Price v. State

• Decision Date: 25 June 2014
• Docket Number: No. PD–1460–13.,PD–1460–13.
• Citation: 434 S.W.3d 601
• Parties: Jimmy Don PRICE, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

434 S.W.3d 601

Jimmy Don PRICE, Appellant

v.The STATE of Texas.

No. PD–1460–13.

Court of Criminal Appeals of Texas.

June 25, 2014.

R. Jeanette Parham, Hempstead, for Appellant.

Stacey Goldstein, State Prosecuting Attorney, Austin, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

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

In this case, we address whether the statute defining the offense of continuous sexual abuse of a young child permits a defendant to be convicted both of that offense and of a criminal attempt to commit a predicate offense under that statute. SeeTex. Penal Code §§ 15.01(a); 21.02(b), (c), (e). ¹ The court of appeals answered that question in the negative by examining the statute's language and determining that the Legislature could not have intendedto permit both convictions because that outcome would violate a defendant's constitutional rights against double jeopardy. See Price v. State, 413 S.W.3d 158, 163–64 (Tex.App.-Beaumont 2013). Accordingly, the court of appeals vacated the conviction for attempted aggravated sexual assault against Jimmy Don Price, appellant. See id. We agree with the court of appeals's judgment vacating appellant's conviction for criminal attempt and with its ultimate assessment that permitting both convictions would violate his constitutional rights against double jeopardy. See id. We reach that conclusion, however, by first deciding that the statute's text is ambiguous with respect to whether both convictions should be permitted, and we then consider the pertinent extra-textual factors. SeeTex. Penal Code § 21.02(c); Tex. Gov't Code § 311.023. We affirm the judgment of the court of appeals.

I. Background

The complainant is appellant's ten-year-old stepdaughter. She testified at appellant's trial that from approximately March 2009 to January 2010, he committed multiple, repeated sexual acts against her, including genital penetration of her anus and mouth, digital and oral penetration of her genitals, and touching of her breasts. She also testified that during the same time period, appellant tried to penetrate her genitals with a vibrator and with his genitals. These facts resulted in a jury convicting appellant of four offenses, only two of which are pertinent to this appeal: the conviction for continuous sexual abuse that was alleged to have occurred on or about June 1, 2009, through January 29, 2010, and the conviction for attempted aggravated sexual assault of a child that was alleged to have occurred on or about January 29, 2010. SeeTex. Penal Code §§ 21.02(b); 22.021(a)(1)(B), (a)(2)(B).

On appeal, the parties disputed whether the statutory language would permit dual convictions for the offenses of continuous sexual abuse and attempted aggravated sexual assault. Appellant asserted that attempted aggravated sexual assault is a lesser-included offense of aggravated sexual assault, which is specifically enumerated as one of the predicate offenses that may be used to establish the offense of continuous sexual abuse. SeeTex.Code Crim. Proc. art. 37.09(4); Tex. Penal Code §§ 15.01(a); 21.02(b), (c)(4). Because the attempt offense is a lesser-included offense of the predicate aggravated-sexual-assault offense, appellant argued that upholding his convictions for both offenses would violate his rights against double jeopardy. The State responded that the plain language of the continuous-sexual-abuse statute references only aggravated sexual assault, not attempted aggravated sexual assault, and therefore, a defendant may be convicted for both continuous sexual abuse and the lesser attempted offense. SeeTex. Penal Code § 21.02(c).

The court of appeals agreed with appellant. Price, 413 S.W.3d at 163. It held that the statute's language expressed the Legislature's intent to disallow convictions for both continuous sexual abuse and a predicate offense that could be used to establish that offense. Id. at 162–63. The court acknowledged the State's claim that appellant was charged with attempting to commit, rather than with the commission of, a predicate offense and that the statute does not specifically mention criminal attempt. Id. at 162. Despite the absence of any mention of criminal attempt in the statute, the court determined that the Legislature would not have intended to permit dual convictions that would violate a defendant's rights against double jeopardy. Id. at 163–64.

Challenging the court of appeals's purported failure to apply the plain language of the statute, the State's petition for discretionary review argues that because an attempt to commit a predicate offense is not included in the acts of sexual abuse enumerated in the statute, the Legislature intended to permit dual convictions for continuous sexual abuse and for an attempt to commit a predicate offense under the statute.² The State further suggests that, even if the attempted offense occurred during the same period of time as the conduct giving rise to the conviction for continuous sexual abuse, both of appellant's convictions should be upheld because the facts show that he committed both completed acts of abuse against the complainant as well as a failed attempt to penetrate her with a vibrator. Appellant responds that, by including in the statutory language a provision that expressly disallows convictions for predicate offenses when a defendant is convicted under the continuous-sexual-abuse statute, the Legislature signaled its desire to protect against double-jeopardy violations and, therefore, it would be absurd to read the statute as permitting both convictions, which would result in a double-jeopardy violation.

II. The Legislature Did Not Intend to Permit Dual Convictions for Continuous Sexual Abuse and a Lesser–Included Offense

After reviewing the statutory language, we decide that it is ambiguous as to whether it permits dual convictions for the offenses of continuous sexual abuse and attempted aggravated sexual assault. We then consider the extra-textual factors before ultimately deciding that permitting dual convictions under these circumstances would violate the statutory scheme set forth by the Legislature.

A. The Statute is Ambiguous

1. Applicable Law for Determining Whether Language is Ambiguous

In construing a statute, this Court must seek to effectuate the “collective” intent or purpose of the legislators who enacted the legislation. Reynolds v. State, 423 S.W.3d 377, 382 (Tex.Crim.App.2014); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). In interpreting statutes, we presume that the Legislature intended for the entire statutory scheme to be effective. Mahaffey v. State, 364 S.W.3d 908, 913 (Tex.Crim.App.2012). When statutory language is clear and unambiguous, we give effect to its plain meaning unless to do so would lead to absurd consequences that the Legislature could not have possibly intended. Ex parte Valdez, 401 S.W.3d 651, 655 (Tex.Crim.App.2013); Boykin, 818 S.W.2d at 785. A statute is ambiguous when the statutory language may be understood by reasonably well-informed persons in two or more different senses; conversely, a statute is unambiguous when it permits only one reasonable understanding. See Bryant v. State, 391 S.W.3d 86, 92 (Tex.Crim.App.2012).

2. Statute Clearly Disallows Dual Convictions for Continuous Sexual Abuse and Enumerated Acts

The statutory language reflects that the Legislature intended to permit one conviction for continuous sexual abuse based on the repeated acts of sexual abuse that occur over an extended period of time against a single complainant, even if the jury lacks unanimity as to each of the particular sexual acts or their time of occurrence, so long as the jury members agree that at least two acts occurred during a period that is thirty or more days in duration. Tex. Penal Code § 21.02(b), (d), (f). The “acts of sexual abuse” are specifically enumerated and are lesser-included offenses of the offense of continuous sexual abuse. Id. § 21.02(c); Soliz v. State, 353 S.W.3d 850, 854 (Tex.Crim.App.2011) (holding that “a[ ] [predicate] offense listed under Subsection (c) will always ” be a lesser offense of continuous sexual abuse because the latter “is, by its very definition, the commission under certain circumstances of two or more of the offenses listed in Subsection (c)”) (internal quotations omitted).

The statutory language further reflects that the Legislature clearly intended to disallow dual convictions for the offense of continuous sexual abuse and for offenses enumerated as “acts of sexual abuse” when based on conduct against the same child during the same period of time. SeeTex. Penal Code § 21.02(e). A defendant charged with continuous sexual abuse who is tried in the same criminal action for an enumerated offense based on conduct committed against the same victim may not be convicted for both offenses unless the latter offense occurred outside the period of time in which the continuous-sexual-abuse offense was committed. Id. Excepting the situation where different periods of time are at issue, a fact finder could find a defendant guilty either of continuous sexual abuse, or, alternatively, an enumerated act or acts of sexual abuse or a lesser offense or offenses of the enumerated act or acts. See id. We conclude that the statutory language is plain in providing that, when the acts alleged were committed against a single child, the Legislature did not intend to permit dual convictions for continuous sexual abuse and for an enumerated act of sexual abuse unless the latter occurred during a different period of time.

3. The Statute is Ambiguous as to the Legislature's Intent in Omitting Language on Criminal Attempts

In its brief on discretionary review, the State focuses on the fact that the “acts of sexual abuse” specifically enumerated in the statute do not mention criminal attempts to commit those acts. Id...