### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00338- CR

Joseph Weber, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -DC- 13- 9040 90, H ONO RAB LE DAVID CRAIN, J UDGE P RESIDING

O P I N I O N J oseph Weber was char g ed with five counts of ag g ravated sexual assault of a child, with one count of continuous sexual abuse of a child, and with two counts of indece ncy with a child by exposure. See Tex. Pena l Code §§ 21.02(b) (setting out offense of continuous sexual a buse of 1 y oung child or children) , .11(a) (listing elements of offen s e of indece ncy with child), 22.021(a) (desc ribing offe nse of ag g ravated sexual assault). At the conclusion of the g uilt-or-innoce nce phase of the trial, the jury found Weber g uilt y o f t h e fi rs t two ag g ravated-sexual-assa ult counts, of the continuous-sexual-abuse count, and of the two indece ncy -by -ex p o s u re counts. At the end of the punishment phase o f t he trial, the jury rec ommended that Weber be sentenc ed to 70 y ear s’ im p r is o nme nt f

o r b o th o f th e a g gr avate d-sexual-assault convictions as well as the continuous-sexua labuse conviction and that he be sentenc ed to 10 y ear s’ imprisonment for eac h of t h e indece ncy

The indictment a lso a lleg ed that Weber committed three counts of indece ncy with a child 1 by sexual contact, but the State aba ndoned those c ounts before the ca se wa s submitt ed to the jury

.convictions, and the d i s t ri ct court rende red its judgme nts of conviction in acc ordanc e with the

jury ’s verdic ts. See id. §§ 21.02(h) (providing that offe nse of continuous sexual abuse is first-degree felony and setting out permissible punishment rang e for offe nse), .11(d) (explaining that offe nse of indece ncy with chil d b y ex p o s ure is third-deg ree felony ), 22.021(e) , (f) (stating that ag g ravated sexual assault is first-deg ree felony and providing minimum sentenc e if victim “is y oung er than six y ear s of ag e”) ; see also id. § 12.34 (listing permissibl e punishment rang e for third-deg ree felony

). On appea l, Weber urg es that the jury char g e submitt ed by the district court v i o l at ed h i s doublej eopardy g uara

ntee ag ainst multipl e punishments for the same offe nse and was inconsistent wi t h the dictates of the continuous-sexual-abuse statute. We will reve rse and vacate Weber’s convictions for a g g ravated sexual assault and af firm the re mainder of

his convictions. 2

BACK GR OUND After dating Susan Smit h for sever al months, Weber moved in w ith Smith and her 3 infant son N.M. Approxim ately one y ear later, Smit h g ave birth to her and Weber’s son E.W. When N.M. was a

pproxi mately

four y ear s old, N.M. told S mith that W eber had touched himself in front of N.M. and “had play ed g ames with [N.M.] and” E.W., and Smit h also noticed N.M. “beha ving in an abnormal way , like in a s ex u al m an n er, with his littl e brother” E.W

. When Smit h asked N.M. wher e he ha d lear

ned that ty

pe of be havior, he told her that he le arne d it from Weber. Af ter N.M. made the outcry and afte r observing this conduct, Smit h separ ated from Weber, repor ted the matter to the authorities, and hired her own investigator to look into the matter. During his interview with On appe al, Weber doe s not challeng e his indece ncy convictions. 2 I n this opini on, we will re fer to the mother of the vic tims i n this case a s Susan Smi th. 3 2the investigator and later with the police, Weber made various incriminating statements, including

that N.M. and E.W. ha d seen him naked with a n ere ction, that Weber had permitted N.M. to touch Weber’s e rec t penis, that Weber had ma sturbated in fr ont of N.M. and E.W. on severa l occa sions, that Weber made N.M. rub Weber’s penis in an attempt to achie ve sexual g ratification, that Weber simil arly touched N.M.’s and E.W.’s penises, that Weber had ejaculated on N.M. and E.W., that Weber inser

ted his penis into N.M.’s mouth, and that Weber eja culated inside N .M.’s mouth. Following these admissions, Weber was arr ested and cha rged with five counts of ag g rava ted sexual a ssault and two counts of indece ncy with a child by exposure. The victim in all of those counts was N.M. I n addition, Weber was also char g ed with one count of continuous sexual abuse involvi ng N.M. and E.W

. At the conclusion of t he first phase o f t h e t ri al , t h e district court provided the jury

with jury instructions that provided, in rele vant par t, as follows:

Count 1 “[I ]f y ou believe from t he evidence bey ond a reasonable doubt, that

. . . Weber, on or about the 1st day o f October , A.D. 2010,

. . . did then and there intentionally or k nowing ly cause the penetr ation of the mouth of [N.M.] , a child y oung er t h an 1 4 y ear s of age , by the s exual org an of” Weber “ and that the victim was y oung er than six y ear s of ag e at the time the offe nse was committed, y ou will find” Weber “g uilty of the offe nse of Super Ag g ravated Sex ual Assault of a Child as alleg ed in Count 1.” Count 2 “[I ]f y ou believe from t he evidence bey ond a reasonable doubt, that

. . . Weber, on or about the 1st day of Octobe r, A.D. 2010,

. . . did then and there intentionally or knowing ly cause the mouth of [N.M.] , a child y oung er than 1 4 y ear s of ag e, to contac t the sexual org an of” Weber “and that the victim was y oung er than six y ear s of age at t he ti m e the offense was committed, y ou will find the defendant guilty of the offe nse of Super

Ag g ravated Sexual Assault of a Child as alleg ed in Count 2.”

3Count 6

“[Y]ou will find” Weber “guilty of the offe nse of Continuous Sex ual Abuse of a Young Child as all ege d i n C o u nt 6” “if y ou believe from the evidenc e bey ond a rea sonable doubt that . . . Weber, a person 17 y ear s of ag e or olde r, on or a bout the 24th day of J anuar

y , 2 0 0 9 t h ro u g h the 11th day of Dec ember , 2010,

. . . during a peri o d that was 30 day s or more in duration, committed two or more” of the following “ac ts of sexual abuse ag ainst” N.M. and E.W., who wer e both “y oun g er than 14 y ear s of age and not” Weber’s spouse: “intentionally and knowingly cause the penetr ation” of N .M.’s mouth by Weber’s “ sexual orga

n,” ca use N.M.’s mouth “to contac t” Weber’s “sexual org an,” cause Weber’s mouth “to contac t” N.M.’s sexual org an, “ca

use the penetr ation of” Weber’s mouth by N.M.’s “sexual org an,” “ca use t he penetration of” N.M.’s anus with W eb er ’s fing er, cause E.W.’s “sexual org an . . . to c ontact” Weber’s “sexual org an,” or “ca use the penetr ation of” E.W.’s anus with Weber’s fing er, or “intentionally and knowing ly with the intent to arouse and g ratify” Weber’s “sexual desire,” “eng ag e in sexual contac t” with N.M. “by touching ” N.M.’s g enitals with Weber’s hand, “eng ag e in sexual contac t with” N.M. “by causing ” N.M. to touch W eber ’s genita ls with N.M.’s hand, “eng ag e in sexual contac t with” N.M. “by touching ” N.M.’s anus with Weber’s hand, “eng ag e in sexual contac t wi t h ” E.W. “by touching ” E.W.’s g enitals with Weber’s hand, “eng ag e in sexual contac t with” E.W. “by touching ” E.W.’s anus with Weber’s hand, or “eng ag e in sexual contac t with” E.W. “by causin g” E.W. “to touch” Weber’s g enitals with E.W.’s hand. 4

As discussed ear lier, the jury convicted Weber of the first two counts of ag g ravated sexual assault, of two counts of indece ncy with a child by exposure, and of the count of continuous sexual abuse and rec ommended that Weber be sentenc ed to 70 y ear s’ i m p ri s o n ment for the ag g rava ted-sexual-assa

ult convictions and for the continuou s -s ex u al-abuse conviction and to 10 y ears’ imprisonment for the indece ncy -with-a- child convictions. The district court rende red it s judgme nts of conviction in acc ordanc e with those ver dicts.

T h e jury char g e also specifie d that if the jury found Weber “not g uilty of the offe nse of 4 Continuous Sex ual Assault of a Young Child, please proce ed to consider whether ” Weber “is g uilty or not g uilty of eac h incident of the lesser included offe nses of Ag g ravated Sex ual Assault of a Child and/or I ndece ncy with a Ch i ld by Contact” in the para g raphs following the discussion of the alleg ations perta ining to continuous sexual abuse. Having found Weber g uilty of continuous sexual abuse, the jury

made no de termination reg arding those lesser- included off enses. 4DISCUSSIO N I n his sole issue on appea l, Weber contends that the district court “er red in submitt ing to the jury a writ t en char g e that permitted it to convict [hi m] in the same criminal action of the offe nses of ag g ravated sexual assault, as alleg ed in counts I and I I of the indictment, and the offe nse of continuous sexual abuse of y oung child or chi l d ren, as alleg ed in count VI of the indictment, wher e the victim of the former offe nses wa s the same as one of the victims of the latter offe nse.” When prese nting this issue on appea l, Weber relies on the lang uag e from the provision of the Penal Code g overning the offe nse of continuous sexual abuse. That section states that an individual commits an offe nse if “during a period that is 30 or more day s in duration, the person commits two

or more acts of sexual a

buse, reg ardle ss of whether the ac ts of sexual a buse are committed a g ainst

one or more victims,” and if “at the time of the commission of eac h of the acts of sexual abuse, the actor is 17 y ear s of ag e or older and the victim is a child y oung er than 14 y ear s of ag e.” Tex. Penal Code § 21.02(b). I n addition, the section explains that an “‘a ct of sexual abuse’ means any act that is a viol ation” of se vera l Penal Code provisions including the one pertaining to ag g ravated s exual assault. See id. § 2 1

. 0 2 (c ). Of s ignif icanc e to the i ssue on appea l, the s ection also ref ere nces the list of Penal Code provisions that set out what qualifies as an act of sexual abuse and provides that “[a] defe ndant may not be convicted in the same criminal action of an offe nse” from that list wher e “the victim is the same victim as a victim of the” continuous-sexual-abuse offe nse unless the other sexual offe nse “is char g ed in the alternative” to the continuous-sexual-abuse offe nse, “occ urre d outside the period ” of time in which the continuous-sexual abuse was alleg ed to have been committed, or “is considere d by the trier of fac t to be a lesser included offe nse” of the continuoussexual-abuse off

ense. Id. § 21.02(e)

. 5Wit h the above statutory provisions servin g as a backdr op, Weber contends that

the jur y i n s t ru ct ions wer e improper beca use N.M. was the alleg ed victim in the two counts for ag g rava ted sexual as s au l t and was one of the alleg ed victims in the count for continuous sexual abuse, beca

use the d ay on which the ag g ravated sexual assaults alleg edly occur red fell within the p er i o d of time in which the continuous sexual abuse was alleg edly occur ring , and beca

use t h e ag g rava ted sexual assaults were not char g ed as a lternatives or listed as lesser- included offe nses to the continuous -sexual-abuse count. Acc ording ly , W eb er contends that the di strict court “err ed in submitt ing to the jury a written char g e that permitted it to convict [hi m] in the same criminal action of the offe nses of ag g ravated sexual assault, as alleg ed in Counts I and I I of the indictment, and the offe nse of continuous sexual abuse, as alleg ed in Count VI of the indictment.” Fur ther, Weber insists that submitt ing an instru ct i o n that allowed him to be convicted on the two counts of ag g rava ted sexual assault as well as the count for continuous sexual abuse violated the constitutional prohibition on imposing multipl e punishments for a single offe nse. I n its appellate filing, the State ag ree s with W eber

.

I t appea rs from the rec ord that Weber made no objection to the jury char g e befor e it

was submitt ed to the jury

. See Tex

. R

. Ap p . P

. 33.1(a) (stating that to prese rve err or for appea l,

rec ord must show that complaint was m ad e t o t ri al court and that trial court ruled on reque st or ref used to rule and that “t h e co m p l ai n ing party objected to the ref usal”); see also Swearingen v. State , 270 S.W .3d 804, 808 (Tex. App.—Austin 2008, pet. ref ’d) (explaining that courts revie w jury -cha rg e claims under two-prong ed test and that deg ree of harm neede d to war rant reve rsal d e p e n d s o n wh e th e r e r

r o r w a s p r e s e r

v e d f o r a p p e a l)

. “N e v e r

th e le s s , [a d e f

e n d a nt] ma y r a is e a d o u

b le

6jeopar dy claim that is appar ent on the fac e of the rec ord for the first time on appea l,” Price v. State ,

413 S.W .3d 158, 161 (Tex. App

. — Be au m o n t 2013), aff’d by 434 S.W .3d 601 (Tex. Crim. App. 2014), “‘w hen the enfor ceme nt of the usual rules of proce dural defa ult serv es n o l egitimate state interest,’” Langs v. State , 183 S.W .3d 680, 687 (Tex. Crim. App. 2006) (discussing fun damental nature of double-jeopa

rdy violations and quoting Gonzalez v. State , 8 S.W .3d 640, 643 (Tex. Crim. App. 2000)). “A double-jeopa rdy claim is appar ent o n the fac e of the trial rec ord if resolution of the claim does not require further proce eding s fo r t h e p urpose of introducing additional evidenc e in s u p p o rt of the double-jeopa rdy claim.” Ex parte Denton , 399 S.W .3d 540, 544 (Tex. Crim. App. 2013). “The Double J eopar dy Clause of the Fifth Amendment

. . . protec ts an acc u s ed ag ains t a second prosec ution for the same offe nse for which he has been previously acquitted or p re viously convicted” and “also protec ts him from being punished more than once for t h e s am e offe nse in a single prosec ution.” Gonzales v. State , 304 S.W .3d 838, 845 (Tex. Crim. App. 2010);

see Bigon v. State , 252 S.W .3d 360, 369 (Tex. Crim. App. 2008) (explaining that Fifth Amendment p r o te c ts “ a g a in s t mu lt ip le p u n is hme n ts f o r th e s a me o f f e n s e ” )

. “ I n th e mu lt ip le

- p u

n is hme n ts c o nte xt, two offe nses may be the same if one offe nse stands in relation to the other as a lesser- included offe nse, or if the two offe nses are define d under distinct statutory provi s i o n s b u t the L eg islature has made it clea

r that only one punishment is intended.” Litt rell v. State , 271 S.W .3d 273, 275-76 (Tex. Crim. App. 2008). “Samene ss in this context i s a m at t er of leg islative intent.” Id. at 276. “The question of whether an individual may be punished for the same criminal act u n d er t wo distinct statutes is a matter of leg islative intent.” Price , 434 S.W .3d at 609.

7Rece ntly , the court of criminal appea ls was prese nt ed with an issue simil ar to the

one prese nted in this case and thoroug hly construed the continuous-sexual-abuse statute. See id. at 605-10. I n Price , Price was convicted of continuous sexual abuse as well as “c ri minal attempt to commit a predic ate offe nse under that statute,” which was alleg ed to have occur red within the period of time in which the continuous sexual abuse was alleg ed to have taken place

. Id. at 603-04. When addre ssing whe ther those c onvictions constituted a double-jeopa rdy violation, the court explained that “[t] he statuto ry l anguag e ref lects that the L eg islature intended to permit one conviction for continuous sexual abuse based on the repe ated acts of sexual abuse that occur over an ext en ded period of time ag ainst a single complainant.” Id. at 605-06. Fur ther, the court noted that the “‘a cts of sexual abuse’ are specific ally enumer ated and are lesser- included off enses of the offe nse of continuous sexual abuse.” Id. at 606 (quoting Tex. Penal Code § 21.02(c) ); see S o l iz v. State , 353 S.W .3d 850, 854 (Tex. Crim. App. 2011) (stating that predic ate offe nse listed in Subsection (c) “will always ” be lesser- included offe nse of cont i n u o u s sexual abuse beca use “continuous sexual abuse is, by its very definition, the commission under ce rtain circ umstances of two or more of

the offe nses listed in Subsection (c) ”). Moreover, the court clar ified that “[t] he statutory lang uag e further ref

lects that the L eg islatu re cl ea rl y intended to disallow dual convictions for the offe nse of continuous sexual abuse and for o ff en ses enumer ated as ‘ac ts of sexual abuse’ when based on conduct a g ainst the same child during the s ame period of t ime.” Price , 434 S.W .3d at 606. I n other words, “[a] defe ndant char g ed with continuous sexual abuse who is tried in the same criminal action for an enume rate d offe nse based on conduct committed a g ainst the same victim may not be

co n v i cted for both offe nses unless the latter offe nse occur red outside the period of time i n wh i ch

8the continuous -sexual-abuse offense was commit ted.” Id. Ultim at el y , the court deter mined “that it would violate a defe ndant’s rig hts ag ainst double jeopar dy to permit convicti o n s for both continuous sexual abuse and an attempt to commit a predic ate act with respe ct to conduct committed ag ainst the same c omplainant during the same pe riod of time.” Id. at 610.

I n light of the fac t that the three convictions at issue wer e based on conduct occur ring in the same period of t i m e and in light of the lang uag e of the jury char g e and of the g overning statute, we conclude that Weber’s doubl e- j eo p ar d y claim is appar ent from the fac e of the rec ord. See Price , 413 S.W .3d at 161-64 (noting that double-jeopa rdy claims may only be rais ed fo r first time on appea l if they are appar ent on fac e of rec ord and then addre ssing double-jeopa rdy complaint that it was improper to convict person of continuous sexual abuse and attempted ag g rava ted sexual assault that wer e alleg ed to have occur red in same period of time). Fur ther, beca use the convictions at issue all arose from the same trial, enfo rc ement of the usual rules of proce dural defa ult serve s

no leg itimate State interest. See Johnson v. State , 208 S.W .3d 478, 510 (Tex. App.—Austin 2006, pet. ref ’d) (explaining that enfor ceme nt of rules of proce dural defa ult serve d no State interest when “both convictions ar ise out of the same trial” and we re ba sed on same c onduct). More over, ba sed

on the analy sis by the court of criminal appea ls in Price and g iven that N.M. was the alleg ed victim in both ag g ravated-sexual-assa ult convictions and was one of the victims in the continuous-sexualabuse conviction and that the agg ravated s exual assaults wer e allege d to have oc curr ed within the period of time in which the continuous acts of sexual abuse wer e alleg edly o cc u rr i n g, we must conclude that Weber’s r ights a g ainst double jeopar dy wer e violated whe n he was convicted of the two counts of ag g ravated sexual assault and of the count of continuous sexual abuse. Acc ording ly , we sustain Weber ’s issue on appe al. 9Having deter mined that a double-jeopa rdy violation occur

red, we must now consider

wh a t is th e a p p r o p r ia te r e me d y . Cf

. I b e n y e n wa v . S

ta te , 3 6 7 S. W. 3 d 4 2 0 , 4 2 6 ( T e x. A p p . — F o r t Wo r th 2012, pet. ref

’d) (re cog nizi ng that if court overr uled complaints reg arding continuous-sexual-abuse conviction, it “must reve rse the rema inder of the convictions for ag g ravated sexual assault and indece ncy with a child”). I n g ener al, “[w]hen a defe ndant is subjected to multipl e punishments for the same conduct, the reme dy is to aff irm the conviction for the most serious offe nse and vacate the other convic t i o n s , ” B igon , 252 S.W .3d at 372, and “the ‘most serious’ offe nse is the offe nse of conviction for which the g reatest sentenc e was assessed,” Ex parte Cavazos , 203 S.W .3d 333, 338 (Tex. Crim. App. 2006). Both Weber and the State urg e that the appropr iate reme dy in this case is for “this Court t o re v erse and vacate” the two ag g ravated-sexual-assa ult convictions for the two counts alleg ed in counts one a nd two of the indictment, and w e ag ree . Although Weber wa s g iven the same sentenc e for his ag g ravated-sexual-assa ult convictions as he was for his continuous-sexual-abuse conviction, as discussed ear lier, the court of crimi nal appea ls has explained that the individual acts of abuse alleg ed as part of the offe nse of

co n tinuous sexual abuse, including ag g ravated sexual assault, are lesser- included offe nses of t h e gr e a te r o f f e n s e o f c o nti n

u o u s s e xu a l a

b u s e . Pr ic e , 4 3 4 S. W. 3 d a t 6 0 9

. I n li g h t o f th a t c h a r a c te r iz a ti o n , we must conclude that Weber’s conviction for continuous sexual abuse is the more serious offe nse. See Carmichael v. State ,

___ S

. W

. 3 d ___, No. 04-15-00572- CR, 2016 WL 6088976, at *2 (Tex. App.—San Antonio Oct. 19, 2016, pet. filed) (vac ating aggr av ated- sexual assault conviction but upholding continuous-sexual-abuse conviction afte r deter mining that do u b l e-jeopardy violation

occur red even though both convictions had same punishment imposed). This conclusion is further

10buttressed by the fac t that no conviction for continuous sexual a buse is e ligible for parole wher eas

cer tain ty pes of ag g ravated-sexual-assa ult convictions are elig ible for parole

. See Tex. Gov’t Code § 508.145(a) (spec ify ing in part that “[a]n inmate

. . . serving a sentenc e for” continuous sexual abuse or for ag g rava

ted sexual assault involving victim y oung er t h an s i x y ears of ag e or victim y oung er than fourtee n y ear s of ag e if offe nse is committed in cer tain statutorily descr ibed manner s “is not elig ible for rele ase on parole ”). Acc ording ly , we believe that the proper reme dy is to vacate Weber’s two convictions for ag g ravated sexual assault and to uphold his conviction for continuous sexual abuse.

CONCLUSION

Having sustained Weber’s sole issue on appe al, we reve rse and vacate the district court’s judgme nts o f conviction for ag g ravated sexual assault and aff irm the rema inder of the district court’s judgments of conviction. S ee T ex . R

. App. P

. 43.2 (listing permissibl e judgments by appellate courts).

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton, and F ield Affir med in Part; Reverse d and Va cate d in Part Filed: January

12, 2017 Publis h

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