In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-14-00371-CR 

No. 07-14-00372-CR 

No. 07-14-00373-CR 

No. 07-14-00374-CR 

No. 07-14-00375-CR 

________________________

CALEB LOGAN HART, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

 

On Appeal from the 31st District Court 

Gray County, Texas 

Trial Court Numbers 9662, 9663, 9664, 9665, & 9666; 

Honorable Steven R. Emmert, Presiding 

 

Novem ber 19, 2015 

 

OPINION 

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

Following pleas of not guilty in each case, a jury found Appellant, Caleb Logan 

Hart, guilty of five sexually-related offenses proscribed by the Texas Penal Code. In 
2

each case the jury assessed sentence and the trial court entered separate judgments

as depicted below:

See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2015), §

21.11(a)(1) (West 2011), § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2015), §

22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2015), § 25.02(a)(1) (West 2011).

No. 9662 Aggravated Sexual Assault 

(Penetration of the sexual organ of 

A.H., a child under 14 years of age,

by defendant’s sexual organ on or 

about June 15, 2013)

§ 22.021(a)(1)(B)(i), 

(a)(2)(B)

1st Degree Felony

99 years confinement

No. 9663 Indecency with a Child 

(Sexual contact by touching A.H., a 

child under 17 years of age, with 

defendant’s sexual organ on or about 

September 15, 2011)

§ 21.11(a)(1)

2nd Degree Felony

20 years confinement

No. 9664 Aggravated Sexual Assault 

(Penetration of the sexual organ of 

A.H., a child under 14 years of age,

by defendant’s sexual organ on or 

about September 16, 2011)

§ 22.021(a)(1)(B)(i), 

(a)(2)(B)

1st Degree Felony

99 years confinement

No. 9665 Aggravated Sexual Assault 

(Penetration of the anus of A.H., a 

child under 14 years of age, by 

defendant’s sexual organ on or about 

January 5, 2012)

§ 22.021(a)(1)(B)(i), 

(a)(2)(B)

1st Degree Felony

99 years confinement

No. 9666 Prohibited Sexual Conduct of 

Ancestor/Descendant

(Engaging in sexual intercourse with 

a person defendant knew to be his 

niece on June 15, 2013)

§ 25.02(a)(1)

2nd Degree Felony

20 years confinement
3

All five sentences were ordered to run consecutively. By his original brief, 

Appellant presents a single issue asserting a double jeopardy violation based upon his 

belief that his conviction for indecency with a child by sexual contact in Cause Number

9663 was subsumed by the offense of aggravated sexual assault in Cause Number 

9664, due to the fact that both offenses were based on a single incident or transaction. 

By his supplemental brief filed pursuant to an order of this court,1 Appellant contends 

that his conviction in Cause Number 9666 is “void” because there was no evidence to 

support his conviction for “prohibited sexual conduct with an ancestor or descendant.” 

Alternatively, he further contends the sentence imposed in Cause Number 9666 is an 

illegal sentence. 

In its supplemental brief, the State agrees that Appellant’s sentence in Cause 

Number 9666 is illegal; however, it does not address Appellant’s argument concerning a 

void conviction. Appellant does not present a challenge regarding his convictions in 

Cause Numbers 9662 or 9665. We affirm Appellant’s conviction in all five cases; 

however, we reverse the judgment entered in Cause Number 9666, and we remand that 

case for a new punishment hearing and entry of a corrected judgment. 

BACKGROUND

Appellant was the paternal uncle of the victim, A.H., a child who was under 14 

years of age at the time each offense occurred. Appellant was accused of illegal sexual 

conduct with A.H. beginning when she was eleven years old and continuing until she 

was thirteen. His double jeopardy argument stems from offenses which occurred in 

 

1 Hart v. State, No. 07-14-00375-CR, 2015 Tex. App. LEXIS 9842, at *2-3 (Tex. App.—Amarillo 

Sept. 21, 2015, order) (not designated for publication).
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September of 2011. Except as it peripherally relates to his argument that the verdict in 

Cause Number 9666 is void, Appellant does not raise a challenge to the sufficiency of 

the evidence; thus, only the facts necessary to disposition of his double jeopardy 

argument will be presented. 

A.H. was fourteen years old at the time of trial and she testified. According to her 

testimony, in September 2011, she and her sister customarily went to their 

grandmother’s house after school while their mother was at work. When their 

grandmother was unavailable to supervise the girls, Appellant would watch after them. 

According to A.H.’s testimony, on one occasion Appellant asked her to speak with him 

upstairs. She testified that they proceeded upstairs, whereupon Appellant disrobed her 

and “put his unmentionable spot in my unmentionable spot.”2 The prosecutor followed 

up with “that time when you were 11 years old, upstairs, did [Appellant] touch you in any 

other way . . . with his unmentionable spot?” A.H. answered, “[y]es, he put his 

unmentionable spot on my chest” and “rubbed it on my chest.” The jury convicted 

Appellant of both aggravated sexual assault and indecency with a child based upon the 

events A.H. described as having occurred at her grandmother’s house in September of 

2011.

DOUBLE JEOPARDY ANALYSIS

There are three constitutional protections against double jeopardy: (1) protection 

against a second prosecution for the same offense after an acquittal; (2) protection 

against a second prosecution for the same offense following a conviction; and (3) 

 

2

The record reflects that A.H. used her hand to point to her female sexual organ as her 

unmentionable spot. She described Appellant’s unmentionable spot as his private area.
5

protection against multiple punishments for the same offense. Garfias v. State, 424 

S.W.3d 54, 58 (Tex. Crim. App. 2014). Essentially, Appellant is complaining that he 

received multiple punishments for conduct that occurred in a single incident. The 

remedy, he contends, is to retain the most serious offense and vacate the lesser 

offense. The State argues there was no double jeopardy violation because Appellant 

committed two separate and distinct acts. We agree with the State. 

What constitutes the “same” offense for double jeopardy purposes in the 

multiple-punishments context is strictly a matter of legislative intent. In that context, we 

must ask ourselves, under the facts of this case, how many different offenses did the 

Legislature contemplate an accused should be susceptible to being punished for? 

Gonzales v. State, 304 S.W.3d 838, 845 (Tex. Crim. App. 2010). Thus, the true inquiry 

in a multiple-punishments case is whether the Legislature intended to authorize the 

separate punishments. Garfias, 424 S.W.3d at 58 (citing Ervin v. State, 991 S.W.2d 

804, 814 (Tex. Crim. App. 1999)). When, as here, the offenses in question stem from 

different statutory sections of the Penal Code—sections 21.11(a)(1) and 

22.021(a)(2)(B), we conduct an “elements” analysis to determine legislative intent. 

Garfias, 424 S.W.3d at 58.

In Cause Number 9663, charging Appellant with indecency with a child by 

contact, the indictment read as follows: “Defendant . . . did then and there, with the 

intent to arouse or gratify the sexual desire of said Defendant, intentionally or knowingly 

engage in sexual contact with A.H., a child younger than 17 years of age, by touching 

A.H. with Defendant’s sexual organ . . . .” In Cause Number 9664, charging Appellant 

with aggravated sexual assault, the indictment read: “Defendant . . . did then and there 
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intentionally or knowingly cause the penetration of the sexual organ of A.H., a child who 

was then and there younger than 14 years of age, by Defendant’s sexual organ.”

Relying on Cunningham v. State, 726 S.W.2d 151, 155 (Tex. Crim. App. 1987), 

Appellant maintains that the indictment for indecency with a child was subsumed as a 

lesser included offense of aggravated sexual assault because sexual contact was a 

component part of the penetration alleged in Cause Number 9664. Under certain 

circumstances, indecency with a child is a lesser included offense of aggravated sexual 

assault of a child when both offenses are predicated on a single act of molestation. 

Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009). 

In Evans, the defendant was charged with aggravated sexual assault of a child 

and indecency with a child by contact committed against the same victim on the same 

date. Count One was charged as follows: Evans “did intentionally and knowingly cause 

the SEXUAL ORGAN of [the complainant], a child who was younger than 14 years, to 

CONTACT AND PENETRATE the MOUTH of THE DEFENDANT.” Count Two charged 

that Evans “did intentionally and knowingly engage in sexual contact with [the 

complainant], A MALE CHILD YOUNGER THAN SEVENTEEN (17) YEARS by touching 

the PART OF THE GENITALS of [the complainant] with the intent to arouse or gratify 

the sexual desire of any person.” In reaching its conclusion in a case where the 

appellant and complainant were both male, the Court stated “we cannot imagine how it 

would be even theoretically possible to commit this particular form of penetration without 

an intent to arouse or gratify one’s sexual desire.” Id. at 140 n.3. Hence, under the 

facts of that case, because the factual elements of indecency with a child by contact
7

were contained within the factual elements of aggravated sexual assault, the lesser 

charge was subsumed by the greater charge.

Appellant also cites Ochoa v. State, 982 S.W.2d 904 (Tex. Crim. App. 1998), to 

support his argument that his conviction for indecency with a child should be vacated. 

In Ochoa, the appellant asserted he was improperly convicted of two offenses stemming 

from one criminal act. Id. at 907. The Fourth Court of Appeals agreed and vacated the 

most serious offense. Ochoa v. State, 955 S.W.2d 389, 392 (Tex. App.—San Antonio 

1997), aff’d, 982 S.W.2d 904 (Tex. Crim. App. 1998). The facts, however, are 

distinguishable.

Ochoa was charged with five counts of aggravated sexual assault against his sixyear-old niece alleged to have occurred on five separate dates and five counts of 

indecency with his niece also alleged to have occurred on the same five dates. He was 

convicted of one count of aggravated sexual assault and one count of indecency with a 

child allegedly occurring on the same date. The evidence showed Ochoa touched and 

penetrated the victim’s sexual organ. Id. at 392. Resultantly, if the State proved 

penetration, it also proved the necessary elements for the corresponding count of 

indecency with a child. Id. The Fourth Court of Appeals found that the trial court’s 

failure to instruct the jury on the lesser included offense resulted in Ochoa being 

convicted of two crimes arising from the same criminal act or transaction.

The holdings in Evans and Ochoa are inapposite to the facts in this case. 

Notwithstanding that Appellant was charged with offenses occurring during a single 

incident, he committed two separate and distinct acts. According to the evidence, he 
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violated section 22.021(a)(2)(B) of the Penal Code by causing his sexual organ to 

penetrate A.H.’s sexual organ. He then violated section 21.11(a)(1) by rubbing his 

sexual organ on A.H.’s chest. The Legislature intended that Appellant’s conduct be 

punishable as two separate and distinct acts. Unlike the facts in Evans and Ochoa, the 

indecency with a child by contact offense was not subsumed in the aggravated sexual 

assault offense and cannot be characterized as a lesser included offense entitling 

Appellant to have his conviction for indecency with a child vacated. Appellant’s issue is 

overruled.

VOID CONVICTION ANALYSIS

Appellant further contends that his conviction in Cause Number 9666 is “void”

because there was no evidence to support the jury’s verdict finding him “guilty of the 

offense of prohibited sexual conduct with an ancestor or descendant, as charged in the 

indictment.” Appellant contends the evidence is insufficient because the evidence 

showed sexual conduct with his niece, not an ancestor or descendant. While the 

heading of the indictment in Cause Number 9666 does refer to the offense charged as 

“PROH SEXUAL CONDUCT WITH ANCESTOR/DESCENDANT,” a second degree 

felony, the substantive allegations of the indictment were that Appellant “did intentionally 

or knowingly engage in sexual intercourse with A.H., a person [Appellant] knew to be, 

without regard to legitimacy, [Appellant’s] niece.” Because the substantive allegations 

of the indictment correctly charge the offense of Prohibited Sexual Conduct, a third 
9

degree felony, the additional language in the heading was merely inapposite 

surplusage.3 See TEX. PENAL CODE ANN. § 25.02(a)(5), (c). 

While the Court’s Charge on guilt or innocence did repeat this misnomer, the 

application paragraph tracked the indictment. As such, the jury was not misled and the 

evidence was legally sufficient to support its finding of guilt as to the offense 

substantively charged in the indictment, to-wit: the third degree felony offense of 

Prohibited Sexual Conduct. To the extent that the judgment entered misidentifies the 

offense charged and applicable range of punishment, it is in error and should be 

reformed.

ILLEGAL SENTENCE ANALYSIS

As stated above, the offense charged was the third degree felony offense of 

Prohibited Sexual Conduct. Because the Court’s Charge on Punishment incorrectly 

recites Appellant “has been found guilty by you of the offense of PROHIBITED SEXUAL 

CONDUCT WITH ANCESTOR OR DESCENDANT, a felony of the Second Degree,” it 

is erroneous. Because the charge further instructs the jury that the range of punishment 

applicable to Appellant’s offense is “confinement . . . for not less than 2 years nor more 

than 20 years,” the judgment entered in response to that charge is reversible.4

While the offense of prohibited sexual conduct with an actor’s ancestor or 

descendant by blood or adoption is indeed a second degree felony, id. at § 25.02(a)(1), 

 

3

There is no offense entitled “Prohibited Sexual Conduct with Ancestor or Defendant.” The 

offense is simply “Prohibited Sexual Conduct.” See TEX. PENAL CODE ANN. § 25.02(a) (West 2011). 

4 Where, as here, the issue is that of an illegal sentence, preservation of error was not required in 

the trial court. See Mizell v. State, 119 S.W.3d 804, 806 n.6 (Tex. Crim. App. 2006).
10

(c), that is not the offense applicable in this case. Appellant was charged and convicted 

of the offense of prohibited sexual conduct with his niece, a third degree felony. Id. at 

(a)(5), (c). Punishment for a third degree felony is “any term of not more than 10 years 

or less than 2 years.” Id. at § 12.34(a). A sentence outside the range of punishment 

authorized by law is an illegal sentence, Ex Parte Parrott, 396 S.W.3d 531, 534 (Tex.

Crim. App. 2013), which is void and must be reversed. Farias v. State, 426 S.W.3d 

198, 200 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (holding that a sentence 

outside the statutory range of punishment for an offense is void and must be reversed, 

citing Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim. App. 1994)). Because 

Appellant’s sentence exceeds the maximum sentence allowed by law, it is an illegal 

sentence. Accordingly, we reverse that sentence and remand this cause to the trial 

court for a new punishment hearing.

CONCLUSION

The trial court’s judgments in Cause Numbers 9662, 9663, 9664, and 9665 are 

affirmed. In Cause Number 9666, that portion of the judgment pertaining to conviction 

is affirmed. That portion of the judgment pertaining to punishment is reversed and the 

cause is remanded to the trial court for a new punishment hearing and entry of a 

corrected judgment.

Patrick A. Pirtle

 Justice

Publish.