### 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. 03-11-00074- CR NO. 03-11-00075- CR

Austin L oving, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 167 TH JUDICI AL DISTRICT

NOS . D-1 -DC- 10- 0300 616 & D-1- DC-10 -03 0061 7 HO NORAB LE MI CHAEL LY NCH, JUDGE P RESIDING

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

A jury found Austin L oving g uilty on three counts of indece ncy with a child by
contac t and two counts of indece ncy with a child by exposure. The offe nses wer e committed ag ainst
two sisters. I n appellate cause number 03-11-00074- CR conce rning the older sister, appellant was convicted of one count of indece nt exposure and two counts of indece nt contac t. I n appellate cause number 03-11-00075- CR conce rning the y oung er sister, appellant was convicted of one count eac h of indece nt e x posure and indec ent contac t. The jury assessed punishment a t seven y ear s in pr ison for eac h of the contac t offe nses and ten y ear s in prison for the exposure offe nses, but rec ommended that the sentenc es for the exposure offe nses be probate d and that community supervisi o n b e imposed. The trial court set the probate d terms to run consec utively to the prison terms. Appellant contends that code of criminal proce dure article 42.12, section 4(d)( 5) violates constitutional equal protec tion and due proce ss g uara

ntees beca

use it forc es an otherwise probation-e ligible d ef endant to plead
g uil t y ra t h er t h an ex erc ise his rig ht to a jury trial. He also contends that the evidenc e is leg allyinsufficient to support one of the contac t offe nses and, alterna tively , that one of the exposure

offe nses is a lesser- included offe nse of a contac t o ff en s e i n v o l ving the same child. Be cause the challeng ed exposure offe nse is a lesser- included offe nse of the second contac t offe nse rela ting to that child, we will modify the judgme nt by vacating the exposure offe nse ag ainst one of the children and aff irm the judg ment as modified.

DISCUSSIO N

We will briefly summarize the events underly ing the convictions bec ause the facts

ar e n o t co n tested on appea l. Appellant, a nineteen- y ear -old man, invited his neig hbors, two g irls
ag ed eig ht and nine y ear s, to play video g ames. Whil e they wer e play ing in his bedroom, appellant went int o the l iving room and bega n viewing pornog raphy on his computer and masturbating

. At

some point, he touched one g irl’s brea st and the other g irl’s vag ina over their clothes. Wit h his penis exposed, appellant aske d or told one of the g irls to touch it, and she punche d it with her fist.

Constitutionali ty of statute lim iting jury’s authority

Appellant contends that the statute preve nting imposit ion of community supervision for offe nses of indece ncy with a child by contac t violate s his f eder al and state constitutional rig hts to equal prote ction and due pr ocess. The c ode of c riminal proce dure se ction that permits juries to

rec ommend community

supervision contains exclusions, including the f ollowing:
(d) A d ef en dant is not elig ible for community supervision under this section if the defe ndant:

. . . . (5) is convicted of an offe nse listed in Section 3g (a) (1)( C), (E), or (H), if the victim of the offe nse was y oung er than 14 y ear s of ag e at the time the offe nse was c ommitt ed . . . .
2Tex. Code Crim. Proc. Ann. art. 42.12, § 4(d)( 5) (West Supp. 2011). This subsection (5) was

added by the leg islature and eff ective in 2007. Act of May 21, 2007, 80th L eg ., R.S., ch. 1205, § 3,
2007 Tex. Gen. L aws 4078, 4079 (ef f. Sept. 1, 2007). I ndece ncy with a child is one of the offe nses expressly excluded from community supervision. See id. § 3g (a) (1)( C). Appellant contends that the
statute unconstitutionally forc es an otherwise probation-e ligible defe ndant to plead g uilty to obtain community

supervision rathe r than e x erc ise his rig ht to a jury trial.
I n assessing whether a law im p i n ges o n a substantive due proce ss rig ht, the first step is to deter

mine whether the asser

ted rig ht is fundame ntal. See Leebaert v. Harrington , 332 F.3d 134, 140 (2d Cir. 2003). Where the rig ht inf ring ed is f

undamental, strict scrutiny is applied to the challeng ed g overnme ntal reg ulation. Reno v. Flores , 507 U.S. 292, 305 (1993). The rig ht to trial by jury is a fundame ntal rig ht g uara nteed by the Six th and Four teenth Amendments to the United States Constit ution and by the Tex as C onstitut ion. See U.S. Const. amends. VI , XI V; Tex. C o nst. art. I , § 15. Equal protec tion g uara ntees require that we trea t like case s alike. V a cc o v. Quill , 521 U.S. 793, 799 (1997). Appellant compar es the curr ent statute to the invalidated fede ral statute that permitted only juries to impose the death penalty

. See United States v. Jack son , 390 U.S. 570 (1968). The Supreme Court held that, by imposing the death penalty only on those who exercised their rig ht to a jury trial, the statute violated the g uara ntee of equal protec tion. Id. I n reje cting the
g overnme nt’s arg ument that the statute serve d only to mitigate punishment, the Court held that the
statute needle ssly chilled defe ndants’ exercise of their rig ht to a jury trial by encour ag ing g uilty pleas. Id. at 582. Appellant contends in this case that he fac ed a simil arly needle ss coer cion to plead
g uilty beca

use the leg islature remove d a benef icial sentenc ing option if he chose to have a jury trial. Appel l ant notes that defe ndants who plead g uilty to indece ncy with a child can rec eive defe rre d
3adjudication probation from the judge

. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a)

(West Supp. 2011). We note, howeve r, that defe rre d adjudication is available for this offe nse only if the judge “make s a finding in open court that placing the defe ndant on community supervision is in the best interest of the victim.” Id. The statute permitting judge s to a ssess standard community supervision does not apply when the de fenda

nt is guilty

of indec ency

with a child by

contac t. See id. § 3g (a) (1)( C).

We find that this case is better g uided by Corbitt v. New Jerse y , 439 U.S. 212 (1978).
I n that case , New J erse y law descr ibed two levels of murder—f irst deg ree , which had a mandatory life sentenc e, and second deg ree , which had a maxi mum sentenc e of 30 y ear s in prison. Id. at 214.
I n a jury tri al , t he jury had to decide the deg ree of the offe nse befor e sentenc e was imposed, including the mandatory lif e t er m fo r fi rst deg ree murder. The statute did not permit trials to the
court or g uilty pleas, but did allow no-conte st pleas. When sentenc ing a defe ndant who pleade d no contest, the judge did not have to specify the deg ree of the offe nse. Id. The defe ndant in that case , who was c onvicted of first-deg ree murder by a jury and sente nced to life in prison, contended tha t the law violated his rig hts to a jury trial, equal protec tion, and ag ainst compelled self-inc rimination beca use it permitted persons who pleade d no contest to rec eive a lesser s en t en ce fo r the same behavior

. Id. at 216. The Corbitt court distinguished Jack son primarily on the absenc e of the death penalty which is “unique in its severity and irre vocability .” Id. at 217 (quoting Gregg v . Georgia , 428 U.S. 153, 187 (1976)) . The Court held that the pr essure s to plead and a void the possibili ty of the maxi mum punishment wer e less when the death penalty was not an o p t i on, and also noted that the judge rec eiving a no-conte st plea could still impose life imprisonment. Id. The Court acknow ledg ed, howeve r, that a pleade r could avoid the ma n datory life sentenc e even if the fac ts
supp o rt ed a fi nding of first-deg ree murder. Id. at 218. The Court held that this “pre ssure or
4encour ag ement” to plead g uilty was not improper. Id. at 219. The Court relied on previous ruling s

as follows:

Whil e confr onting a defe ndant wi t h t h e risk of more sever e punishment clea rly m ay h ave a ‘discourag ing effe ct on the defendant’s assertion of his trial rig hts , t h e imposit ion of these difficult choice s [i s] an inevitable’ -- and permissible -- ‘attribute of any leg itimate sy stem which tolerate s and encour ag es the neg otiati o n of pleas.’ [ Chaffi n v. Stynchc ombe , 412 U.S. 17, 31 (1973)]. I t follows that, by tolerating and encour ag ing the neg otiation of pleas , t h i s Court has nece ssarily acc epted as constitutionally leg itima t e t h e simple rea lity that the prosec utor’s interest at the barg aining table is to persua de the de fenda nt to forg o his right to plea d not guilty

.
Id. at 220-21 (quoting Bordenkirc her v. Haye s , 434 U.S. 357, 364 (1978))

. The Court went on to write t h at “T h e S tates and the Fe dera l Gover nment are fre e to abolish g uilty pleas and plea barg aining ; but absent such action, as the Constit ution has been construed in our ca s es , it is not forbidden to extend a proper deg ree of leniency in return for g uilty pleas.” Id. at 224. Finally , while reje cting the defendant’s equal protection arg ument, the C ourt wr o te t hat all defe ndants are g iven the same choice and that those who choose to contest g uilt may fac e a g rea ter sentenc e, but may be acquitted or found g uilty of a lesser offe nse, so there is no invidious classifica tion and improper differ ential in trea tment of those “cla sses” of defe ndants. Id

. at 225-26. The defe ndants found
g uilty by jury are no more penalized for exercising their rig ht to jury than the defe ndants who plead
g uilty are penalized bec ause the y surre nder the ir cha

nce to be acquitted. The Court wrote, “ Equal protec tion does not fre e those who made a bad assessment of risks or a bad choice from the
conseque nces of

their dec ision.” Id. at 226.
Her e, appellant does not contend tha t h e w a s tr eate d differ ently from other defe ndants

acc used of the s ame crimes. He h ad d i ff ere nt options than defendants accuse d of commi tting the

same crime befor e the eff ective date of the amende d statute, but the leg islature can amend statutes.

5See Tex. Const. art. I I I , § 36. He does not alleg e that he is trea ted differ ently from other defe ndants

acc used of c ommitt ing the same crime at the same time. D efe ndants who commit crimes listed in

ar t i cle 42.12, section 4(d)( 5) have differ ent punishment options than they would if they had committed a differ ent crime, but the leg islature can, withi n l imits , assig n differ ent punishment scheme s to differ ent offe nses. I n contra st to the statute in Jack son , which essentially incre ased the maxi mum possible punishment to include the death penalty when a defe ndant pleade d not g uilty , the
statute here only “incr ease d” the minimum time serve d for a p er s o n fo und g uilty (as opposed to pleading g uilty ) by

eliminating the possibility of jury -imposed community supervision.
A p p e ll a n t’ s a s s e r ti o n th a t th e s ta tu te “ f o r c e s a n o th e rwise probation elig ible defe ndan t
to plea[d] g uilty rathe r than exercise his rig hts to a jury trial” is belied by the fac t that he pleade d not
g uilty and exercised his rig ht to a jury trial. Whil e the leg islature has chosen to limit the availability of community supervision for cer tain offe nses, it has also chosen to allow prosec ut o rs in cer tain circ umstances to offe r the leniency of community supervisio n to defe ndants who admit their
g uilt—perhaps to acknow ledg e the def en d ant’s acc eptanc e of responsibility , to rew ard the defe ndants’ choic e t o s pare themselves, their victims, and the witnesses the time, expense, and emotional toll of a trial, or perha ps to r ewa

rd saving the time a

nd expense of a full prosec ution f or the State and the judicial sy stem. Whatever the leg islature’s motivation in adopting the statute, we conclude that appellant was not trea ted differ ently from others simil arly situated and that he has not shown that the leg islature unconstitutionally trea ted him and offe nders like him differ en t l y from defe ndants ac cused a

nd convicted of

other c rimes. Appellant con t en d s t hat the 2007 remova l of the power of the jury to impose community supervision remove d a privileg e without due proces s , rende ring article 42.12, section 4(d)(5) unconstitut ional

. There is no alleg ation or proof that the l eg islative proce ss in the
6adoption o f s ec t ion 4(d)( 5) was in any way defic ient. Appellant does not provide any support for

the proposition that a defe ndant is entitled to be punished under a statutory scheme that was altere d

more than two y ear s befor e he committed the offe nse for which he is being punished. Appellant did
not comm i t an d wa s n o t acc used of this crime until 2010, so no “entitlement” to any punishment under the previous statutory scheme for these offe nses attache d and no privileg e or proce ss that was due to him as a defe ndant was unconstitutionally remove d or denied by the statute’s previous amendment.

Suf fi ciency of the evidence

Appellant also contends that the evidenc e was leg all y i n s ufficie nt to support his

co n v iction for indece ncy with a child by contac t when the child punched his penis. He does no t challeng e the sufficie ncy of the evidenc e conce rning his touchi n g o f t h e chil dren with his hands.
I ndece ncy with a child by contac t o cc u rs when a person “ca uses the child to eng ag e in sexual
contac t.” Tex. Penal Code Ann. § 21.11(a )( 1 ) (W es t 2011). Another subpart of that section specia lly define s sexual contact with children a s follows:
(c) I n this section, “sexual contac t” means the following acts, if committed with the intent to arouse or

g ratify the sexual desire of a

ny person: (1) an y t o uching by a person, including touching throug h clothing, of the anus, bre ast, or any

part of the g enitals of a c hild; or (2) any touching of any part of the body of a child, including touching throug h clothing, with the anus, brea st, or any part of the g enitals of a person.

Id. § 21.11(c)

. Appellant conce des that he invited the touch to g ratify his sexual desire, but contends that the child’s p u n ch was not the contac t he had in mind and was not a touch intended to g ratify

7sexual des i re . He arg ues that the child’s choice to deviate from his reque sted contac t broke the

causa l chain of e vents stemming f rom his reque st. We measure the sufficie ncy of the evidenc e ag ainst the hy pothetically corr ect jury cha rge. Malik v. State , 953 S.W .2d 234, 240 (Tex. Crim. App. 1997). We revie w the leg al sufficie ncy to sustain a criminal conviction by deter mining whether a rational trier of fac t could have found the essential elements of the offe nse bey ond a rea sonable doubt. Jack son v. Virginia , 443 U.S. 307, 319 (1979); Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). We vie w all the evidenc e in the light most favor able to the verdic t and assume that the trier of fac t resolved conflicts in the testimony , weig hed the e vidence , and drew reasonable infere nces in a manner t hat supports the ver dict. Clayton , 235 S.W .3d at 778.

Putti ng the rele vant subparts of section 21.11 toge ther, indece ncy with a child by
contac t occur s when a person cause s a child to touc h any part of the g enitals of the person with the intent to arouse or g ratify sexual desire of any person. See id. Appellant takes the statutory lang uag e
out of context to arg ue that there is perha ps some g rammatica l ambig uity reg arding whose intent is rele vant. I n the context of a criminal prosec ution for indece n cy wi t h a child by contac t, howeve r, the rele vant intent is that of the alleg ed offe nder. See Jones v. State , 238 S.W .2d 529, 530 (Tex. Crim. App. 1951). 1

We conclude that leg ally sufficie nt evidenc e supp o rt s t h e verdic t. There is ample evidenc e that appe llant viewed por nog raphy and masturba ted knowing the childre n wer e pre sent.

The rea son that the adult’s intent is the rele vant i ntent become s clea r when we consider 1 an instance of touching that does not constitute indece ncy by an adult with a child. I f a child touched an unconscious ad u l t ’s genitals and the adult had no knowledg e of the touching , much less any i n t en t that it should happen or that it should happen to arouse or g ratify any one’s sexual d es i re , the intentless, unknowing adult would not be transfor med into an o ff

en d er irrespe ctive of the child’s intent. 8Ap p el l an t has conce ded on appea l that, during that same visit and with the requisite intent, h e 2
invited one of the g irls to contac t his g enitals. The child then p u n ched his penis. The rec ord supports a finding that the child -ge n i t al contac t occur red beca use of—i.e., was cause d by —appellant’ s in v i t at i o n . The statute criminalizes causing , with the rele vant intent, a child to
eng ag e in “any touching of

. . . any part of the g enitals of a person.” The st at u t e d o es not differ entiate among ty

pe of contac t that is cause d, whether it was the exact ty pe the defe ndant invited, or whether it produce d the result the defe ndant envisioned. The statute define s the contac t

as “sexual” beca

use of the body part(s) involved and the intent with which it is cause d. The evidenc e is leg ally sufficie nt to support the require d finding s.
Double jeopardy

Appellant complains finally t h at , in this case , the indece ncy -by -conta ct offe nse in which the child punched his penis includes the offe nse of indece ncy by exposure with the same child. Appellant never objected to the char g e at trial or asser ted any double-jeopa

rdy complaint prior to this
appea l, but a double jeopar dy claim can b e ra i s ed fo r the first time on appea l if the undisputed fac ts make the double-jeopa rdy violation appar ent from the rec ord. Bigon v. State , 252 S.W .3d 360,
369 (Tex. Crim. App. 2008). Speci fi ca l l y , a defe ndant m ay raise a doubl e-je opardy claim for the first time on appea l when the err or is appar ent on the fac e of the rec ord and enfor ceme nt of the usual rules of proce dural defa

ult serve s no leg itimate state interest. See Gonzalez v. State , 8 S.W .3d 640, 643 (Tex. Crim. App. 2000).

Conviction and punishment for both g rea ter-inc lud ed and lesser- included offe nses can violate the double-jeopa rdy prohibition by punishing the offe nder twic e for the same of

fense

.

The rec ord supports finding of the requisite intent without reg ard to appellant’ s conce ssion. 2 9See U.S. Const. amend. V; Tex. Const. art. I , § 14; see also Blockburge r v. United States , 284 U.S.

299, 304 (1932); Litt rell v. State , 271 S.W .3d 273, 275-76 (Tex. Crim. App. 2008). Two offe nses
may be the “same ” if one offe nse stands in rela tion to the other as a lesser- included offe nse, or if the
two offe nses are d ef

i n ed u n d er distinct statutory provisions but the L eg islature has made it clea r that only one punishment is intended. An acc used may be punished for two offe nses that would be
reg arde d as the same under a Blockburge r analy sis if the L eg islature has othe rwise made manifest i t s i n t ention that he should be. Litt rell , 271 S.W .2d at 276. I n Texas, an offe nse is included within another if, among other things, “it is est ab l i s h ed b y proof of the same or less than all the fac ts require d to establi s h the commission of the offe nse char g ed.” Tex. Code Crim. Proc. Ann.
art. 37.09(1) (West 2006); Hutchins v. State , 992 S.W .2d 629, 632 (Tex. App.—Austin 1999, pet. ref ’d). I ndece ncy by exposure may be, but is not nece ssarily , a lesser in cl u d ed o ff en se of indece n cy by contac t. Patterson v. State , 152 S.W .3d 88, 92 (Tex. Crim. App. 2004). When a defe ndant is convicted of two offe nses in violation of the double-jeopa rdy prohibitions, the offe nse

car ry ing the more serious punishment will be reta ined and other offe nse will be set aside. Landers

v. State , 957 S.W .2d 558, 560 (Tex. Crim. App. 1997). Absent a clea r i n d i ca tion of contra

ry leg islative intent, we must presume that the leg islature did not intend to authorize multipl e punishments for two offe nses that are the same under the Blockburge r test. Hutchins , 992 S.W .2d
at 632 (citing W

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

. I n this case , appellant exposed his penis in the g irls’ prese nce for a few minutes with the intent to arouse or g ratify his sexual desire, and then ur g ed one of

the g irls to touch his ex posed penis, which she did. We find no clear intent by the leg islature to impose two punishments f or these offe nses on this fact patter n. We conclude that, under the fac ts presente d, the exposure offe nse i nvolving the older girl was subsumed by the

10contac t o ff en s e in which the older g irl punched appellant’ s exposed penis and that conviction for both offense s violated the prohibition of double jeopa rdy

.

CONCLUSION
We vacate appellant’ s conviction and rela ted punishment on the count of indece ncy by exposure to the g irl who punched him—Count I I I in t ri al court cause number D-1-D C-10-
0 3 00616, appellate cause number 03-11-00074- CR. We aff irm the judgme nts on the remai n i n g
counts in both case s , including the three concur rent seven- y ear terms of imprisonment for the indece ncy by contac t offe nses and a consec utive ten-y ear term of imprisonment

— p ro b ated for ten y ear s—for the r emaining indece ncy by exposure offe nse.

J eff Rose, J ustice
Be fore Chief J ustice Jones, J ustices Pury ear and Rose
03-11-00074- CR Affir med in part; Va cate d in part
03-11-00075- CR Affir med Filed: Aug ust 17, 2012 Do Not Publish

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