Louis Carlos Gutierrez v. The State of Texas--Appeal from 32nd District Court of Nolan County

Opinion filed July 26, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00042-CR

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LOUIS CARLOS GUTIERREZ, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 32nd District Court

Nolan County, Texas

Trial Court Cause No. 9500

  O P I N I O N

Louis Carlos Gutierrez appeals his conviction by a jury for the offenses of aggravated sexual assault, indecency with a child by contact, and indecency with a child by exposure. The court assessed his punishment at fifty-five years, twenty years, and ten years in the Texas Department of Criminal Justice, Institutional Division, to run concurrently, and a fine in each cause of $10,000. In a single issue, Gutierrez contends that his conviction for indecency with a child by exposure must be set aside on double jeopardy grounds because the exposure was incidental to the higher inclusive offenses of aggravated sexual assault and indecency with a child by contact, the other two offenses for which Gutierrez was convicted. We affirm.

Because Gutierrez did not raise the issue of double jeopardy at trial, we must first determine whether the issue is preserved for our review. Due to the fundamental importance of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal when the double jeopardy violation is clearly apparent on the face of the record and when enforcement of the usual rules of procedural default serves no legitimate purpose. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000).

The indictment alleges in three counts that on or about March 1, 2001, Gutierrez caused the penetration of the complainant=s mouth with his sexual organ, caused her to touch his genitals, and exposed his genitals to her. The complainant testified that, in a house on McCauley Street, Gutierrez pulled down his pants and made her stick her mouth on his penis. She added that he made her put her hands on his penis and move them up and down. She insisted that she could see his penis. The complainant also testified concerning two other occasions at two other locations when Gutierrez pulled down his pants and told her to suck his penis.

In the court=s charge, the jury was asked to find whether Gutierrez committed any of the three alleged offenses on or about March 1, 2001, but it was instructed that the State was not bound by the date alleged but need only prove that the offense was committed any time prior to the return of the indictment that was within the period of limitation. Gutierrez=s contention that his conviction for indecency with a child by exposure is barred by the United States Constitution=s prohibition against multiple punishments for the same offense is based on the assumption that the exposure occurred during the same criminal episode that resulted in his convictions for the other two offenses.

However, based upon the testimony showing at least three different occasions of exposure and the charge, the jury could reasonably have convicted Gutierrez of exposing himself on a different occasion than the occasion or occasions for which they convicted him for aggravated sexual assault and indecency with a child by contact.

Gutierrez asserts that all three of his convictions must relate to the McCauley Street episode because it occurred on March 1, 2001, the date alleged in the indictment. He first refers us to the complainant=s testimony outside the presence of the jury. In that testimony, she testified that the last time this happened, on March 1, 2001, she lived in the house on McCauley. She also indicated, just as she later did before the jury, that it also happened on two other occasions. She did not mention the date of March 1, 2001, in her testimony before the jury concerning the assault on McCauley. The complainant=s testimony to which Gutierrez refers does not establish that the exposure for which Gutierrez was convicted was committed at the same time as the aggravated sexual assault or indecency with a child by contact offenses for which he was convicted, inasmuch as there were at least a total of three occasions in which Gutierrez exposed himself to the complainant while compelling her to suck on his penis.

Gutierrez also refers us to the State=s Notice of Extraneous Crimes, Wrongs, or Bad Acts. His contention is that those offenses contained in the list, since the State concedes they are extraneous offenses, could not be offenses for which he could be convicted. The list contains only one offense of indecency by exposure, which allegedly occurred on December 12, 2000. Other than the March 1, 2001 date mentioned outside the presence of the jury, no specific date was attached to any of three allegations of exposure that was established by the testimony. Inasmuch as there were three instances of exposure in the record, of which one was identified by specific date outside the jury=s presence, but only one instance of exposure was included within the State=s Notice of Extraneous Crimes, Wrongs, or Bad Acts, it does not establish that the exposure for which Gutierrez was convicted occurred at the same time or during the same criminal episode as his convictions for aggravated sexual assault or indecency with a child by contact.

Gutierrez also refers us to the prosecutor=s final argument, in which she said:

And I tell you what else you know is true. You know that when you look at this Charge, you know that he=s guilty of penetrating the mouth of that child with his penis on or about March 1st of 2001; you know that he=s also guilty of having her touch him for his own sexual gratification. Why else would you do that? And you also know - - and that happened more than once. And you also know that he committed indecency with a child by exposure. He had to. She had her hands on him and had her mouth on him and she had to do it, and you know it was exposed.

Gutierrez contends that this shows that the prosecutor was talking just about the offense on McCauley. However, the prosecutor in the argument refers to the fact that this occurred on more than one occasion. It is not apparent that the prosecutor was referring only to the offense occurring on McCauley. Although the prosecutor referred to the date alleged in the indictment as March 1, 2001, the comment, when considered together with the court=s charge, did not necessarily refer solely to the offenses committed by Gutierrez on McCauley.

Inasmuch as it is impossible to determine from the record before us whether the act of indecency by exposure for which Gutierrez was convicted occurred at the same time as the acts of aggravated sexual assault or indecency with a child by contact for which he was convicted, any double jeopardy violation is not clearly presented on the face of the record. Consequently, any such claim is not preserved for our review. We overrule Gutierrez=s sole issue on appeal.

The judgment is affirmed.

PER CURIAM

July 26, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: McCall, J.,

Strange, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.