### 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. 03-10-00308- CR

Willie Marshall, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 403 RD JUDICI AL DISTRICT NO. D-1 -DC- 08- 3019 20, H ONO RAB LE B RENDA KENNEDY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted Wil lie Marsha ll of four counts of sexual assault of a child, see Tex. Penal Code Ann. § 22.011(a) (2) (West 2011), two counts of indece ncy with a child by contac t,

see id

. § 21.11(a) (1) (West 2011), and fo u r counts of indece ncy with a child by exposure, see id

. § 21.11(a) (2) (West 2011). The indictment alleg ed that Marsha ll committed two of the s ex u alassault offe nses and three of the indece ncy offe nses “on or about” Dec ember 1, 2005, and committed the rema ining sexual-assault and indece ncy offe nses “on or about” J une 15, 2006. The jury assessed punishment at eig ht y ear s’ imprisonment and a $2,000 fine for the sexual-assault offen s es , six y ear s’ imprisonment for the indece ncy -by -conta ct offe nses, and four y ear s’ i m p risonment for the indece ncy -by -exposure off en s es . T h e trial court entered an order t hat cumulated punishment and order ed Marsha ll to serve the sentenc es consec utively

. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2011) (def

ining when cumulat ion of sentenc es is permitted); Tex. Penal Code Ann.§ 3.03(b)( 2)(A) (West 2011) (per mitti ng cumulation of child-sex-abuse offe nses arising out of same criminal episode) . Marsha ll arg ues t hat because one nece ssarily commits indece ncy in the course of committing sexual assault, the fac t that the indictm en t l i s t ed t h e same dates for his indece ncy and sexual-assault offe nses means that the forme r must have be en “pa rt of” the latter. As a result, Marsha ll arg ues, the trial court (1) violated the prohibition ag ainst double jeopar dy , see U.S. Const. amend. V, by convicting him for both indece ncy and sexual-assault offe nses and (2) violated Texas law that prohibits cumulating sentenc es for chil d -sex-abuse offe nses wher e one of the offe nses is “par t of” the othe r off

ense. F or the following rea sons, we af firm the convic tion.

F ACTUAL AND P ROCEDURAL BACK GR OUND The evidenc e showed that in ear ly 2005, Marsha ll started dating a wom an named B.C. I n the s pring of 2005, Marsha ll moved i nto B.C.’s home. B.C.’s daughter , K.C., also lived 1 in the home. She was sixteen y ear s old at the time.

Marsha ll beca

me unemploy ed shortly afte r moving into the home, and B.C. worke d to support herse lf, Marsha ll, and K.C. She usually worke d from 2 p.m. to 10 p.m. and so was out of the home during that time. Marsha ll, on the other hand, was usually at home during that time. K.C. was usually

at home fr om 4:30 p.m. on, after she g ot home from school. During the spring of 2005, B.C. briefly allowed K.C.’s boy friend to live in the home, but she kicked him out afte r discovering that he and K.C. wer e having sex. K.C. was upset that her mother had kicked out her boy friend, and Marsha ll told K.C. that he would help her spend more time

We use the woman’s initials to protec t the identity of her daug hter, who was the victim in 1 this case. 2with her boy friend if she would let Marsha ll have sex with her one time. K.C. initially resisted but

eventua lly ag ree d. K.C. testified that Marsha ll asked her to remove her clothes, but she did not, so Marsha ll remove d them for her. K.C. lay down on a bed, and Marsha ll lay on top of her and had sex with her. K.C. testified t hat s he s aw M ar s h all ’s penis on that occa sion and that Marsha ll saw her naked f rom the wa ist down. Roughly a wee k later, Marsha ll told K.C. that “cir cumstance s had chang ed” and that she would have to have sex with him ag ain if she wanted his help in seeing her boy friend. The two had sex ag ain. Their sexual encounte rs g radua lly incre ased in fre quency from roug hly once a wee k to two or three times a wee k. K.C. testified that ever y time they had sex, Marsha ll’s penis penetr ated her vag ina. Marsha ll also repe atedly touched her brea sts and vag ina, put his penis in K.C.’s mouth once, and put his mouth on K.C.’s g enitals on more than one occa sion. K.C. testified that Marsha ll initially wore a condom during their sex ual encounters but eve n t ually stopped, telling K.C. not to worry about g etting preg nant beca use he “pulled out” be fore ejac ulating. K .C. did not t ell any one about her sexual re lationship with Marsha ll be cause she was afr aid that she would not be believed or that Mar shall would hurt her.

Some time afte r Marsha ll beg an having sex with K.C., B.C., who could not conce ive children, asked K.C. if she would be willing to serve as a surrog ate mother for her. Although B.C. did not explain how this would work, K.C

. as s u m ed that B.C. meant K.C. would g o to a fer tilit y clinic and have her mother’s eg g s place d inside her body

. K.C. did not believe that B.C. knew she and Marsha ll had been having sex when B.C. made the surrog acy proposal. K.C. told B.C. that she wanted to finish high school befor e considering surrog acy , and B.C. said that was fine beca use she and Mar shall were in no hurry to have a child.
3M eanwhile, Marsha ll continued having sex with K.C., and in Aug ust of 20 0 6

K.C. d i s co v er ed that she was preg nant. K.C. told Marsha ll about t he preg nancy and tol d him she

wa s wo rr i ed that it would lead to B.C. discovering that she and Marsha ll had been having s ex . Marsha ll told K.C . that he would think of a solution. Eventually , he decide d to te ll B .C. that K.C. had impreg nated herse lf using a sy ring e filled with his sperm. To K.C.’s surprise, B.C. believed the story but was upset that K.C. and Ma rshall had c onceive d a child so soon. K.C. delivere d a baby in Marc h of 2007. The baby ’s conce ption date was estimated at J uly 9, 2006. A DNA test confirme d that Marsha ll wa s the fathe r. Mar shall and B.C. told K.C. that she wa s not allowed to bond with the baby beca use they wer e g oing to r aise it as their ow n. After K.C. delivere d the baby , her g y necolog ist told her not to have sex for six wee ks. Roughly four wee ks afte r the delivery , howeve r, Marsha ll approa ched K.C. and told her that he wanted to ha

ve sex . K.C. testified t hat s he resisted but Marsha ll force d himself on her, taking of f her pa nts and pene trating her va g ina with his penis. K.C. eventua lly moved out of Travis County to live with a new boy friend. Marsha ll

co n t i nued contac ting K.C. afte r she moved, sending text and picture messag es to her cellul ar telephone. Approxim ately two wee ks af t er K.C. moved, Marsha ll sent K.C. a picture of her bare brea sts and another picture of his penis next to K.C.’s g enitals. K.C. testified that Marsha ll had held her down to take the pictures some months ear lier. K.C. deleted the pictures without responding to them. Marsha ll later sent the picture of K.C.’s brea sts to K.C.’s new boy friend. The boy friend asked K.C. about the picture, and for the first time K.C. share d the details o f h er history with Marsha ll. K.C.’s boy friend share d the information with K.C.’s biological fa t h er , and eventua lly the men persua ded K.C. to g o to the police. The char g es at issue in this appea l followed.
4Marsha ll pleade d not g uilty and proce eded to a jury trial. K.C. testified to the above

details. Marsha ll testified that he had never had sex wit h K.C. and that she did in fa ct impreg nate herse lf using a sy

ring e filled with his sperm. B.C. also testified, claiming that she believed Marsha ll had neve r had se x with K.C.

T h e ju r y r e tu r n e d a v e r d ic t of g

u il ty o n a ll te n c o u

n ts c o n ta in e d in th e in d ic tm e n t. It assessed punishment at eig ht y ear s’ imprisonment and a $2,000 fine for the sexual-assault offe nses, six y ear s’ imprisonment for the indece ncy -by -conta ct offe nses, and four y ear s’ imprisonment for the indece ncy -by -exposure offenses. The trial court entered an o rd er t hat cumulated punishment and order ed Mar shall to serve the sentenc es conse cutively . Marsha ll appeals.

DISCUSSIO N Marsha ll advance s two points of error :

1. “I t is a viol ation of doubl e jeop ar d y to convict and punish a person for two offe nses from the same transac tion whe n o n e of the offe nses is part of the g reater offe nse such that the g reater offe nse could not be committed without the lesser .” 2. “I t is a viol ation of art. 42.0 8 , Tex. Code Crim. Proc.[,] and sec. 3.03, Tex. Penal Code[,] to cumulate sentenc es for o ff en s es in the same transac tion wher e one offe nse could not be committed without commission of the other.”

We will address these a

rg uments in turn. Double Jeopardy

First, Marsha ll arg ues that convicting him for both sexual-assault and indece ncy offe nses violated the prohibition ag ainst double jeopar dy

. Marsha ll adm i t s t h at he did not raise
5this arg ument in the trial court a nd that as a r esult he fa iled to preser ve er ror. See Tex. R. App. P

. 33.1(a) (1)( A). Thus, his double-jeopa rdy arg ument will succe ed only if the “undisputed fac ts show the double-jeopa

rdy violation is clea

rly appar ent on the fac e of the rec ord

. ” Go n z alez v. State , 8 S.W .3d 640, 643 (Tex. Crim. App. 2000).

T h e D o u b le Je o p a r d y Cl a u s e o f th e F if

t h A m e n d m e n t to th e U n it e d St a

te s Co n s ti tu

ti o n , applicable to all states throug h the Four teenth Amendment, p ro t ec ts an acc used ag ainst multipl e punishments for the same offe nse. Evans v. State , 299 S.W .3d 138, 140-41 (Tex. Crim. App. 2009) ( c it in g B r o wn v . O h io , 4 3 2 U

. S. 1 6 1 , 1 6 5 ( 1 9 7 7 ) )

. D e p e n d in g o n th e f a c ts o f th e c a s e , th is p r o h ib it io n ag ainst multipl e puni s h m en t s fo r the same offe nse may be implicated when the same conduct is used to support convictions for both indece ncy with a ch i l d an d sexual assault of a child. See S a ld a n a v . S ta te , 2 8 7 S. W. 3 d 4 3 , 5 7 ( T e x. A p p . — Co r p u s Ch r is ti 2 0 0 8 , p e t. r e f

’ d )

. T h u s , “ a c o n v ic ti o n for a completed se x ual assault bar s conviction for c onduct [ such as indecenc y with a child] that is dem o n s t ra b l y p a rt of the commission of that offe nse.” Barnes v. State , 165 S.W .3d 75, 87 (Tex. App.—Austin 2005, no pet.) (empha sis added)

. The prohibition ag ainst multipl e punishments for 2 the same conduct is not implicated, howeve r, when a person “commits m o re t h an o ne discrete sexual a ssault a g ainst the same complainant

. . . even if the acts wer e committed in close temporal proxi mity .” Id

.

I t fol l o ws that the key to the double-jeopa rdy analy sis in this case is whether Marsha ll’s indece ncy offe nses wer e “par t of” his sexual-assault offe nses. I f they wer e, then the trial

For example, “penile contac t with [t he] mouth, g enitals, or anus in the co u rs e of penile 2 penetr ation will be subsumed” in the offe nse of penetr ation, meaning t h at it cannot g ive rise to a separ ate c onviction. Patterson v. State , 152 S.W .3d 88, 92 (Tex. Crim. App. 2004). 6court err ed by imposing separ ate sen t en ce s fo r t h em. See Saldana , 287 S.W .3d at 57. Marsha ll

arg ues that beca

use the indictme n t alleg ed that he committed all of his indece ncy offe nses “on or about” the same dates that he committed sexual-assault offe nses, the indece ncy offe nses must have been “ part of” the assault off enses. I n support of this arg ument, Marsha ll cites Patterson v. State , 152 S.W .3d 88 (Tex. Crim. App. 2004), wher e the court held that a defe ndant could not be separ ately sentenc ed for indece ncy with a child and sexual assault of a child wher e both offe nses occur red as part of a single transac tion. I n Patterson , the defe ndant g ot into bed with his eleve n-y ear old victim, lay behind her, unbuttoned his pants, g raspe d her h and, and tried unsucce ssfully to make her touch his “priva te.” Id

. at 90. When the victim pulled her hand awa y , the d efe ndant pushed his “priva te” inside her “butt.” Id

. After a short time, the victim g ot up, went to the bathroom, and then returne d to bed, at which time the defe ndant ag ain tried to forc e the victim to put her hand on his “priva te” and, failing ag ain, put his “private” inside her “ butt” a sec ond time. Id

.

Patterson was convicted of two counts of sexual assault (one for causing penetr ation of the victim’s anus by his sexual org an and one for causing the victim’s anus to contac t his sexual org an), one count of indece ncy by contac t (for touching the victim’s anus), one count of attempted indece ncy by contac t (for attempting to cause the victim to touch his g enitals), and one count of indece ncy by exposure (for exposi ng his g enitals knowing child was prese nt). Id

. at 89. The court of criminal appea ls aff

irmed the sexual-assault convictions and the attempted-inde cenc y -by -conta ct conviction, but it reve rsed the indece ncy -by -conta ct and indece ncy -by -exposure convictions on the basis that they

violated the constitutional g uara ntee a g ainst double jeopar dy

. Id

.

7I mportantly , the court noted that when a defe ndant is char g ed with bo th s exual assault

and indece ncy , the g uara

ntee ag ainst double jeopar dy only bars prosec ution for indece ncy offe nses that, “on the fac ts of the case , [are] demonstrably part of the commission of the g reater offe nse . . . . Thus, indece ncy by exposure may or may not be a part of sexual a s s a u l t or indece ncy by contact, depending on the facts of the case .” Id

. at 92 (empha sis added)

. On the fac ts befor e it, the Patterson court he ld that the indece ncy offe nses wer e cle arly

part of the assaultive off

enses:

I n this case , there wer e two essentially identical assaults, separ ated by a short period of time. On both occa sions, appellant exposed his g enitals and [t hen] penetr ated the complainant’s anus

. . . . Th e re co rd i n this case does not show an occasion during the assaults when the exposure was a separ ate offe nse. Under the fac ts of these incidents, exposure was incident to and subsumed by the ag g ravated sexual assault.

Id

. Marsha ll arg ues that his case is like Patterson beca use the indictment alleg ed that he committed all of his indece ncy offe nses “on or about” the same dates that he committed his sexualassault offe nses. Thus, he arg ues, the indece ncy o ff en s es must have been “par t of” the assault offe nses and ba

rre d from sepa

rate prosec ution. W e disag ree . “I t is well settled that the ‘on or about’ lang uag e of an indictment allows the State to prove a date other than the one alleg ed in the indictment as long as the date is anter ior to the prese ntment of the indictment and within the statutory limit ation period.” S l ed g e v. State , 953 S.W .2d 253, 256 (Tex. Crim. App. 1997). Marsha ll did not r equest that the State elec t among the many instances of sexual assault and indece ncy rec ounted by K.C., and the rec ord does not ref lect that the State made an elec tion. See Phillips v. State , 193 S.W .3d 904, 912 (Tex. Crim. App. 2006)

8(on t imely reque st by defe ndant, S tate mus t elec t the act o n wh i ch it will proce ed for conviction).

Thus, for eac h offe nse alleg ed in the indictment, the State was not bound by the date listed in t he indictment; rathe r, the State could obtain convictions for offe nses that occur red on dates other than those listed in the i ndictment. See Ex p a r t e P r u i t t , 233 S.W .3d 338, 346 (Tex. Crim. App. 2007) (whe n evidence p ro v es two or more instances of misconduct, either of which would support conviction for alleg ed offe nse, and defe ndant does not demand an elec tion, the evidenc e is sufficie nt for c onviction if it adequate ly proves e ither instance of misconduct). Given that the State was not bound by the dates listed fo r eac h offe nse in the indictment, it follows that the State was not locked into proving that eac h in d ec ency offe nse

occur red on the same date as one or more of the sexual-assault offe nses. L og ically , if the indece ncy offe nses may have occur

red on differ ent day s than the assault offe nses, then they did not nece ssarily

occur as “par

t of” the assault offe nses. See Barnes , 165 S.W .3d at 87 (prohibition ag ainst multipl e punishments for same conduct not implicated when person commits more than one discrete offe nse). But M ar s h al l ’s double-jeopa rdy arg ument depends on the indece ncy offe nses having occur red as “par t of” the assault offe nses. The question, then, is whether there was evidenc e from which the jury could have conclude d that Marsha ll committed indece ncy offe nses at times that did not make those offe nses “par

t of ” Marsha ll’s se x ual-a ssault of fense s. I f there was such e vidence , then no doublejeopar dy violation occurr ed. See id

. The recor d is reple te wit h such evidence. K.C. t es t i fi ed t h at s he and Marsha ll had

sex two or three times a wee k for over a y ear and that during their sexua l en co u n t er s Marsha ll’s penis would penetr ate her vag ina, Marsha ll would see her naked body , and she would see his penis.

9She also testified that on more than one occa sion Marsha ll place d his mouth on h er gen itals

and touched her brea sts and g enitals with his hand s . This testimony indicates numerous separ ate acts that could support both the assault alleg ations and t h e indece ncy alleg ations, including acts wher e contac t and exposure did not involve and wer e not incident to penetr ation (name ly , eac h time Marsha ll contac ted K.C .’s genitals wit h his mouth). I t is on this basis that P a t t erson is d is ti n g u is h a b le

— th e r e , e a c h in s ta

n c e o f in d e c e n c y in d is p uta b ly o c c u r r e d a s “ p a r t o f ” a s e xu a l a s s a

u lt

. See P atterson , 152 S.W .3d at 92.

I n s u m, th e e v id e n c e s h o w e d th a t M a r s h a ll c o mm it

te d ma ny d is c r e te a c ts o f in d e c e n c y and sexual assault, and the State was not re quired to ele ct a pa rticular a ct to support eac h count in the indictment. Nor was the State bound by the dates in the indictment. I t fo l l o ws t h at the act suppo rt i n g ea ch i ndece ncy conviction was not nece ssarily “par t of” an act supporting one of the assault convictions. I n such circ umstances, a double-jeopa rdy violation is not appar ent from the fac e of the rec ord. See Langs v

. State , 183 S.W .3d 680, 687 (Tex. Crim. App. 2006). Thus, g iven that Marsha ll did not raise his double-jeopa rdy arg ument below, we must aff irm the conviction. See id

. We overrule Marsha ll’s first point of error

. Cum ulati on of Sentences

Next, Marsha ll arg ues that Texas law prohibits cumulati n g s en t ence s for offe nses that occur in the same transac tion “whe re one offe nse could not be committed without commission of the other offe nse.” Marsha ll ag ain cites Patterson to support this arg ument. See Patterson , 3

Marsha ll a dmits that he did not raise this arg ument below and that as a result he failed to 3 prese rve err or. See Tex. R. App. P. 33.1(a) (1)( A). This failure is not fata l, howeve r, beca use “[a]n 10152 S

. W.3d at 92 (Tex. Penal Code § 3.03, which permits cumulation of sentenc es for childsexual-abuse offe nses, does not p er m i t cu m ulation “for conduct that, on the fac ts of the case , is demonstrably part of the commission of the g reater [sex ual-a buse] offe nse.” ). As j ust explained, howeve r, g iven th e numerous sexual encounte rs shown by the evidenc e, Marsha ll’s indece ncy convictions wer e supported by conduct distinct from his sexual assaults. As a result, the trial court

c o u ld p r o p e r ly c u

mu la te th e s e n te n c e s . S

e e id

. a t 9 1

- 9 2 ( T e xa s Pe n a l Co d e § 3

. 0 3 p e r mi ts c u mu la ti o n of sentenc es fo r repe ated sexual offe nses ag ainst children if convictions are not based on same conduct) . We theref

ore ove rrule Ma

rshall’s sec ond arg ument.

CONCLUSION For the re asons stated a

bove, we aff

irm the judg ment.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Rose Affir med Filed: Mar ch 28, 2012 Do Not Publish

improper cumulation order is, in essenc e, a void sen tence , and such err or cannot be waived.” LaPorte v

. State , 840 S.W .2d 412, 415 (Tex. Crim. App. 1992). We the ref ore weig h the merits of Marsha ll’s arg ument. 11