## In the Court of Appeals Second Appellate District of Texas at Fort Worth

_____________________ ______ No. 02

- 19

- 00398

- CR

_____________________ ______

On App eal from Criminal District Court No. 3 Tarrant County, Texas Trial Court No. 134506 4D
Dissenting Memorandum Opinion by Justice Gabriel 

### D ANIEL 

### W ILLIAM 

### M O HLER 

### , Ap pellant

V


### . T HE 

### S TATE OF 

### T EXAS2 DISSENTING M EMORANDUM OPINION
I n my opinion, d ue process is not offended by appellant Daniel W illiam Mohler ’ s convictions and se ntences for two separate acts of indecency with a child , which arose from the same criminal episode of continuous sexual abuse of a child (CSA) . Although the indecency offen ses were charged as lesser

- included offense s of the indicted of fense of CSA , Mohler was not co nvicted of CSA ; th us , cases concluding that the assessment of a sentence for CSA and a sentence for a lesser

included offense violate s the Constitution do not dic tate the result here

. See, e.g. , Price v. State , 434 S

. W.3d 601, 60 3

– 0 4 (T ex. C rim. App. 2014) ; Carmichael v. State , 505 S.W.3d 95, 100 (Tex. App.

— San Anto n io 2016, pet. ref ’ d)

. Accordingly, I respectfully dissent from the majority ’ s opinion and judgment vacating and dismissing Mohler ’ s con victi on for indecency with a child based on touching the c hild ’ s anu s . The majority ably recounts the charges brought a gainst Mohler arising from his

sexu al abuse of his very young granddaughter , B arbara

. To provide co n text , however,
I will state them again

. First, Mohler was indicted for CSA based on f ive ac ts of int entiona l or knowing sexu al abuse, alleged to have oc c u rred between S ept ember 1, 2011, and August 14, 20 13: 1

. aggravated sexual assault of a chil d young er than fourtee n by c au sing B ar bara ’ s sexual organ to contact Mohler ’ s sexual organ ; 2

. aggravated se xual as sault of a chi ld younge r tha n fourteen b y ins erti n g his finger into Barbara ’ s sexual organ;3 3

. aggravated sexual assault of a child younger tha n fourtee n by c aus ing Barbara ’ s sexual organ to contact M ohler ’ s mouth ; 4

. indecency wit h a child by to uching Bar bara ’ s genitals with his hand;

“ AND/OR ” 5

. indece n cy with a child by touching Barbara ’ s anu s with his hand. See Tex. Penal Code Ann. § 2 1.02 (b), (c)( 2) , (c)(4)

. Se cond, Mohler was indicted with

two counts of aggravated sexual assault of a c hild yo unger than fourteen , alleged to have occur red on or about September 1, 2011: 1

. intentionally o r knowingly caus ing Barba r a ’ s sexual organ to contact Mohler ’ s sexual organ a nd 2. intent ionally or knowingly caus ing Barbara ’ s sexual o rgan to contact Mohler ’ s mouth

. See id. § 22.021(a) (1)(B) (ii i), (a)(2)(B)

. Third, Mohler was indicted with two cou nts of inde cency with a child , alleged to hav e occurred on o r about September 1, 2011 : 1. intentionall y engaging in sexual contact by tou ching Barba ra ’ s genita ls and 2. intenti onally engag ing in sexual contact by touching B a rbara ’ s anus. See id. § 2 1.11(a) (1), (c)(1)

. At trial, t h e State ostensi bly waived the separate aggravated

- sexual

- assault and indecency counts in the in dictment . Inst ead, th e jury was cha rged that if it found Moh ler not guilty of CSA as ch arged in the i n dictment , it could then proceed to

“ consider whether [Moh l er] is gui l ty o f each of the les ser included off enses referred to below separately and individually

. ” See Tex. C od e Crim. Proc. Ann. art. 37. 08. The lesse r
- incl ude d offenses were based on the fiv e acts of sexual abuse that had been4 alleged in the CSA count , fo ur of which app ea red to be the same acts that had additionally been alleged as separate counts in the in dictment

. The jury found Mohler

n ot gui lty o f all b ut the two indecency offenses and a s sessed his punishment at six
years ’ confinement for each offense ; t he trial court en tered a judgment of conviction for each indecency offense and ordered th e sentences to run consecutively

. Our question is whether Mohler could be convicted of and sentenc e d for each indecency offense. Ba sed on the uniq ue nature of a CSA o ffense, I believe he can. Cf. Basilio v. State , No. 02

- 15

- 00091

- C R, 20 17 WL 2871678, at *1 , *7 (Tex. App.

— Fort Wor th Jul y 6, 2017, no pet.) ( mem. op. on reh ’ g , not desig nated for publica t ion ) ( concluding , in case w here d efendant was ac quitted of CSA but f ound guilty of two lesser offenses of indecency by contacting child ’ s g eni tals , e viden ce was insuffici ent to suppor t one inde cency conviction because no evidence showed defe ndant contacte d child ’ s genitals twice in course of CSA )

. O f course , each of the acts of sexual abuse alleged in the CSA count as offense elements w as also a lesser

- in c luded offens e of CSA

. See Soliz v. State , 353 S.W.3d 850, 854 (Tex. Crim. App. 2011) ( quoti ng Hall v

. State , 225 S.W.3d 524, 535

– 36 (Tex. Crim. Ap p. 2007)). Under the terms of the CSA statute, Mohler could not have been convicted of and p unish ed for CSA as well as for one of the allege d acts of sexual abuse submitted to the jury as a lesser

- inc luded off e n se. See Tex. Penal Code Ann. § 21.02(e); Pr ice , 434 S.W.3d at 606 ; Soliz , 353 S.W.3d at 852

– 53

. But Mohler was not convicted of CSA; th us, the general bar in Section 21.02(e) do es not apply.5 Thus , the issu e becomes whether Mohler may be con vic ted of t w o lesser

included sexual offen ses that occurr ed in the same CSA cri minal episode and that

were both spe cifically alleged and noticed in the CSA count
. See Te x. Penal Code Ann. § 3 .01. T he Penal Co de provides that he may . 1 See id. § 3.03(a). T he t rial c ourt ’ s submission of the indec ency offenses a s lesser

- included offenses authori zed the jury to find Mohler not guilty of the CSA count bu t “ gui lty of any l ess er included offense. ” Tex. Cod e Crim. Proc. Ann. art. 37. 08. The com m o n u n d e r s t a n d i n g o f “ a ny, ” which
governs the interpretati on of the Co de of Criminal Procedure, is one of i nclusion and is defined as “ one, so me, or all indiscriminately o f whatever quan tity

. ” Any , Merriam

W ebster , http://merriam

- webster.com/dictionary/any (last visited Oct. 6 , 202 0 ) ; see Tex. Code Crim. Proc. Ann. art. 3.01; accord United S t ates v. Lacy , 446 F .3d 448, 452 (3d Cir. 2006) ( “ The word ‘ any ’ [in Fed. R. Cri m. P. 31(c)] suggests that a defendant m ay be found g uilty of se veral offense s other than that charged in the indic t ment, so long as all such off ens es a re ‘ nece s sarily included ’ in the char ged off ense. Thus, . . . a defendant may be convicted of multiple lesser included offen se s arising out of a s in gle charge. ” ). T o me , th e se statutes and the nature of CSA allow conv i ctions an d sentences for mo re than one les ser
- inc luded offense where the defendant is acquitted of CSA

. T he Court of Criminal Appeals has indic ated that multi ple convictio ns for less er
1 And th e assessed six

- yea r sentences may run consecu tively base d on th e nature of the lesser

- included offenses. See id. § 3 .03(b) (2)(A)

.6 included offenses in the CSA context are acceptable if a defendant is acquit ted of CSA : “[A] fact finder could f ind a defendant guilty either of [CSA], or, alternatively, an enumerated act or acts of sexual abuse o r a lesser offe nse or offe nses of the

e num era ted act or acts
. ” Price , 434 S.W .3d 606 (emphases added) ; see Le v . State , No. 05

- 16

- 01324

- CR , 2018 WL 20016 09 , at * 11 ( Tex. App.

— Dallas Apr. 30, 2018, no pet.) (mem. op., not designated for publication) (recogni zing if defendant acquitted of C SA , jury may find defendan t guilty of “ on e or all of the predicate offense s o f aggravated sexual assau lt or indecency with a child, ” which were submitted as l esser
included off enses )

. Indeed, because the lesser

- included off ense s here do not seek to punish t he same conduct

— one invo lved touching B ar bara ’s genitals, the other involve d touching Barbara ’s anus
— and b ecause th ey are not lesser

- included offenses of each other, the underpinnings of the one
- conviction

- per

- count rule wou ld seem to be absent under the f acts presented

. Cf. Martinez v. Stat e , 599 S.W.2d 6 22, 624 (Tex. Crim. App

. [P anel Op.] 1980) (hold ing in de cency w ith a child by exposing his g enitals or by genital

– anus “ rubbing ” is not lesser

- included offense of sexual abuse of child by
gen ital

– mouth co ntact ) ; Basi lio , 2017 WL 2871678, at *7 ( “Inde cency with a child is a condu c t

- oriented offense, and each of the t yp es of circumstances

— whether it be touching of the breasts, genitals, or anus

— constitute three separate and different offenses. ”) ; Bottenfie ld v. State , 77 S.W.3d 349, 358 (Tex. App.

— Fort Worth 2002 , pet. ref ’ d) ( appr o ving submission of and c onvi ctions for both aggravated sexual assault and indecency because each based on differen t conduct and , thus, two ac ts were7 “ separate and distinct ” )

. Se e gene rally Ma rtinez v. State , 225 S.W.3d 5 50, 554

– 55 (Tex

. C rim . App. 2007) ( explaining one
- conviction

- pe r
- count rule ). In short, the acts of sexual abuse, although alleged as part of the CSA count, w e re sepa r ate offenses and

were not merely ch arged as a lterna t ive metho ds of committing CSA. T h us, I be liev e Mohler could be convic t ed of and punished for both indecency offen ses which were based on separa te acts of sexual abuse. Cf. Lacy , 446 F. 3d at 455

– 56

. I unde rstand the majority ’ s assertion that a one
- co unt indictment gen erally can result in only one punishment

. But I agree w i th the State that to limi t Mohler ’s crim inal liability to only o ne of the lesser

- included acts of s exual abuse alleged in the CSA count

— appl ying the one

- conviction

- per

- count r ule to alleged acts of sexual abuse in CSA prosecutio ns
— would r esult in a n “unju s t windfall ” or in “ab surd

res ults ” in CS A prosecutions. See gen erally Ex parte McWilliams , 634 S.W.2d 815, 822 (Tex. Crim. App. 198 2 ) (op. on reh ’g) ( recognizing “[j] ustice a nd rea son demand ” that defendant should be subject to separate convictions and h a rsher punishment if he “r obs , kidnaps, r apes , and murders hi s vi ctim ” than if he “ committed only one of the crimes ”). For these reasons, I conclud e that M achutt a , on which the majority heavily relie s , is not persuasive

. Machutta v. S tate , No s. 05

- 16

- 008 4 6

- CR , 05

- 16

- 01160

- C R, 2018 WL 2252553, at * 6 (Tex. App.

— Dallas May 17, 2018, pet. ref ’ d) (mem. op., not d e signated for publication )

. A nd because the major ity follows Machutta and vac a tes and dismiss es one of M ohler ’ s indecency convictions , I respe c t full y dissent.8 /s/ Lee Gabriel L ee Gabri el Justice Do Not Publish Tex. R. App. P. 47.2(b) De livered: October 15, 2020