Alberto Gutierrez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 25, 2024
• Docket: 13-23-00360-CR
• Status: Published

Opinion

NUMBER 13-23-00360-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ALBERTO GUTIERREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 24TH DISTRICT COURT OF DEWITT COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Benavides, Tijerina, and Silva Memorandum Opinion by Justice Benavides

Appellant Alberto Gutierrez entered an open plea of guilty to the offense of

continuous sexual abuse of a young child, a first-degree felony, and the trial court

sentenced him to life in prison. See TEX. PENAL CODE ANN. §§ 12.32(a), 21.02(b). On

appeal, Gutierrez argues that his conviction constitutes a double jeopardy violation because his indictment alleged, by separate paragraphs, two different periods of abuse,

and the judgment refers to each paragraph. We affirm as modified.

I. BACKGROUND

Gutierrez was charged in a single indictment with eleven counts related to his

ongoing sexual abuse of his step-granddaughter Erin.1 As relevant here, Count 2 alleged

in Paragraph 1 that, during a period that began on or about March 10, 2016, and ended

on or about December 11, 2020, Gutierrez committed two or more acts of sexual abuse

against Erin while she was under the age of fourteen. Paragraph 2 of the same count also

alleged that Gutierrez committed two or more acts of sexual abuse against Erin while she

was under the age of fourteen. However, Paragraph 2 also alleged that the acts of sexual

abuse occurred on two specific dates: December 10, 2019, and December 10, 2020. Both

paragraphs alleged “aggravated sexual assault of a child” as the predicate offenses.

Gutierrez did not object to the indictment.

Gutierrez pleaded not guilty to the charged offenses, and a jury trial commenced

in July 2023. During the guilt-innocence phase, Gutierrez elected to plead guilty to Count

2, and the State announced that it was abandoning the remaining counts. During the plea

hearing, the following exchange occurred between the trial court and the State:

THE COURT: So the only plea will be to the offenses alleged in Count 2, Paragraph 1 and Count 2, Paragraph 2; is that correct?

1 We have assigned a pseudonym to the child victim to protect her privacy. See TEX. CONST. art.

1, § 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect for [their] dignity and privacy throughout the criminal justice process”). It appears, though, that the State used Erin’s real name in the indictment. In cases such as these, it is common practice to use a pseudonym in the indictment to protect the identity of a minor complainant, and we encourage the State to adopt that practice if it has not already done so. See TEX. CODE CRIM. PROC. ANN. art. 58.105 (entitled “Disclosure of Certain Child Victim Information Prohibited”).

2 [THE STATE]: Correct.

After admonishing Gutierrez that by pleading guilty, he would be waiving his rights and

subject to a punishment of twenty-five years to life imprisonment for continuous sexual

abuse of a young child, Gutierrez pleaded guilty to both paragraphs in Count 2:

THE COURT: All right. So, again, I’m going to ask you to Count 2, Paragraph 1 of the Indictment, how do you plead?

[GUTIERREZ]: Guilty.

THE COURT: To Count 2, Paragraph 2 of the Indictment, how do you plead?

Gutierrez also signed a judicial confession admitting “that all allegations contained in the

indictment are true and correct.” The trial court then announced that it was finding

Gutierrez guilty of “the offense alleged in Count 2, Paragraph 1 and the offense alleged

in Count 2, Paragraph 2.” After a contested sentencing hearing, the trial court announced

that it was sentencing Gutierrez to life imprisonment.

The record contains a single judgment of conviction for “CONTINUOUS SEX

ABUSE OF A CHILD,” and the punishment assessed in the judgment matches the one

announced in open court. At the top, next to the trial court cause number, the judgment

says, “COUNT NO. TWO (BOTH PARAGRAPHS).” This appeal ensued.

II. APPLICABLE LAW

The State may charge multiple offenses in a single indictment, “with each offense

stated in a separate count.” TEX. CODE CRIM. PROC. ANN. art. 21.24(a). “A count may

contain as many separate paragraphs charging the same offense as necessary, but no

paragraph may charge more than one offense.” Id. art. 21.24(b). Rather, separate

3 paragraphs within a single count are used to allege alternative methods of committing the

same offense. Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007). “[T]he law

does not permit more than one conviction per count in the indictment.” Id. at 555.

“‘Duplicity’ is the technical fault of uniting two or more distinct and separate

offenses in the same count of an indictment.” Brock v. State, 495 S.W.3d 1, 6 (Tex. App.—

Waco 2016, pet. ref’d) (citing TEX. CODE CRIM. PROC. ANN. art. 21.24(b)). The rule against

duplicitous indictments is based on the defendant’s due-process right to receive fair notice

of the charges against him. Martinez, 225 S.W.3d at 554. A duplicity complaint must be

timely raised in the trial court, or the claim is forfeited. Williams v. State, 685 S.W.3d 110,

113 (Tex. Crim. App. 2024); see TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (“If a defendant

does not object to a defect, error, or irregularity of form or substance in an indictment or

information before the date on which the trial on the merits commences, he waives and

forfeits the right to object to the defect, error, or irregularity and he may not raise the

objection on appeal or in any other postconviction proceeding.”).

“To obtain a conviction for continuous sexual abuse of a child, the State must show

that the defendant committed at least two acts of sexual abuse against a child younger

than 14 years of age during a period of at least 30 days’ duration.” Ramos v. State, 636

S.W.3d 646, 651 (Tex. Crim. App. 2021) (citing TEX. PENAL CODE ANN. § 21.02(b)).

“[M]embers of the jury are not required to agree unanimously on which specific acts of

sexual abuse were committed by the defendant or the exact date when those acts were

committed.” TEX. PENAL CODE ANN. § 21.02(d). “A defendant may not be charged with

more than one count [of continuous sexual abuse] if all of the specific acts of sexual abuse

4 that are alleged to have been committed are alleged to have been committed against a

single victim.” Id. § 21.02(f); Price v. State, 434 S.W.3d 601, 605–06 (Tex. Crim. App.

2014) (interpreting § 21.02 and finding that the “statutory language reflects that the

Legislature intended to permit one conviction for continuous sexual abuse based on the

repeated acts of sexual abuse that occur over an extended period of time against a single

complainant”); Cisneros v. State, 622 S.W.3d 511, 521 (Tex. App.—Corpus Christi–

Edinburg 2021, no pet.) (“Subsection (f) makes clear that only one § 21.02 charge may

be brought when there is only one victim . . . .”).

The Double Jeopardy Clause of the Fifth Amendment, which is applicable to the

states through the Fourteenth Amendment, protects a person from multiple punishments

for the same offense. U.S. CONST. amends. V, XIV; Garfias v. State, 424 S.W.3d 54, 58

(Tex. Crim. App. 2014). A double-jeopardy violation may be raised for the first time on

appeal if two conditions are met: (1) the violation is apparent from the face of the record,

and (2) the enforcement of the usual rules of procedural default would serve no legitimate

state interest. Ex parte Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013). “There are

three types of double jeopardy claims: (1) a second prosecution for the same offense

after acquittal; (2) a second prosecution for the same offense after conviction; and

(3) multiple punishments for the same offense.” Garfias, 424 S.W.3d at 58. “In the

multiple-punishments context, two offenses may be the same if one offense stands in

relation to the other as a lesser-included offense, or if the two offenses are defined under

distinct statutory provisions but the Legislature has made it clear that only one punishment

is intended.” Littrell v. State, 271 S.W.3d 273, 275–76 (Tex. Crim. App. 2008).

5 III. ANALYSIS

Gutierrez acknowledges that his complaint on appeal stems from an allegedly

defective indictment. He also concedes that he did not raise a timely objection to the

indictment or object in the trial court that his conviction constituted a double-jeopardy

violation. He argues, however, that a duplicity error in the indictment ultimately resulted

in a double-jeopardy violation that is apparent from the face of the record, so he may raise

the issue for the first time on appeal. See Ex parte Denton, 399 S.W.3d at 544. Gutierrez

contends that Paragraphs 1 and 2 under Count 2 of the indictment constituted separate

offenses for continuous sexual abuse, and thus, he was “convicted of more offenses than

were authorized by the indictment” or the Legislature.

The State responds that Paragraphs 1 and 2 were merely alternative means of

charging the same offense. According to the State, Paragraph 1 alleged that Gutierrez

committed the offense over a “broad period of time,” while Paragraph 2 alleged that

Gutierrez committed the predicate acts “on two specific dates” that were still more than

thirty days apart but fell within the broader period alleged in Paragraph 1. In any event,

the State contends that the judgment reflects a single conviction and a single punishment

for continuous sexual abuse. To the extent that any error exists in the judgment, the State

suggests that we exercise our authority to reform the judgment “to reflect only one

paragraph from Count 2.”

To begin, it is not clear why the State alleged two different periods of abuse

involving the same complainant, especially when the State was not bound by the dates

listed in Paragraph 1, the period of abuse alleged in Paragraph 2 was subsumed under

6 the period of abuse alleged in Paragraph 1, and the alleged acts of sexual abuse were

the same in each paragraph. See TEX. PENAL CODE ANN. § 21.02(d), (f). In other words,

Paragraph 2 was superfluous because it did not allege an alternate method of committing

the same offense.2 See Buxton v. State, 526 S.W.3d 666, 679–80 (Tex. App.—Houston

[1st Dist.] 2017, pet. ref’d) (noting that “§ 21.02 statutorily defines the manner or means

of committing the offense of continuous sexual abuse of a child in several alternative

ways”).

For the same reason, we also reject Gutierrez’s assertion that each paragraph

alleged a distinct offense. We fail to see how Paragraph 2’s redundant allegation of

continuous sexual abuse that fell within the period of abuse alleged in Paragraph 1

constitutes a separate offense. See TEX. PENAL CODE ANN. § 21.02(b); Price, 434 S.W.3d

at 605–06. Instead, by pleading guilty to each paragraph, Gutierrez essentially pleaded

guilty to committing the same offense twice. Nevertheless, even if we accept Gutierrez’s

premise, the question then becomes whether Gutierrez was actually convicted and

punished twice for the same offense in contravention of the Legislature’s clear mandate

that a defendant may only be convicted once for continuous sexual abuse when “all of

the specific acts of sexual abuse that are alleged to have been committed are alleged to

have been committed against a single victim.” TEX. PENAL CODE ANN. § 21.02(f); see Ex

parte Aubin, 537 S.W.3d 39, 43 (Tex. Crim. App. 2017) (“It is only upon entry of a

judgment for multiple offenses, after sentencing, that a multiple-punishments violation

2 Before Gutierrez decided to plead guilty, the complainant testified, consistent with the allegations

in Paragraph 1, that Gutierrez penetrated her vagina with his penis multiple times a week over the course of several years.

7 even occurs.”); see also Ex parte Chapa, No. 03-18-00104-CR, 2018 WL 3999741, at *7

(Tex. App.—Austin Aug. 22, 2018, pet. ref’d) (mem. op., not designated for publication)

(“The State is entitled to charge multiple offenses in a multiple-count indictment—even

offenses that are the same for double-jeopardy purposes—and to prosecute and obtain

jury verdicts for the same offenses in those counts; only multiple convictions and multiple

punishments for those same offenses violate double jeopardy.”).

A plain reading of the judgment reflects that Gutierrez was convicted of a single

count of “CONTINUOUS SEX ABUSE OF A CHILD” and punished within the prescribed

sentencing range for that offense. See TEX. PENAL CODE ANN. § 21.02(h) (providing a

sentencing range for continuous sexual abuse as “imprisonment in the Texas Department

of Criminal Justice for life, or for any term of not more than 99 years or less than 25

years”). If Gutierrez had been convicted of two separate counts of continuous sexual

abuse, then we would expect that information to be contained either in his judgment of

conviction or a separate judgment of conviction. See TEX. CODE CRIM. PROC. ANN. art.

42.01, § 1(13) (requiring a judgment of conviction to include “[t]he offense or offenses for

which the defendant was convicted”). Instead, all of the statutorily required information in

the judgment points to a single conviction. See id. art. 42.01, § 1. For example, with

multiple convictions, we would expect the judgment to show separate sentences for each

conviction. See id. art. 42.01, § 1(15). That is simply not the case here; Gutierrez received

a single sentence of “LIFE.” See Watkins v. State, 946 S.W.2d 594, 601 (Tex. App.—Fort

Worth 1997, pet. ref’d) (rejecting appellant’s argument that the judgment improperly

contained four separate convictions, rather than just one, because “the judgment reflects

8 that [appellant] was given a single life sentence, not four concurrent sentences for

separate offenses”).

The only thing Gutierrez points to in the judgment to support his claim of a multiple-

punishment violation is the “COUNT NO. TWO (BOTH PARAGRAPHS)” language at the

top of the document. While we agree that this reference to both Paragraphs 1 and 2 in

the indictment was improper, it does not materially alter the plain meaning or effect of the

judgment. Consequently, Gutierrez has failed to carry his burden to show a multiple-

punishment violation that is apparent from the face of the record, and his issue is

overruled. See Ex parte Denton, 399 S.W.3d at 544.

However, as hinted above, the judgment should be modified. See TEX. R. APP. P.

43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (explaining that

appellate courts have authority to modify judgments). It is clear from the proceedings that

the trial court and the parties believed that Paragraphs 1 and 2 represented alternative

methods of committing the same offense under Count 2. Even if this were true, the

judgment should reflect a general finding of guilt for the charged offense. See Kitchens v.

State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (“It is appropriate where the alternate

theories of committing the same offense are submitted to the jury in the disjunctive for the

jury to return a general verdict if the evidence is sufficient to support a finding under any

of the theories submitted.”); Martinez, 225 S.W.3d at 555 (“Once the judge receives the

jury’s verdicts, he should perform the task of deciding what judgment is authorized by

those verdicts in light of the controlling law, the indictment, and the evidence presented

at trial.”). Therefore, we strike “(BOTH PARAGRAPHS)” from the judgment.

9 IV. CONCLUSION

We affirm the judgment as modified.

GINA M. BENAVIDES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 25th day of April, 2024.