Eugene Keno v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

No. 04-99-00695-CR
Eugene KENO,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-6326
Honorable Raymond Angelini, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 16, 2001

AFFIRMED AS MODIFIED

Appellant Eugene Keno was convicted of sexual assault of a child and indecency with a child. The jury sentenced Keno to five years imprisonment for the offense of sexual assault and ten years probation for the offense of indecency with a child. In a single appellate issue, Keno asserts that the evidence is insufficient to support both convictions. Because both convictions are based on a single act, we vacate the conviction of indecency with a child and affirm the judgment as modified.

Factual and Procedural History

The complainant, a fourteen year old female, testified that Keno was her mother's boyfriend. During the early morning hours of July 7, 1998, Keno woke the complainant up and told her to go to the living room and get on the couch. The complainant complied, Keno removed her panties, and he digitally penetrated her vagina a single time. Although the complainant testified that Keno left his fingers in her vagina "for awhile," she denied that he touched any other part of her body or did anything else to her.

The indictment presents two counts arising from this incident. Count I (sexual assault) alleges that Keno caused the penetration of the female sexual organ of the complainant, a child, by placing the finger of Appellant in the female sexual organ of the complainant. Count II (indecency with a child) alleges that Keno engaged in sexual contact with the complainant by touching the female sexual organ of the complainant with the intent to arouse and gratify the sexual desire of Keno.

Keno's sole issue challenges the rendition of two judgments, from a single indictment where the evidence supports only one conviction. Keno asserts that two convictions may not arise out of a single indictment, citing Ex Parte Siller, 686 S.W.2d 617 (Tex. Crim. App. 1985). Two or more offenses may be joined in a single indictment if the offenses arise out of the same criminal episode. See TEX. CRIM. PROC. CODE ANN. 21.24(a) (Vernon 1989). When Siller was decided, a "criminal episode" was limited to multiple property crimes. (1) However, after the 1987 amendment of the Penal Code, all offenses "committed pursuant to the same transaction" are part of the same criminal episode. See Tex. Pen. Code Ann. 3.01 (Vernon 1994). Therefore, the multiple offenses charged against Keno are properly joined in a single indictment.

Keno further argues that only one conviction is allowed because the evidence presented proved only a single instance of digital penetration of the complainant's vagina. Based on the argument presented, we construe Keno's issue as raising a double jeopardy complaint because the evidence proves only a single criminal offense.

Double Jeopardy

The Fifth Amendment protection against double jeopardy includes protection against multiple punishments for the same offense. See Illinois v. Vitale, 447 U.S. 410, 415 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991). This federal constitutional protection is incorporated into State proceedings via the Fourteenth Amendment. See Cervantes, 815 S.W.2d at 572 n.2. Greater-inclusive and lesser-included offenses are the same for jeopardy purposes. See Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994).

Ordinarily, a double jeopardy claim must be presented in the trial court to preserve the error. See Ex Parte Murphy, 669 S.W.2d 320, 322 (Tex. Crim App. 1983). This procedural rule balances a defendant's right to assert his constitutional protection against the State's right to assert its legitimate interest in an orderly trial process. See Shaffer v. State, 477 S.W.2d 873, 876 (Tex. Crim. App. 1971). However, in a case where the trial court knew or should have known of the jeopardy problem, the defendant may assert his claim after trial. See id.; Duckett v. State, 454 S.W.2d 755, 758 (Tex. Crim. App. 1970); Beltran v. State, 30 S.W.3d 532, 533 n.1 (Tex. App.-San Antonio 2000, no pet.). In analyzing the Duckett line of cases, the Court of Criminal Appeals recently observed, "a double jeopardy claim may be raised for the first time on appeal . . . when the undisputed facts show 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 state interest." Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). In a case of a lesser included offense, both cases are necessarily before the same judge, and the trial judge knew or should have known of the jeopardy issue. See Beltran, 30 S.W.3d at 533 n.1. Under the circumstances of Keno's case, we may review the issue despite any procedural defect because the error is apparent on the face of the record and the trial court knew or should have known of the problem. (2)

A person commits the offense of sexual assault if the person intentionally or knowingly "causes the penetration of the anus or female sexual organ of a child by any means." TEX. PEN. CODE ANN. 22.011(a)(2)(A) (Vernon Supp. 2001). A person commits an offense of indecency with a child if the child is younger than seventeen years of age, not his spouse, and "he engages in sexual contact with the child." TEX. PEN. CODE ANN. 21.11(a) (Vernon Supp. 2001). The definition of sexual contact is "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." TEX. PEN. CODE ANN. 21.01(2) (Vernon 1994).

In a case where the evidence raises the issue of the defendant's intent to arouse or gratify his sexual desire in the course of committing the penetration element of sexual assault, the court should submit to the jury the offense of indecency with a child as a lesser-included alternative to the offense of sexual assault. See Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998). In Ochoa, the defendant was convicted of aggravated sexual assault of a child and indecency with a child with both

charges arising from a single act. Id. When the evidence at trial shows that only one offense was committed, the State may not seek conviction for two offenses. Id.

At trial, the State presented evidence of a single incident which met the elements of both offenses. The complainant's testimony proves only a single touching, the one digital penetration. Under the facts of this case, indecency with a child is a lesser-included offense of aggravated sexual assault. Keno, therefore, could have been convicted of either sexual assault of a child or indecency with a child, but not both. The proper remedy is to reform the judgment by vacating the lesser conviction and sentence. See Ochoa, 982 S.W.2d at 908; Landers v. State, 957 S.W.2d 558, 560 (Tex. Crim. App. 1997). Accordingly, we vacate the conviction of indecency with a child and the sentence of ten years probation, and we affirm the conviction of sexual assault of a child and the sentence of five years imprisonment.

The judgment of the trial court is affirmed as modified.

Tom Rickhoff, Justice

Do not publish

1. Prior to 1987, a criminal episode was defined as "the repeated commission of any one offense defined in Title 7 of this code (Offenses Against Property)." Act of May 23, 1973, 63rd Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 883, 891, amended by Act of May 22, 1987, 70th Leg., R.S., ch. 387, 1987 Tex. Gen. Laws 1900, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, 1.01, 1993 Tex. Gen. Laws 3586, 3591 (current version at Tex. Pen. Code Ann. 3.01 (Vernon 1994).

2. While the court in Gonzalez held that the alleged error needed to be preserved, Keno's situation is clearly distinguishable. In Gonzalez, the defendant was charged with injury to an elderly individual in a single paragraph and aggravated robbery in three separate paragraphs which alleged alternative means of committing the offense. See Gonzalez, 8 S.W.3d at 640-41. Gonzalez's complaint of multiple punishment rested on only one of the three possible means of committing robbery. See id. at 641. Because only one of the three possible means of committing robbery implicated double jeopardy considerations, the record did not show on its face a constitutional error; only the possibility of error was shown. See id. at 645.