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Comments on Criminal Issues

June 9, 2007

Punishments for Convictions Upon Multiple Counts of Indecency with a Child, Sexual Assault of a Child, Aggravated Sexual Assault of a Child, and Incest Can be Stacked and Run Consecutively

Multiple counts in an indictment can charge different discreet and specific criminal acts.  Multiple instances of certain sex crimes involving children have been specifically defined as arising out of or being part of the same criminal episode.  Section 3.03 of the Texas Penal Code expressly authorizes sentences arising from convictions on multiple counts of sex crimes against children to run concurrently or consecutively.   Stacking punishments can therefore be authorized in cases involving multiple acts against a single victim or single acts committed upon multiple victims.  Therefore, it is possible that a single indictment against a single defendant could allege hundreds of counts of sexual assault of a child upon which a conviction could be had on each count and the sentences for each count stacked.

In Vick v. State, 991 S.W.2d 830 (Tex.Crim.App. 1999) the Court of Criminal Appeals rejected a constitutional claim that multiple counts brought in a single indictment under Tex. Penal Code Ann. § 22.021 constitutes double jeopardy. The court held that:

“Article 22.021 is a conduct-oriented offense in which the legislature criminalized very specific conduct of several different types. Also, the statute expressly and impliedly separates the sections by ‘or,’ which is some indication that any one of the proscribed conduct provisions constitutes an offense. A more compelling demonstration of legislative intent is reflected in the specific conduct prohibited in the four sections applicable to this case. Section (i) prohibits penetration of a male or female child's anus or the sexual organ of a female child. The focus is on penetration of the child's genital area. Somewhat related is section (ii), which prohibits penetration of the child's mouth by the defendant's sexual organ. Both section (i) and section (ii) concern penetration of the child, one focusing on the genital area, and the other on the mouth. In contrast, sections (iii) and (iv) address penetration and contact of another in a sexual fashion, by the sexual organ or anus of the child. The statute criminalizes many types of sexually assaultive conduct with a child. Yet, each section usually entails different and separate acts to commit the various, prohibited conduct. This specificity reflects the legislature's intent to separately and distinctly criminalize any act which constitutes the proscribed conduct. An offense is complete when a person commits any one of the proscribed acts. In sum, Sec. 22.021 is a conduct-oriented statute; it uses the conjunctive ‘or’ to distinguish and separate different conduct; and its various sections specifically define sexual conduct in ways that usually require different and distinct acts to commit. These considerations lead us to conclude that the Legislature intended that each separately described conduct constitutes a separate statutory offense.” Id., at 832-33.

The Vick court made the following observation: “An allegation of ‘penetration’ of the sexual organ overlap an allegation of ‘contact’ of the sexual organ because penetration of the genitals necessarily includes contact.” Id., at 834.

Vick was followed by a Harris County case, Hendrix v. State, 150 S.W.3d 839 (Tex.App.-Houston [14th Dist.] 2004), which held that a that charging a jury in the disjunctive on four counts of aggravated sexual assault did not deprive defendant of his right to a unanimous jury but that charging the jury in the disjunctive on one of the counts did deprive defendant of his right to a unanimous verdict.

The defendant in Hendrix was charged with five counts of aggravated sexual assault involving two children ages seven and five, convicted by a jury on all counts, and sentenced to life imprisonment. Id., at 842. All five charges were submitted to the jury in the same charge, and for each charge, the trial set forth the allegations in the disjunctive. Id., at 843. The defendant argued on appeal that charging the jury in the disjunctive on each charge permitted the jury to convict him “without reaching a consensus as to which paragraph of the indictment the State had proven beyond a reasonable doubt, resulting in a less than unanimous verdict.” Id., at 845.

The court of appeals began its analysis with the observation:

“Generally, instructing the jury on alternative theories of committing the same offense does not violate the unanimity requirement… Charging on alternative theories, however, differs from charging on separate offenses involving separate incidents. .. The latter runs afoul of the unanimity requirement.”  Id. See also: Martinez v. State, 129 S.W.3d 101, 103(Tex.Crim.App.2004); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991); Francis v. State, 36 S.W.3d 121, 125 (Tex.Crim.App.2000) (holding that instances of indecency with a child constituted separate offenses against the same victim, and it was impermissible to charge the jury in the disjunctive).

The court of appeals rejected the State’s argument on appeal that "[t]he indictments in each of the five cases alleged alternative theories of committing the same offense, not multiple offenses involving separate incidents." Id., at 846. The court said that the State’s position was contrary to the Vick  holding that § 22.021 describes separate offenses.

The Hendrix Court specifically held: “In this case, appellant was charged with five separate indictments in five separate cause numbers. With the exception of trial court cause number 955264, the charges submitted for the four other causes contained two alternatives: (1) causing penetration of a single body part of one victim by appellant's sexual organ; or (2) causing the same body part of the same victim to contact appellant's sexual organ. The four charges did not require the jury to unanimously agree upon one of the two alternatives, penetration or contact, upon reaching its verdict. Thus, it is possible that some of the jurors could have found appellant guilty of penetration, and some of the jurors could have found appellant guilty of contact.” Id., at 847-48.

The appeals court did not quibble on the distinction between penetration and contact. Citing Vick, the court said that any penetration “necessarily included contact.” Id., at 848. See also: Vick, supra, 991 S.W.2d at 834, n.2.

The dilemma faced by defense attorneys in aggravated sexual assault of a child cases which occur over a period of time is that they can secure an acquittal on a genital-to-genital contact charge only to face an oral-to-genital contact flowing from the same sexual episode. It makes no difference if the contact is genital-to-genital, oral-to-oral, or oral-to-genital, Vick established that penetration and contact are legally synonymous, and each contact represents a separate offense.

In effect, if an adult has 20 sexual encounters with a child and each encounter involved 2 or more sexual contacts, the State could prosecute the adult for twenty or more separate offenses. In fact, prosecutor in Hendrix in his closing argument told the jury:  “For [M.S.] we have penetration for mouth, contact or penetration. And you don't have to agree which way the State proved it, still a guilty verdict if six believe he contacted mouth and six believe that he penetrated her with his sexual organ, it is still guilty of aggravated sexual assault because she is so young. The law says penetration or contact, it's still a guilty verdict. So you don't need to spend a whole lot of time about whether it's penetration or contact.” Id., at 848.

          In child sexual assault cases involving victims 12 years of age or younger, the prosecution need only present the testimony of the child victim to establish sexual contact a reasonable doubt. See, Martinez v. State, 178 S.W.3d 806 (Tex.Crim.App. 2005).

          The second dilemma faced by a defense attorney in these cases is trying to secure a jury instruction for the lesser included offenses of indecency with a child by exposure and indecency with a child by contact. The appeals court in Hendrix noted that indecency with a child may be a lesser included verdict for aggravated sexual assault on a case-by-case basis. Id. at 850. Whether a defendant is entitled to a lesser included verdict charge is determined by a two-prong test: “(1) the lesser included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense.” Id.

          In an aggravated sexual assault case, the appeals court said that “the first prong of the test is satisfied if the evidence at trial raises the issue that the defendant intended to arouse or gratify his sexual desire while in the course of committing the alleged penetration or contact.” Id. The court said there was “ample evidence from which a rational fact finder easily could infer that when [Hendrix] made sexual contact with the complainants, his conduct included the intent to arouse or gratify his own sexual desire.” Id.

With respect to the second prong of the test, the Hendrix court said that a defendant is entitled to an instruction to the lesser included indecency with a child verdict if there is some evidence to permit a jury to rationally conclude that the defendant is guilty but guilty only with being indecent with a child. The Court added:

“ … This requirement may be satisfied (1) if evidence either affirmatively refutes or negates an element establishing the greater offense, or (2) the evidence on the issue is subject to two different interpretations, and one of the interpretations negates or rebuts an element of the greater… Anything more than a scintilla of evidence from any source is sufficient to entitle a defendant to submission of the issue, and this court may not consider whether the evidence is credible, controverted, or in conflict with other evidence…” Id.

The appeals court said the evidence against Hendrix was indisputable. Both victims testified that he penetrated their mouths and anuses with his sexual organ, and that he penetrated one victim’s sexual organ with his sexual organ. The court stated explicitly: “Their testimony is not subject to different interpretations.” Id., at 851.

The third dilemma faced by a defense is attorney is trying to establish a particular date for conviction of the myriad offenses the prosecution will elicit. The Hendrix court addressed the failure to elect a particular date:

“Generally, when the evidence shows two or more acts of sexual assault, each of which is an offense for which the defendant may be convicted, and the indictment charges only one offense, if the accused makes a motion for election, the State is required to elect which act it will rely upon to secure a conviction.” Id., at 852.

The Hendrix case involved “repeated sexual assaults” and defendant did not request that the trial court to order the State to “elect the separate acts upon which it was relying for conviction. The absence of a request for election by appellant waives the issue on appeal.” Id.

          The defense attorney must make the request for election.

The Hendrix court then addressed dealt with the most significant issue with respect to a precise date of the offense. The statute of limitations for aggravated sexual assault of a child is ten years from the eighteenth birthday of the victim. Tex.Code Crim. Proc. Ann. art. 12.01(5)(B)(Vernon Supp.2004). The "on or about" language the State can use in an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitations period. Id., at 853.

The judge in Hendrix instructed the jury as follows:

“’The State is not bound by the specific date that the offense, if any, is alleged in the indictment to have been committed, but a conviction may be had upon proof beyond a reasonable doubt that the offense, if any, was committed at any time within the period of limitations. The limitation period applicable to the offense of aggravated sexual assault of a child is ten years from the date of the 18th birthday of the victim of the offense.’” Id.

          The final challenge faced by a defense attorney in child sexual assault cases involving multiple counts is preparing for the sentence that can be imposed.

          The Texas Penal Code § 3.03 (2007) provides:

 

In the Hendrix case, the jury assessed the punishment at life imprisonment on each count of aggravated sexual assault of a child filed by the prosecution under Article 21.021 of the Texas Penal Code. Pursuant to § 3.03, the trial court ordered that all the sentences be served consecutively. Id., at 841. The Hendrix court held that sentences imposed for any offenses committed in violation of Article 21.021 after September 1, 1997 can be cumulated (“stacked”) and ran consecutively. Id., at 853. Citing Owens v. State, 96 S.W.3d 668, 671-71 (Tex.App.-Austin 2003, no pet.), the court noted explicitly that “’although the victim’s testimony sometimes conflicted as to dates of the sexual assaults, a reasonable view of the evidence as a whole supported the trial court’s exercise of its discretion to run [the] sentences consecutively’.” Id., at 853-54.

          Are there legitimate defense strategies in a child sexual assault case?

          The following defenses have been recognized in child sex offenses:

 

 

These defenses will have to be pursued quietly vigorously on cross-
examination of the child victim, and while each strategy is a minefield to navigate through, the defense attorney must pursue legitimate defenses of his client.
         
Established Texas jurisprudence provides that “a defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose a motive, bias, or interest for the witness to testify.” Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996). This jurisprudence is in keeping with the confrontation clause of the Sixth Amendment to the U.S. Constitution which guarantees a criminal defendant the opportunity for effective cross-examination. Delaware v. Van Arsdall, 475 U.S. 676, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1984).

While a trial court may limit cross examination to “prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant interrogation,” the court violates a defendant’s right to confrontation  when it prohibits the defendant from “engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness” which expose facts “’from which jurors … could appropriately draw inferences relating to the reliability of the witness’.” Id., 475 U.S. at 679-80 [quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)]

In Wheeler v. State, supra, the court reinforced the evidentiary rule that a witness may be impeached when the witness leaves a false impression on direct examination, but that false impression must be corrected on cross examination through the witness who left the false impression, not by calling other witnesses to correct that impression. Id., at 885.

A defense theory may be put forth in the Opening Statement. See, Bass v. State, 2007 WL 703761 (Tex.App.-Houston [14th Dist.] 2007). The child victim’s credibility can be put at issue in the Opening Statement. In Bass, for example, defense counsel stated the child victim’s accusation was “so bizarre, it is so ridiculous, it is not worthy of belief,” “pure fabrication” and “so contrary to [defendant’s] character, not worthy of belief.” Id.

Rule 607 of the Texas Rules of Evidence provides: “The credibility of a witness may be attacked by any party, including the party calling the witness.”

Rule 608(2) of the Texas Rules of Evidence provides that the credibility of a witness may be attacked with “evidence” that refers “only to character for truthfulness or untruthfulness …”

          Defense counsel must make the credibility of a child an issue during voir dire questioning. Assuming that, by asking venire members if they could be fair and impartial in a case in which the victim was nine years old, defendant wanted to determine whether venire members would consider the victim's age during the guilt phase of the trial, trial court properly exercised its discretion when it required defense counsel to phrase question in a way that was precise enough to glean relevant information from venire members' answers. See, Tex.Pen.Code Ann. § 22.11(a); Barajas v. State, 93 S.W.3d 36 (Tex.Crim.App. 2002, reh’g denied)

Permissible questions include:

1.       Do you think that someone is – when I say a ‘child’ in their teens – do you think someone in their teens is able to make up a story that’s not true?
2.       Do you think that – we talked about – [the State] talked about the reason why people don’t make outcries is because they’re scared to say something about it. That a child can be manipulated not to tell what has happened by an adult?
3.       Do you believe that a child can be manipulated into saying something?

See: Newton v. State, 2007 WL 926184 )Tex.App.-Waco 2007)

          Defense counsel must continue the credibility attack in the Opening Statement.

          Permissible statements include:

1.      Given facts of particular case, child accusations are ridiculous and not worthy of belief?
2.       Child accusations are “pure fabrication.”
3.       Given defendant’s character,  child accusations not worthy of belief.

See: Bass v. State, 2007 WL 703761 (Tex.App.-Houston [14th Dist.] 2007).

          The following is from the Opening Statement presented by defense counsel in Powell v. State:

Ladies and gentlemen of the jury, including the alternates, the things for you to decide in this case is going to be whether or not the story that you hear unfolding here is reasonable, or is utterly unreasonable. You are going to hear a story that this little girl claims that over a period, according to the indictment you just heard, from September ’92 until November of ’95, for three years and two months, that she went over to the Powell’s’ house at least once a week. And through all of these times that Mr. Powell was molesting her. And that she kept going back, and going back, and going back. You’re going to hear that she says she was never alone with Mr. Powell. That at least two of his daughters were always around, always in the same room when this was alleged to have happened, and frequently there were more little girls around. And that this happened in the living room. And you’ll hear about the size of that living room. And when the other people were right there within a matter of a couple of feet away. And, so, the thing for you decide would be whether, would be whether or not this father, number one, would commit these things over, and over, and over. And, number two, that he would commit them in front of his very own daughters, over, and over, and over. And whether or not it is reasonable that this girl, rather than saying, I don’t want to go over there anymore, or rather than saying I don’t want to go into the living room, I want to go in here in the bedroom where I know he’ll never come, instead of that she kept right on going, and back, and back, and back. Now, that is going to be the thing that will be the predominate things for you to decide.

See: 63 S.W.3d 435 (Tex.Crim.App. 2001)

 

 

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