Jennings v. State, No. 2-08-145-CR (Tex. App. 6/4/2009)
| Decision Date | 04 June 2009 |
| Docket Number | No. 2-08-145-CR.,2-08-145-CR. |
| Parties | ERIC JENNINGS A/K/A ERIC JEMNNINGS, Appellant, v. THE STATE OF TEXAS, State. |
| Court | Texas Court of Appeals |
Appeal from Criminal District Court No. 3 of Tarrant County.
Panel: WALKER, MCCOY, and MEIER, JJ.
A jury found appellant Eric Jennings a/k/a Eric Jemnnings guilty of aggravated sexual assault of a child (Count I) and indecency with a child—sexual contact (Count II). The jury assessed his punishment at thirty years' confinement for Count I and fifteen years' confinement for Count II, and the trial court sentenced Jennings accordingly, ordering the sentences to run concurrently. In three points, Jennings argues that convictions on both Counts I and II violate his right to be free from double jeopardy and that the trial court erred by overruling his objections to the State's comment on his failure to testify and to the jury charge on punishment. We will affirm.
Jennings lived with his girlfriend Kandice Pierce, her two children M.R. and R.R., and their infant daughter. Early one morning, Pierce was walking past M.R.'s bedroom on her way to the kitchen when she saw a shadow in M.R.'s room. She opened the door to find Jennings standing over M.R.'s bed straightening up the covers. Pierce turned on the light in the bedroom and asked Jennings what he was doing. When Jennings turned around, his erect penis was sticking out of his boxer shorts, and he was sweating. He said, "Oh, sh**, Kandice," and began apologizing, telling her that he was sorry, that he loved them, and that he would not do anything to them. Pierce picked up M.R. and took her to the master bedroom, where she asked M.R. if Jennings had touched her. M.R. told Pierce that Jennings had "touched her poo-poo" and pointed to her female sexual organ.
Pierce took M.R. to the hospital, where pediatric nurse practitioner Sandra Arthur interviewed and examined M.R. M.R. told Arthur that Jennings had licked her "tu-tu," and when asked to identify on a drawing of an anatomically correct girl where he had licked her, M.R. pointed to the female sexual organ. M.R. also told Arthur that Jennings had put his finger on her "tu-tu" and that it hurt. Arthur's physical examination of M.R. did not reveal any evidence of sexual abuse. During the examination, Arthur collected swabs of DNA from M.R.'s vulvar region and inner thighs.
The following day, child forensic interviewer Lindsey Dula interviewed M.R. M.R. told her that Jennings had licked and kissed her "tu-tu." Jennings voluntarily gave Dula a saliva sample. Forensic testing of the DNA on the swab from M.R.'s inner thigh matched Jennings's DNA.
In his first point, Jennings argues that he was improperly convicted of both the greater offense of aggravated sexual assault of a child and the lesser included offense of indecency with a child—sexual contact in violation of double jeopardy.
The indictment charged that Jennings intentionally or knowingly caused the sexual organ of M.R., a child younger than fourteen years of age, to contact Jennings's mouth. The indictment also charged that Jennings intentionally and knowingly engaged in sexual contact with M.R., a child younger than seventeen years of age, by touching her female sexual organ with the intent to arouse or gratify his sexual desire. At the end of the guilt-innocence stage of trial, Jennings asked the trial court to require the State to elect the offense upon which it intended to seek a conviction. The trial court denied his request.
The Double Jeopardy Clause of the United States Constitution provides that no person shall be subjected to twice having life or limb in jeopardy for the same offense. U.S. Const. amend. V. Generally, this clause protects 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. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006). When a defendant is subjected to a single trial, only the last aspect of the protection against multiple punishments is involved. Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990). In order to prevail on a double jeopardy claim, the evidence must show that the two offenses at issue necessarily arose from "one act which could be subject to two different interpretations." Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998).
A person who commits more than one sexual assault against the same complainant may be convicted and punished for each separate act, even if the acts were committed in close temporal proximity. Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999). The statutes do not, however, authorize "`stop-action' prosecutions." Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004). That is, a defendant cannot be convicted for a completed act of sexual assault and also for conduct that is demonstrably part of the commission of the completed act. Id. However, even when two acts are committed in close temporal proximity, the acts still may be separate and distinct acts for double jeopardy purposes. Bottenfield v. State, 77 S.W.3d 349, 358 (Tex. App.-Fort Worth 2002, pet. ref'd), cert. denied, 539 U.S. 916 (2003); Hutchins v. State, 992 S.W.2d 629, 633 (Tex. App.-Austin 1999, pet. ref'd). Thus, depending on the facts of the case, indecency with a child may or may not constitute a lesser included offense of aggravated sexual assault. See Ochoa, 982 S.W.2d at 907-08; Beltran v. State, 30 S.W.3d 532, 534 (Tex. App.-San Antonio 2000, no pet.).
Jennings relies on Ochoa for the proposition that his convictions for aggravated sexual assault and indecency with a child—sexual contact were based on the same act and, thus, violated double jeopardy. See 982 S.W.2d at 906. Like Jennings, Ochoa was indicted for and found guilty of both indecency with a child and aggravated sexual assault. Id. at 905. Both offenses were alleged to have occurred on the same date. Id. The court of criminal appeals held that because the evidence, which consisted of the child's statement that Ochoa "`put his thing in my butt,'" referred to only one incident, Ochoa had committed only one offense. Id. at 907-08. According to the court, Ochoa "committed one act, which could be subject to two different interpretations," but the jury could not convict him of both. Id. at 908.
Unlike Ochoa, the present case is not a situation in which Jennings only "committed one act which could be subject to two different interpretations." Id. at 908. The evidence at trial demonstrated that Jennings had touched and rubbed M.R.'s female sexual organ with his finger and that he had licked her female sexual organ with his tongue. M.R. testified at trial that Jennings had rubbed her "private part" and demonstrated the rubbing action with her hand. She also testified that he had licked her "private part" and demonstrated the licking action on her arm. Arthur testified that M.R. had told her that Jennings had put his finger on her "tu-tu" and that he had licked her "tu-tu," and Dula testified that M.R. told her that Jennings had licked and kissed her "tu-tu."
Although the two acts were committed in close temporal proximity, Jennings's touching and rubbing of M.R.'s female sexual organ with his finger was a separate and distinct act from his licking her female sexual organ with his tongue.2 See, e.g., Bottenfield, 77 S.W.3d at 358 (); Murray v. State, 24 S.W.3d 881, 889 (Tex. App.-Waco 2000, pet. ref'd) (); Hutchins, 992 S.W.2d at 633 (); Wingrove v. State, No. 2-05-00135-CR, 2006 WL 2507433, at *3 (Tex. App.-Fort Worth Aug. 31, 2006, pet. ref'd) () ( evidence that defendant "`touched [victim's] privates'" with his hand supported indecency with a child conviction and evidence that defendant "`touched [victim's] privates'" with his tongue supported separate aggravated sexual assault conviction). Consequently, indecency with a child was not a lesser included offense of aggravated sexual assault based on the facts of this case. See Ochoa, 982 S.W.2d at 907-08. Thus, the State was entitled to seek convictions for both, and Jennings's double jeopardy rights were not violated by his punishment for both offenses. See id. We overrule Jennings's first point.
In his second point, Jennings argues that during closing argument at the punishment stage of trial, the State commented on his failure to testify and that the trial court erred by overruling his objection to this comment. Jennings claims that the prosecutor's comment violated his state and federal constitutional rights against self-incrimination and article 38.08 of the code of criminal procedure. See U.S. Const. amend V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005).
The defense called five witnesses at the punishment stage of trial. During cross-examination of each defense witness, the State asked whether Jennings had taken any responsibility for his actions, whether he had shown any remorse, or whether he had expressed that he felt bad about the incident. Each witness testified that he had not. During the State's closing argument, the prosecutor stated,
Every single defense witness...
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