Elder v. State

• Decision Date: 12 February 2004
• Docket Number: No. 2-02-248-CR.,2-02-248-CR.
• Citation: 132 S.W.3d 20
• Parties: Danny Howard ELDER, Appellant v. The STATE of Texas, State.
• Court: Texas Court of Appeals

132 S.W.3d 20

Danny Howard ELDER, Appellant v. The STATE of Texas, State.

No. 2-02-248-CR.

Court of Appeals of Texas, Fort Worth.

February 12, 2004.

Tim B. Copeland, Abilene, for appellant.

Stephen E. Bristow, Dist. Atty., Graham, for appellee.

PANEL F: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

OPINION

JOHN CAYCE, Chief Justice.

Danny Howard Elder appeals his conviction for aggravated sexual assault of a child. In four points, he complains that his trial for the charged offenses violated the Double Jeopardy Clause, that the evidence is legally and factually insufficient to sustain his conviction, and that the trial court erroneously admitted hearsay evidence from a person who was not an outcry witness. We will affirm in part and vacate and dismiss in part as jeopardy barred.

Background Facts & Procedural History

Appellant was originally indicted for indecency with a child (K.H.) by contact that allegedly occurred on November 21, 1998. After a jury was impaneled and trial had begun, the trial court granted appellant a three-week continuance due to a medical emergency. The jury remained empaneled. On the day trial was scheduled to resume, the State indicted appellant in the present case for aggravated sexual assault of K.H. on November 21, 1998. A week later, the State moved to dismiss the first case based on excess publicity, and the trial court granted the motion and dismissed the jury.

Before trial in the present case, appellant filed a special plea of double jeopardy, seeking dismissal of the aggravated sexual assault charges based on double jeopardy grounds. The trial court overruled appellant's plea. After a trial, the jury found appellant guilty of both counts and assessed his punishment at life imprisonment and a $10,000 fine for each offense.

Double Jeopardy

In his first point, appellant contends that his trial for aggravated sexual assault was jeopardy barred because the indecency by contact offenses, which were dismissed after jeopardy had attached, were lesser included offenses of the aggravated sexual assault offenses charged in this case. The State concedes that jeopardy had attached as to the indecency offenses, but asserts that those offenses were different from the aggravated sexual assault offenses.

The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against both successive punishments and successive prosecutions for the same offense. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993).¹ Greater inclusive and lesser included offenses can be the same offense for jeopardy purposes. Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977); Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1994). Thus, where the evidence shows that the defendant committed only one act that could be used to prove both a greater inclusive and a lesser included offense, the defendant cannot be convicted of both offenses. Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim.App.1998). Indecency with a child by touching the child's genitals can be a lesser included offense of aggravated sexual assault of a child by penetrating the child's sexual organ if the same act is used to prove both the touching and the penetration. Id.; DeMoss v. State, 12 S.W.3d 553, 561 (Tex.App.-San Antonio 1999, pet. ref'd); Hutchins v. State, 992 S.W.2d 629, 632 (Tex.App.-Austin 1999, pet. ref'd, untimely filed).

The record in this case shows that appellant was charged with violating four different statutory provisions on November 21, 1998: two in the first indictment (indecency by contact) and two in the second (aggravated sexual assault). The indecency offenses required proof of the following facts:

• appellant engaged in sexual contact with K.H. by touching her genitals (count one) and breast (count two);

• with intent to arouse or gratify the sexual desire of any person; and

• K.H. was a child under 17 and not appellant's spouse.

See Tex. Penal Code Ann. § 21.11(a)(1), (c) (Vernon 2003).

The aggravated sexual assault offenses required proof of the following facts:

• appellant intentionally or knowingly;

• caused the penetration of K.H.'s mouth by appellant's sexual organ (count one) and the penetration of K.H.'s sexual organ by appellant's mouth (count two); and

• K.H. was a child under 14 and not appellant's spouse.

See id. § 22.021(a)(1)(B)(i)-(ii), (2)(B), (b) (Vernon Supp.2004).

The record also shows that the State used the same acts to prove both the first indecency by contact count and the second aggravated sexual assault count. At the first trial, Patricia Remington, a case manager, testified that K.H. told her appellant had touched her vaginal area with his hand and penis and had also licked her vaginal area. According to Remington, K.H. said that these things occurred in a van at appellant's house, once when she was wearing a shirt and shorts and another time when she was wearing a blue dress with a watering can on it. Remington testified that K.H. said these things happened in January 1999, but that facts later developed showing that they may have occurred in November 1998.

At the second trial (this case), Remington again testified that K.H. told her appellant had licked her vaginal area while in the van and that K.H. had described two incidents—one when she was wearing a blue dress with a watering can on it and one when she was wearing a shirt and pants or shorts K.H. testified that appellant had touched her on her vaginal area with his hand and mouth.² She testified that the first time it happened she was wearing a dress, and the second time she was wearing a shirt and pants. K.H.'s mother testified that the incidents occurred in November 1998.

Based on this record, we hold that the first indecency by contact count was a lesser included offense of the second aggravated sexual assault count; the State clearly used the same acts by appellant to prove both offenses. Further, touching the female sexual organ with the intent to arouse or gratify sexual desire is a lesser included species of conduct of the intentional or knowing penetration of the female sexual organ. Ochoa, 982 S.W.2d at 910 (Keller, J., concurring);³ accord Cunningham v. State, 726 S.W.2d 151, 155 (Tex.Crim.App.1987) (noting that, while aggravated sexual assault statute does not require specific intent to arouse or gratify sexual desire, the legislature has recognized that penetration may show such intent). Therefore, the two offenses were the same offense for double jeopardy purposes, and the State was not entitled to seek convictions for both. Brown, 432 U.S. at 169, 97 S.Ct. at 2227; Ochoa, 982 S.W.2d at 908; Parrish, 869 S.W.2d at 354. Further, because appellant neither requested nor consented⁴ to the dismissal of the first indictment, he could not later be prosecuted for the second aggravated sexual assault count unless dismissal of the first indictment was based on manifest necessity. Chvojka v. State, 582 S.W.2d 828, 830 (Tex.Crim.App. [Panel Op.] 1979). There is no evidence in the record that the dismissal here was manifestly necessary;⁵ accordingly, appellant's double jeopardy rights were violated when he was prosecuted for the second aggravated sexual assault offense.

Appellant's double jeopardy rights were not, however, violated by the prosecution for the first aggravated sexual assault offense. The first count of aggravated sexual assault alleged that appellant had caused the penetration of K.H.'s mouth by appellant's sexual organ. Neither of the indecency counts alleged in the first indictment—touching K.H.'s genitals or breast—is a lesser included offense of this type of aggravated sexual assault, and the State did not present any evidence to support this count until the second trial. See Vick v. State, 991 S.W.2d 830, 833 (Tex.Crim.App.1999) (holding that, where indictment alleged separate and distinct violations of aggravated sexual assault statute that could only be proven by different conduct, offenses were separate and distinct for double jeopardy purposes); accord Lopez v. State, 108 S.W.3d 293, 300 n. 28 (Tex.Crim.App.2003) (noting that actor can be prosecuted for separate violations of sexual assault statute based on different acts that occur in same transaction).

For all of the foregoing reasons, we sustain appellant's first point as it pertains to his prosecution for the second aggravated sexual assault count—penetration of K.H.'s sexual organ by his mouth. We overrule the remainder of appellant's first point.

Legal & Factual Sufficiency

In his second and third points, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for aggravated sexual assault. He contends that the State failed to prove beyond a reasonable doubt that he caused the penetration of K.H.'s mouth by his sexual organ,⁶ because the only testimony concerning penetration was equivocal or in response to leading questions from the State. Appellant also infers that K.H.'s testimony was unreliable because the incident was not reported for several months and K.H. remembered appellant driving her home after the assault, but other witnesses testified that appellant's wife drove her home.

K.H.'s mother, Kayla, explained that she did not report the assault because she "had no intentions of putting [K.H.] through all this crap." Eventually, however, K.H.'s maternal grandmother, who was appellant's neighbor, reported the assault because appellant allegedly told her he was building a bomb in order to kill Kayla.

Remington testified that K.H. told her "that [appellant]—that he had put his— and I believe she said weiner in her mouth. And I asked her what that was like and she said like a big fat worm." Initially, K.H. testified that appellant touched her only with his hand. In response to the prosecutor's questioning, however, K.H. testified that appellant put his "weiner," which was "soft," into her mouth. On...