Martin v. State

• Decision Date: 16 March 2011
• Docket Number: No. 03–10–00202–CR.,03–10–00202–CR.
• Citation: 335 S.W.3d 867
• Parties: Philip MARTIN, Appellant,v.The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

335 S.W.3d 867

Philip MARTIN, Appellant,

v.The STATE of Texas, Appellee.

No. 03–10–00202–CR.

Court of Appeals of Texas, Austin.

March 16, 2011.

Gregory D. Sherwood, Austin, TX, for Appellant.Blake Williams, Assistant District Attorney, Austin, TX, for The State of Texas.Before Chief Justice JONES, Justices HENSON and GOODWIN.

OPINION

MELISSA GOODWIN, Justice.

A jury found appellant Philip Martin guilty of one count of continuous sexual abuse of a young child, six counts of sexual assault of a child, two counts of indecency with a child by contact, and three counts of indecency with a child by exposure. See Tex. Penal Code Ann. §§ 21.02, 21.11, 22.011 (West Supp. 2010). The trial court assessed punishment at fifty years' imprisonment for the continuous sexual abuse count, twenty years' imprisonment for each count of sexual assault and indecency by contact, and ten years' imprisonment for each count of indecency by exposure. With respect to the fifty-year sentence, appellant is not eligible for parole. See Tex. Gov't Code Ann. § 508.145(a) (West Supp. 2010).

Appellant contends that the continuous sexual abuse statute violates the constitutional and statutory requirement of a unanimous jury verdict. He also asserts that the jury charge contained egregiously harmful error, and that his convictions on several counts are either without sufficient evidentiary support or constitute double jeopardy. Finally, appellant challenges the constitutionality of the statute denying parole to persons convicted of continuous sexual abuse of a young child. We overrule these contentions and affirm the convictions.

BACKGROUND

The complaining witness, J.W., is appellant's stepdaughter. J.W. was born on January 27, 1994, and was fifteen years old at the time of trial. J.W. made her first outcry on April 10, 2008, when she was fourteen. At that time, she was living with appellant, her mother, and her four younger half-siblings.

J.W. testified that appellant began touching and penetrating her sex organ with his fingers when she was six years old. On occasion, appellant would penetrate her with a vibrator or dildo. When she was ten, appellant began to penetrate J.W.'s anus with his penis. When J.W. was twelve, appellant began to penetrate her sex organ with his penis. J.W. testified that appellant often bound her to her parents' bed while naked and spanked her with a wooden paddle. He would also bind her to a chair and put his penis in her mouth, often ejaculating. At least once, appellant gave J.W. an enema. J.W. testified that most of this conduct happened at night in her bedroom, her parents' bedroom, or the garage, while her mother was working.

J.W. testified extensively regarding appellant's abusive conduct during the 2006–07 school year, when she was in the sixth grade. She testified that during that school year, appellant touched her sex organ with his hand four or five times a week, penetrated her sex organ with his fingers two or three times a month, and penetrated her “butt” with his penis once or twice a week. He also licked her sex organ “[t]wo times a week; sometimes none.” J.W. testified that appellant repeatedly penetrated or caused her to penetrate her sex organ with a vibrator or dildo during this school year, once saying that this happened “at most two times a week” and later saying that it happened “[t]hree times a month probably.” Appellant also asked J.W. to insert a dildo in his “butt” at least once during this school year. During this same time period, appellant had J.W. touch his penis and “[m]ake me go up and down.” This happened “[a] lot more than once.” J.W. testified that appellant stopped putting his penis in her mouth for a period of several months during 2006, but that he resumed this conduct in December 2006 and continued it for the remainder of the 2006–07 school year and throughout calendar year 2007, briefly stopping again in December 2007. J.W. stated that between December 2006 and December 2007, appellant put his penis in her mouth “[t]wo to three times a week. Sometimes not at all, though.”

J.W. turned fourteen on January 27, 2008. She testified that at this time, appellant was “still doing those things” she had described. J.W. testified that between January 27, 2008 and her outcry in April 2008, appellant put his penis in her mouth four or five times a week and penetrated her sex organ with his penis more than once. She testified that during this time period, appellant also penetrated her sex organ with his fingers, licked her sex organ, touched the inside and outside of her “butt,” and touched her “boobs,” but she did not expressly state how often those acts occurred. Finally, J.W. testified that appellant asked her to insert a dildo in his “butt” at least once after she turned fourteen.

Dr. Beth Nauert, a pediatrician with expertise in child sexual abuse cases, examined J.W. following her outcry. Nauert briefly recounted statements made to her by J.W. that were consistent with the child's testimony. Nauert testified that J.W.'s hymen was torn, which indicated penetration but did not indicate the manner of penetration. The doctor said that J.W.'s rectum appeared normal.

Other State witnesses testified to the circumstances surrounding J.W.'s outcry and described the course of the investigation. There was testimony regarding the discovery of two dildos in a dresser drawer at the family's residence. Investigators also found child pornography on appellant's computer, including a link to a web site featuring photographs of a young woman with the same first name as J.W.

The defense sought to undermine the credibility of J.W.'s testimony. For example, J.W. testified that appellant had on numerous occasions bound her to her parents' bed with straps stapled to the wooden bed frame. After the State introduced photographs of this bed, defense counsel cross-examined the sponsoring witness regarding the absence of staple marks in a number that would correspond to J.W.'s testimony, and the defense later offered testimony providing an alternative explanation for the staple marks that were present. The defense also introduced testimony challenging J.W.'s reputation for truthfulness.

INDICTMENT

Count one alleged that “on or about the 1st day of October, 2007 through the 26th day of January, 2008 ... during a period that was 30 days or more in duration, [appellant] committed two or more acts of sexual abuse against [J.W.], a child younger than 14 years of age....” See id. § 21.02(b) (elements of offense). The specific underlying acts of sexual abuse alleged to have been committed by appellant against J.W. during this time period were:

• indecency with a child by touching J.W.'s genitals

• indecency with a child by causing J.W. to touch appellant's genitals

• aggravated sexual assault by causing J.W. to touch appellant's anus

• aggravated sexual assault by contacting J.W.'s sex organ with his sex organ

• aggravated sexual assault by penetrating J.W.'s sex organ with his sex organ

• aggravated sexual assault by penetrating J.W.'s anus with an unknown object

• aggravated sexual assault by contacting J.W.'s sex organ with his mouth

• aggravated sexual assault by penetrating J.W.'s sex organ with his mouth

• aggravated sexual assault by penetrating J.W.'s mouth with his sex organ

• aggravated sexual assault by penetrating J.W.'s sex organ with his finger

• sexual performance by a child by inducing J.W. to engage in sexual conduct with appellant.

See id. § 21.02(c) (defining “act of sexual abuse”); see also id. §§ 21.11(a)(1), (c); 22.021(a)(1)(B), (2)(B); 43.25(a)(2), (b).

Counts two and three alleged that appellant sexually assaulted J.W. by contacting and penetrating her sex organ with his sex organ on or about April 5, 2008. See id. § 22.011(a)(2)(A), (C). Counts four and five alleged that appellant sexually assaulted J.W. by contacting and penetrating her mouth with his sex organ on or about April 5, 2008. See id. § 22.011(a)(2)(B), (E). Counts six and seven alleged that appellant sexually assaulted J.W. by contacting and penetrating her sex organ with his mouth on or about April 9, 2008. See id. § 21.011(a)(2)(A), (C).

Count eight was abandoned by the State.

The remaining counts alleged indecency with a child. Count nine alleged that appellant exposed his genitals to J.W. with the intent to arouse or gratify his sexual desire on or about April 5, 2008. See id. § 21.11(a)(2)(A). Counts ten and eleven alleged that appellant, with the same intent, caused J.W. to expose her genitals to him on April 5 and 9, 2008. See id. § 21.11(a)(2)(B). Counts twelve and thirteen alleged that appellant, with the same intent, touched J.W.'s breasts and genitals on or about April 5, 2008. See id. § 21.11(a)(1), (c)(1).

The jury returned guilty verdicts on all twelve submitted counts.

JURY UNANIMITY

A person commits the offense of continuous sexual abuse of a young child if, during a time period of thirty or more days, that person commits two or more acts of sexual abuse against a child. Id. § 21.02(b)(1). At the time each act of sexual abuse is committed, the actor must be seventeen years of age or older, and the victim or victims must be younger than fourteen. Id. § 21.02(b)(2). An “act of sexual abuse” is an act that violates one or more specified penal laws, among them indecency with a child by contact, aggravated sexual assault of a child, sexual assault of a child, and sexual performance by a child. Id. § 21.02(c). A jury is “not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.” Id. § 21.02(d).

The trial court's jury charge included an instruction on unanimity consistent with section 21.02(d). In applying the law to the facts, the court authorized appellant's...