Rodriguez v. State
| Decision Date | 08 February 1989 |
| Docket Number | No. 6-87-072-CR,6-87-072-CR |
| Citation | 766 S.W.2d 358 |
| Parties | George RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Leroy Peavy, Houston, for appellant.
John B. Holmes, Dist. Atty., Houston, for appellee.
In a single trial, George Rodriguez was convicted of aggravated sexual assault of a child and aggravated kidnapping. He was sentenced to sixty years in the Texas Department of Corrections for each offense, the sentences to run concurrently.
This is an appeal from the aggravated sexual assault conviction. Rodriguez contends that the judgment should be reversed because he was convicted of an offense other than the one alleged in the indictment. He also argues that it was error to convict him in the same trial of the offense of aggravated kidnapping, because both crimes arise out of the same criminal episode and prosecution for both would violate the double jeopardy prohibition. We overrule both contentions and affirm the judgment.
Rodriguez first contends that the indictment alleged the offense of sexual assault, a second-degree felony defined in Tex.Penal Code Ann. § 22.011 (Vernon Supp.1989), rather than aggravated sexual assault of a child, a first-degree felony defined in Tex.Penal Code Ann. § 22.021 (Vernon Supp.1989). For that reason, he argues, the judgment and the punishment of sixty years' confinement are void.
The punishment for a second-degree felony is confinement for any term not more than twenty years or less than two years, and a fine not to exceed $10,000.00. Tex.Penal Code Ann. § 12.33 (Vernon 1974). For a first-degree felony, the authorized punishment is confinement for life or for any term of not more than ninety-nine years or less than five years, and a $10,000.00 fine. Tex.Penal Code Ann. § 12.32 (Vernon Supp.1989).
In relevant part, the indictment alleges that Rodriguez did:
[I]ntentionally and knowingly cause the penetration of the female sexual organ of MARISELA SALAZAR, hereafter styled the Complainant, a person younger than seventeen years of age and not his spouse by placing his sexual organ in the female sexual organ of the Complainant and by acts and words, the Defendant placed the Complainant in fear that serious bodily injury and death would be imminently inflicted on the Complainant.
Rodriguez points out that the indictment merely alleges that he committed the offense of rape upon the complainant and that he placed her in fear of bodily injury or death. He argues that because there was no allegation that the act of placing the victim in fear of bodily injury or death occurred at or near the time of the rape, the indictment fails to allege any connection between the rape and the aggravating circumstances, and thus does not charge aggravated sexual assault. We disagree.
Section 22.021 of the Texas Penal Code provides that a person commits the offense of aggravated sexual assault if the person intentionally or knowingly causes the penetration of the sexual organ of a child by any means, and if the person by acts or words places the victim in fear that death, serious bodily injury or kidnapping will be imminently inflicted on any person, the offense is a felony of the first degree. Tex.Penal Code Ann. § 22.021 (Vernon Supp.1989).
We hold that the indictment sufficiently sets out all of the requirements of aggravated sexual assault as defined in Section 22.021 of the Texas...
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Fisher v. State
...815, 824 (Tex.Crim.App.) (on State's mot. for reh.), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982); Rodriquez v. State, 766 S.W.2d 358, 359 (Tex.App.--Texarkana 1989, no pet.); McMillan v. State, 696 S.W.2d at 587. Because the State could legitimately charge Fisher with ......
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Rodriguez v. State
...case involving the aggravated sexual assault charge. We have addressed that point at length in our opinion in that case, Rodriguez v. State, 766 S.W.2d 358 (Tex.App.-Texarkana, 1989, n.w.h.) decided today, and for the reasons stated in that opinion, we find that he has not been twice placed......
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Ex parte Rodriguez, No. AP-75,225 (TX 8/31/2005), AP-75,225.
...his punishment as confinement for sixty years on each offense. The convictions were affirmed on appeal. Rodriguez v. State, 766 S.W.2d 358, 360 (Tex. App.-Texarkana 1989, pet. ref'd). Applicant contends that new DNA evidence reveals that pubic hair recovered from the victim was not his, but......