Loving v. State

• Decision Date: 26 June 2013
• Docket Number: No. PD–1334–12.,PD–1334–12.
• Citation: 401 S.W.3d 642
• Court: Texas Court of Criminal Appeals
• Parties: Austin LOVING, Appellant v. The STATE of Texas.

401 S.W.3d 642

Austin LOVING, Appellant

v.The STATE of Texas.

No. PD–1334–12.

Court of Criminal Appeals of Texas.

June 26, 2013.

Ariel Payan, Attorney at Law, Austin, TX, for Appellant.

Lisa McMinn, State Prosecuting Attorney, Austin, TX, for the State.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, WOMACK, JOHNSON, KEASLER, COCHRAN, and ALCALA, JJ., joined.

Appellant, Austin Loving, was convicted of three counts of indecency with a child by contact and two counts of indecency with a child by exposure involving two sisters. SeeTex. Penal Code § 21.11(a)(1), (a)(2). He was sentenced to seven years' imprisonment for each of the indecency-by-contact counts and ten years' imprisonment, probated for ten years, on the indecency-by-exposure counts. The Austin Court of Appeals vacated one of Appellant's convictions for indecency by exposure on double-jeopardy grounds, and it affirmed the remainder of his convictions. Loving v. State, Nos. 03–11–00074–CR, 03–11–00075–CR, 2012 WL 3601127, at *6 (Tex.App.-Austin Aug. 17, 2012) (memo.op.) (not designated for publication). We granted the State's petition for discretionary review to determine if Appellant's vacated exposure conviction is barred by double jeopardy. We will reverse the judgment of the court of appeals in part and affirm its judgment as modified.

I. BACKGROUND

Appellant, a nineteen-year-old man, was accused of indecent behavior with two sisters. The victims, ages eight and nine, were invited to play video games in Appellant's bedroom at his mother's apartment. While the sisters were playing video games, Appellant went to a computer near the living room and opened a pornographic website on the computer. The girls came out of the bedroom and saw the pornography on the computer. While the girls were present, Appellant went to the couch in the living room, exposed his genitals, and began masturbating. The girls then left the living room to play more video games. After the sisters reentered the living room, and while Appellant was still masturbating, he touched the youngest girl. After he finished masturbating, he touched the older girl and asked her to touch his penis, but she testified that she “punched it” instead.

In a consolidated trial, Appellant was convicted on three counts of indecency with a child by contact and two counts of indecency with a child by exposure. One contact and one exposure conviction were for his actions regarding the younger sister. The other three convictions were for his indecent behavior with the older sister. The issues presented in this case address only Appellant's convictions for indecency with a child by exposure for exposing his genitals to the older sister and indecency with a child by contact for causing the older sister to touch his genitals. We do not address any of Appellant's other convictions.

The court of appeals affirmed the convictions relating to the younger girl and the contact count alleging Appellant touched the older girl's breast. As to the other counts, the appellate court vacated Appellant's conviction for exposure of his genitals, and it affirmed the contact conviction for causing her to touch his penis. The court held that Appellant's exposure conviction violated double-jeopardy principles because it was factually subsumed by the contact offense. Loving, 2012 WL 3601127, at *5;seeU.S. Const. amend. V. The court concluded that the exposure was subsumed because the offenses were the same, and the Legislature did not clearly intend for two punishments to be imposed based on the facts of the case. Thus, Appellant's exposure conviction was barred by double jeopardy.

We granted the State's Petition for Discretionary Review to address the following issues:

1. Did the Legislature intend to allow separate punishments for indecency with a child by exposure and contact committed against the same victim when the exposure precedes the contact?

2. Was the exposure in this case subsumed by the sexual contact?

II. Arguments of the Parties

A. State's Argument

The State argues that the court of appeals reached the wrong result because it incorrectly concluded that indecency by exposure in this case is a lesser-included offense of indecency with a child by contact and is factually subsumed. The State also contends that when a proper double-jeopardy analysis is performed, indecency with a child by exposure and contact do not have the same elements under Blockburger, and the offenses are not the same under the cognate-pleadings approach adopted in Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App.2007). See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The offenses are not the same under Blockburger, the State argues, because they have different abstract elements, and they are not the same under Hall, because the exposure was not alleged in the allegations of the indictment, nor could it be deduced from the face of the indictment. Id. Moreover, the State argues that the court of appeals expressly relied on the facts of the case to reach its conclusion, but the facts of the case are irrelevant in a cognate-pleadings analysis. See Hall, 225 S.W.3d at 535–36.

The State also argues that if two offenses are not the same under Blockburger, it is presumed that the Legislature intended to allow multiple punishments, absent a clear manifestation of intent to the contrary. See Gonzales v. State, 304 S.W.3d 838, 845 (Tex.Crim.App.2010); see also Blockburger, 284 U.S. at 304, 52 S.Ct. 180. And the State contends that, if the Legislature's intent is unclear as to whether multiple punishments are authorized in this case, the list of nonexclusive factors set out by this Court in Ex parte Ervin v. State, 991 S.W.2d 804, 814 (Tex.Crim.App.1999), should be considered.¹

Addressing the gravamen-of-the-offense factor in Ervin, the State asserts that the focus of the indecency with a child statute is the prohibited conduct, which shows that the Legislature intended for the State to be able to punish a criminal defendant multiple times. To support its argument, the State cites three related cases. See Gonzales, 304 S.W.3d at 848 (“[I]f the focus of the offense is the conduct—that is, the offense is a ‘nature of conduct’ crime—then different types of conduct are considered to be different offenses.”); Pizzo v. State, 235 S.W.3d 711, 717 (Tex.Crim.App.2007) (holding in a jury-unanimity case that indecency with a child by contact is a conduct-oriented offense); see also Vick v. State, 991 S.W.2d 830, 832–33 (Tex.Crim.App.1999) (holding in a multiple-punishment case that aggravated sexual assault focuses on prohibited conduct).

Finally, the State argues that indecency with a child is not a continuum case under this Court's decisions in Weinn v. State, 326 S.W.3d 189 (Tex.Crim.App.2010) and Lopez v. State, 108 S.W.3d 293 (Tex.Crim.App.2003), in which this Court held that when the gravamen of a statute is to prevent a continuum of behavior, a person cannot be convicted for violating multiple offenses within that continuum in a single action for a single act.

B. Appellant's Arguments

Appellant argues that the Legislature did not clearly intend for multiple punishments to be imposed for acts of indecency with a child by exposure and contact when the acts were committed against the same victim at the same time. He asserts that under the cognate-pleadings approach, the elements of indecency with a child by exposure and contact are functionally the same because “[s]ubsumed within both methods [of sexual contact] is either direct genital contact or genital contact through clothing.” Appellant's Brief on Discretionary Review at 8, Loving v. State, No. PD–1334–12 (Tex.Crim.App. Mar. 4, 2013); see McKithan v. State, 324 S.W.3d 582, 588 (Tex.Crim.App.2010) (quoting Evans v. State, 299 S.W.3d 138, 143 (Tex.Crim.App.2009)). Appellant also contends that the offenses are the same for cognate-pleading purposes because the indictment merely alleges that Appellant caused the victim to touch his genitals and does not specifically state that the touching happened over his clothing.

Appellant also argues that, notwithstanding the gravamen of the statute, under an analysis of the other Ervin factors described by this Court, the two offenses in question are substantially the same for double-jeopardy purposes. Ex parte Ervin, 991 S.W.2d at 814. Specifically, Appellant contends that the offenses are contained in the same statute, are similarly named, the provisions are separated in the alternative using the word “or,” the provisions share a common focus, and the offenses tend to indicate a single instance of conduct. However, Appellant concedes that the punishment ranges for these offenses are different. Nonetheless, Appellant concludes that the Ervin factors support his assertion that the Legislature did not intend to authorize separate punishments in this case.

III. The Law

Both parties' arguments are predicated on the assumption that the proper analysis includes the application of the Blockburger test and the cognate-pleadings approach. However, we employ that analysis only when the charged conduct involves multiple offenses in different statutory provisions that are the result of a single course of conduct. See Vick, 991 S.W.2d at 830 (holding that, when the Legislature intends to punish separate acts, even ones in close temporal proximity, the Blockburger test does not apply “because the precondition for employing that test (that the two offenses involve the same conduct) is absent”). In this case, the proper analysis is to determine whether the Legislature intended for the separate statutory subsections in a single statute to constitute distinct offenses.² In other words, we must determine the allowable unit of prosecution for indecency with a child by exposure and contact. In making this determination, we rely on the plain language of the statute and our caselaw interpreting that...