TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00595-CR

John Patterson, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT

NO. 007403, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

John Patterson appeals from judgments of conviction for aggravated sexual assault of a child 

by penetration,1 aggravated sexual assault of a child by contact,2 indecency with a child by contact,3

attempted indecency with a child by contact,4 and indecency with a child by exposure.5 Appellant contends 

 

 

1 Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(i) (West Supp. 2002). The jury assessed punishment for 

this offense at imprisonment for thirty-five years.

 

2 Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(iv) (West Supp. 2002). The jury assessed punishment for 

this offense at imprisonment for twenty years.

 

3 Tex. Pen. Code Ann. ' 21.11(a)(1) (West Supp. 2002). The jury assessed punishment for this 

offense at imprisonment for twenty years.

 

4 Tex. Pen Code Ann. '' 15.01(a) (West 1994), 21.11(a)(1) (West Supp. 2002). The jury 

assessed punishment for this offense at imprisonment for five years. 

 

5 Tex. Pen. Code Ann. ' 21.11(a)(2)(A) (West Supp. 2002). The jury assessed punishment for this 

offense at imprisonment for five years.
2

the district court erred by refusing to require the State to elect between multiple theories of the same offense 

alleged in the indictment and by submitting each theory to the jury in its charge. He also contends his double 

jeopardy guarantee against multiple punishments for the same offense was violated, that the erroneous 

exclusion of evidence prevented him from presenting a meaningful defense, and that the evidence is factually 

insufficient to sustain the convictions. We will sustain appellant=s double jeopardy claim with respect to the 

convictions for indecency with a child. We will otherwise overrule appellant=s contentions and affirm the 

convictions for aggravated sexual assault of a child and attempted indecency with a child.

Background

Appellant spent the night of October 10, 2000, in the home of two coworkers, the parents 

of the complainant (age eleven) and her sister (age ten). Although it had been agreed that appellant would 

sleep in the spare room, the complainant=s father later found appellant in the girls= bedroom. He told 

appellant to leave the room and appellant did so. Later, appellant reentered the girls= bedroom and got into 

bed with the complainant=s sister. The younger girl testified that appellant left the room after she pushed him 

off the bed.

Appellant returned to the girls= bedroom a third time and got into the complainant=s bed. 

She testified, AHe started unbuttoning his pants and he grabbed my hand trying to make me touch his 

private.@ The complainant said that she pulled her hand away and never touched appellant=s penis. 

Appellant, who was behind the complainant, then pulled down the complainant=s shorts. AHe got his private 
3

and trying to put it in my butt.@

6

 Asked if she felt appellant=s penis Aon the inside or the outside,@ she 

answered, AInside.@ The complainant got out of bed and went to the bathroom, where she was joined by 

her sister. The complainant told her sister what appellant had done but decided not to report it to her 

parents.

When the complainant returned to her bed, appellant, who was still there, Astarted doing the 

same thing over and over.@ Appellant again attempted to force the complainant to touch his penis, then he 

Astarted putting it in meChis private in me, my butt.@ The prosecutor asked, A[H]ow far inside your butt was 

his private?@ The complainant replied, AAbout that much,@ but the record does not reflect the gesture that 

apparently accompanied this answer. The complainant left her bed again and this time went to her parents=

bedroom to report what appellant had done.

The complainant=s sister testified that she saw the sheets moving on the complainant=s bed 

and heard the complainant tell appellant she needed to go to the bathroom. She confirmed the 

complainant=s testimony regarding their conversation in the bathroom.

 

 

6

 The record shows that the complainant used Aprivate@ to refer to appellant=s penis and Abutt@ to 

refer to her anus.

The indictment was composed of three counts containing a total of five paragraphs. Count 

one, paragraph one alleged that appellant penetrated the complainant=s anus with his penis. Tex. Pen. Code 

Ann. ' 22.021(a)(1)(B)(i) (West Supp. 2002). Count one, paragraph two alleged that appellant caused the 

complainant=s anus to contact his penis. Id. ' 22.021(a)(1)(B)(iv). Count two, paragraph one alleged that 
4

appellant touched the complainant=s anus with the intent to arouse or gratify his sexual desire. Id. '

21.11(a)(1). Count two, paragraph two alleged that appellant caused the complainant to touch his genitals 

with the intent to arouse or gratify his sexual desire. Id. Count three alleged that appellant exposed his 

genitals in the complainant=s presence with the intent to arouse or gratify his sexual desire. Id. '

21.11(a)(2)(A). Each paragraph was submitted to the jury as alleged in the indictment except count two, 

paragraph two, which was submitted to the jury as the lesser included offense of attempted indecency with a 

child. The jury returned five guilty verdicts which are reflected in five separate judgments of conviction.

Double jeopardy

In issue one, appellant contends his convictions for aggravated sexual assault with a child, 

indecency with a child by contact, and indecency with a child by exposure violate the constitutional 

guarantee against double jeopardy.7 U.S. Const. amends. V, XIV; Tex. Const. art. I, ' 14. Appellant 

does not separately argue the state and federal constitutional claims or argue that the Texas double jeopardy 

clause differs in any significant way from the Fifth Amendment. Therefore, we will consider the issue under 

the federal constitution. See Queen v. State, 940 S.W.2d 781, 783 (Tex. App.CAustin 1997, pet. ref=d).

 

 

7

 Appellant does not advance a double jeopardy claim with regard to the conviction for attempted 

indecency with a child.

The Double Jeopardy Clause protects against a second prosecution for the same offense 

following a conviction, a second prosecution for the same offense following an acquittal, and multiple 

punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Cervantes v. State, 815 
5

S.W.2d 569, 572 (Tex. Crim. App. 1991). Appellant relies on the third of these protections. A double 

jeopardy claim may be raised for the first time on appeal when the double jeopardy violation is clearly 

apparent on the face of the record. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000); 

Duvall v. State, 59 S.W.3d 773, 776-77 (Tex. App.CAustin 2001, pet. ref=d).

When the same criminal conduct violates two different penal statutes, the two offenses are 

the same for double jeopardy purposes if one of the offenses contains all the elements of the other. 

Blockburger v. United States, 284 U.S. 299, 304 (1932). In Texas, an offense is included within 

another if, among other things, it is established by proof of the same or less than all the facts 

required to establish the commission of the offense charged. Tex. Code Crim. Proc. Ann. art. 

37.09(1) (West 1981). Because our state law Adescribes includedness in much the same way 

Blockburger describes sameness,@ greater inclusive and lesser included offenses are the same 

for double jeopardy purposes. Parrish v. State, 869 S.W.2d 352, 354-55 (Tex. Crim. App. 1994).

The double jeopardy guarantee against multiple punishments does no more than 

prevent greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 366 

(1983); Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex. Crim. App. 1992). Absent a clear indication 

of contrary legislative intent, it is presumed that the legislature did not intend to authorize 

multiple punishments for two offenses that are the same under the Blockburger test. Whalen v. 

United States, 445 U.S. 684, 691-92 (1980).

The evidence is legally sufficient to prove that on the night in question appellant 
6

twice penetrated the complainant=s anus with his penis.8 These two acts support appellant=s 

convictions for aggravated sexual assault of a child by penetrating the complainant=s anus with his 

penis and by contacting the complainant=s anus with his penis. Because the two acts were 

separate and distinct, the two aggravated sexual assault convictions are not based on the same 

conduct and do not constitute multiple punishments for the same offense. Appellant does not 

argue to the contrary, but he does urge that the convictions for indecency with a child by contact 

and indecency with a child by exposure are based on the same conduct that underlies the two 

aggravated sexual assault convictions and therefore violate the double jeopardy guarantee 

against multiple punishments. We agree. 

The only sexual contacts between appellant and the complainant shown by the 

evidence were the two contacts incident to the penetration of the complainant=s anus by 

appellant=s penis. The evidence supports a finding that appellant engaged in these contacts with 

the intent to gratify his sexual desire. See Tex. Pen. Code Ann. ' 21.01(2) (West Supp. 2002) 

(defining Asexual contact@); see also Cunningham v. State, 726 S.W.2d 151, 155 (Tex. Crim. App. 

1987). Under the circumstances, the offense of indecency with a child by contact was included 

within the two aggravated sexual assaults. See Ochoa v. State, 982 S.W.2d 904, 907-08 (Tex. 

Crim. App. 1998). In the absence of a clear indication that the legislature intended to inflict 

 

 

8

 Because appellant challenges only the factual sufficiency of the evidence, he effectively concedes 

that the evidence is legally sufficient to sustain the convictions. See Clewis v. State, 922 S.W.2d 126, 

129 (Tex. Crim. App. 1996) (factual sufficiency review begins with presumption that evidence is legally 

sufficient). 
7

multiple punishments, appellant=s conviction for indecency with a child by contact based on the 

same conduct for which he was convicted of aggravated sexual assault constitutes multiple 

punishment for the same offense in violation of the Fifth Amendment. Id. at 908.

Similarly, the evidence shows that appellant exposed his penis in the complainant=s 

presence only twice, as he attempted to cause her to touch his penis and then penetrated her anus 

with his penis.9 On this record, the offense of indecency with a child by exposure was incident to 

and included within the aggravated sexual assaults. See Hutchins v. State, 992 S.W.2d 629, 632 

(Tex. App.CAustin 1999, pet. ref=d, untimely filed). In the absence of a clear indication of 

legislative intent to inflict multiple punishments, appellant=s conviction for indecency with a child 

by exposure based on the same conduct for which he was convicted of aggravated sexual assault 

constitutes impermissible multiple punishment for the same offense. Id.

When a defendant is convicted of two offenses in violation of the double jeopardy 

guarantee, the proper remedy is to set aside the conviction for the offense carrying the less 

serious punishment. Landers v. State, 957 S.W.2d 558, 560 (Tex. Crim. App. 1997). Therefore, 

 

 

9

 The State argues that appellant=s second attempt to force the complainant to touch his penis 

supports the conviction for indecency with a child by exposure because A[t]hat act [the attempted 

touching] was distinct from the anal penetration that also occurred.@ The issue, however, is not 

whether appellant=s attempt to force the complainant to touch him and the anal penetration were 

separate acts, but whether the exposure incident to the anal penetration was conduct distinct from 

the exposure incident to the attempted touching. It was not.
8

we will reverse appellant=s convictions for indecency with a child by contact and indecency with a 

child by exposure.

Election and charge issues

In issue two, appellant urges that the district court erred by refusing to require the State to 

elect between paragraphs one and two of count one, and between paragraphs one and two of count two. 

In issue three, he makes the related argument that the court=s charge erroneously authorized appellant=s 

conviction under both paragraphs of each count. Because we have determined that appellant=s conviction 

for indecency with a child by contact must be set aside on double jeopardy grounds, these contentions are 

moot as they relate to count two and we will confine our discussion to count one.

Appellant did not move for an election until the jury charge conference. See Gutierrez v. 

State, 8 S.W.3d 739, 748 (Tex. App.CAustin 1999, no pet.) (election motion at charge conference is 

untimely). The only harm appellant asserts from the denial of the motion is that the jury charge authorized 

his conviction under both paragraphs of a single count. Therefore, we will consider appellant=s arguments 

under both issues as they relate to his contention that the jury charge was erroneous.

When multiple offenses are committed during a single criminal episode, they may be joined 

in a single indictment with each offense alleged in a separate count. Tex. Code Crim. Proc. Ann. art. 

21.24(a) (West 1989). In such cases, the State is not required to elect between counts and each count may 

be submitted to the jury. Thacker v. State, 999 S.W.2d 56, 63 (Tex. App.CHouston [14th Dist.] 1999, 

pet. ref=d). A count may contain as many separate paragraphs as necessary. Tex. Code Crim. Proc. Ann. 

art. 21.24(b) (West 1989). Appellant=s arguments are premised on the assumption that a multi-paragraph 
9

count alleges a single offense, with each paragraph merely alleging an alternate manner of committing the 

offense in order to meet possible variations in the proof. Thus, appellant contends the district court should 

have authorized his conviction for aggravated sexual assault of a child under either paragraph one or 

paragraph two of count one, but not both.

It is true that, as a general rule, a Acount@ is used to charge the offense itself and a 

Aparagraph@ is that portion of a count which alleges the method of committing the offense. Renfro v. State, 

827 S.W.2d 532, 535 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d); see also Aguirre v. State, 732 

S.W.2d 320, 325 (Tex. Crim. App. 1987). However, the substance of the allegation determines its 

character as a Acount@ or a Aparagraph,@ not the terminology used. Dalton v. State, 898 S.W.2d 424, 426 

(Tex. App.CFort Worth 1995, pet. ref=d). 

Those who commit multiple discrete assaults against the same victim are liable for separate 

prosecution and punishment for every instance of such criminal misconduct. Gutierrez, 8 S.W.3d at 747 

(quoting Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992)). In her testimony, the 

complainant described two separate and distinct criminal assaults, one committed before she left her bed 

and went to the bathroom and the other committed after she returned to her bed from the bathroom. In 

both of these assaults, appellant contacted and penetrated the complainant=s anus with his penis. Under the 

circumstances, the district court did not err by treating the two aggravated sexual assault Aparagraphs@ as 

Acounts@ alleging two discrete offenses and authorizing appellant=s conviction for both. Issues two and three 

do not present error.

Exclusion of defensive evidence
10

In issues four, five, and six, appellant contends the district court erred by excluding evidence 

that semen was found on a comforter taken from the girls= bedroom and that DNA testing determined the 

semen did not come from appellant. Appellant=s defense was that he had been wrongly accused by the 

complainant, who had either fabricated her entire story or blamed appellant for the actions of someone else. 

 Appellant urges that the semen was evidence that, if a sexual assault took place, he was not the assailant. 

He asserts that the court=s ruling denied him the opportunity to present a meaningful defense. We review the 

court=s decision for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. 

App. 1991) (op. on reh=g).

The record reflects that the comforter was found by the police in the laundry room of the 

house. Although it was agreed that the comforter came from the girls= bedroom, it was not known whether 

it had been on the complainant=s bed at the time of the assaults. The age of the stain was also unknown. 

There was no evidence that the man who assaulted the complainant had ejaculated. Although appellant had 

been excluded as the source of the semen, no further effort had been made to identify the source. The court 

ruled that the relevance of the evidence was outweighed by the danger of unfair prejudice and confusion 

Asince it cannot be determined when the semen was placed there, by whom it was placed, whenCeven on 

whose blanket it was placed, whether it was even on the alleged victim=s bed . . . . [A]t this point I don=t 

believe that the probative value outweighs the prejudicial effect, and especially in light of Rule 412 which 

specifically addresses this type of evidence.@ See Tex. R. Evid. 403, 412.

AAlternative perpetrator@ evidence presents special problems when weighing probative 

value against rule 403 counterfactors. Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2002). 
11

Although a defendant obviously has a right to attempt to establish his innocence by showing 

that someone else committed the crime, he still must show that his proffered evidence 

regarding the alleged alternative perpetrator is sufficient, on its own or in combination with 

other evidence in the record, to show a nexus between the crime charged and the alleged 

Aalternative perpetrator.@

Id. Appellant argues that Wiley is satisfied here because DNA test results are particularly reliable. This 

argument confuses reliability with relevance. A nexus between the crime and the alleged alternative 

perpetrator is necessary to establish the relevance of the evidence, not to prove its reliability.

In the absence of any evidence tending to show that the semen stain on the comforter was 

left by the complainant=s assailant, there was no nexus between the proffered evidence and the assaults. 

Absent such a nexus, the semen stain and the test results showing that appellant was not the source did not 

exculpate appellant or support a conclusion that the assaults were committed by someone else. Under the 

circumstances, the district court did not abuse its discretion by concluding that the probative value of the 

evidence was outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. 

No error is shown by issues four, five, and six.

Factual sufficiency

Finally, appellant contends the evidence is factually insufficient to sustain his convictions. 

When conducting a factual sufficiency review, all the evidence is considered equally, including the testimony 

of defense witnesses and the existence of alternative hypotheses. See Orona v. State, 836 S.W.2d 319, 

321 (Tex. App.CAustin 1992, no pet.). A factual sufficiency review asks whether a neutral review of all 

the evidence, both for and against the finding of guilt, demonstrates that the proof of guilt is so obviously 
12

weak or so greatly outweighed by contrary proof as to undermine confidence in the jury=s determination. 

See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Appellant points to evidence that the complainant disliked him. Appellant and the 

complainant=s family had briefly shared a residence, and there was testimony that appellant had angered the 

complainant by disciplining her on more than one occasion. The defense also called witnesses who testified 

that the complainant was not truthful. In fact, the complainant=s parents conceded during cross-examination 

that the girl was sometimes untruthful. The doctor who examined the complainant two weeks after the 

assaults found no evidence to confirm or refute the girl=s allegations. 

Appellant also asserts that the police officer who first interviewed the complainant Atainted@

the witness and thus all of her subsequent statements. But while there was evidence that the officer had no 

training in interviewing children and that he omitted facts from his written offense report, appellant points to 

no evidence supporting his assertion that the officer caused the complainant to falsely accuse appellant of 

sexual assault.

AThe authority . . . to disagree with the fact finder=s determination is appropriate only when 

the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice. 

Otherwise, due deference must be accorded the fact finder=s determinations, particularly those

determinations concerning the weight and credibility of the evidence.@ Id. at 9. Having reviewed all the 

evidence before us, we find no manifest injustice in the jury=s verdicts convicting appellant of aggravated 

sexual assault of a child and attempted indecency with a child by contact. Issue seven=s challenge to the 

factual sufficiency of the evidence is without merit.
13
14

Conclusion

The judgments of conviction for indecency with a child by contact and indecency with a 

child by exposure are reversed and those causes are dismissed. The judgments of conviction for aggravated 

sexual assault of a child by penetration, aggravated sexual assault of a child by contact, and attempted 

indecency with a child by contact are affirmed.

__________________________________________

Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed in Part; Reversed and Dismissed in Part

Filed: September 12, 2002

Publish