Reversed and Remanded, and Opinion Filed September 19, 1996

In The Court ofAppeals mtttf Btstrtct of Okxas at Balias No. 05-91-00084-CR No. 05-91-00085-CR No. 05-91-00087-CR No. 05-91-00088-CR STEVEN LOUIS IEPPERT, Appellant

THE STATE OF TEXAS, Appellee On Appeal from the 363rd District Court Dallas County, Texas Trial Court Cause Nos. F90-03765-KW, F90-03766-KW, F90-03768-KW, F90-03769-KW

OPINION ON REMAND Before Justices Chapman, Whittington,1 and Moseley2 Opinion By Justice Whittington 

### Steven Louis leppert pleaded not guilty to four counts of aggravated sexual assault 

### ofachildyoungerthan fourteen and two counts ofsexual assault ofachild under seventeen. 1The Honorable Mark Whittington succeeded the Honorable Annette Stewart. ' The Honorable Barbara Rosenberg participated in the original submission ofthis cause. The Honorable Jim Moseley succeeded Justice Rosenberg. Justice Moseley has reviewed the record and briefs in thi. cause.After finding appellant guilty, thejury assessed punishment at forty-nine, forty, twenty-two, and fifteen years' confinement for the aggravated sexual assault convictions and twelve and eight years' confinement for the sexual assault convictions, all to run concurrently. On original submission, we affirmed the trial court's judgments. Appellant appealed our decision to theTexas Court ofCriminal Appeals, and that court reversed our decision with respect to the four aggravated sexual assault convictions. See leppert v. State, 908 S.W.2d 217, 220 (Tex. Crim. App. 1995). The court then remanded the causes to this Court for a reconsideration of appellant's first point of error. Following Robinson v. State, 790 S.W.2d 334, 335-36 (Tex. Crim. App. 1990), we 

### allowed the parties to rebrief. Appellant filed asupplemental briefin which he contends, as he did in his original brief, that his convictions for aggravated sexual assault violated the 

### expostfacto provisions ofthe United States and Texas Constitutions. See U. S. Const, art. I, § 10; Tex. Const, art. I, § 16. We agree with appellant that these convictions violate the expostfacto provisions ofboth the state and federal constitutions. Accordingly, we reverse the trial court's judgments. BACKGROUND 

### Appellant married complainant's mother in 1980. From 1982 or 1983, when 

### complainant was seven or eight years old, until 1989, appellant fondled complainant's 

### genitals, put his genitals in complainant's mouth, and put complainant's genitals in his mouth. On one occasion, appellant attempted to have anal intercourse with complainant. 

### Complainant did not tell anyone about these incidents until May 1990.

### Appellant was charged in four separate indictments with aggravated sexual assault and in two indictments with sexual assault. The jury found him guilty on all counts and 

### assessed punishment. On original submission to this Court, we affirmed appellant's convictions, concluding (1) appellant had waived his complaint under the ex post facto 

### provisions by failing to make atimely objection in the trial court; (2) even assuming the complaint had been properly preserved, the error, if any, was not so egregious as to deny 

### appellant afair and impartial trial; and (3) appellant did not suffer egregious harm when the trial court failed to include aparole law instruction in its charge to the jury. 

### Appellant appealed our decision to the court of criminal appeals. After granting 

## appellant's petition, the court concluded (1) the right to complain about violations ofthe 

## expostfacto provisions ofthe United States and Texas Constitutions could not be waived orforfeitedby inaction; and (2) appellant couldraise his expostfacto argumentfor the first 

## time on appeal. The court vacated ourjudgment and remanded the aggravated sexual assault cases to this Court for us to consider the merits of appellant's ex post facto 

## complaint. See leppert, 908 S.W.2d at 220. We turn now to aconsideration of that complaint. EXPOSTFACTO 

### In his first point oferror on original submission and in two points oferror on 

## remand, appellantassertshisconvictionsforaggravatedsexnalassaultarevoidbecausethey violate the expos,facto provisionsofthe UnitedStates andTexas Constitutions. In support 

## ofthis argument, appellantpoints on, that (1) hewas charged undersection 22.021 oftheTexas Penal Code, a section which became effective on September 1, 1993; and (2) the offenses with which he was charged occurred prior to that date. Because article 22.021 applies only to offenses committed on oi after September 1, 1983, appellant contends his convictions are void and must therefore be reversed. We agree. Article I, section 10 ofthe United States Constitution and article I, section 16 ofthe Texas Constitution forbid the establishment ofex postfacto or retroactive legislation. See U. S. Const, art. I, § 10; Tex. Const, art. I, § 16. An ex postfacto law is one which: (1) 

### imposes apunishmentfor an actwhichwas not punishable atthe time itwas committed; (2) alters the definition or nature of an offense to the detriment ofthe accused; (3) increases 

### the punishment after commission ofthe offense; or (4) deprives the individual charged of adefense that was available at the time the act was committed. Collins v. Youngblood, 497 

### U.S. 37, 45-46 (1990); see Grimes v. State, 807 S.W.2d 582, 586 (Tex. Crim. App. 1991) 

### (adopting Youngblood definition for interpreting ex post facto provision of Texas Constitution). Even when astatute does not appear to be retroactive on its face, it may nevertheless violate the prohibition against expostfacto legislation ifit is applied to offenses 

### occurring before the statute's effective date. Lindsey v. State, 672 S.W.2d 892, 894 (Tex. App.-Dallas 1984, pet. refd). 

### To determine whether an ex post facto application of a statute has occurred, we 

### compare the existing statute to its predecessor and consider whether the existing statute 

## permits conviction under less or different evidence than required under the predecessor statute. Lindsey, 672 S.W.2d at 894; see also Millican v. State, 145 Tex. Crim. 195, 167

-4-S.W.2d 188, 190 (1942). Here, the statute in effect at the time of the aggravated sexual assaults (section 21.05 of the Texas Penal Code) stated that "a person commit[ted] an offense ifhe committed]..
. sexual abuse ofachild as defined in Section 21.10 ofthis code and
. . . the victim [was] younger than 14 years."3 Under section 21.10, aperson was guilty of sexual abuse of a child if, "with intent to arouse or gratify the sexual desire of any person, 

### he engage[d] in deviate sexual intercourse with achild
.. . ." (emphasis added).4 In 1983, the legislature repealed section 21.05 and replaced it with section 22.021. 

### Section 22.021 provides, in relevant part, that "a person commits an offense ifthe person commits sexual assault as defined in Section 22.011 of this code and
. . . the victim is 

### younger than 14 years ofage."5 Under section 22.011, aperson is guilty of sexual assault if he intentionally or knowingly causes (1) the penetration of the anus or vagina of achild 

### by any means; (2) the penetration ofthe mouth ofachild by the sexual organ ofthe actor; or (3) the sexual organ ofachild to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor/ While sections 22.011 and 22.021 require a 

## 3ActofMay24,1973!63rdTeTR.S.>ch.399,,1. 1973^0~^^^.SJu£T». Leg., R.S., ch. 96, ,1.^^^^^^^t^^. d.^1 S^SiX;^ws531L53. (current Gen. Laws 471, 471, repealed by Act ofMay 28, 1983, o»tn "*•»*•*•• version at Tex. Penal Code Ann. §22.021(a) (Vernon Supp. 1996)). 

### <

ActofMay24,1973, 63rdLeg., R.S., ch. 399, , 1,1973Tex. Gen. Laws883, 918,repealedbyActofMay28,1983, 68thLeg., R.S., ch. 977, §12,1983 Tex. Gen. Laws 5311, 5321.

„ o u Q-7T *i iqim -rvr Oen Laws 5311, 5315, amended by ActofMay 26,1987, 70th 

### »

ActofMay 28,1983, 68th Leg., R.S., ch. 977 S 3TM££jifilofJuly « 1W. 70th Leg., 2dC.S., ch. 16, |1,1987 Leg., R.S., ch. 573, § 1,1987Tex. Gen. Laws,2275, 2^7^""feJ^^ f {1993T„. Gcn. Laws3586, 3620-21 (current Tex. Gen. Laws 80,80, amendedby ActofMay 29,1993,73rdL*,U, ch. 900, §1, w» version at Tex. Penal Code Ann. §22.021(a) (Vernon Supp. 1996)).

„ * u Q-7~ * * 1081 t>x Oen Laws 5311, 5312-13, amended byActof May 17,1985,69th

-5-defendant to act intentionally or knowingly, they do not require, as did their predecessor, that the defendant act "with intent to arouse or gratify the sexual desire of any person." 

### leppert, 908 S.W.2d at 223 (Baird, J., concurring); see also Pierce v. State, 733 S.W.2d 314, 319 (Tex. App.-Tyler 1987, no pet.); Buckner v. State, 719 S.W.2d 644, 647 (Tex. 

### App.-Fort Worth 1986, pet. refd); but see Cunningham v. State, 726 S.W.2d 151, 154-55 (Tex. Crim. App. 1987) (concluding that conviction for indecency with achild was proper under indictment for aggravated sexual assault even though former required proofofintent 

### to arouse or gratify sexual desire while latter only required proofofintentional or knowing conduct). The indictments in these causes stated, in pertinent part, that appellant: then and there knowingly and intentionally cause[d] the sexual organ ofM.W., achild to contact and penetrate the mouth of [appellant], and at the time of the commission of this offense the child was younger than 14 years of age. 

### (Emphasis added.) The charge provided the jury with the following definitions: A person acts intentionally, or with intent, [with respect] to aresult of his conduct when it is his conscious objective or desire to cause the result. 

### Aperson acts knowingly, or with knowledge, with respect to aresult ofhis conduct when he is aware that his conduct is reasonably certain to cause the result. 

### The charge then instructed thejury to find appellant guilty ifit found beyond areasonable doubt that (1) appellant had intentionally or knowingly caused the sexual organ ofM.W. to Code Ann. § 22.011(a)(1) (Vernon 1994)). MW'• mouth; (2) M.W.'s sexual organ to penetrate appellant smouth, and (3) appellant sexual org ^ indictmentalso allegedthatM.W. was younger than 14years ofage at the tune ofeach offense.

-6-contact and penetrate the mouth of appellant; and (2) the child was younger than 14 years of age at the time of the offense.8 The charge made no reference to section 21.05's 

### requirement that the conductbe accompanied by an intent to arouse or gratify sexual desire. The language ofthe indictments in these cases tracks the language found in section 

### 22.021 of the penal code, a statute not in effect at the time of the subject offenses. As 

### Justice Baird pointed out in his concurring opinion in this case, the enactment of section 22.021 eliminated section 21.05's "intent to arouse or gratify" element and thereby reduced the "ultimate facts necessary to establish guilt." leppert, 908 S.W.2d at 223 (Baird, J., 

### concurring). Since the change in law reduced the amount ofevidence necessary to establish 

### guilt, we conclude the change altered the definition ofthe crime to the detriment ofthe accused. leppert, 908 S.W.2d at 223 (Baird, J., concurring). Thus, we conclude that 

### indicting and convicting appellantunder section 22.021 ofthe penal codeviolatedthe expost 

### facto provisions ofthe United States and Texas Constitutions. We sustain appellant's two 

## points oferror on remand and his first point oferror asserted on original submission.

f.
. „„„„, „„:n„ ;# ;tfound MW was vounger than14 atthetimeof theoffenses organ to pTetrate appellant's mouth; and (3) appellant's sexualorgan to contactM.W. s anus.

-7-We reverse the trial court's judgments and remand these causes for dismissal of the
indictments.

Do Not Publish Tex. R. App. P. 90 910084RF.U05

-8- K WHITTrNGTO STICE-S'^ew-js:#^^^&S?^^»s^!««'* ?} v 7 Court ofAppeals jnfi*7 itstrtrt of (Eexas at iailas JUDGMENT STEVEN LOUIS IEPPERT, Appellant No. 05-91-00084-CR V. THE STATE OF TEXAS, Appellee Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F90-03765-KW). Opinion delivered by Justice Whittington, Justices Chapman and Moseley also participating. Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistent with this Court's opinion. Judgment entered September 19, 1996.

IK WHITTING JUSTICE L/ln J i Qlourt ofAppeals 

### W\tVc[ Itstrtrt of ©*xas at Bailas JUDGMENT STEVEN LOUIS IEPPERT, Appellant No. 05-91-00085-CR V. THE STATE OF TEXAS, Appellee Appeal from the 363rd Judicial District Court ofDallas County, Texas. (Tr.Ct.No. F90-03766-KW). Opinion delivered by Justice Whittington, Justices Chapman and Moseley also participating. 

## Based on the Court's opinion of this date, the judgment of the trial conn^is REVERSED and the causeREMANDEDforfurtherproceedings consistentwiththis Court opinion. Judgment entered September 19, 1996.

MARJC WHITTINGTON JUSTICE ^ 4/ •J Court ofAppeals 

### JTtftlr listrirt of©rxas at lallas JUDGMENT STEVEN LOUIS IEPPERT, Appellant No. 05-91-00087-CR THE STATE OF TEXAS, Appellee Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F90-03768-KW). Opinion delivered by Justice Whittington, Justices Chapman and Moseley also participating. Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistentwith this Court's opinion. Judgment entered September 19, 1996.

IK WHITTING JUSTICE•? (Court ofAppeals 

### mtttf itstrtrt of (Erxas at Sallas JUDGMENT STEVEN LOUIS IEPPERT, Appellant No. 05-91-00088-CR V. THE STATE OF TEXAS, Appellee Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F90-03769-KW). Opinion delivered by Justice Whittington, Justices Chapman and Moseley also participating. Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistentwith this Court's opinion. Judgment entered September 19, 1996. 

# ////JIK WHITTIN JSTICE 

### -H