Opinion
No. 04-15-00603-CR
07-06-2016
Santos GUTIERREZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR3525
Honorable Sid L. Harle, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice VACATED AND DISMISSED IN PART; AFFIRMED IN PART
A jury found Santos Gutierrez guilty of one count of aggravated sexual assault of a child and two counts of indecency with a child by contact. Gutierrez elected to have the trial court decide punishment. The trial court signed three separate judgments in which he sentenced Gutierrez to twenty-five years of imprisonment for the aggravated sexual assault in Count I, twenty years for indecency with a child in Count II, and twenty years for indecency with a child in Count IV.
In his sole point of error, Gutierrez contends his conviction of indecency with a child in Count II is barred by double jeopardy. The State has filed a brief in which it concedes Gutierrez's sole point of error. Nevertheless, we must independently examine the claim before finding there was error. See Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002).
We note that although Gutierrez's double jeopardy claim is raised for the first time on appeal, we may consider the point because the claimed violation is apparent on the face of the record and enforcement of the usual rules of procedural default would serve no legitimate state interests. See Gonzales v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000); Aekins v. State, No. 04-13-00064-CR, 2013 WL 5948188, at *1-2 (Tex. App.—San Antonio Nov. 6, 2013) (mem. op., not designated for publication), aff'd, 447 S.W.3d 270 (Tex. Crim. App. 2014). --------
Gutierrez was charged, found guilty, and sentenced on three counts:
Count I: aggravated sexual assault by causing the penetration of the child complainant's anus by the defendant's sexual organ,The evidence at trial established Gutierrez assaulted the child complainant on one single occasion. During that incident, Gutierrez touched the complainant's breast with his hand and penetrated her anus with his sexual organ. The evidence showed that the only contact between Gutierrez and the complainant's anus was in the course of penetration. There was no evidence of any independent instance of contact that would support the charge in Count II.
Count II: indecency with a child by touching the complainant's anus, and
Count IV: indecency with a child by touching the complainant's breast.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against multiple punishments for the same offense. U.S. CONST. amend. V; Brown v. Ohio, 432 U.S. 161, 165 (1977); Aekins v. State, 447 S.W.3d 270, 274 (Tex. Crim. App. 2014). "A double-jeopardy violation occurs if one is convicted or punished for two offenses that are the same both in law and in fact." Aekins, 447 S.W.3d at 279. "A single sexual act of penile penetration [of the anus] almost always consists of exposing the penis en route to contacting the . . . anus . . . with the penis, en route to penetration of same." Id. "That one continuing act, the result of a single impulse, may violate three separate Penal Code provisions, but . . . the Legislature intended only one conviction for that one completed sexual assault." Id. "[I]n Texas, . . . a defendant may not be convicted for a completed sexual assault by penetration and also for conduct (such as exposure or contact) that is demonstrably and inextricably part of that single sexual assault." Id. at 281. "This means that multiple convictions for one complete, ultimate sexual assault violate the Double Jeopardy Clause." Id. at 279.
The contact described in Count II was an inextricable part of the sexual assault charged in Count I. See id. at 279-81; Patterson v. State, 152 S.W.3d 88, 91-92 (Tex. Crim. App. 2004). Because the offenses are the "same" for double jeopardy purposes, Gutierrez could not be convicted and punished for both counts. See Aekins, 447 S.W.3d at 281. We thus agree with appellant and the State that there is error. We therefore vacate the trial court's judgment of conviction and sentence for indecency with a child under Count II, dismiss the charge under Count II, and affirm the judgments under Count I and Count IV. See TEX. R. APP. P. 43.2; Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006) (when a defendant is convicted of two offenses that are the same for double jeopardy purposes, the conviction for which the greatest sentence was assessed is retained and the other conviction is set aside).
Luz Elena D. Chapa, Justice DO NOT PUBLISH