Juan Arriaga v. The State of Texas--Appeal from 167th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00235-CR
Juan Arriaga, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0944915, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING

A jury found Juan Arriaga guilty of aggravated sexual assault of a child under age fourteen and indecency with a child by exposure. See Tex. Penal Code Ann. 22.021, 21.11 (West 1994 & Supp. 1996). (1) The trial court fixed punishment at forty-years confinement for the first offense and ten-years confinement for the second. Arriaga appeals. We will affirm the judgments of conviction.

 
THE CONTROVERSY

On August 18, 1994, Arriaga met with a police investigator. During this meeting, Arriaga admitted that one day, during the previous week, he touched his penis on D.D.'s genital area, put his penis in D.D.'s mouth, and masturbated in D.D.'s presence. Arriaga told the investigator about other times that he had sexual contact with D.D. during recent months and expressed remorse for his actions. On September 4, 1994, an indictment was issued charging Arriaga with three offenses alleged to have occurred "on or about August 5, 1994." (2)

At trial, Arriaga's confession was admitted in evidence without objection. The ten-year-old complainant, D.D., testified during trial that: (1) Arriaga "move[d] [his private] around on my private;" (2) Arriaga had her "suck his private;" (3) Arriaga used her "hand and push[ed] it up and down his private;" and (4) "white stuff would come out of . . . the tip." The use of drawings and anatomically correct dolls established that D.D. used the term "private" to refer to both her own and Arriaga's sexual organs. The jury found Arriaga guilty on counts I and III of the indictment.

 
DISCUSSION AND HOLDINGS

In a single point of error, Arriaga contends his conviction for indecency with a child by exposure is barred by the double jeopardy provisions of the United States and Texas Constitutions. (3) See U.S. Const. amends. V, XIV; Tex. Const. art. I, 14.

These constitutional provisions forbid: (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. Torro v. State, 780 S.W.2d 510, 512 (Tex. App.--San Antonio 1989, no pet.); see also United States v. Halper, 490 U.S. 435, 440 (1989); Ex Parte Peterson, 738 S.W.2d 688, 689 (Tex. Crim. App. 1987). Arriaga's contention on appeal falls within the third category. He argues that he has been twice punished for the same offense because the offense of indecency with a child is a lesser-included offense of aggravated sexual assault. In support of his argument, Arriaga invites our attention to article 37.09 of the Code of Criminal Procedure which provides the standard for determining whether a jury instruction on a lesser-included offense is proper when a criminal defendant is on trial for the greater offense. See Tex. Code Crim. Proc. Ann. art. 37.09 (West 1981).

We find both the double jeopardy and lesser-included offense analysis inapplicable to the present case. Arriaga has not been convicted twice for a single act. Rather, the testimony of the complainant, D.D., and Arriaga's confession establish that he committed at least two illegal acts which constitute two distinct offenses as charged by the indictment.

The evidence shows conclusively that Arriaga caused his penis to contact the genital area of D.D., a child under age fourteen, and that Arriaga's penis penetrated D.D.'s mouth. Either of these acts supports a conviction for aggravated sexual assault. See Penal Code 22.021(a)(1)(B)(ii), (iii). The evidence shows also that Arriaga masturbated and ejaculated in D.D.'s presence and that D.D. witnessed this event, thus supporting Arriaga's conviction for indecency with a child by exposure. See Penal Code 21.11(a)(2). That these acts occurred within a short time of one another does not diminish the fact that two separate offenses were committed.

Finding no merit to Arriaga's contention that his conviction violates either federal or state double jeopardy protections, we overrule his point of error and affirm the trial-court judgments.

 

John Powers, Justice

Before Justices Powers, Jones and B. A. Smith

Affirmed

Filed: April 3, 1996

Do Not Publish

1. The offenses occurred before September 1, 1994, and are governed by the law in effect at the time the offenses were committed. Penal Code, 73d Leg., R.S., ch. 900, 1.01, 1993 Tex. Gen. Laws 3586, 3616. Because the subsequent Code amendments have no substantive effect on the offenses at issue, the current Code is cited for convenience.

2. In two paragraphs, Count I charges Arriaga with aggravated sexual assault of D.D. by knowingly and intentionally causing the sexual organ of D.D. to contact his sexual organ and causing his sexual organ to penetrate D.D.'s mouth. See Penal Code 22.021(a)(1)(B)(ii), (iii). Count II, charging sexual contact by touching D.D.'s breast, was abandoned by the State at trial. Count III charges Arriaga with indecent exposure by "knowingly and intentionally expos[ing] his genitals, with the intent to arouse and gratify [his] sexual desire." See Penal Code 21.11(a)(2).

3. In his briefs submitted to the Court, Arriaga raised an additional point of error claiming ineffective assistance of counsel at the trial court. This point of error was withdrawn by Arriaga's counsel at oral argument.

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DISCUSSION AND HOLDINGS

In a single point of error, Arriaga contends his conviction for indecency with a child by exposure is barred by the double jeopardy provisions of the United States and Texas Constitutions. (3) See U.S. Const. amends. V, XIV; Tex. Const. art. I, 14.

These constitutional provisions forbid: (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. Torro v. State, 780 S.W.2d 510, 512 (Tex. App.--San Antonio 1989, no pet.); see also United States v. Halper, 490 U.S. 435, 440 (1989); Ex Parte Peterson, 738 S.W.2d 688, 689 (Tex. Crim. App. 1987). Arriaga's contention on appeal falls within the third category. He argues that he has been twice punished for the same offense because the offense of indecency with a child is a lesser-included offense of aggravated sexual assault. In support of his argument, Arriaga invites our attention to article 37.09 of the Code of Criminal Procedure which provides the standard for determining whether a jury instruction on a lesser-inclu