Martinez v. State, 03-05-00345-CR.

Citation212 S.W.3d 411
Decision Date09 June 2006
Docket NumberNo. 03-05-00345-CR.,03-05-00345-CR.
PartiesLeonardo MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas

Kristin M. Etter, Sumpter & Gonzalez, LLP, Austin, for Appellant.

Georgette Hogarth, Asst. Dist. Atty., Austin, for State.

Before Chief Justice LAW, Justices PATTERSON and PEMBERTON.

OPINION

BOB PEMBERTON, Justice.

A jury found appellant Leonardo Martinez guilty of the offenses of aggravated sexual assault of a child, indecency with a child by contact, and indecency with a child by exposure. See Tex. Pen.Code Ann. §§ 21.11 (indecency with a child), 22.021(a)(1)(B) (aggravated sexual assault of a child) (West 2003 & Supp.2005). Martinez argues that the court's charge permitted the jury to convict him of each offense with less than a unanimous verdict and that this error requires reversal. Martinez also asserts that his right against double jeopardy was violated and that the district court erred in excluding testimony that the victim may have been molested by an alternative perpetrator. We will affirm the judgment of the district court.

BACKGROUND

The jury heard evidence that on March 26, 2004, eight-year-old L.Z. told her mother that Martinez had sexually abused her. Martinez is the husband of L.Z.'s cousin, Rosie Prado. L.Z. testified that the abuse happened on more than one occasion when she stayed overnight at her cousin's apartment. L.Z. testified that she slept on the floor in her cousin's room, and that she would sometimes wake up in the middle of the night with her panties pulled down and Martinez doing "bad things" to her. L.Z. testified that sometimes Martinez would penetrate her anus and that, other times, Martinez would touch her genitals and her anus. Leticia Gomez, L.Z.'s mother, testified that L.Z. told her that Martinez was placing his penis "behind her" anus and that he was touching her "private part" and her anus. Gomez testified that, following L.Z.'s outcry, she called the police to report the incident.

Dr. Beth Nauert, a pediatrician and the medical director of the Child Assessment Program, a clinic that conducts medical examinations for children who are suspected of having been physically or sexually abused, interviewed L.Z. about the abuse. Nauert testified that L.Z. told her about multiple times that Martinez abused her, including a time when Martinez put his hand in L.Z.'s vagina, another time when Martinez put what was either his finger or his penis in her mouth, and another time when Martinez penetrated her anus.

Alia Alsafar, a forensic interviewer with the Center for Child Protection (formerly the Children's Advocacy Center), also interviewed L.Z. and testified about the incidents of abuse that L.Z. described to her. Alsafar testified that L.Z. told her about how Martinez "had put his thing in her back and made her touch his thing with her hand, as well as touched her middle part with his hand." When asked by the State how many times these incidents occurred, Alsafar replied, "She didn't indicate the exact amount of times, but did tell me it happened a lot, or more than once."

On June 14, 2004, the State indicted Martinez on one count of aggravated sexual assault of a child, one count of indecency with a child by contact, and one count of indecency with a child by exposure. Count one, alleging aggravated sexual assault, contained two paragraphs alleging that Martinez, on or about January 1, 2004,

did then and there knowingly and intentionally cause the penetration of the anus of [L.Z.], a child younger than 14 years of age and not his spouse, by the sexual organ of the said Leonardo Martinez,

did then and there knowingly and intentionally cause the anus of [L.Z.], a child younger than 14 years of age and not his spouse to contact the sexual organ of the said Leonardo Martinez.

Count two, alleging indecency with a child by contact, contained three paragraphs alleging that Martinez, on or about January 1, 2004,

did then and there intentionally and knowingly engage in sexual contact with [L.Z.], a child younger than 17 years of age and not the spouse of the said Leonardo Martinez, by then and there touching the anus of the said [L.Z.] with the intent to arouse and gratify the sexual desire of said Leonardo Martinez,

did then and there intentionally and knowingly engage in sexual contact with [L.Z.], a child younger than 17 years of age and not the spouse of the said Leonardo Martinez, by then and there touching the genitals of the said [L.Z.] with the intent to arouse and gratify the sexual desire of said Leonardo Martinez,

did then and there, with the intent to arouse and gratify his sexual desire, knowingly and intentionally engage in sexual contact by causing [L.Z.], a child younger than 17 years of age and not the spouse of the said Leonardo Martinez, to touch the genitals of the said Leonardo Martinez.

Count three, alleging indecency with a child by exposure, contained three paragraphs alleging that Martinez, on or about January 1, 2004,

did then and there with the intent to arouse and gratify the sexual desire of said Leonardo Martinez, intentionally and knowingly expose to [L.Z.], a child younger than 17 years of age and not the spouse of the said Leonardo Martinez, any part of the genitals of the said Leonardo Martinez, the said Leonardo Martinez then and there knowing that the said [L.Z.] was present,

did then and there with the intent to arouse and gratify the sexual desire of said Leonardo Martinez, knowingly and intentionally cause [L.Z.], a child younger than 17 years and not the spouse of the said Leonardo Martinez, to expose her anus,

did then and there with the intent to arouse and gratify the sexual desire of said Leonardo Martinez, knowingly and intentionally cause [L.Z.], a child younger than 17 years and not the spouse of the said Leonardo Martinez, to expose any part of her genitals.

Martinez pleaded not guilty to each offense. During trial, he vigorously denied abusing L.Z. in any way. On direct examination, he testified:

Q: Sir, did you molest that girl, [L.Z.], in any way?

A: No, sir.

On cross-examination, Martinez stated that he "never touched her" and repeatedly denied both contacting and penetrating L.Z.:

Q: Isn't it true, Mr. Martinez, that you put your penis in [L.Z.'s] anus on numerous occasions?

A: It's not true.

Q: Isn't it true you touched her on her vagina with your hand on repeated occasions?

A: Absolutely no way, ma'am.

Q: Isn't it true you made her touch your penis?

A: Of course not, ma'am.

Q: And isn't it true that you exposed [L.Z.'s] genitals and your own genitals in her presence?

A: Of course not, ma'am.

In addition to denying the allegations, Martinez's trial strategy apparently included suggesting that the complainant's brother may have been the actual perpetrator. However, the district court did not allow any testimony to that effect, so the jury heard no evidence implicating the victim's brother in the crimes.

The jury found Martinez guilty on all three counts of the indictment, and punishment was assessed at fifty-seven years' confinement for count one, twenty years' confinement for count two, and twenty years' confinement for count three. This appeal followed.

DISCUSSION

In three issues on appeal, Martinez contends that: (1) the charge permitted the jury to convict him of each offense with less than a unanimous verdict; (2) the multiple convictions violated his right against double jeopardy; and (3) the trial court erred in excluding evidence that the complainant may have been abused by her brother.

Jury unanimity

In his first issue on appeal, Martinez contends that the charge of the court permitted the jury to convict him of each offense with less than a unanimous verdict and that this error requires reversal. The Texas Constitution requires a unanimous verdict in felony criminal cases. Tex. Const. art. V, § 13; Tex.Code Crim. Proc. Ann. art. 36.29(a) (West Supp.2005). Allowing a jury to choose from several separate acts, each of which is a violation of a specific statute, without requiring the jury to agree on which act was committed violates the unanimity requirement. Ngo v. State, 175 S.W.3d 738, 747-48 (Tex.Crim. App.2005); Francis v. State, 36 S.W.3d 121, 124-25 (Tex.Crim.App.2000). However, allowing a jury to choose between alternative theories of how an offense was committed does not run afoul of the unanimous-verdict requirement. Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App. 2004); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991). If an indictment alleges differing means of committing an offense, a trial court does not err by charging the jury in the disjunctive. Jones v. State, 184 S.W.3d 915, 922 n. 6 (Tex.App.-Austin 2006, no pet.).

In analyzing a jury-charge issue, the reviewing court first decides whether error exists. Ngo, 175 S.W.3d at 743. Then, if error exists, the court analyzes that error for harm. Id.

Whether the charge was erroneous

The State concedes that the paragraphs of the court's charge pertaining to the offenses of indecency with a child by contact and indecency with a child by exposure violate the requirement of jury unanimity. However, the State disputes whether there is error in the paragraph of the court's charge regarding the remaining offense, aggravated sexual assault of a child.

The court's charge to the jury read, in relevant part:

[I]f you believe from the evidence beyond a reasonable doubt that the defendant, Leonardo Martinez, on or about the 1st day of January, 2004, in the County of Travis, and State of Texas, did then and there knowingly or intentionally cause the penetration of the anus of [L.Z.], a child younger than 14 years of age and not his spouse, by the sexual organ of the said Leonardo Martinez, or if you believe from the evidence beyond a reasonable doubt that the defendant, Leonardo Martinez, did then and there knowingly or...

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