FRANCISCO RAFAEL RUIZ v. THE STATE OF TEXAS--Appeal from 389th District Court of Hidalgo County

NUMBER 13-01-662-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

FRANCISCO RAFAEL RUIZ, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

 
On appeal from the 389th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Castillo, and Dorsey (1)
Opinion by Justice Castillo

Appellant Francisco Rafael Ruiz ("Ruiz") was convicted on one count of aggravated sexual assault, indecency with a child by exposure, and indecency with a child by touching. Ruiz brings five issues on appeal including due process and double jeopardy violations. We affirm.

I. Background

A jury convicted Ruiz of aggravated sexual assault by penetration of the female sexual organ of a child with his sexual organ, indecency with a child by exposure of his genitals, and indecency with a child by touching part of the victim's genitals. The trial court judge sentenced Ruiz to concurrent prison terms of ten years for the aggravated sexual assault and five years for each conviction of indecency with a child. Ruiz filed a timely motion for new trial and requested a hearing on that motion. The trial court refused to conduct a hearing on the motion for new trial.

On August 7, 2001, Ruiz filed a timely notice of appeal. Ruiz raised five issues. First, Ruiz argued that the trial court's refusal to hear the motion for new trial was a violation of due process. Second, Ruiz contended the trial court's refusal to hear the motion for new trial constituted a reversible abuse of discretion. Third, Ruiz argued that the trial court reversibly deprived the appellant of the opportunity to present evidence on the motion for new trial. Fourth, Ruiz claimed that the trial court's failure to hear the motion for new trial resulted in a denial of effective assistance of counsel. Last, Ruiz contended that conviction and sentence on one of the three counts for which he was convicted violated the double jeopardy clause of the United States Constitution.

The State conceded that the trial court erred by refusing to provide a hearing on the motion for new trial. This Court abated and remanded the case to the trial court. The trial court was ordered to conduct a hearing on Ruiz's motion for new trial. This Court also ordered that if the motion for new trial were denied, Ruiz may file a supplemental brief on any matters arising out of the hearing within thirty days of the filing date of the hearing record.

The trial court denied Ruiz's motion for new trial after providing a hearing. Ruiz failed to file a supplemental brief in a timely fashion. Ruiz filed a motion for ninety day extension, which was granted. After expiration of the first extension, Ruiz filed a second motion for an extension of sixty days. The Court of Appeals granted the extension in part, providing Ruiz an additional thirty days to provide a supplemental brief. The Appeals Court later granted Ruiz the entire sixty days requested. Ruiz filed a third motion for extension of sixty days. The Court denied the motion and held that the record was sufficient to permit consideration of Ruiz's issues on appeal.

As a hearing was held on the motion for new trial, Ruiz's first four issues are moot. We will only consider whether Ruiz's convictions constitute a violation of the double jeopardy clause of the United States Constitution.

II. Double Jeopardy

The Fifth Amendment provides that "no person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb . . . ." U.S. Const. amend. V.; see Lopez v. State, 108 S.W.3d 293, 295 (Tex. Crim. App. 2003). The United States Supreme Court stated that the Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections. North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Lopez, 108 S.W.3d at 295. First, it protects against a second prosecution for the same offense after acquittal. Lopez, 108 S.W.3d at 295. Second, it protects against a second prosecution for the same offense after conviction. Id. Last, it protects against multiple punishments for the same offense. Id. We assume that Ruiz contests his convictions on grounds that he has been sentenced to multiple punishments for the same offense.

A. Preservation of Error

Ruiz failed to make a timely request, objection, or motion before the trial court on the issue of double jeopardy. See Tex. R. App. P. 33.1. Although an appellant has the burden to preserve, in some fashion, a double jeopardy objection at or before the time the charge is submitted to the jury, Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000), a double jeopardy claim may be raised for the first time on appeal, or even for the first time on collateral attack, when: 1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record, and 2) enforcement of usual rules of procedural default serves no legitimate state interests. Id. at 643. This Court concluded that under Gonzalez, "if a double jeopardy violation is clearly apparent, the defendant will prevail on appeal; if a double jeopardy violation is not apparent, the defendant's claim fails on the merits regardless of whether he objected at trial." Jimenez v. State, 67 S.W.3d 493, 509 (Tex. App.-Corpus Christi 2002, pet. ref'd). We, therefore, analyze whether a violation of the prohibition against double jeopardy is apparent from the record.

B. Blockburger Test

The double jeopardy bar applies to multiple punishments where the two offenses for which the defendant is punished or tried cannot survive the "same-elements" or "Blockburger" test. United States v. Dixon, 509 U.S. 688, 696 (1993) (citing e.g., Brown v. Ohio, 432 U.S. 161, 168-169 (1977); Blockburger v. United States , 284 U.S. 299, 304 (1932) (multiple punishment); Gavieres v. United States, 220 U.S. 338, 342 (1911) (successive prosecutions)). When the same act or transaction violates two different penal statutes, the two offenses are the same for double jeopardy purposes if one of the offenses contains all the elements of the other; they are not the same if each offense has a unique element. Blockburger, 284 U.S. at 304.

Texas courts have applied the Blockburger test to a number of cases raising double jeopardy challenges to child indecency and sexual assault convictions. In Ochoa v. State, 982 S.W.2d 904 (Tex. Crim. App. 1998), the evidence showed appellant/defendant sexually assaulted a child by penetrating the anus. Id. at 907. There was no proof of additional offenses. Id. On this evidence, a jury convicted the appellant of both aggravated sexual assault of a child by penetration and indecency with a child by contact. Id. The court of criminal appeals concluded that, under the circumstances, indecency with a child by contact was a lesser included offense of aggravated sexual assault and a violation of the double jeopardy prohibition. Id. at 908.

In contrast, a number of cases are distinguishable from the holding in Ochoa. In Hutchins v. State, 992 S.W.2d 629 (Tex. App.-Austin 1999, pet. ref'd), the court upheld convictions for aggravated sexual assault and child indecency where the appellant/defendant touched the victim's genitals with his fingers before penetration of the victim's female sexual organ with his penis. Id. at 633. The court held that while the two acts were committed in close temporal proximity, the appellant's touching of the victim's genitals with his fingers was a separate and distinct act from his penetration of her female sexual organ with his penis. Id. As the appellant's conviction for indecency was not based on the same conduct underlying his conviction for aggravated sexual assault, the court held that there was no violation of the double jeopardy clause. Id.

In Quinn v. State, 991 S.W.2d 52 (Tex. App.-Fort Worth 1998, pet. ref'd), the court upheld convictions for aggravated sexual assault and child indecency where each conviction for aggravated assault and child indecency required proof that the others did not. Id. at 55.

In Murray v. State, 24 S.W.3d 881 (Tex. App.-Waco 2000, pet. ref'd), the court refused to overturn convictions for aggravated sexual assault and indecency with a child where the appellant/defendant argued that the convictions were a violation of the double jeopardy clause, because child indecency is a lesser included offense of aggravated sexual assault. Id. at 888. The court rejected the appellant's argument holding, "the evidence demonstrates that [appellant] committed two separate acts--penetrating the victim's female sexual organ with his finger and touching her genitals with his tongue--that constituted two separate offenses. On these facts, indecency with a child is not a lesser included offense of aggravated assault." Id. at 889.

Similarly, in David v. State, 808 S.W.2d 239 (Tex. App.-Dallas 1991, no pet.), the court upheld multiple convictions for aggravated sexual assault. The appellant/defendant argued that his indictments on two counts of aggravated sexual assault violated the double jeopardy clause because the act of penetrating the victim's mouth with his penis and the act of penetrating the victim's sexual organ were merely different ways used to perpetrate a solitary offense. Id. at 240. The court held that multiple prosecution was not barred by the double jeopardy clause because each conviction required proof of an entirely separate element and were separate acts. Id. at 243.

C. Analysis

The protection provided by the double jeopardy clause of the United States Constitution has no application where separate and distinct offenses occur during the same transaction. See Jones v. State, 514 S.W.2d 255, 256 (Tex. Crim. App. 1974). Ruiz was convicted on three offenses: 1) aggravated sexual assault by causing his sexual organ to penetrate the female sexual organ of a child younger than 14 years of age; 2) indecency with a child by exposure of his genitals; and 3) indecency with a child by touching the victim's genitals.

We first analyze whether it is apparent from the record that Ruiz's multiple convictions for aggravated sexual assault and indecency with a child by touching the victim's genitals constituted a double jeopardy violation. The record shows that Ruiz touched the victim's genitals with his fingers. The touching of the victim's genitals with fingers was a separate and distinct act from penetration of the victim's genitals with the appellant's sexual organ. See Hutchins, 992 S.W.2d at 633. As the conviction for indecency with a child by touching the victim's genitals was not based on the same conduct underlying the conviction for aggravated sexual assault, we find no apparent violation of the double jeopardy clause. See Jimenez, 67 S.W.3d at 509.

We next consider whether it is apparent from the record that Ruiz's multiple convictions for indecency with a child by exposure of his genitals and indecency with a child by touching the victim's genitals with his finger constituted a double jeopardy violation. Each conviction for indecency with a child required proof of entirely separate elements and were separate acts. See David, 808 S.W.2d at 243. We, therefore, find that it is not apparent from the record that Ruiz's convictions for indecency with a child by exposure and indecency with a child by touching violated the double jeopardy clause. See Jimenez, 67 S.W.3d at 509.

Finally, we consider whether it is apparent from the record that Ruiz's convictions for aggravated sexual assault of a child by causing his sexual organ to penetrate the female sexual organ of a child and indecency with a child by exposure of his genitals constituted a violation of the double jeopardy clause. The court record shows that Ruiz exposed his penis to the victim during the reported encounter. Ruiz ordered the victim to touch his penis. During the same encounter, Ruiz penetrated the victim's sexual organ with his penis. Although the acts took place in close temporal proximity, Ruiz's act of exposing his penis can be differentiated as a separate and distinct offense from the act of penetration of the victim's female sexual organ with the penis. See Hutchins, 992 S.W.2d at 633; compare Ochoa, 982 S.W.2d at 908(finding that, where there was proof of one act, conviction for indecency with a child by contact was a lesser included offense of aggravated assault by penetration of the anus with the penis and was a violation of the double jeopardy clause). We find it is not apparent from the record that Ruiz's convictions for aggravated sexual assault and indecency with a child by exposure constituted violations of the double jeopardy clause. See Jimenez, 67 S.W.3d at 509; Hutchins, 992 S.W.2d at 633.

Our analysis shows that there are no double jeopardy issues apparent on the record. See Jimenez, 67 S.W.3d at 509. Therefore, we hold that Ruiz has failed to preserve any issue on appeal and has waived his double jeopardy challenges. See id.

III. Conclusion

We overrule Ruiz's issues on appeal and affirm the judgment of the trial court.

ERRLINDA CASTILLO

Justice

Justice Dorsey not participating.

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Opinion delivered and filed this

the 9th day of October, 2003.

1. Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. 74.003 (Vernon 1998); however, his term expired on August 31, 2003, and, accordingly, he did not participate in this decision.