Chafin v. State

• Citation: 95 S.W.3d 549
• Decision Date: 12 December 2002
• Docket Number: No. 03-01-00493-CR.,03-01-00493-CR.
• Parties: Dennis Drew CHAFIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

95 S.W.3d 549

Dennis Drew CHAFIN, Appellant, v. The STATE of Texas, Appellee.

No. 03-01-00493-CR.

Court of Appeals of Texas, Austin.

December 12, 2002.

Rehearing Overruled February 21, 2003.

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Mark Stevens, Law Office of Mark Stevens, San Antonio, for appellant.

Michael S. Wenk, Criminal Dist. Atty., San Marcos, for appellee.

Before Justices B.A. SMITH, YEAKEL and ONION.^*

JOHN F. ONION, JR., Justice (Retired).

May a trial court accept a jury's verdict at the guilt-innocence stage of a trial and then sua sponte reform the verdict at the penalty stage and instruct the jury to punish for a different offense? The answer is no. Does it matter that the original verdict was based on alleged conduct that was not a crime? The answer is still no.

Appellant Dennis Drew Chafin appeals his five convictions for the second degree felony offense of indecency with a child by contact. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3615 (Tex. Pen.Code Ann. § 21.11(a)(1), since amended). The jury found appellant guilty of aggravated sexual assault of a child in one count and of indecency with a child in four counts. In accordance with the trial court instructions, the jury assessed punishment for five counts of indecency with a child at eight years' imprisonment for each count.

We will reverse the one conviction for indecency with a child (reformed sua sponte by the trial court from a conviction for aggravated sexual assault of a child) and dismiss because the conduct alleged in the indictment was not a crime at the time of the alleged commission. Because the evidence is legally insufficient to support the other four convictions, we will reverse the judgment and order acquittals.

Points of Error

Appellant advances sixteen points of error. In four points of error, appellant complains that he was charged with conduct that did not constitute the crime of aggravated sexual assault of a child, that the trial court erred in overruling his mistrial motion, and that in the process of the trial he was denied due process of law and due course of law in violation of the federal and state constitutions. Eight points of error challenge the legal and factual sufficiency of the evidence to sustain four convictions of indecency with a child. In view of our disposition, we will not reach appellant's other points of error relating to evidentiary rulings and a jury charge on parole.

Background

The eight-count indictment charged appellant with four counts of aggravated sexual assault of a child and four counts of indecency with a child by contact. Before trial, the State abandoned and waived counts I, III, and IV of the indictment, each alleging the offense of aggravated sexual assault of a child. The trial court granted the State's request to renumber the counts remaining in the indictment. Appellant did not object. There was no physical alteration on the face of the indictment. It appears that count II of the indictment was renumbered count I, and counts V, VI, VII, and VIII became counts II, III, IV, and V. This renumbering was used during trial and in the briefs on appeal.¹

Facts

The complainant, C. H., testified at the August 2001 trial that she was sixteen years old and a high school cheerleader. She related that appellant was her maternal aunt's former husband who had periodically molested her since 1993 when she was about seven or eight years old. The complainant did not live with appellant and his wife, but claimed that the incidents occurred on visits to appellant's home or at family gatherings. She acknowledged that she did not make an outcry to an adult until the summer of 1999 when she talked to an older stepcousin, H. H., who advised her to tell her mother. The complainant admitted that she was not clear on the dates of the occurrences unless she could tie the date to a particular event that she could remember — such as the videotaping of the birth of kittens in Hidalgo County in 1993.² She testified about unadjudicated offenses in Hidalgo and Uvalde Counties in 1993 and other offenses at unspecified times after appellant had moved to Hays County. As to the subject matter of count I, it was established that in the summer of 1996 the complainant had come to Hays County for horseback riding classes; she spent the night at appellant's home. She related that after she went to bed, appellant came into the room and placed his penis to her mouth, and that she clinched her teeth and refused to open her mouth. There was no penetration. Appellant left the room.

Appellant testified and denied each and every charge. His former wife, Julianne, was married to him at the pertinent times. She testified that she was unaware of any such conduct as alleged and was surprised at the outcry of her niece in 1999. She testified to the divorce and the turmoil within the family resulting from the accusations.

Re: Procedure — Count I

In light of appellant's contentions that he was improperly charged and convicted of conduct that was not a crime, we examine the procedure regarding the renumbered count I. The indictment was presented January 6, 2000. Count I alleged:

Dennis Drew Chafin hereinafter styled Defendant, on or about the 1st day of July, A.D., 1996, and before the presentment of this indictment, in the county and state aforesaid, did then and there knowingly and intentionally sexually assault [C. H.], by then and there knowingly and intentionally causing his male sexual organ to contact the mouth of the aforesaid [C.H.] who was then and there a child younger than 14 years of age and not the spouse of the said Defendant.

The undisputed evidence showed that the conduct occurred in the summer of 1996. Tracking the indictment, the trial court submitted count I to the jury. There was no submission of a lesser included offense nor a request by either party for such a submission. The jury returned a general verdict finding appellant guilty "as alleged in Count I of the indictment." This verdict at the guilt-innocence stage of the trial was accepted by the trial court and filed.

At the penalty stage of the trial, the trial court announced that after "some research" and because of the "time frame" it would, saga sponte, reform the jury's verdict on count I to show a conviction for the "lesser included offense of indecency with a child." The State expressed its concern, and appellant's motion for a mistrial was overruled. The jury was informed that the punishment hearing would proceed with count I being a conviction for the "lesser included offense of indecency with a child." The trial court in its charge on punishment authorized punishment on count I for indecency with a child, a second-degree felony. See Tex. Pen.Code Ann. § 12.33 (West 1994) (two to twenty years' imprisonment and a fine up to $10,000). The jury was told that appellant had been "found guilty by the jury of the offense of indecency with a child (5 counts)." In accordance with the instructions at the penalty stage of the trial, the jury's punishment verdict reflected that it had found appellant guilty of indecency with a child "as alleged in count I of the indictment" and assessed his punishment at eight years' imprisonment. No fine was assessed.

The formal judgment and sentence reflected the jury's original verdict on count I at the guilt-innocence stage of the trial and then added:

Subsequent to the jury's verdict as to guilt on Count I, the Court held that the evidence was insufficient to sustain a conviction as to the offense of Aggravated Sexual Assault, and the conviction in Count I was reformed to reflect a conviction for the lesser-included offense of indecency with a child.

Discussion

The indictment appears valid on its face, and it alleged that the offense occurred "on or about July 1, 1996." The prosecution, however, is not bound by the "on or about" date on which the offense is alleged to have been committed so long as the date proved is prior to the date of the indictment's presentment and within the statute of limitations period. See Tex. Code Crim. Proc. Ann. art. 21.02(6) (West 1989); Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997); Walker v. State, 4 S.W.3d 98, 104 (Tex.App.-Waco 1999, pet. ref'd); Berrios-Torres v. State, 802 S.W.2d 91, 95 n. 2 (Tex.App.-Austin 1990, pet. ref'd). The statute of limitations for the offense of aggravated sexual assault of a child is ten years from the eighteenth birthday of the victim of the offense. See Tex.Code Crim. Proc. Ann. art. 12.01(5)(B) (West Supp.2003).

Prior to September 1, 1997, section 22.02(a)(1)(B) of the Texas Penal Code (aggravated sexual assault) did not criminalize the act of causing the mouth of a child to contact or touch the sexual organ of another person, including the actor. See Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 7, 1995 Tex. Gen. Laws 2734, 2737 (Tex. Pen. Code Ann. § 22.021(a)(1)(B), since amended). Effective September 1, 1997, section 22.021 was amended to broaden the definition of aggravated sexual assault of a child to include, as it still does, the act of "caus[ing] the mouth of a child to contact the sexual organ of another person including the actor." Act of May 28, 1997, 75th Leg., R.S., ch. 1286, § 2, 1997 Tex. Gen. Laws 4911; see Tex. Pen.Code Ann. § 22.021(a)(1)(B)(v) (West Supp.2003).

The undisputed proof at the trial showed that the conduct alleged occurred in the summer of 1996 when the conduct was not a crime. The State does not claim otherwise.

Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute.

Tex. Pen.Code Arm. § 1.03(a) (West 1994). Unless the conduct of the accused has been made a penal offense by statute, he cannot be legally convicted. See Banti v. State, 163 Tex.Crim. 89, 289 S.W.2d 244, 247 (1956). A...