LANCASTER v. The State of Tex.

• Decision Date: 26 May 2010
• Docket Number: No. 10-08-00026-CR,10-09-00156-CR.,10-08-00058-CR,10-08-00026-CR
• Parties: Brian LANCASTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

324 S.W.3d 217

Brian LANCASTER, Appellant,

v.The STATE of Texas, Appellee.

Nos. 10-08-00026-CR, 10-08-00058-CR, 10-09-00156-CR.

Court of Appeals of Texas,Waco.

May 26, 2010.Discretionary Review Refused Oct. 13, 2010.

COPYRIGHT MATERIAL OMITTED.

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Richard E. Wetzel, Austin, for Appellant.

Bill R. Turner, Brazos County Dist. Atty., Bryan, for Appellee.

Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.

OPINION

FELIPE REYNA, Justice.

Brian Lancaster pleaded guilty in the underlying cases to criminal solicitation of a minor, indecency with a child by exposure, and five counts of indecency with a child by contact. ¹ In a separate trial, “not guilty” pleas were entered on Lancaster's behalf to two counts of promotion of child pornography. ² On the charges to which Lancaster pleaded guilty, the jury found him guilty as instructed by the court and assessed his punishment at ten years' imprisonment on the criminal solicitation and indecency by exposure charges and twenty years' imprisonment on the indecency by contact charges. In the other trial, the jury convicted Lancaster of both counts of promotion of child pornography and assessed his punishment at twenty years' imprisonment for each count. ³ The juries in both trials assessed a $10,000 fine for each of the nine convictions.

Lancaster contends in what amounts to seven points ⁴ that:

(1) his convictions for four of the five indecency by contact charges and for both promotion of child pornography charges violate his double jeopardy rights;

(2) prosecution on these same four indecency by contact charges and for both promotion of child pornography charges was improper because the conduct relied on to prove these charges was subsumed by the conduct relied on to prove the other charge of indecency by contact;

(3) prosecution for criminal solicitation was improper because the conduct relied on to prove this charge was subsumed by the conduct relied on to prove indecency by exposure;

(4) the court abused its discretion by overruling his objection that the prosecutor's argument during the punishment phase struck at Lancaster over the shoulders of defense counsel;

(5) his right to due process was violated by the court's entry of judgments nunc pro tunc;

(6) the court erred by altering his sentences after he had commenced serving them; and:

(7) the court abused its discretion by refusing to permit him to ask during voir dire whether the jurors could be fair and impartial in a hypothetical case involving sexual molestation of children.

We will affirm.

Double Jeopardy

Lancaster contends in his first point ⁵ that his conviction and punishment for all but one count of indecency with a child by contact and his conviction and punishment for both counts of promotion of child pornography violate the prohibition against double jeopardy.

Specifically, he argues that, because of his conviction and punishment for indecency by contact under count 2 of trial court cause no. 07-01489-CRF-272 (appellate cause no. 10-08-00058-CR), his convictions and punishment for the other two counts of indecency by contact in the same case and his convictions and punishment for two counts of indecency by contact in trial court cause no. 07-01490-CRF-272 (appellate cause no. 10-08-00026-CR) and for two counts of promotion of child pornography in the same case are all jeopardy-barred. He avers that this is a multiple-punishments claim.

[1] Before we reach the jeopardy issue however, we note that Lancaster did not raise this objection at trial. Nevertheless, he will be excused from the ordinary rules of procedural default “when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000); Hanson v. State, 180 S.W.3d 726, 732 (Tex.App.-Waco 2005, no pet.).

[2] Here, because we have a complete record, “it can be determined from undisputed facts clearly apparent on the face of the record” whether there has been a jeopardy violation. Hanson, 180 S.W.3d at 732 (citing Murray v. State, 24 S.W.3d 881, 889 (Tex.App.-Waco 2000, pet. ref'd)).

There are three distinct types of double jeopardy claims: (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. A multiple punishments claim can arise in two contexts:

(1) the lesser-included offense context, in which the same conduct is punished twice; once for the basic conduct, and a second time for that same conduct plus more (for example, attempted assault of Y and assault of Y; assault of X and aggravated assault of X); and

(2) punishing the same criminal act twice under two distinct statutes when the legislature intended the conduct to be punished only once (for example, causing a single death by committing both intoxication manslaughter and involuntary manslaughter).

Langs v. State, 183 S.W.3d 680, 685 (Tex.Crim.App.2006) (footnotes omitted).

[3] Lancaster's multiple punishments claim arises under the second alternative, namely, being punished more than once for the same criminal act when the legislature intended the conduct to be punished only once. If, however, the evidence establishes the commission of “distinct and separate offenses,” then there is no violation of the Double Jeopardy Clause prohibition of multiple punishments. See id. at 688; Martinez v. State, 212 S.W.3d 411, 422 (Tex.App.-Austin 2006, no pet.); Hanson, 180 S.W.3d at 732-33.

Counts 2 and 4 of the indictment in trial court cause no. 07-01489-CRF-272 alleged that Lancaster engaged in sexual contact with K.M. by touching her genitals and breast. Count 3 of this indictment alleges that he engaged in sexual contact with K.M. by touching her breast.

[4] Counts 2 and 3 of the indictment in trial court cause no. 07-01490-CRF-272 alleged that he engaged in sexual contact with K.M. by touching her genitals. Counts 1 and 4 of this indictment allege that he engaged in the promotion of child pornography by manufacturing visual material that visually depicted a child engaging in sexual conduct, “to-wit: actual or simulated lewd exhibition of the genitals.” ⁶

[5] State's Exhibit No. 130 is a DVD which depicts eleven separate instances of sexual contact. Lancaster suggests that, because these instances all occurred during a relatively brief period of time ⁷ when K.M.'s mother left K.M. and her sister in Lancaster's care while she went Christmas shopping with Lancaster's former wife, the conduct depicted should be treated as a single instance of sexual contact. However, a defendant may be prosecuted for each discrete sex crime committed against a child during the same criminal episode “because each act is a separate violation of the child.” Hanson, 180 S.W.3d at 733 (quoting Lopez v. State, 108 S.W.3d 293, 300 n. 28 (Tex.Crim.App.2003)).

[6] The second segment in the DVD depicts Lancaster touching K.M.'s genitals and breast while seated in a recliner. The fifth segment depicts him doing the same thing in a bath tub. The fourth segment depicts him sitting in the recliner reaching under her shirt to touch her breast. Thus, these three segments depict separate instances of conduct when Lancaster committed indecency by contact as alleged in the indictment in trial court cause no. 07-01489-CRF-272.

The third and sixth segments of this DVD depict two other instances when Lancaster touched K.M.'s genitals. Thus, these segments depict separate instances of conduct when Lancaster committed indecency by contact as alleged in the indictment in trial court cause no. 07-01490-CRF-272.

[7] The seventh and eighth segments of the DVD depict separate instances ⁸ when Lancaster uncovered K.M.'s genitals and made a close-up recording of her genitals. Thus, these segments depict separate instances of conduct when Lancaster committed promotion of child pornography as alleged in the indictment in trial court cause no. 07-01490-CRF-272.

State's Exhibit No. 130 depicts at least seven separate incidents when Lancaster engaged in the conduct alleged in the indictments. Because the evidence establishes the commission of “distinct and separate offenses,” there is no violation of the Double Jeopardy Clause prohibition of multiple punishments. See Langs, 183 S.W.3d at 688; Martinez, 212 S.W.3d at 422; Hanson, 180 S.W.3d at 732-33; Murray, 24 S.W.3d at 889. Accordingly, we overrule Lancaster's first point.

Conduct Subsumed

[8] Lancaster contends in his second point ⁹ that the judgments of conviction for all but one count of indecency with a child by contact and for both counts of promotion of child pornography should be vacated because the conduct relied on to prove the challenged offenses was subsumed by the conduct relied on to prove indecency by contact under count 2 of trial court cause no. 07-01489-CRF-272 (appellate cause no. 10-08-00058-CR). He similarly claims in his third point ¹⁰ that the judgment of conviction for criminal solicitation should be vacated because the conduct relied on to prove this offense was subsumed by the conduct relied on to prove indecency by exposure under trial court cause no. 07-01491-CRF-272 (appellate cause no. 10-09-00156-CR).

Lancaster places primary reliance on Patterson v. State, 152 S.W.3d 88 (Tex.Crim.App.2004). There the Court of Criminal Appeals explained that, although the Legislature has authorized multiple punishments for the repeated commission of such crimes against a child during a single criminal episode, “there is nothing in the language [of the pertinent statutes] to suggest that it intended to authorize ‘stop-action’ prosecution.” Id. at 92.

Just as a conviction for a completed offense bars prosecution for an attempt to commit the same offense, a conviction for an offense set out in § 3.03...