## I N THE COURT OF CRIMINAL APPEALS OF TEX AS
NO. PD-0203-19

M ATTHEW JOSEPH ALLEN, Appellant

v. THE STATE OF TEXAS ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

COLLIN COUNTY W A L K E R 

### , J., delivered the opinion of the Court in w hich KE L L E R 

### , P.J., and H E R V E Y 

### , R I C H A R D S O N 

### , Y E A R Y 

### , N E W E L L 

### , KE E L 

### , and M C 

### C L U R E 

### , JJ., joined. S L A U G H T E R 

### , J., dissented. O P I N I O N

A jury found Matthe w J oseph Allen, Appellant, g uilty of committing Continuous Sex ual Abuse of a Young Child, I n decency with a Child by Ex posure, and Indecency with a Child by Contact. Appellant challeng ed the sufficiency of the evidence, and the court of appeals upheld the convictions for Continuous Sex u al Abuse of a Young Child and Indecency with a Child by Contact but reversed the I

ndecency with a Child by

Ex posure conviction. I

n upholding the Indecency with

a Child by Contact conviction, the court of appeals modified the judg ment to state that the offense2

was c ommitted in December 2011, which is within the October 1, 2009–August 15, 2012 time period that the indictment alleg ed for the Continuous Sex ual Abuse of a Young Child offense. W e hold that Appellant’s conviction for I n decency with a Child by Contact viol a t e s § 21.02(e)(2) of the Penal Code. The evidence supporting the I n decency with a Child b y Contact offense shows that it occurred within the time period the Continuous Sex ual Abuse of a Young Child offense was committed. We affirm the judg ment of the court of appeals in part, reverse the judg ment of the court of appeals in part, and we vacate Appellant’s conviction for I n decency with a Child by

Contact. I — Background W h en A .H. was ten y ears old and in the fourth g rade, 1 her stepfather, Appellant, made her touch his p e n i s by g rabbing her hand and having her touch him over h is clothes. Althoug h A.H. could not remember ex a c t ly how many times this occurred or over how long a period it occurred, it happened more than o nce and occurred about once a month until the family moved from Tex as to I owa during the summer of 2009, between A.H.’s fourth and f ifth g rade school y ears. The level of abuse escalated and b ecame more frequent in I owa, ultimately leading to Appellant penetrating her vag ina with his fing er. The family moved back to Tex as when A.H. was in the middle o f the seventh g rade, in December 2 011. B ack in Tex as, Appellan t made A.H.’s h and touch his penis over his clothing once or twice more, and then the abuse stopped. Appellant was charg ed in a nine-count indictment alleg ing sex ual o f f e n s e s c o mm i tt e d a g a i n s t A.H. A fter the State rested and before Appellant testified in his own defense, Appellant moved f or

a directed verdict on Counts I –V, VI I , and VI I I

. The motion was denied as to Counts I and I I , but the

1 Althoug h the victim was eig hteen y ears old at the time of trial, she was a minor at the time of the offense and we will refer to her by her initials.3

trial court “g ranted” the motion as to the o ther counts af t e r t h e State abandoned them as well as Count I X. 2 As a r esult of the motion hearing , Counts I , I I , and VI were left. Count I alleg ed that Appellant committed the offense of Continuous Sex ual Abuse of a Young Child on or about October 1, 2009 throug h Aug ust 15, 2 012. 3 Count I I alleg ed that Appel l a n t c o m mitted the offense of I ndecency with a Child by E x p o sure on or about October 1, 2009. 4 Count V I alleg ed that Appellant committed the offense of I ndecency with a Child by Contact on or about September 25, 2009. 5 The jury returned a gu ilty verdict on the three remaining counts, and Appellant was sentenced to thirty

five y ears, five y

e ars, and fifteen y

ears for the three offenses, respectively

. II — At the Court of Appeals On appeal, Appellant challeng ed the sufficiency of the evidence supporting the c onvictions. Allen v. State , No. 05-17-00226-CR, 2018 W L 3434545, at *1 (Tex . App.—Dallas J u ly 17, 2018) (mem. op., not de s i gn a t ed for publication). Even thoug h the evidence reg arding the Continuous Sex ual Abuse of a Young Child conviction was conflicting , the court of appeals determined that the jury resolved the conflict on evidence that A.H. responded affirmatively t o qu estions referring to multiple instances of touching , on A.H.’s testimony that the touching beg an in the middle of fourth g rade and occurred a

bout once a m o nth, and on A.H.’s mother’s testimony that the family moved out of Tex as during the summer before A.H. started f i f t h g r ade. Id. at *1–2. T h e court of appeals determined that the I n decency w ith a Child by Ex posure conviction, however, was not supported by

2 Rep. R. vol. 5, 14–15.

3 SeeT E X
. P E

N A L C O D EAnn. § 21.02(b).

4 SeeT E X
. P E

N A L C O D EAnn. § 21.11(a)(2)(A).

5 SeeT E X
. P E

N A L C O D EAnn. § 21.11(a)(1).4

sufficient evidence because there was no evidence in the r ecord that Appellant ex posed h is g enitals to A

. H

. Id. at *2. F inally , the court of appeals found that the Indecency w ith a Child by Contact conviction was supported by A.H.’s testimony that, after they moved back to Tex as and during the December when A

. H. was in seventh g rade, Appellant caused her to touch his g enitals over his clothing

. Id. at *5. Noting that A.H.’s seventh gr ade school y ear was in 2011, the court of appeals modif i e d the judg ment to reflect an offense date o f December 2011 instead of the d ate entered by the trial court on the J udg ment of Conviction: October 1, 2009. Id. B e cause December 2011 is within the October 1, 2009–August 15, 2012 time period alleg ed in Count I of the indictment f or Continuous Sex ual Abuse of a Young Child, Appellant and the State filed cross-motions for rehearing , both arguing that Penal Code § 21.02(e) a nd Appell a n t’s rig ht ag ainst double jeopardy were v iol at e d

. 6 The court o f appeals d enied both motions and, instead of chang ing the date o n the judg ment, withdrew its earlier opinion and delivered a new opinion. Allen

v. State , No. 05-17-00226-CR, 2018 W L 6065095, at *1 (Tex

. App.—Dallas Nov. 20, 2018, op. on reh’g ) ( mem. op., n ot desig nated f or publication). In this new opinion, t h e c ourt of appeals a g ain upheld the C ontinuous Sex ual Abuse of a Y oung Child conviction as supported by sufficient evidence, n amely , that A.H. responded affirmatively to questions referring to multiple instances of touching , o n A.H.’s testimony that the touching b eg an in the middle of f ourth g rade and occurred about once a month, and on A.H.’s mother’s testimony that the family

moved out of Tex as during
t h e s ummer before A.H. started fifth g rade. Id. at *1–2. The court o f appeals ex plained that the

e v idence supporting the Continuous Sex ual Abuse o f a Young Child c onviction showed t h a t t h e

6 A p p e l l ant’s motion also reasserted that the evidence was insufficient to support the t w o convictions.5

offense was c ommitted between the middle of the 2008–2009 school y e ar and the summer of 2009, before the family

moved out of Tex as. Id. Appellant’s petition f

or d iscretionary review cha l l e n g es the court of a ppeals’s judg ment upholding the I ndecency with a Child by Contact conviction. According to Appellant, because the evidence shows the offense o ccurred during the time alleg ed for the Continuous Sex u a l Abuse of a Young Child offense, the court of appeals was required to affirm either the Continuous Sex ual Abuse of a Young Chil d co n viction or the I ndecency with a Child by Contact conviction, but not both; otherwise, the d

u al convictions would violate § 21.02(e) and the Double J eopardy Clause of the F ifth Amendment. III — Section 21.02(e) I n determining the o peration of the statute, we beg in by ex amining its literal tex t. Boykin v. State , 818 S.W

. 2d 782, 785 (Tex

. Crim. App. 1991). Section 21.02(e) provides: (e) A defendant may not be convicted in the same criminal a ction of a n offense listed under Subsection (c) the victim of which is the same victim a s a victim of the offense alleg ed under Subsection (b) unless the offense listed in Subsection (c): (1) is charg ed in the alternative; (2) occurred outside the period in which the o ffense alleg e d under Subsection (b) was committed; or (3) is considered by the trier o f fact to be a lesser included offense of the offense alleg ed under Subsection (b). T E X P E N A L C O D E Ann. § 21.02(e). The issue before us is whether Appellant’s d ual convictions are allowed under the § 21.02(e)(2) e x ception. I t is without question that Appellant’s Indecency with a Child by Contact offense, which involved causing A.H. to touch his g enitals over his clothing , is “an6

offense listed under Subsection(c).” T E X
. P E N A L C O D E A nn. § 21.02(c)(2). Similarly , there is no doubt that Appellant w a s c o n v i c t ed of the offense in the same criminal action or that the victim involved in both offenses is the same. The nex t part, however, is disputed. Appellant points to the f

act that althoug h the In decency with a Child by Contact offense was alleg ed in the indictment to have occurred on o r about September 25, 2009, the State at trial and on appea l r e l i e d on e vidence of conduct in December 2011, and the court of appeals similarly relied upon evidence showing the o f fense was committed in December 2011. The court of appeals’s reliance was then made patently clear when it modified the ju d gm e n t t o re f lect an o ffense date of D ec e m b er 2011. According to Appellant, because the Indecency with a Child b y Contact offe n s e occurred in December 2 011, it cannot be upheld as it is within the October 1, 2009–August 15, 2012 time period alleg ed in the indictment for the Continuous Sex ual Abuse of a Young Child offense. 7 Appellant’s argument appears to depend upon the use of the word “alleg ed” in § 21.02(e)(2). F rom the indictment, “the period in which the offense alleg ed under Subsection (b)” is October 1, 2009–Aug ust 15, 2012. However, the court of a ppeals determined that the evidence was sufficient for the jury to conclude that the offense “was committed” between the midd l e o f t he 2008–2009 school y ear and the summer of 2009. Allen , 2018 W L 6065095, at *2. I f the “ alleg ed” time frame is c ontrolling , Appellant ’ s d u a l co n v ictions in this case violate the statute. B ut if the “was committed” time frame is controlling , the convictions are leg al and there is no error. The full tex t of § 2 1.02(e)(2) states the ex c eption a pplies if the § 2 1.02(c) offense “occurred

7 W hile the apparent ag reement b etween the State, the court of appeals, a nd Appellant that the I ndecency with a Child b y Contact offense was c o m mitted in D ecember 2011 does not necessarily establish when the offense was actually committed, it does point toward a conclusion that the evidence showed that the offense was indeed committed during the month of December 2011.7

outside the period in which the offense a lleg ed under Subsection (b) w as c o m m i t t e d

. . . .” T E X
. P E N A L C O D E Ann. § 21

. 0 2 ( e ) (2). W e initially n o te the statute uses the words “was c ommitted” instead of “was alleg ed.” Th i s c h o ice compels a construction that does not g ive controlling effect to “alleg ed.” The statute does not say “occurred o utside the period in which the offense w as alleg ed to have been committed under Subsection (b).” F urthermore, when construing statutes, we g ive effect to every word, phrase, clause, and sentence when reasonably p o ssible. Stahmann v. St a t e , 602 S.W .3d 573, 5 77 (Tex

. Crim. App. 2020); State v. Hardy , 963 S.W .2d 516, 520 (Tex

. Crim. App. 1997). I f “alleg ed” was controlling , “was committed” w ould be rendered inert. On the other h and, if “was committed” was controlling , “alleg ed under Subsection (b)” would still serve a purpose, albeit a minor one. I t would serve to selfidentify or self-reference the c ontinuous abuse off e n s e u nder consideration. B ecause g iving controlling effect to “was committed” g ives substance to both phrases, this is a strong indication that “was committed” should be controlling instead of “alleg ed.” W e also note that § 21.02(e) beg ins by saying that a defendant “ may not be convicted” of a § 21.02(c) offens e i n s t e ad o f “ may not be charg ed.” Thus the § 21.02(e) prohibition a g ainst dual convictions, and t h e r efore any ex ception to § 21.02(e), p resupposes that the defendant has been convicted of a continuous abuse offense in the first place. Such a c o n v i c t i on itself d epends on evidence from w hich the f act finder co u l d f

i n d t he defendant g uilty

. Such evidence would show when the continuous abuse offense was committed. Of c ourse, to be convicted a defendant must first be charg ed with a crime, and the charg e must include a d ate alleg ation. See Hess v. State , 528 S.W

. 2d 842, 843 (Tex

. Crim. App. 1975) (“An indictment to be sufficient must g ive the day , month, and y ear of the commission of the o ffense.”); accord Hill v . State , 544 S.W .2d 411, 413 (Tex

. Crim.8

App. 1976); see a lso T E X
. C O D E C R I M
. P R O C
. Ann. art. 21.0 2 ( 6 ) (t i m e mentioned in indictment “must be some date anterior to the presentment of the indictment, and n ot so remote that the prosecution of the offense is b arred by limit a t ion”). However, the p articular date alleg ed in the indictment is not b inding on the pros e c u t i on, and a conviction may be h ad based on evidence showing a completely d ifferent date than that a lleg ed in the indictment. Sledge v. State , 953 S.W .2d 253, 255–56 (Tex

. Crim. App. 1997). Section 2 1.02(e)’s threshold statement that a defendant “may not be convicted” is a further indication that the time period when the continuous abuse o ffense “was committed” should be controlling , not the time period alleg ed in the indictment. Appellant, in his b rief, points to Price v. State , 434 S.W

. 3d 601 (Tex

. Crim. App. 2014), in which we previously construed § 21.02(e). According to Appellant, u n d e r Price “the fact finder

w o u l d only be able to find Appellant g uilty of e ither the continuous sex ual abuse of a chi l d , o r , alternatively , indecency

with a child by

sex ual contact, but not both.” 8 Appellant’s reliance on Price is misplaced. The issue we were concerned with in Price was whether an attempt to commit a § 21.02(c) offense c ounts for the purp oses of § 21.02(e), because § 2 1.02(e) makes n o mention of “attempt.” Price , 434 S.W

. 3d at 604, 606. T h i s w a s a source of ambig uity that we resolved by ex amining ex tratex tual factors such as leg islative intent. Id. at 607. W e held that the § 21.02(e) prohibition included attempts to com m i t § 2 1

. 0 2 (c) offenses, and w e affirmed the court of appeals’s judg ment vacating the attempt conviction where the defendant had been convicted of both a continuous abuse offense and an attempt to commit a § 21.02(c) offense. Id. at 611, 6 0 4

. I n this case, Appellant was convicted o f committing Continuous Sex ual Abuse of

a Young Child a

nd committing an offense listed in § 21.02(c). Appella n t w as not convicted of

8 Appellant’s B r. at. 27.9

committing Continuous Sex ual Abuse of a Young Child and attempting to c ommit an offense listed in § 21.02(c). The second problem with Appell a n t ’s r eliance on Price is that our discussion in Price supports the court o f ap p e a l s’s judg ment upholding the In decency with a Child by Contact conviction. W ith reg ard to § 21.02(e) when the § 2 1.02(c) offense is actually comm i t t e d and not merely attempted, we e x p l a ined that “[ t] he statutory languag e further reflects that the L eg islature clearly intended to disallow dual convictions for t h e o ffense o f continuous sex ual abuse and f or offenses enumerated as ‘acts of sex ual abuse’ when based o n conduct ag a inst the same c hild during the same period of time .” I d. at 606 (emphasis added). W e did not say “when based on alleg ations

o f conduct

. . . during the same period of time” or “when based on conduct

. . . alle ge d t o h av e occurred during

the same period of time.” Our discussion in Price continued: A defendant charg ed w ith continuous sex ual abuse who is tried in the same criminal action for a

n e numerated offense based on conduct c ommitted a g ainst the same v ictim may not b e convicted for both offenses unless the latter offense occurred outside the p eriod of time in which the continuou s - sex ual-abuse offense was committed

. Id. (emphasis added). “W e c onclude[ d ] that the statutory languag e is p lain in providing that, w hen the acts alleg ed

were committed ag a inst a sing le child, the L eg islature did not intend to permit dual convictions f or continuous sex ual abuse a nd for an enumerated a ct of sex ual abuse unless the latter o ccurred during

a different period of time .” Id. (emphasis added). W hether the § 2 1 .02(c) o ffens e o c c urred during

a different period o f time depends not only o n e vidence showing when the § 21.02(c) offense occurred b ut also on e vidence showing that the enumerated act was committed outside of the period10

that the § 21.02(c) offense was committed. B a sed upon the f

oreg oing , we conclude that “was committed” controls. W e h o ld that in determining whether a defendant may be convicted for a continuous abuse offense and an offense listed in § 21.02(c) in the same criminal action and ag ainst the same victim, the proper consideration is whether the evidence shows th a t the § 21.02(c) offense occurred outside of the period that the continuous abuse o ffens e was committed. T h e determination does n ot consider whether the § 21.02(c) offense occurred o utside the time period alleg ed in the indictment for the continuous abuse offense. Returning to Appellant’s case, the first question is when the Continuous Sex u al Abuse of a Young Child offense was committed. The date an offense was committed cannot be determined by looking at an indictment, it must be determined by l o o k ing at the evidence presented at trial. The court of a ppeals determined that the evidence supported a time frame of the middle of the 2008–2009 school y ear to the summer o f 2009. B ut the evidence showed not only those instances of abuse. The totality of the eviden ce also showed that the abuse continued after the family moved out of Tex as to I owa, and that, a fter returning to Tex as, the abuse continued in D e c e m b er 2 0 1 1

. The court of appeals improperly ex cluded the December 2011 incident from the continuing abuse period. To be clear, Appellant cannot be held liable in Tex as for the acts committed in I owa. S ee T E X
. P E

N A L C O D E Ann. § 1.04. B ut the acts committed in Tex as, before the move away a nd after the return, are p art of the same long , continuous offense. 9 The evidence supporting the jury ’s guilty v erdict shows that

9 I t may be a different case if the evidence shows a clear p e r i o d o f continuing abuse, and, after several y ears during which no abuse o c cu rr e d, an isolated incident of abuse. W hether the continuing sex u al abuse time period can include the isolated incident in such a case w ill h ave to wait until the proper case presents itself.11

t h e C o n t i n u ous Sex ual Abuse of a Young Child offense was committed from the middle of the 2008–2009 school y ear throug h December 2011. Our review of the record leads us to conclude that the evidence supporting

the jury ’ s g u ilty verdict on the Indecency with a Child by Contact offense shows that the offense occurred some time between the middle of the 2008–2009 school y ear and December 31, 2011, 1 0 which is the long est span of continuous sex ual abuse that is supported by the record. B ecause the I

ndecency with a Child by

Contact offense did not occur outside the period in which the Continuous Sex ual Abuse of a Young Chil d o f f e n se was committed, Appellant’s dual convictions for both offenses violate § 21.02(e)(2). According ly , Appellant’s convictio n f o r I n d e c e n c y w i t

h a Child by Contact c annot be upheld, and the conviction is reversed. B ecause we reverse Appellant’s co n v iction for In decency with a Child by Contact on statutory g rounds, we need not address Appellant’s alternate argument that the dual convictions violate the Double J eopardy Clause of the F ifth Amendment. IV — Section 21.02(d) and Ram o s v. Louisiana After the Supreme Court’s recent decision in Ramos v. Lou i s i a n a , 1 4 0 S.Ct. 1390 (2020), Appellant was g ranted leave to file a post-submission g round for review in which he asks whether the jury must be unanimous on which particular acts of sex ual abuse wer e co m m i t t ed d espite the lang uag e of § 21.02(d) providing otherwise. U pon further c onsideration by this Court, w e conclude that our decision to g r ant Appellant’s motion for leave to file his post-submission g round for review

w as improvident. W e therefore dismiss Appellant’s post-submission g round for r eview a s improvidently

g ranted.

1 0 The State, Appellant, and the court of appeals apparently a g ree that the evidence shows the Indecency with a Child by Contact offense w as c ommitted in December 2011, which is between the middle of the 2008–2009 school y ear and December 31, 2011.12 V — Conclusion I n c onclusion, in upholding Appellant’s c onviction for Indecency with a Child b y Contact

as supported by sufficient evidence, when that evidence showed that the offense o ccurred within the time period that the Continuous Sex ual Abuse of a Young Child offense w as committed, the court of a ppeals erred. The judg

ment of the court of appeals is affirmed in part and reversed in part, and Appellant’s conviction for I ndecency with a Child by

Contact is vacated.

Delivered: April 21, 2021 Publish