In the Matter of O.T., A Juvenile--Appeal from 73rd District Court of Bexar County

IN THE

TENTH COURT OF APPEALS

No. 10-98-193-CV

IN THE MATTER OF O.T., A JUVENILE,

From the 73rd District Court

Bexar County, Texas

Trial Court # 97-JUV-03490

O P I N I O N

Appellant, O.T. was charged by petition with having engaged in delinquent conduct. The specific charges were sexual assault and indecency with a child. Trial was before the Court. Appellant entered pleas of true and was committed to the Texas Youth Commission until his 21st birthday. Appellant seeks reversal of his adjudication and disposition. FACTUAL BACKGROUND

O.T. was charged with committing sexual assault and indecency with a child, against the same victim, G. T., on or about May 10, 1997". G. T. turned 14 years old on May, 8, 1997. O.T. is one year older than G. T.

O.T. molested his cousin, G. T., over a period of several years beginning when G. T. was six years old. On one occasion O.T. touched G. T. under her clothes on her breasts and her private . On another occasion, when G. T. was ten years old, O.T. kissed her on her mouth, took off her shirt and bra and put his mouth on her breasts. On yet another occasion in 1995, O.T. took off G. T. s shorts in the middle of the night and put his private part halfway, it felt ugly because I didn t like it. ...Yea, it did hurt. O.T. told her if he went to jail he would kill her or have someone kill her. The last time O.T. sexually penetrated G. T. with his penis was the incident from which she outcried the day after a school dance.

O.T. appeals bringing three points of error. His first point of error asserts the trial judge erred by finding both allegations in the petition true, because indecency with a child is a lesser included offense of sexual assault. His second point of error argues he received ineffective assistance of counsel because his attorney failed to raise an affirmative defense on his behalf. His third point of error asserts the trial judge erred by sentencing him to the Texas Youth Commission and by classifying his offenses as a sanction level five, because Texas Family Code 59.003 classifies them as a sanction level four.

ANALYSIS

O.T. s first point of error asserts the judge erred in finding him delinquent on both counts charged in the petition in violation of double jeopardy prohibitions because indecency with a child is a lesser included offense of sexual assault. Though O.T. focuses on the on or about May 10, 1997 language in the indictment when making his double jeopardy arguments, the state is not prevented from showing that acts alleged in the petition occurred on dates other than May 10, 1997, so long as the acts occurred within statutes of limitations. Swabado v. State, 597 S.W.2d 361, 363 (Tex. Crim. App. 1980).

The double jeopardy doctrine prohibits both cumulative punishment and successive prosecutions for greater and lesser included offenses committed during the same act or transaction. Brown v. Ohio, 432 U.S. 161,165-166, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). Under the Blockburger test, violations of two statutory provisions constitute separate offense for double jeopardy purposes if each provision requires proof of an additional fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). If each statute requires proof the other does not, the Blockburger test is met even if the offenses were committed contemporaneously or one offense is committed in aid of the other. Parrish v. State, 869 S.W.2d 352, 354-355 (Tex. Crim. App. 1994).

Whether indecency with a child is a lesser included offense of aggravated sexual assault of a child is determined on a case by case basis. Cunningham v. State, 726 S.W.2d 151 (Tex. Crim. App. 1987). A person commits sexual assault against a child if the person intentionally or knowingly ...causes the penetration of the anus or female sexual organ of a child by any means ; causes the penetration of the mouth of a child by the sexual organ of the actor ; causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor. Tex. Penal Code Ann. 22.011. A person commits indecency with a child if with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex, he...engages in sexual contact with the child; or...exposes his anus or any part of his genitals, knowing the child is present with intent to arouse or gratify the sexual desire of any person. Tex. Penal Code Ann. 22.11(a). Sexual assault against a child may be committed by penetration or any sexual contact. Indecency with a child requires intent to gratify sexual desire and may be committed by sexual contact or sexual exposure. Depending on the circumstances of the molestation, sexual assault may or may not require proof of an additional fact which indecency with a child does not.

In Cunningham, the evidence was of one incident of abuse and the circumstances of the molestation were such that indecency with a child was a lesser included offense of aggravated sexual assault. Cunningham v. State, 726 S.W.2d at 155. In this case, O.T. molested G. T. on several different occasions. On at least one occasion his actions met the definition of indecency with a child. On at least one other separate occasion his actions met the definition of sexual assault. In this case, indecency with a child is not a lesser included offense of sexual assault. The evidence supports conviction for both sexual assault and indecency with a child without violating double jeopardy prohibitions, and O.T. s first point of error is overruled.

O.T. s second point of error asserts he received ineffective assistance of counsel due to the failure of trial counsel to assert an affirmative defense on his behalf. To show ineffective assistance of counsel, an appellant must demonstrate (1) his trial counsel s performance was deficient because it fell below an objective standard of reasonableness and (2) there was a reasonable probability that, but for counsel s errors, the result of the proceeding would have differed. Strickland v. Washington, 104 S. Ct. 2052, 466 U.S. 668, 80 L. Ed. 2d 674 (1984). The defendant bears the burden of proving ineffective assistance of counsel. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The defendant must also overcome the strong presumption that the challenged action was sound trial strategy. Strickland at 2065. The reviewing court should look at the totality of the representation rather than isolated acts or omissions of trial counsel. Id. The reviewing court should not consider that another attorney might have pursued a different course of action. Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983).

It is an affirmative defense to sexual assault that the actor was not more than three years older than the victim, and the victim was a child or 14 years of age or older. Tex. Penal Code Ann. Sect. 22.011(e). It is an affirmative defense to indecency with a child that the actor...was not more than three years older than the victim and of the opposite sex; and...did not use duress, force, or a threat against the victim at the time of the offense. Tex. Penal Code Ann. Sect. 22.11(b). O.T. s trial counsel did not raise either defense on his behalf.

O.T. has not met the burden for proving ineffective assistance of counsel. O. T. is not entitled to the affirmative defense against indecency with a child because he used a threat against the victim. O.T. focuses on the on or about May 10, 1997" language in the petition when claiming the right to the affirmative defense against sexual assault. However, the state is not limited to proving the incidents of sexual assault and indecency with a child occurred on May 10, 1997. Swabado v. State, 597 S.W.2d at 363.

The state produced evidence of abuse occurring on several occasions before May 10, 1997, and more importantly, before May 8, 1997, when the victim turned 14. Because all but the final act of sexual assault or indecency with a child occurred before the victim turned fourteen years old, O.T. would have only had a defense to one act of sexual assault. With nothing to explain why trial counsel did not raise either affirmative defense, this court can only conclude his trial strategy may have been not to admit to any of the offenses. Even if O.T. s counsel had asserted the affirmative defense to the last act of assault, the other incidents of sexual assault and indecency with a child are sufficient to adjudicate him of both counts. O.T. has not met the burden for proving ineffective assistance of counsel because he fails to show how, with reasonable probability, the outcome of the proceeding would have been different, had trial counsel raised the affirmative defenses. O.T. s second point of error is overruled.

O.T. s third point of error asserts that the trial judge erred by classifying his offenses as sanction level five, because the Texas Family Code 59.003 (a)(4) classifies them as sanction level four. Because sexual assault and indecency with a child are classified as second degree felonies, O.T. s conduct amounted to a sanction level four. See Tex. Penal Code Ann. 22.011, 21.11 (West 1998); Juvenile Justice Code 59.003 (West 1998). O.T. was sentenced to the Texas Youth Commission until his 21st birthday based on a level six sanction. A disposition to the Texas Youth Commission is outside the range of a level four sanction. Juvenile Justice Code Sect. 59.007 (West 1998). A number of factors allow a court to enhance punishment by placing a delinquent child at the next level of sanctions, and the court may impose appropriate sanctions that are different from those provided in any sanction level , but the court must explain the reason for the deviation in writing and submit the statement to the juvenile board. Juvenile Justice Code Sect. 59.003(e). While the juvenile court has discretion to deviate from the assigned sanctions, the court did not file written findings explaining the deviation as required by Sect. 59.003(e). O.T. s third point of error is sustained.

This cause is reversed and remanded to the trial court for further proceedings consistent with this opinion.

ROBERT M. CAMPBELL

Justice (Sitting by Assignment)

Before Chief Justice Davis,

Justice Vance and

Justice Campbell (Sitting by Assignment)

Affirmed in part; reversed and remanded in part

Opinion delivered and filed January 27, 1999

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