Ricardo Martinez v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00743-CR

Ricardo MARTINEZ,

Appellant

v.

STATE OF TEXAS,

Appellee

From the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-10003

Honorable Fred Shannon , Judge Presiding

Opinion by: Rebecca Simmons , Justice

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: September 13, 2006

AFFIRMED

Appellant Ricardo Martinez was convicted of seven counts of aggravated sexual assault of a child and four counts of indecency with a child, namely K.D., his step-granddaughter. Martinez was sentenced on each count to ten years confinement, to run concurrently, in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Martinez asserts a double jeopardy claim with regard to the charges because the State failed to prove more than one occurrence and that the evidence does not legally support his conviction. We disagree and affirm the judgment of the trial court.

Factual Background

In 2000, Abigail Dolan Martinez and Javier Martinez were living in Corpus Christi, Texas and experiencing marital difficulties, in part due to Abigail's drug problems, when Javier took their one year old daughter and moved to San Antonio to live with his parents, Mary Alex and Appellant Ricardo Martinez. Abigail's other daughter, K.D., went to live with Amy Hutchinson, a friend in Georgetown, Texas. After a couple of months, Javier and Abigail reconciled and Abigail moved in with Javier and his parents. Approximately one year later, five year old K.D. moved in as well. K.D. lived in the Martinez home in San Antonio for approximately one year. During that time, Abigail admits being treated for a drug addiction problem. She recalls that K.D. began wetting the bed more frequently and complaining of irritation in her genital area. By her own admission, Abigail did not think much about it and treated the child's symptoms with Desitin ointment. By the end of 2002, Abigail was drug free, had split up with Javier and taken the two girls and moved into her own apartment. She noted distinct, positive changes in her oldest daughter. On January 14, 2003, K.D. told her mother that Ricardo Martinez, "Grandpa", had licked her genitals and anus, penetrated her with both his fingers and penis, that he touched her anus with a feather and that he put his private in her mouth. As a result of K.D.'s outcry, Martinez was charged with seven counts of aggravated sexual assault of a child and four counts of indecency with a child.

Double Jeopardy Violations

In his first point of error, Martinez asserts that the judgment convicting Martinez of both aggravated sexual assault and indecency with a child violates double jeopardy because Martinez was convicted and punished under multiple counts for conduct that was not proven to have occurred separately and distinctly. As such, Martinez alleges that the indecency with a child allegations, specifically counts VIII and XI of the indictment, are subsumed within the aggravated sexual assault allegations in counts IV, V and VI of the indictment.

Waiver

Generally, a double jeopardy claim must be raised in the trial court to preserve the error for appellate review. Honeycutt v. State, 82 S.W.3d 545, 547 (Tex. App.--San Antonio 2002, pet. ref'd). The Court of Criminal Appeals provided an exception permitting an appellant to raise a double jeopardy claim for the first time on appeal when the undisputed facts show that a double jeopardy violation is clearly apparent from the face of the record, and 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).

Although Martinez did not raise a double jeopardy claim at trial, he now argues that "the alleged 'penetration' of the sexual organ overlaps an allegation of 'contact' of the sexual organ." The evidence adduced at trial, however, established that Martinez touched K.D.'s vagina and anus on several occasions, including conduct of penetration. If the evidence supports separate and distinct acts, even if committed in close temporal proximity, the incidents may lawfully give rise to two convictions. See Hutchins v. State, 992 S.W.2d 629, 633 (Tex. App.--Austin 1999, pet. ref'd). Because the record supports multiple and distinct offenses that support his convictions, no double jeopardy violation is apparent on the face of the record. Therefore, Martinez does not meet the exception as outlined by Gonzalez allowing for this claim to be raised for the first time on appeal.

Double Jeopardy

Even absent waiver, Martinez's double jeopardy claims are not supported by the record. 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 prosecution for the same offense after a conviction or an acquittal, and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Ex parte Kopecky, 821 S.W.2d 957, 958 (Tex. Crim. App. 1992). When a defendant is subjected to a single trial, only the last aspect of the protection against multiple punishments is involved. Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990).

In order to prevail on a double jeopardy claim, the evidence must show that the two offenses at issue necessarily arose from "one act which could be subject to two different interpretations."Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998); Martinez v. State, 161 S.W.3d 697, 705 (Tex. App.--Austin 2005, pet. granted). Martinez has failed to demonstrate that his convictions of indecency with a child by contact were based on the same conduct underlying his convictions for aggravated sexual assault of a child.

The issue is whether the "convictions are based on the same act." Barnes v. State, 165 S.W.3d 75, 88 (Tex. App.--Austin 2005, no pet.). Thus, if a defendant commits the aggravated sexual assault of a child by penetrating the child's mouth with his penis, then the defendant cannot also be prosecuted for the indecency by contact which necessarily occurred in the course of committing the aggravated sexual assault. Id. Importantly, however, in Lopez v. State, the Court of Criminal Appeals explained that "an actor can be prosecuted for separate violations of Tex. Penal Code 22.021 based on different acts which occur in the same transaction because each act is a separate violation of the child." 108 S.W.3d 293, 300 n.28 (Tex. Crim. App. 2003).

A defendant is guilty of aggravated sexual assault of a child if the evidence shows that he intentionally or knowingly caused his sexual organ, mouth or fingers to contact or penetrate the female sexual organ or anus of the complainant. Tex. Pen. Code Ann. 22.021 (Vernon 2003). 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 (Vernon 2003). The "on or about" language of an indictment actually allows the State to prove a date other than the one alleged in the indictment as long as the date is prior to the presentation of the indictment and within the statutory limitation period. Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App. 1998) (holding that 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); Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). Thus, the fact that the State alleged the same dates in the indictments is not a bar to prosecution.

Martinez's reliance on Ochoa v. State, 982 S.W.2d 904 (Tex. Crim. App. 1998) is misplaced. In Ochoa, the defendant was convicted, inter alia, for aggravated sexual assault and indecency with a child by contact on or about June 16, 1994. Id. at 905. The State contended on appeal that the two offenses were not the same under the Blockburger test and it was therefore permissible to convict the defendant of both without a double jeopardy violation. Id. at 906. The court held that because there was evidence of only one offense committed by the defendant, the State was not entitled to seek convictions for two offenses where the evidence at trial shows that only one was committed. Id. at 908. To the contrary, the evidence in the present case supports that these were separate incidents which occurred on distinctly different occasions. See Murray v. State, 24 S.W.3d 881, 889 (Tex. App.--Waco 2000, pet. ref'd) (holding the defendant's double jeopardy rights were not violated by his punishment for both aggravated sexual assault and indecency with a child because the evidence at trial showed the defendant "committed two separate acts-penetrating the victim's sexual organ with his finger and touching her genitals with his tongue-that constituted two separate offenses").

The State called K.D., who was nine years old at the time of trial. K.D. related that when she was about five years old, she lived with Mr. and Mrs. Martinez and spent her days at their residence while her parents were at work. She explained that Ricardo Martinez touched her in certain areas, specifically with his hands and tongue on her breasts, where she "peed" and went "poop." K.D. also described how Ricardo would insert his fingers in her vagina and sometimes put his whole hand inside. Finally, K.D. related that he also used his tongue to go inside where she went "poop" and that Martinez would make her put her mouth on his private parts. During her testimony, K.D. made several allusions to the fact that this happened on more than one occasion--"mostly every day"--and that it happened in his bedroom and in his closet.

Amy Witt, an investigator with Child Protective Services, testified that she met with Mary Alex and Ricardo Martinez at her office. After playing the audiotape for Ricardo, he denied the allegation and claimed that K.D. just "wanted to send him to hell." Martinez further relayed one incident when he was eating breakfast and reading his bible that he unbuttoned his pants after eating, as directed by his doctor. Martinez claimed that K.D. just happened to come up to him and put her hand in his pants and make contact with his penis.

Annette Santos, the sexual assault nurse examiner (SANE), testified that she first saw the child on January 30, 2003. As per protocol, Santos conducted a medical interview to determine what type of medical examination would be required. K.D. expressed symptoms of vaginal itching and dysuria (pain associated with urinating). Santos further testified that K.D. stated that her grandpa, Ricardo Martinez, licked her private. She explained that he would carry her into his room and take off her clothes. He would then "lick my neck and my ninis," the name K.D. used to refer to her chest area. She continued that Martinez "opened my private with his hand and then lick (sic)" and that "He put his private inside my private and inside my butt." K.D. also described contact between Martinez's tongue and her anus and that Martinez made her lick his private. According to K.D., Martinez would always close the window and lock the door and further instructed her not to tell her parents. Other times, he would take her to the garage where similar incidents occurred.

Consistent with the charge and the evidence, the jury could find appellant was guilty of separate acts of penetration and sexual contact. We therefore conclude that because the convictions were premised on evidence of separate and distinct sexual acts, no violation of the double jeopardy clause occurred. See Luna v. State, 493 S.W.2d 854, 855 (Tex. Crim. App. 1973). Because it is not clearly apparent from the record that Martinez's convictions for aggravated sexual assault and indecency with a child by contact are based on the same conduct, his double jeopardy claim fails.

Legal Sufficiency

Martinez next complains that the State failed to prove the necessary elements of the charge of aggravated sexual assault of a child, specifically with regard to Martinez causing the anus of K.D. to contact the sexual organ of Martinez.

Standard of Review

In reviewing a legal sufficiency challenge, an appellate court views the evidence in the light most favorable to the verdict, and determines whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);Russeau v. State, 171 S.W.3d 871, 877 (Tex. Crim. App. 2005). We remain mindful that the jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); see also Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (reconciliation of conflicts in evidence is within exclusive province of jury and jury may choose to believe some testimony and disbelieve other testimony).

Analysis

In this case, the State alleged that Martinez caused the child's anus to contact the sexual organ of Martinez in violation of Tex. Pen.Code Ann. 22.021(a)(1)(B)(iv)(Vernon 2003). We are mindful that the testimony of a child victim, alone, is sufficient to support a conviction for aggravated sexual assault or indecency with a child. See Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.--San Antonio, 1994, pet. ref'd); Tex. Code Crim. Proc. art. 38.07(b)(1)(Vernon 2005). Here, K.D. testified that during the summer of 2001, Martinez touched her inappropriately by using his tongue to go inside where she went "poop" and making her put her mouth on his private parts. Additionally, the SANE nurse relayed K.D.'s description of Martinez placing his penis in her vagina and anus.

Based on the evidence as viewed in a light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Martinez intentionally and knowingly caused his sexual organ to contact the anus of a child, K.D., in violation of the Penal Code. See Mallet v. State, 9 S.W.3d 856, 864 (Tex. App.--Fort Worth 2000, no pet.); Jones v. State, 900 S.W.2d 392, 399 (Tex. App.--San Antonio 1995, pet. ref'd). Therefore, we hold that the evidence is legally sufficient to support the verdict and Martinez's third point of error is overruled.

Conclusion

Because the evidence supports the jury's finding of both aggravated sexual assault and indecency with a child, on separate occasions, Martinez's double jeopardy claim fails. Moreover, the events in which Martinez committed acts in accordance with the offense of aggravated sexual assault as charged in the indictment were portrayed through K.D., the SANE nurse, and the CPS caseworker. As a result, the jury could have reasonably found the essential elements beyond a reasonable doubt. Having overruled each of Martinez's points of error, we affirm the judgment of the trial court.

Rebecca Simmons , Justice

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