## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00160

- CR

AARON MICHAEL MARSHALL , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 5th District Court Cass County, Texas Trial Court No. 2022F 0 0022

B e fore Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION A Cass County jury convicted Aaron Michael Marshall of sexual assault of a child and assessed a sentence of ten years’ imprisonment. See T EX
. P EN A L C ODE A NN
. § 22.011(f) (Supp.) , § 25.02. In his sole point of error on appeal, Marshall argues t hat his conviction for this offense violated d ouble j eopardy because he was also convicted of continuous sexual abuse of a
young child. 1 B ecause n o d ouble

- j e opardy violation is shown on this record, we overrule Marshall’s sole point of error and affirm t he trial court’s judgment.
I. No Double - Jeopardy Violation I s Shown The Fifth Amendment guarantee against double jeopardy protects “aga in st multi p le punish m ents for the same offense.” Whalen v. United States , 445 U.S. 684, 688 (1980) (quoting North Carolina v. Pearce , 395 U.S. 711, 717 ( 1969)) . Initially, we address the State’s argument that Marshall failed to preserv e his d ouble

- j eopar dy compla int . While we agree that Marshall did not raise his specific complaint with the trial court, “when the error is clearly apparent from the face of the record, a double jeopardy violation can be raised for the first time on appea l. ” Alberts v. Sta te , 302 S .W. 3d 495, 5 00 (Tex. App.

— Texarkana 2009, no pet.) (citing Big on v. State , 252 S.W.3d 360, 369 (Tex. Crim. App. 2008) ) . As a result, we will examine th e record to address Marshall’s complaint. In our companion case 06

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- 00158

- CR, we discussed the evide nce admitte d at the consolidated trial on all of Marshall’s cha rges. In 06

- 23

- 00158

- CR, the State alleged that

1 In comp anion cause number 06

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- 00158

- CR, Marshall appeals fro m a convicti o n f or continu ous sexual assault of a young child. In companion c ause number 06

- 23

- 001 59

- CR, Marshall appeals from another conviction of sexual assault of a chi ld. In companion cause numb ers 06

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- 00016 1

- CR through 06

- 23

- 00166

- CR, Marshall ap pe als from s i x other conviction s for indece ncy with a child.3

Marshall committed continuous sexual abu se of Alice Owens 2 by committing two or more acts of sexual abuse against her from August 1, 20 15, throu gh May 31, 2 017. The State alleged that the predic ate offenses for continuous sexual assault were indecency with a child and aggravated sexual assault of a child by penetration of her sexual organ. It is true that a defendant “charged with continuous s exu al abuse w ho is tried in the same

cr iminal action for an enumerated offense based on conduct committed against the same vic tim may not be convicted for both offenses unless the latter offense occu rred outside the p eriod of time in which the continuous

- s exu al

- abuse o ffense was committed.” Ja ckson v. State , 567 S.W.3d 405, 407 (Tex. App.

— Texarkana 2018, no pet.) (quoting Price v . State , 434 S.W.3d 601, 606 (Tex. Crim. App. 2014) ). Here, the record shows that Marshal l was not tried for an offense
enumerat ed in the St a te’s continuous sexual ass ault indictment and that the offense alleged here occurred outside the period of time in which the continuous sexual abuse against Owens wa s committed. The Sta te’s indictment in this case alleged that , on or about t he 1 st day o f September, 2019,

. . . AAR ON MICHAEL MARSHALL , did then and there, intentionally and knowingly cause the penetration of the sexual organ of Alice Owens (pseudonym), a child who was young er than 17 years o f age, by defendant ’ s finger, and Alic e O w ens (pse u donym) was a person who m th e defendant was prohibited from engaging in sexual intercourse or deviate sexual intercourse under Section 25.02 of the Texas Penal Code.

2 To protect her identity, we will use the State’s assigned pseudonym for the child complainant

. See T EX
. R. A PP
. P. 9.10.4

As a result, whereas the conti nuous sexual assault allegation involved aggrav ate d sexual a ssault before Owen s’s fourteenth birthday on June 1, 2017, the offense alleged here was sexual assault occurring when Owens was sixteen. Moreover, at the consolidat ed trial, Owens te stified that Marshall penetrated her vagina with his finge rs o n a tota l of two occasions. Because she could not testify that those occasions were before her fourteenth birthday, we found that the testimony could not support the use of

se xual assault s as p redicate offense s occurring within the statutory timeframe of continu o u s sexual abuse of a young child . Instead, that testimony supported the finding of a separate sexual assault of a child offense in this case and in companion cause num ber 06

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- 001 59

- CR

. Further, this case differs from 06

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- 00 159

- CR because the offense d ate of t hat case was “on or about September 1, 2018,” whereas the offense date in this ca se was “on or about September 1, 2019.” Because there is no d ouble

- j eopardy vio lation apparent on the face of this record, we overrule Marshall’s sol e p oi nt of erro r in this appe al. II. Disposition We affirm the trial court’s judgment.

Jeff Rambin Justice Date Submitted: July 5, 2024 Date Decided: July 12 , 2024
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