David v. State, 05-90-00477-CR

• Decision Date: 10 April 1991
• Docket Number: No. 05-90-00477-CR,05-90-00477-CR
• Citation: 808 S.W.2d 239
• Parties: Gerald Yale DAVID, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 239

808 S.W.2d 239

Gerald Yale DAVID, Appellant, v. The STATE of Texas, Appellee.

No. 05-90-00477-CR.

Court of Appeals of Texas,

Dallas.

April 10, 1991.

Lawrence B. Mitchell, Dallas, for appellant.

Patricia Poppoff Noble, Dallas, for appellee.

Before ROWE, LAGARDE and OVARD, JJ.

OPINION

OVARD, Justice.

Gerald Yale David appeals his conviction for aggravated sexual assault. Upon his open plea of guilty, the trial court found him guilty and assessed punishment at forty-five years' confinement. The single issue we are called upon to determine is whether his conviction and sentence unconstitutionally placed David twice in jeopardy for the same offense. Because we determine that this conviction was for an offense requiring additional proof of a different essential element from his other conviction, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

In a bench trial, David pleaded guilty to three indictments charging him with aggravated sexual assault of a child and one indictment charging indecency with a child. At the trial's conclusion, the trial court found him guilty in all four cases. His punishment was assessed at forty-five years' confinement in each aggravated sexual assault case and twenty years' confinement in the indecency with a child cause. The sentences were all pronounced to run concurrently.

The indictment in the present case, under cause number F89-79719-TL, charged that David, on or about June 30, 1988, did knowingly and intentionally cause the penetration of the female sexual organ of D__ H__, a child, by his sexual organ. Another aggravated sexual assault conviction was in cause number F88-91805-NL. In that case, the indictment charged that David, on or about June 30, 1988, did knowingly and intentionally cause the penetration of the mouth of D__ H__, a child, by the sexual organ of the defendant. His other two convictions are not pertinent to his complaint on appeal.

At trial, David's judicial confessions were admitted into evidence. In those confessions he admitted to committing all offenses as they were charged in each indictment. Additionally, the State elicited testimony from D__ H__'s brother that he saw David "hunching" D__ H__ on June 30, 1988 in a motel room. Another witness also testified about observing the vaginal penetration. D__ H__ did not testify.

David testified that the only sexual activity he had with D__ H__ occurred on June 30, 1988. He denied actual penetration of her sexual organ and equivocated as to his sexual behavior with the child. There was no testimony by any witness concerning David's penetration of her mouth. His signed judicial confession was the only evidence that proved that offense.

DOUBLE JEOPARDY COMPLAINT

In his single point, David contends the two indictments charging aggravated sexual assault of D__ H__ on the same date, June 30, 1988, are actually charging the same offense committed by different methods. He argues that his penetration of D__ H__'s sexual organ and his penetration of her mouth by his sexual organ are merely different ways he used to perpetrate a solitary offense of aggravated sexual assault on D__ H__.

David relies on the Fifth and Fourteenth Amendments to the United States Constitution article I, section fourteen of the Texas Constitution, and article 1.10 of the Texas Code of Criminal Procedure, all of which he points out protect individuals from twice being placed in jeopardy for the same offense. See U.S. CONST. amends. V, XIV; TEX. CONST. art. I, § 14; TEX.CODE CRIM.PROC.ANN. art. 1.10 (Vernon 1977). He begins his argument by analogizing his position to a hypothetical murder case where a defendant is charged, by two indictments, with causing the death of the same individual. One indictment, he hypothesizes, alleges the murder was caused by shooting with a gun, and the other by stabbing with a knife. Obviously, he emphasizes, only one conviction for murder could be obtained without violating double jeopardy protection.

Next he directs us to cases that admittedly are dissimilar from his case but which he feels support his position. These include a case holding that a person tried and convicted of an offense cannot later be tried a second time for an incident included within the same proof necessary to prove the first conviction. May v. State, 726 S.W.2d 573, 575 (Tex.Crim.App.1987) (double jeopardy protection prohibited a second trial for prosecution of driving while intoxicated, arising out of the same facts previously relied upon for an involuntary manslaughter conviction).

He points to statutes structured similarly to the aggravated sexual assault statute, such as the DWI law. He goes on to explain, show that the focal point should be that these statutes indicate only one offense may be committed, albeit in a variety of ways. He maintains that the Court of Criminal Appeals recognized such by holding that, when a statute provides for more than one way for a defendant to commit an act, the State must allege the manner and means it seeks to establish either separately or in disjunctive combination. State v. Winskey, 790 S.W.2d 641, 642 (Tex.Crim.App.1990) (an information charging a DWI offense may charge definitions of intoxication in the disjunctive, but it can result in only one conviction).

From these and other references, he concludes that the State violated his right to be protected against double jeopardy. He asserts that this violation occurred because the two convictions for aggravated sexual assault of D__ H__ resulted from his commission of a single offense committed by two different ways as charged in two individual indictments.

LEGAL PRINCIPLES

As both sides recognize, constitutional protection against double jeopardy provides protection against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); Ex parte Peterson, 738 S.W.2d 688, 689 (Tex.Crim.App.1987). When a defendant is subjected to a single trial, only the third aspect of the protection, against multiple punishments, is involved. Ex parte Herron, 790 S.W.2d 623, 623-24 (Tex.Crim.App.1990).

Constitutional provisions speak of double jeopardy in terms of the "same offense" rather than "same transaction." In order to determine whether a defendant has been subjected to double jeopardy, we must apply a test for defining what constitutes the "same offense." Ex parte McWilliams, 634 S.W.2d 815, 823-24 (Tex.Crim.App.) (on reh'g), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982). The leading case in the area of double jeopardy protection against multiple punishments is Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Blockburger set out the test as follows:

[W]here 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 an additional fact which the other does not.

Id., at 304, 52 S.Ct. at 182. In Blockburger, the United States Supreme Court held that consecutive sentences under different sections of narcotic laws did not violate double jeopardy protection even though only one sale was consummated because each offense required proof of a different element. Id. It is the convicted party's burden to establish facts necessary to demonstrate a double jeopardy violation. Wockenfuss v. State, 521 S.W.2d 630, 631 (Tex.Crim.App.1975); Guzman v. State, 732 S.W.2d 683, 686 (Tex.App.--Corpus Christi 1987, no pet.).

When reviewing a claim that a defendant's multiple sentences received in a single trial violate double jeopardy protections, "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." Ex parte Herron, 790 S.W.2d at 625 (citing Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981)). This standard is applicable to statutory requirements that govern a trial court's sentencing decision and does not violate the double jeopardy clause. See Ex parte Herron, 790 S.W.2d at 625.

LEGAL ANALYSIS

At the outset, we note that each of the forty-five year sentences involving the aggravated sexual assault of D__ H__ runs concurrently with the other. Blockburger indicates double jeopardy protection applies in multiple punishments for consecutive sentences derived from a single trial for the "same offense." See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. Although not specifically addressing concurrent sentences, logically such sentences do not twice jeopardize or put a defendant in danger of either additional or increased punishment. ¹ We are unable to find cases confronting this specific issue, but we determine that where, as here, the defendant is sentenced to two identical punishments that are pronounced to run concurrently, there was no additional punishment about which he could complain. Thus, no double jeopardy violation occurred.

Next, as we noted, it is David's burden to bring forward a record of facts that demonstrate how he was twice placed in jeopardy for the same offense. See Wockenfuss, 521 S.W.2d at 631; Guzman, 732 S.W.2d at 686. At trial, even though each offense may require substantial overlap in proof, it is the separate statutory elements of each offense that must be examined under the Blockburger test. Ex parte McWilliams, 634 S.W.2d at 824 (citing Brown v. Alabama, 619 F.2d 376 (5th Cir.1980)). Where each offense requires proof of an additional fact to prove an element that the other does not, multiple prosecution is not barred. See Ex parte McWilliams, 634 S.W.2d at 824; Ex parte Joseph, 558 S.W.2d 891, 893 (Tex.Crim.App.1977) (prosecution for sodomy instituted after conviction for rape of...