Hawkins v. State, 11-15-00106-CR
| Citation | 521 S.W.3d 411 |
| Decision Date | 25 May 2017 |
| Docket Number | No. 11-15-00106-CR,11-15-00106-CR |
| Parties | Steven Dale HAWKINS, Appellant v. The STATE of Texas, Appellee |
| Court | Court of Appeals of Texas |
Arthur Aguilar, Jr., Lubbock, TX, for Appellant.
Michael S. Munk, District Attorney, Lamesa, TX, for Appellee.
Panel consists of: Wright, C.J., Willson, J., and Bailey, J.
In 2003,1 the jury convicted Steven Dale Hawkins of one count of aggravated sexual assault (Count One), three counts of indecency with a child by contact (Counts Two, Four, and Six), and three counts of indecency with a child by exposure (Counts Three, Five, and Seven). The jury assessed his punishment at confinement for seventy-five years in the Institutional Division of the Texas Department of Criminal Justice on the aggravated sexual assault conviction. On each of the three convictions for indecency with a child by contact, the jury assessed Appellant's punishment at confinement for a term of twenty years. On each of the three convictions for indecency with a child by exposure, the jury assessed Appellant's punishment at confinement for ten years. Furthermore, the trial court ordered that the twenty-year sentences for Counts Four and Six are to run consecutively to each other and consecutively to the seventy-five year sentence for Count One.
In three issues on appeal, Appellant contends that (1) the trial court abused its discretion when it denied Appellant's motion to suppress his statement, (2) Appellant's double jeopardy rights were violated as a result of his convictions on Counts Five and Seven, and (3) the evidence was legally insufficient to support Appellant's convictions for Counts Five and Seven. We affirm.
The victim, K.M., is Appellant's niece by marriage. In November 2001, when K.M. was ten years old, K.M.'s mother abandoned her. K.M. and her two brothers moved in with their aunt, Melissa Linzy. Appellant was Linzy's husband. Linzy and Appellant had three children together. Between November 2001 and February 2003, Appellant, Linzy, K.M., K.M.'s two brothers, and K.M.'s three cousins were all living together in a three-bedroom mobile home in Seminole.
When K.M. was eleven years old, Appellant began to abuse her. K.M. described a series of incidents that occurred over the course of a year. K.M. testified that Appellant came into her bedroom while she was lying in bed. Appellant asked K.M. to put his "private" in her mouth, and she did so. K.M. testified that this happened "a lot of other times."
K.M. testified that, while she was sitting on the couch watching cartoons, Appellant asked her to rub his feet. K.M. complied. While K.M. was rubbing Appellant's feet, Appellant asked K.M. to rub his "private." K.M. again complied.
K.M. testified that an incident took place in the laundry room. Appellant put his "private" in K.M.'s mouth. She also testified that Appellant "put his private in [hers]." K.M. again stated that she saw Appellant's "private" "a lot of times" and that Appellant made her touch his "private" a lot.
Next, K.M. testified that she was sitting on the couch playing Nintendo when Appellant put K.M.'s hand on Appellant's "private." Finally, K.M. testified that she was sitting outside in the car with Appellant when Appellant put his "private" in her mouth.
In December 2002, K.M. approached Linzy and told her about the abuse. Linzy told Appellant about K.M.'s outcry, and they agreed to tell the police. One and one-half weeks later, on January 2, 2003, Linzy took K.M. to the police department. Linzy told Appellant that she and K.M. were going to talk to the police. At the police department, Linzy told Officers Ted Wadsek and Chad Hallum about K.M.'s outcry.
Officers Wadsek and Hallum accompanied Linzy and K.M. back to their residence. Officer Wadsek was in uniform and drove a marked patrol car, and Officer Hallum was in plain clothes and drove an unmarked patrol car. Officer Hallum followed Linzy into the house, while Officer Wadsek remained outside with K.M.
Once inside the house, Officer Hallum asked Appellant to come to the police department to talk to him. Appellant agreed. Officer Hallum did not tell Appellant that he was under arrest and did not place Appellant in handcuffs. At the police department, Officer Hallum read Appellant the Miranda2 warnings and asked Appellant if he would like to "tell his side of the story." Appellant waived his Miranda rights and gave a statement to Officer Hallum.
Appellant described three separate occasions where he sexually abused K.M. First, Appellant stated that, eight months prior to giving his statement, he and K.M. were sitting on the couch when Appellant asked K.M. to rub his feet. While K.M. was rubbing Appellant's feet, Appellant asked K.M. to rub his "stuff." K.M. complied with Appellant's request.
Second, Appellant described an incident in the laundry room that occurred a couple months later. Appellant stated that, over the course of several days, he twice asked K.M. to suck his penis, and K.M. told him no. Finally, Appellant asked K.M. a third time, and she complied.
Third, Appellant stated that, at the end of December 2002, he was sitting in a chair in the living room while the children were in another room playing. Appellant called K.M. into the living room and asked her to rub his penis. K.M. complied. After Appellant gave his statement, Officer Hallum dropped Appellant off at a friend's house.
In his second issue, Appellant contends that his convictions for Counts Five and Seven constituted double jeopardy violations. Counts Five and Seven alleged indecency with a child by exposure. According to Appellant, "[t]he jury appears to have convicted appellant [of Counts Five and Seven] on the same evidence as the other Counts [for indecency by contact and aggravated sexual assault]." Appellant contends that Counts Five and Seven are "subsumed" by the other counts and that punishing Appellant for Counts Five and Seven violates his protection from double jeopardy.
We note at the outset that Appellant did not raise his double jeopardy claim in the trial court. Because of the fundamental nature of the double jeopardy protections, however, a double jeopardy claim may be raised for the first time on appeal or on collateral attack if two conditions are met: (1) the undisputed facts show that the double jeopardy violation is clearly apparent on the face of the record and (2) when enforcement of the usual rules of procedural default serves no legitimate state interest. See Gonzalez v. State , 8 S.W.3d 640, 643–46 (Tex. Crim. App. 2000). In this case, the record is fully developed for determining whether Appellant's double jeopardy protections were violated, and no legitimate state interests would be served by not addressing Appellant's claim. See Ex parte Denton , 399 S.W.3d 540, 544–45 (Tex. Crim. App. 2013).
Under the United States Constitution, the Double Jeopardy Clause provides, in part, that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST . amend V. "The Double Jeopardy Clause protects criminal defendants from three things: 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." Ex parte Milner , 394 S.W.3d 502, 506 (Tex. Crim. App. 2013) (citing Brown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ). Since Appellant's convictions stem from a single indictment and a single trial, his double jeopardy claim involves the third category of the above-listed protections—the protection from multiple punishments for the same offense. This protection prevents a court from prescribing greater punishment than the legislature intended. Ex parte Benson , 459 S.W.3d 67, 71 (Tex. Crim. App. 2015).
On several recent occasions, the Texas Court of Criminal Appeals has addressed the double jeopardy implications of sexual misconduct cases. See Speights v. State , 464 S.W.3d 719 (Tex. Crim. App. 2015) ; Maldonado v. State , 461 S.W.3d 144 (Tex. Crim. App. 2015) ; Aekins v. State , 447 S.W.3d 270 (Tex. Crim. App. 2014) ; Loving v. State , 401 S.W.3d 642 (Tex. Crim. App. 2013) ; Patterson v. State , 152 S.W.3d 88 (Tex. Crim. App. 2004). We note at the outset that all of these opinions were issued after the trial in this case in 2003. In Patterson , the first opinion in this series of cases, the Court of Criminal Appeals addressed whether indecency by exposure and indecency by contact may be "subsumed" by a penetration offense when the offenses are committed as a single act. 152 S.W.3d at 92 ; see Maldonado , 461 S.W.3d at 145–47 ( decision in Patterson ). This concept is referred to as the "subsumption theory" or the "subsumption doctrine." Maldonado , 461 S.W.3d at 145–47. Appellant relies on Patterson to assert that his convictions for Counts Five and Seven are subsumed by his convictions for Counts Four and Six. In its subsequent opinions, the Court of Criminal Appeals analyzed the facts of each case to determine if Patterson 's subsumption doctrine applied. The most recent cases in this series are Speights and Maldonado . Under each of these cases, we conclude that Appellant's convictions for indecency by exposure under Counts Five and Seven are not subsumed by his convictions for indecency by contact under Counts Four and Six.
Speights involved a defendant convicted of indecency by contact and indecency by exposure. 464 S.W.3d at 720. At issue in Speights was whether the defendant's conviction for indecency by exposure was subsumed by his conviction for indecency by contact. Id. Thus, from the perspective of the nature of the charges at issue, Speights is similar to the present case because Appellant is asserting that two of his convictions for indecency by exposure are subsumed by two of his convictions for indecency by contact. In reliance upon...
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