James Edward Hunt v. The State of Texas--Appeal from 278th District Court of Grimes County

Opinion issued June 8, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-01022-CR

NO. 01-04-01244-CR

NO. 01-04-01245-CR

NO. 01-04-01246-CR

NO. 01-04-01247-CR

NO. 01-04-01248-CR

NO. 01-04-01249-CR

JAMES EDWARD HUNT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 278th District Court

Grimes County, Texas

Trial Court Cause No. 14,951

MEMORANDUM OPINION

Appellant, James Edward Hunt, appeals from seven convictions resulting from a seven-count indictment in trial court cause number 14,951. The complainant was a six-year-old child at the time of the dates listed in the indictment. The first three counts of the indictment allege aggravated sexual assault of a child, asserting that appellant caused his sexual organ to penetrate the female sexual organ of the complainant. See Tex. Pen. Code Ann. 22.021(a)(1)(B) (Vernon Supp. 2005). Counts one and three each assert that two offenses occurred on or about July 20, 2002, and count two asserts that one offense was committed on or about July 19, 2002. Count four of the indictment also alleged aggravated sexual assault of a child, asserting that on or about July 20, 2002, appellant caused his tongue to penetrate the female sexual organ of the complainant. See id. The last three counts of the indictment, counts five through seven, charged appellant with indecency with a child. See Tex. Pen. Code Ann. 21.11 (Vernon 2003). Counts five and six of the indictment each allege that appellant, with intent to arouse and gratify his sexual desire, intentionally and knowingly engaged in sexual contact by touching the genitals of the complainant. Count five asserts that an offense occurred on or about July 20, 2002, while count six asserts that an offense occurred on or about July 19, 2002. Count seven of the indictment alleged that appellant, on or about July 19, 2002, with intent to arouse and gratify the sexual desire of appellant, intentionally and knowingly engaged in sexual contact by touching the breasts of the complainant.

Appellant pleaded not guilty to the offenses before a jury that found him guilty of all of the offenses. The jury assessed his sentences at 20 years in prison for each count of aggravated sexual assault of a child, counts one through four, and 10 years in prison for each count of indecency with a child by contact, counts five through seven. The trial court ordered that all sentences run concurrently.

In his first issue in this appeal, appellant challenges all of the convictions, asserting that the evidence is legally insufficient to show that there was no spousal relationship between him and the complainant. In his second issue, appellant contends that the convictions in counts three, five and six must be vacated because those convictions violate his Fifth Amendment right against double jeopardy. Appellant also contends that the judgment in count three must be vacated because it asserts the identical offense, manner and means, and date, as the offense stated in count one. Appellant also contends that the judgment in count five must be vacated because it asserts indecency with a child by contact, which is the lesser included offense of the aggravated sexual assaults for which appellant was convicted in counts one and three. Appellant further asserts that the judgment in count six for indecency with a child by contact must be vacated because it asserts the lesser included offense of aggravated sexual assault for which appellant was convicted in count two.

We conclude that the circumstantial evidence is legally sufficient to establish that the six-year-old complainant was not the spouse of appellant. We further conclude that appellant s judgments are not barred by double jeopardy because the record shows four separate offenses of aggravated sexual assault of complainant, in addition to three separate offenses of indecency with a child by contact. We therefore affirm. Factual and Procedural BackgroundDuring a two-week period that began on July 4, 2002, appellant, who was 17 years of age, lived with complainant, her three siblings, and her parents. Appellant was an acquaintance of the family and was allowed to live there because he needed a place to stay. Although they were not related, complainant referred to appellant as her big brother.

According to appellant s audiotaped statements admitted at trial, the first improper contact between complainant and appellant occurred in the complainant s bedroom, as complainant and appellant lay in her bed together. According to appellant, after complainant pulled her own underwear and pants down, he accidentally shoved the tip of his erect penis into her private part.

On the following night, the second sexual episode between appellant and complainant occurred. According to appellant s audiotaped statements, appellant was again in complainant s bedroom lying in bed with her, when his erect penis accidentally touched her private part. Complainant s mother awoke at around 3:00 a.m. when she heard a scream and crying. Complainant s mother went into complainant s bedroom, where complainant told her that appellant had peed on her. The complainant s bed and clothes, however, were not wet. After complainant told her mother that she had been cuddling with appellant, complainant s mother told appellant that boys were not allowed in the girl s bedroom. Complainant then slept in her mother s bedroom.

Complainant also described a third sexual encounter with appellant that occurred in her bedroom. At trial, and on the videotape of complainant that was admitted into evidence at appellant s trial, complainant stated that appellant licked her pee-pee when he was in her bedroom.

A fourth episode occurred about two weeks later, while complainant and appellant were on a couch. According to complainant s videotaped statements, while they were on the couch, appellant took complainant s pants off, and stuck his tallywacker into her pee-pee area, which hurt her and made her cry. During their time together on the couch, according to appellant, complainant pulled his pants down and also put her breast in his mouth, which he then licked and sucked. Appellant s contact with complainant s breast was a fifth sexual encounter. Complainant s mother, who was in the next room, heard someone say, Get off me, I don t like this and checked on complainant. Complainant s mother then saw appellant hovering over complainant with a blanket over her, and his shorts were in disarray. Complainant s mother called appellant s parents that day so that they could pick him up and take him home.

A sixth sexual episode between appellant and complainant was described by appellant in his audiotaped statements. According to appellant, when he was on the floor, complainant sat on his face causing him to accidentally lick her privates because she was clothed only in a dress with no panties. Appellant said that he stood up and went near the couch to attempt to distance himself from her. Appellant described a seventh sexual encounter with complainant that occurred after he moved away from complainant. According to appellant s audiotaped statement, complainant jumped on top of him again, causing him to fall back to the floor, and she got back on top of his face again, which caused him to accidentally lick her private parts again. Also according to appellant s audiotaped statement, an eighth sexual contact between complainant and appellant occurred when complainant touched his penis with her hand that she had put down his pants while they were outside of the house. A ninth sexual encounter was described by complainant, both at trial and on the videotape, when she stated that appellant licked her pee-pee when they were in her brother s room.

After appellant left complainant s home, complainant told her mother that she was a bad girl, that appellant had given her a tongue bath in her pee-pee area, that appellant touched his pee-pee area to her pee-pee area, that appellant touched his pee-pee area to her butt area, and that he licked her on her chest area. Complainant s mother took her for an examination at a clinic, which revealed that, other than redness and irritation to her hymen that could be treated with Sitz baths, complainant s examination was normal.

After reporting to her mother what appellant had done to her, complainant relayed the information to a police officer and a forensic investigator that specializes in child interviews. The investigator s interview was videotaped. On the videotape, which was later admitted into evidence by agreement of the parties, complainant stated that while they were on a bed, appellant licked her genital and anal areas, and he, on two occasions, penetrated her female sexual organ with his sexual organ. Complainant also stated that appellant made her touch his male sexual organ with her hand.

After appellant s arrest, when he could not reach his parents, he called their neighbor David Shumate for assistance in locating them. Appellant told Shumate that he was in jail because he was in the bedroom sleeping with the girl. [sic] And that he had turned over and his penis had accidentally touched the child. Appellant later admitted to Shumate that he had sex with the girl.

On August 9, 2002, appellant was interviewed twice by a police officer and those interviews were recorded on audiotapes that were later admitted at appellant s trial. During the interviews, appellant waived his statutory rights and spoke to the officer, admitting the conduct described more fully above.

At trial, complainant testified that when she was in her bedroom sleeping, appellant kissed her on the mouth and touched the inside of her pee-pee area with his pee-pee area, which hurt her. Complainant also stated that appellant touched in my butt with his pee-pee, which also hurt her. Complainant further stated that appellant also licked her pee-pee when he was in her room and also again when he was in her brother s room. Complainant stated further that appellant licked her butt. When asked how many times appellant had touched her, complainant stated three times at night and the same thing four times at day. Spousal Status of Complainant

In his first issue, appellant contends that the evidence concerning all of his convictions is legally insufficient to show that there was no spousal relationship between him and the complainant.

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to give their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). A jury is entitled to accept one version of the facts and reject another, or reject any part of a witness s testimony. Id. Circumstantial evidence may be used to prove an essential element of an offense. Wilson v. State, 654 S.W.2d 465, 467 (Tex. Crim. App. 1983). In a sexual assault of a child or indecency with a child case, the State must prove that the complainant was not the spouse of the defendant. See Tex. Pen. Code Ann. 21.11, 22.021(a)(1)(B).

The record shows that complainant was six years old at the time of trial, and lived with her mother, two brothers and a sister. The complainant s mother testified that she knew appellant through a friend of hers, allowed him to live with her family because he had nowhere else to go, and that, before the assaults, complainant thought of appellant as a big brother. The circumstantial evidence therefore shows that appellant and complainant knew each other because he was an acquaintance of complainant s mother. We conclude that the evidence is legally sufficient to establish that appellant was not the spouse of the six-year-old complainant.

We overrule appellant s first issue.

Double Jeopardy

In his second issue, appellant asserts that three of the seven convictions violated his Fifth Amendment right against double jeopardy because (1) counts one and three are the same offense, (2) count five is the lesser included offense of counts one and three, and (3) count six is a lesser included offense of count two. Appellant requests that we reform the judgment to vacate the convictions for counts three, five and six only.

The State contends that appellant has waived the right to complain on appeal about double jeopardy, as asserted in appellant s second issue, because he never objected to the charge at trial or asserted any double jeopardy complaint prior to this appeal. However, because of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal . . . when the undisputed facts show that any double jeopardy violation would be clearly apparent from the record. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). Specifically, a defendant may raise a double jeopardy claim for the first time on appeal when no further proceedings are required to expand the record with new evidence and the claim can be resolved on the basis of the existing record. Id. at 644 (citing United States v. Broce, 488 U.S. 563, 575, 109 S. Ct. 757, 763 66 (1989); Menna v. New York, 423 U.S. 61, 63, 96 S. Ct. 241, 242 (1975)).

We conclude that any double jeopardy violation in this case would be apparent from the record, i.e., the indictments and the evidence presented at trial. We further conclude that no further proceedings are required to determine whether appellant s Fifth Amendment rights against double jeopardy were violated. We thus address the merits of appellant s double jeopardy complaint.

Double jeopardy is the principle that a person shall not be subject for the same offense to be twice put in jeopardy of life or limb. U.S. Const. amend. V. The Texas Constitution provides similarly: No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction. Tex. Const. art. I, 14. These prohibitions protect against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Ex parte Kopecky, 821 S.W.2d 957, 958 (Tex. Crim. App. 1992); Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990). When a defendant is subjected to a single trial, only the third aspect of the protection against multiple punishments is involved. Herron, 790 S.W.2d at 624 (Tex. Crim. App. 1990).

For double jeopardy purposes, [t]he same offense means the identical criminal act, not the same offense by name. Luna v. State, 493 S.W.2d 854, 855 (Tex. Crim. App. 1973) (holding that sales of heroin three months apart were not one offense); see Ex parte Goodbread, 967 S.W.2d 859, 860 61 (Tex. Crim. App. 1998) (holding that 15 separate sexual offenses committed between June 10, 1990 and April 1, 1994 were not one offense). In Luna, the Court of Criminal Appeals commented on the possibility that, although two offenses could appear to be covered by a single charge, they could still be two entirely separate offenses. 493 S.W.2d at 855. In declaring that [t]he same offense means the identical criminal act, not the same offense by name, the Luna Court gave the following example:

To illustrate, there might be two cases against A for assault to murder on B with a pistol on the same alleged date, and a judgment of conviction or acquittal occur in one case. On the face of the pleadings and judgment a plea of former conviction or acquittal would appear good, and yet A may have tried to kill B on two different occasions on the same day.

Id. at 855 (citation omitted). The Court of Criminal Appeals held in Luna that, when one cannot determine from the State s pleadings whether the offenses prosecuted are the same, the court must look to the proof offered at trial. Id.

A defendant is guilty of aggravated sexual assault of a child if the evidence shows that he intentionally or knowingly caused his sexual organ or his mouth to contact or penetrate the female sexual organ of the complainant. Tex. Pen. Code Ann. 22.021(a)(1)(B). A defendant is guilty of indecency with a child if the evidence shows that he engages in sexual contact with the child or causes the child to engage in sexual contact by touching, including touching through clothing, the anus, breast, or any part of the genitals of a child. Tex. Pen. Code Ann. 21.11. As long as an offense occurred at any time within the statute of limitations, the State need not prove the actual date of the offense. Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App. 1998) (holding that (1) time is not material element of offense, (2) primary purpose of specifying date in indictment is not to notify accused of date of offense but rather to show prosecution not barred by statute of limitations, and (3) it may be impossible for State to know precisely when charged offense occurred).

The record demonstrates facts to establish at least four aggravated sexual assaults, as follows:"Appellant admitted in his audiotaped statement that the first sexual contact with complainant consisted of him penetrating her sexual organ with his sexual organ while they lay in bed together in her bedroom.

"Appellant admitted in his audiotaped statement that the second sexual contact with complainant consisted of his erect penis accidentally touching complainant s female sexual organ as they lay in her bed together the day after their first sexual encounter.

"Complainant stated in her videotaped statement that appellant penetrated her female sexual organ with his sexual organ while they were on the couch.

"Appellant admitted in his audiotaped statement that, when he was on the floor, complainant twice sat on his face causing him to accidentally lick her privates and penetrate her female sexual organ with his tongue during the second episode. Complainant also told her mother that appellant had given her a tongue bath in her pee-pee area.

Excluding the evidence that pertains to the aggravated sexual assaults described above, the record also demonstrates facts to establish at least three indecency with a child offenses, as follows:

" At trial, and on the videotape of complainant that was admitted into evidence at appellant s trial, complainant stated that appellant licked her pee-pee when he was in her bedroom.

" At trial, and on the videotape of complainant that was admitted into evidence at appellant s trial, complainant stated that appellant licked her pee-pee when he was in her brother s room.

"During their time together on the couch, according to appellant, complainant put her breast in his mouth, which he then licked and sucked.

The record therefore demonstrates at least four separate aggravated sexual assault convictions that contained evidence apart from each other and apart from the three indecency with a child convictions.

We therefore conclude that because each of the seven convictions were premised on evidence of seven separate and distinct sexual acts, no violation of the double jeopardy clause occurred. See Luna, 493 S.W.2d at 855.

We overrule appellant s second issue.

CONCLUSION

We affirm the judgment of the trial court for each of appellant s convictions in counts one through seven of the indictment.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Alcala.

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