Patterson v. State

• Decision Date: 10 November 2004
• Docket Number: No. PD-0117-03.,PD-0117-03.
• Citation: 152 S.W.3d 88
• Parties: John PATTERSON, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

152 S.W.3d 88

John PATTERSON, Appellant, v. The STATE of Texas.

No. PD-0117-03.

Court of Criminal Appeals of Texas, En banc.

November 10, 2004.

Rehearing Denied January 19, 2005.

Forrest Lumpkin, Austin, for Appellant.

Michael Scott Taliaferro, Assistant District Attorney, Matthew Paul, State's Attorney, Austin, for State.

Before the court en banc.

OPINION

JOHNSON, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, HOLCOMB, and COCHRAN, JJ., joined.

Appellant was charged with various sexual offenses in a three-count indictment comprising five paragraphs. Count I, paragraph one, alleged aggravated sexual assault of a child by causing penetration of the victim's anus by appellant's sexual organ (Tex. Pen.Code § 22.021(a)(1)(B)(i)); paragraph two alleged aggravated sexual assault of a child by causing the victim's anus to contact appellant'ssexual organ (Tex. Pen.Code § 22.021(a)(1)(B)(iv)). Count II, paragraph one, indecency with a child by touching the victim's anus (Tex. Pen.Code § 21.11(a)(1)); paragraph two alleged indecency with a child by causing the victim to touch appellant's genitals (Tex. Pen.Code § 21.11(a)(1)). Count III alleged indecency with a child by exposure of appellant's genitals knowing that a child was present (Tex. Pen.Code § 21.11(a)(2)(A)). All of the charges arose from two incidents involving the eleven-year-old daughter of appellant's co-workers during a single night. All charges were submitted to the jury as charged except the indecency with a child by contact (the victim touching appellant's penis), which was submitted as an attempt. (Tex. Pen.Code § 15.01(a)). The jury convicted on all paragraphs and assessed terms of imprisonment ranging from five to thirty-five years for each of the offenses.

The court of appeals affirmed the judgments of conviction for aggravated sexual assault of a child by penetration, aggravated sexual assault of a child by contact, and attempted indecency with a child by contact, but reversed the judgments of conviction for indecency with a child by contact and indecency with a child by exposure, holding that those convictions violated the constitutional guarantee against double jeopardy. Patterson v. State, 96 S.W.3d 427, 431 (Tex.App.-Austin 2002). Both the state and appellant petitioned this Court for discretionary review. We refused appellant's petition and granted the state's petition.

Where a defendant is convicted of the offense of indecency with a child by exposure and also of the offense of aggravated sexual assault of a child, is the indecency conviction barred by double jeopardy if that exposure occurred prior to the aggravated sexual assault and during the defendant's unsuccessful attempt to commit a third offense that, if completed, would not have been jeopardy barred?

We conclude that the court of appeals reached the correct result, and we therefore affirm.¹

Facts

After drinking in a bar with co-workers to celebrate the co-workers' wedding anniversary, appellant spent the night at their home. Appellant was supposed to sleep in the co-workers' spare room, along with his live-in girlfriend's young son, who was already sleeping there. However, at some point during the night, appellant went to the room where his co-workers' two young daughters, aged 10 and 11, were sleeping. After attempting to get into bed with the younger daughter, who pushed him off the bed, appellant climbed into bed with the eleven-year-old. According to the victim's testimony at trial, appellant sexually assaulted her on two separate occasions during the night.

The victim testified that appellant got into bed with her, lay behind her, unbuttoned his pants, grasped her hand, and tried unsuccessfully to make her touch his "private." When she pulled her hand away, the victim testified, he pushed his "private" inside her "butt." After a short time, the victim got up and went to the bathroom. The second occurrence was essentially identical to the first. The victim testified that she returned to the bed, and that appellant again tried to force her to put her hand on his "private" and, failing once again, he put his "private" inside her "butt" a second time.

After the second episode, the victim got up to go to the bathroom again, and this time, accompanied by her younger sister, she went to her parents' room. The victim woke the parents and told them what had happened. The victim's father went downstairs to call the police, while the mother had the girls retrieve their bedclothes from the bedroom, then took them downstairs to await the arrival of the police. Appellant was arrested in the spare room.

The Decision of the Court of Appeals

On appeal, appellant argued that the convictions for aggravated sexual assault, indecency with a child by contact, and indecency with a child by exposure violated the constitutional prohibition against multiple punishments for the same offense. The court of appeals found that the evidence was legally sufficient to prove that appellant twice penetrated the complainant's anus with his penis and that he tried to cause the victim to touch his penis. It therefore affirmed the two convictions for aggravated sexual assault of a child (by penetration and by contact) and the conviction for attempted indecency by contact. Patterson v. State, supra. However, the court of appeals held that the other sexual contacts between the appellant and the complainant were incident to the penetrations, and therefore the second indecency by contact offense and the exposure were included within the aggravated sexual assaults. Believing that the legislature has not indicated an intent to inflict multiple punishments for the same conduct, the court of appeals reversed appellant's convictions for indecency with a child by contact and indecency with a child by exposure. Id. at 433.

In its petition for discretionary review to this Court, the state challenges only the reversal of the conviction for indecency with a child by exposure. The state argues that the prohibition against double jeopardy does not negate a clearly expressed legislative intent to impose multiple punishments. The state also argues that the exposure committed during appellant's unsuccessful attempt to get the victim to touch his penis was distinct from the exposure incident to the aggravated sexual assault. Reasoning that the attempted sexual contact, had it been successful, would have been an offense distinct from the aggravated sexual assault, the state argues that the exposure preceding the attempted sexual contact must also be distinct from the exposure preceding the assault. However, that argument must fail, because a single continuing exposure, even in conjunction with other simultaneous offenses, remains a single exposure.

Analysis

While the state sets out its ground for appeal as a question of double jeopardy, we do not find it necessary to address the constitutional issue, as the case can be resolved on the basis of statutory construction.

"Sexual contact" is defined as "except as provided by Section 21.11, any touching of the anus, breast, or any part of the genitals of another person with the intent to arouse or gratify the sexual desire of any person." Tex. Penal Code, § 21.01(2). Section 21.11, Indecency with a Child, which includes the offense of indecency by exposure, defines "sexual contact" as

the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

Tex. Penal Code, § 21.11(c).

Section 3.01 of the Penal Code defines "criminal episode."

In this chapter, "criminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:

(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

(2) the offenses are the repeated commission of the same or similar offenses.

In section 3.03 of the Penal Code, the legislature determined that multiple offenses arising from the same criminal episode and tried in a single criminal action shall, in general, be punished with concurrent sentences, but it also determined that there should be two exceptions to this general rule: intoxication manslaughter, and sexual offenses committed against children. For those offenses, the legislature permitted consecutive sentences.

If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:

(1) [intoxication manslaughter] or

(2) an offense:

(A) under Section 21.11 [indecency with a child by exposure and contact], 22.011 [sexual assault], 22.021 [aggravated sexual assault], 25.02 [prohibited sexual contact], or 43.25 [sexual performance by a child] against a victim younger that 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violation of the same section more than once or is convicted of violations of more than one section; or

(B) [same provisions apply to plea bargains].

Tex. Penal Code § 3.03(b).

By its plain language, this provision indicates an intention by the legislature to both permit consecutive sentencing and exempt these enumerated offenses from the consequences of the definition of "criminal episode" found in section 3.01; for these offenses only, repeated commission of the same offense or violations of multiple subsections within a single section and tried in a single criminal action may be punished by...