McIntire v. State

Decision Date26 June 1985
Docket NumberNo. 1174-83,1174-83
Citation698 S.W.2d 652
PartiesKenneth Leroy McINTIRE, Jr., Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Jeffrey W. Jones, Harlingen, for appellant.

Reynaldo S. Cantu, Jr., Dist. Atty. & Malcolm S. Nettles, Asst. Dist. Atty., Brownsville, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.



Appellant was convicted of the offenses of aggravated sexual abuse of a child and of indecency with a child and assessed punishment by the jury of 25 years and 5 years, respectively, which terms of imprisonment were ordered to run concurrently by the trial court. Both convictions stemmed from a single indictment.

On appeal the Thirteenth Court of Appeals in Corpus Christi affirmed the conviction for aggravated sexual abuse, but reversed the conviction for indecency with a child. McIntire v. State, 662 S.W.2d 65 (Tex.App.--Corpus Christi 1983). The court ruled that the trial court, having found appellant guilty upon the jury's verdict as to the first count in the indictment, was without legal authority to enter a judgment and pronounce sentence on the subsequent count. Accordingly the judgment was reformed to reflect conviction of aggravated sexual abuse only. We granted the State's petition for discretionary review to examine this action by the court of appeals.

We also granted appellant's petition in order to review the judgment of the court of appeals insofar as it pertained to purported error in the trial court's disposition of appellant's motion for new trial.


The first count of the indictment alleged that on January 25, 1982 the appellant engaged in deviate sexual intercourse by placing his genitals in contact with the anus of the complaining witness, a child younger than fourteen years of age and not appellant's spouse. The third count alleged that on the same day appellant engaged in sexual contact by touching the genitals of the same complaining witness. Both acts are alleged to have been committed with intent to arouse and gratify the sexual desire of appellant.

The charge to the jury authorized it to convict appellant, should the proof warrant it, of both aggravated sexual abuse of a child 1 and indecency with a child. This the jury did. Guilt was adjudicated and punishment imposed in a single judgment.

Though no defect was called to the attention of the trial court or expressly argued to the court of appeals, the court of appeals nevertheless reformed the judgment to delete the conviction for indecency, relying on this Court's holding in Ex parte Easley, 490 S.W.2d 570 (Tex.Cr.App.1972) and Garcia v. State, 574 S.W.2d 133 (Tex.Cr.App.1978).

This Court has recently reaffirmed that when separate and distinct offenses alleged in one indictment arise from a single criminal transaction, "the more reasoned view is that a trial court is 'without legal authority' to enter judgment and impose sentence for more than one offense. Ex parte Easley, [supra]." Drake v. State, 686 S.W.2d 935, 944 (Tex.Cr.App.1985). Accordingly, in Ex parte Siller, 686 S.W.2d 617 (Tex.Cr.App.1985) we granted habeas corpus relief by vacating the second of two convictions which had been obtained at one trial on a single indictment. Because both convictions arose from a single criminal transaction, we did not look to see whether an objection had been lodged at trial or whether the error had been raised on appeal. 2 Thus the court of appeals in the instant cause was correct in relying on Easley, supra, if it can be said that both offenses for which appellant was convicted grew out of the same criminal transaction. The evidence adduced at trial indicates they did.

Ms. Maria Gonzales testified that on January 25, 1982 she lived in an apartment right next door to appellant, that two windows of her apartment faced two of the windows in appellant's apartment, and that these facing windows were about six feet apart. Ms. Gonzales and two other witnesses, Efrain Estrada and Demetrio Medrano, testified that sometime in the early afternoon of January 25, 3 they together observed appellant through the facing windows performing anal intercourse upon the complaining witness. 4 Testimony of the eleven year old complaining witness confirmed this observation. Estrada also testified that at or about this same time he observed appellant's hand on the complaining witness' penis. The complaining witness confirmed at least that appellant "tried to grab" his penis.

Although the exact time frame within which the anal intercourse and the touching of the complaining witness' genitals occurred is not well developed in the record, it is clear from the accumulation of testimony that these acts took place either contemporaneously or within minutes of one another. Further, it is clear that a single guilty intent ran through and connected both acts, viz: the intent to arouse and gratify the appellant's sexual desire through some form of sexual contact 5 with the complaining witness. See Drake, supra, citing Banks v. State, 93 Tex.Cr.R. 117, 246 S.W. 377 (1922) and Crawford v. State, 31 Tex.Cr.R. 51, 19 S.W. 766 (Ct.App.1892).

We conclude that the allegations of aggravated sexual abuse of a child and of indecency with a child arose in the same criminal transaction. The trial court was therefore without legal authority to authorize a conviction on both count one and count three of the instant indictment, and the court of appeals was correct to reform the judgment as it did. Drake, supra. Siller, supra.


Appellant was sentenced on May 13, 1982. On May 24 appellant filed a pro se motion through which he "NOTIF[IED] [the district] COURT OF HIS INTENTION AND DESIRE TO APPEAL FOR NEW TRIAL." It is not clear whether this handwritten motion was meant to be a notice of appeal or a motion for new trial. What is certain from the motion is that appellant's attorneys were out of town and appellant, operating upon the erroneous assumption that some document had to be filed within "THE 10 DAY PERIOD OF TIME ALLOWING APPEAL," 6 was attempting to protect his right to pursue a new trial in any fashion open to him. A formal motion for new trial with supporting affidavits was filed on June 11, along with a motion to set a hearing on the motion for new trial. In its order dated June 14, denying the latter motion, the trial court found the motion for new trial to have been "untimely filed, Notice of Appeal having been given May 24, 1982. Such motion additionally presents nothing for hearing." A formal notice of appeal was filed on June 24.

On appeal it was contended that the trial court erred in finding appellant's motion for new trial to have been untimely filed, in finding that said motion presented "nothing forhearing," and in overruling same without granting a hearing. The court of appeals concurred in the trial court's determination that the motion and supporting affidavits presented no matter calling for a new trial, and for this reason found the trial court's determination that the motion was untimely presented to have been harmless; "that is, none of his grounds of error were waived, and he is not prejudiced on this appeal." McIntire, supra, at 68. Further, finding that the record and supporting affidavits were a sufficient basis upon which the trial court could evaluate the contentions in appellant's motion for new trial, the court of appeals found no abuse of discretion by the trial court in overruling the motion without a hearing.


Initially we observe that the trial court did err in ruling appellant's motion for new trial to have been untimely presented. The trial court apparently construed appellant's pro se motion of May 24 to be a notice of appeal, the filing of which divested the court of jurisdiction to entertain the subsequent motion for new trial. However, this Court has recently held that notice of appeal filed prior to an otherwise timely filed motion for new trial will not deprive the trial court of jurisdiction to rule on that motion. Ex parte Drewery, 677 S.W.2d 533 (Tex.Cr.App.1984). Assuming then as the trial court did, that appellant's pro se motion was a notice of appeal, this would not prevent the trial court from ruling on the motion for new trial. Inasmuch as its denial of the motion for new trial and failure to set a hearing thereon were premised on the untimeliness of the motion, the trial court erred.

Whether this error was harmless, as the court of appeals ruled, depends upon our resolution of appellant's remaining contentions. To these we now turn.


In his brief to the court of appeals appellant identified three points upon which he contended his motion and affidavits presented matters which should have been taken up in a hearing. He argued that the affidavit of one of the jurors at his trial showed "an implied agreement by the jurors to abide by [a] quotient verdict;" 7 that one of his own character witnesses conversed prejudicially with the affiant juror during a break in the jury's deliberations; 8 and that jury misconduct in the form of a discussion of parole "resulted in an unfair verdict against [appellant] and was fundamental error in violation of due process of law." 9 In conclusion appellant asserted that "[b]ecause of these matters, and other matters set out in the Motion for New Trial, the trial judge should have heard the motion."

The court of appeals examined each of these grounds for new trial in turn, and, based upon "the record itself and ... the juror's affidavit," agreed with the trial court that the motion for new trial "presented nothing for hearing." Having found the affidavit insufficient to establish any complete grounds for new trial, the court of appeals then ruled, paradoxically, that the juror's affidavit was all the trial court needed to dispose of appellant's claims, and overruled his contention...

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