally, AC is the complainant alleged in both counts. Therefore, this court concludes punishing Carmichael for both continuous sexual abuse and aggravated sexual assault, under the circumstances of this case, results in a double-jeopardy violation.

When an appellant 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 conviction. Bigon v. State , 252 S.W.3d 360, 372 (Tex. Crim. App. 2008). In light of this court's resolution of issue one on double-jeopardy grounds, this court retains the conviction for continuous sexual abuse of a child and sets aside the conviction for aggravated sexual assault of a child.

Issue one is sustained.

Sufficiency of the Evidence

In issue two, Carmichael contends the evidence presented at trial is insufficient to support his conviction for aggravated sexual assault of a child. This court need not reach issue two given the resolution of issue one.

Issue two is overruled.

Admissibility of Witness Testimony

Carmichael alleges the trial court erred by admitting testimony from extraneous-offense complainant DT and Sexual Assault Nurse Examiner Mary Carmen Perusquia. The State responds Carmichael did not object to the testimony of these two witnesses during trial and has failed to preserve the complaints for appellate review.

Standard of Review

An appellate court reviews the trial court's decision on the admissibility of evidence under an abuse of discretion standard. Johnson v. State , 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Id. If the trial court's evidentiary ruling is correct under any applicable theory of law, it will not be disturbed. Id.

To preserve a complaint for appellate review, the complaining party must make a timely objection to the trial court which states the grounds with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. TEX. R. APP. P. 33.1(a)(1). The complaining party must let the trial court know what he wants and why he thinks he is entitled to it, and he must do so clearly enough for the trial court to understand and at a time when the trial court is in a position to do something about it.

Bekendam v. State , 441 S.W.3d 295, 300 (Tex. Crim. App. 2014).

There are, however, two "narrow exceptions" to these preservation requirements. Grado v. State , 445 S.W.3d 736, 739–41 (Tex. Crim. App. 2014) (explaining that even constitutional rights are subject to preservation requirements and that "evidentiary or procedurally based" rights are generally subject to preservation requirements). Neither absolute requirements nor waivable-only rights may be forfeited by a party's inaction in the trial court. See Smith v. State , 463 S.W.3d 890, 895–96 (Tex. Crim. App. 2015) ; Grado , 445 S.W.3d at 739. Absolute requirements include jurisdiction of the person and jurisdiction of the subject matter. Aldrich v. State , 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). Waivable-only rights include "the rights to the assistance of counsel, the right to trial by jury, and a right of appointed counsel to have ten days of trial preparation which a statute specifically made...