COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-145-CR
ERIC JENNINGS A/K/A APPELLANT ERIC JEMNNINGS V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
MEMORANDUM OPINION 1
I. INTRODUCTION
A jury found appellant Eric Jennings a/k/a Eric Jemnnings guilty of
aggravated sexual assault of a child (Count I) and indecency with a
child—sexual contact (Count II). The jury assessed his punishment at thirty
years’ confinement for Count I and fifteen years’ confinement for Count II, and
the trial court sentenced Jennings accordingly, ordering the sentences to run
1 … See Tex. R. App. P. 47.4. concurrently. In three points, Jennings argues that convictions on both Counts
I and II violate his right to be free from double jeopardy and that the trial court
erred by overruling his objections to the State’s comment on his failure to
testify and to the jury charge on punishment. We will affirm.
II. F ACTUAL B ACKGROUND
Jennings lived with his girlfriend Kandice Pierce, her two children M.R.
and R.R., and their infant daughter. Early one morning, Pierce was walking past
M.R.’s bedroom on her way to the kitchen when she saw a shadow in M.R.’s
room. She opened the door to find Jennings standing over M.R.’s bed
straightening up the covers. Pierce turned on the light in the bedroom and
asked Jennings what he was doing. When Jennings turned around, his erect
penis was sticking out of his boxer shorts, and he was sweating. He said, “Oh,
sh**, Kandice,” and began apologizing, telling her that he was sorry, that he
loved them, and that he would not do anything to them. Pierce picked up M.R.
and took her to the master bedroom, where she asked M.R. if Jennings had
touched her. M.R. told Pierce that Jennings had “touched her poo-poo” and
pointed to her female sexual organ.
Pierce took M.R. to the hospital, where pediatric nurse practitioner Sandra
Arthur interviewed and examined M.R. M.R. told Arthur that Jennings had
licked her “tu-tu,” and when asked to identify on a drawing of an anatomically
2 correct girl where he had licked her, M.R. pointed to the female sexual organ.
M.R. also told Arthur that Jennings had put his finger on her “tu-tu” and that
it hurt. Arthur’s physical examination of M.R. did not reveal any evidence of
sexual abuse. During the examination, Arthur collected swabs of DNA from
M.R.’s vulvar region and inner thighs.
The following day, child forensic interviewer Lindsey Dula interviewed
M.R. M.R. told her that Jennings had licked and kissed her “tu-tu.” Jennings
voluntarily gave Dula a saliva sample. Forensic testing of the DNA on the swab
from M.R.’s inner thigh matched Jennings’s DNA.
III. D OUBLE J EOPARDY
In his first point, Jennings argues that he was improperly convicted of
both the greater offense of aggravated sexual assault of a child and the lesser
included offense of indecency with a child—sexual contact in violation of
double jeopardy.
The indictment charged that Jennings intentionally or knowingly caused
the sexual organ of M.R., a child younger than fourteen years of age, to contact
Jennings’s mouth. The indictment also charged that Jennings intentionally and
knowingly engaged in sexual contact with M.R., a child younger than seventeen
years of age, by touching her female sexual organ with the intent to arouse or
gratify his sexual desire. At the end of the guilt-innocence stage of trial,
3 Jennings asked the trial court to require the State to elect the offense upon
which it intended to seek a conviction. The trial court denied his request.
The Double Jeopardy Clause of the United States Constitution provides
that no person shall be subjected to twice having life or limb in jeopardy for the
same offense. U.S. Const. amend. V. Generally, this clause protects against
(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. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221,
2225 (1977); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App.
2006). When a defendant is subjected to a single trial, only the last aspect of
the protection against multiple punishments is involved. Ex parte Herron, 790
S.W.2d 623, 624 (Tex. Crim. App. 1990). In order to prevail on a double
jeopardy claim, the evidence must show that the two offenses at issue
necessarily arose from “one act which could be subject to two different
interpretations.” Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App.
1998).
A person who commits more than one sexual assault against the same
complainant may be convicted and punished for each separate act, even if the
acts were committed in close temporal proximity. Vick v. State, 991 S.W.2d
830, 833 (Tex. Crim. App. 1999). The statutes do not, however, authorize
4 “‘stop-action’ prosecutions.” Patterson v. State, 152 S.W.3d 88, 92 (Tex.
Crim. App. 2004). That is, a defendant cannot be convicted for a completed
act of sexual assault and also for conduct that is demonstrably part of the
commission of the completed act. Id. However, even when two acts are
committed in close temporal proximity, the acts still may be separate and
distinct acts for double jeopardy purposes. Bottenfield v. State, 77 S.W.3d
349, 358 (Tex. App.—Fort Worth 2002, pet. ref’d), cert. denied, 539 U.S. 916
(2003); Hutchins v. State, 992 S.W.2d 629, 633 (Tex. App.—Austin 1999,
pet. ref’d). Thus, depending on the facts of the case, indecency with a child
may or may not constitute a lesser included offense of aggravated sexual
assault. See Ochoa, 982 S.W.2d at 907–08; Beltran v. State, 30 S.W.3d 532,
534 (Tex. App.—San Antonio 2000, no pet.).
Jennings relies on Ochoa for the proposition that his convictions for
aggravated sexual assault and indecency with a child—sexual contact were
based on the same act and, thus, violated double jeopardy. See 982 S.W.2d
at 906. Like Jennings, Ochoa was indicted for and found guilty of both
indecency with a child and aggravated sexual assault. Id. at 905. Both
offenses were alleged to have occurred on the same date. Id. The court of
criminal appeals held that because the evidence, which consisted of the child’s
statement that Ochoa “‘put his thing in my butt,’” referred to only one incident,
5 Ochoa had committed only one offense. Id. at 907–08. According to the
court, Ochoa “committed one act, which could be subject to two different
interpretations,” but the jury could not convict him of both. Id. at 908.
Unlike Ochoa, the present case is not a situation in which Jennings only
“committed one act which could be subject to two different interpretations.”
Id. at 908. The evidence at trial demonstrated that Jennings had touched and
rubbed M.R.’s female sexual organ with his finger and that he had licked her
female sexual organ with his tongue. M.R. testified at trial that Jennings had
rubbed her “private part” and demonstrated the rubbing action with her hand.
She also testified that he had licked her “private part” and demonstrated the
licking action on her arm. Arthur testified that M.R. had told her that Jennings
had put his finger on her “tu-tu” and that he had licked her “tu-tu,” and Dula
testified that M.R. told her that Jennings had licked and kissed her “tu-tu.”
Although the two acts were committed in close temporal proximity,
Jennings’s touching and rubbing of M.R.’s female sexual organ with his finger
was a separate and distinct act from his licking her female sexual organ with
his tongue. 2 See, e.g., Bottenfield, 77 S.W.3d at 358 (holding that touching
2 … Jennings also relies on the Austin court’s opinion in Patterson v. State to support his argument, but the facts there are distinguishable from the acts committed by Jennings. See 96 S.W.3d 427, 432 (Tex. App.—Austin 2002), aff’d, 152 S.W.3d at 92 (Tex. Crim. App. 2004), overruled on other grounds
6 victim’s genitals with finger was separate and distinct from contacting her
sexual organ with penis, even when committed during the same occurrence);
Murray v. State, 24 S.W.3d 881, 889 (Tex. App.—Waco 2000, pet. ref’d)
(holding that defendant “committed two separate acts—penetrating the victim’s
sexual organ with his finger and touching her genitals with his tongue”);
Hutchins, 992 S.W.2d at 633 (upholding convictions for aggravated sexual
assault and indecency with a child by contact because acts, although close in
time, were separate); Wingrove v. State, No. 2-05-00135-CR, 2006 WL
2507433, at *3 (Tex. App.—Fort Worth Aug. 31, 2006, pet. ref’d) (not
designated for publication) (holding evidence that defendant “‘touched [victim’s]
privates’” with his hand supported indecency with a child conviction and
evidence that defendant “‘touched [victim’s] privates’” with his tongue
supported separate aggravated sexual assault conviction). Consequently,
indecency with a child was not a lesser included offense of aggravated sexual
assault based on the facts of this case. See Ochoa, 982 S.W.2d at 907–08.
Thus, the State was entitled to seek convictions for both, and Jennings’s
by Sledge v. State, 262 S.W.3d 492, 496 (Tex. App.—Austin 2008, pet. ref’d). In Patterson, the indecency conviction was based on the same conduct for which the defendant was also convicted of aggravated sexual assault. Id. at 432. As we have explained, that is not the case here. Jennings committed two separate acts.
7 double jeopardy rights were not violated by his punishment for both offenses.
See id. We overrule Jennings’s first point.
IV. C OMMENT ON J ENNINGS’S F AILURE TO T ESTIFY
In his second point, Jennings argues that during closing argument at the
punishment stage of trial, the State commented on his failure to testify and that
the trial court erred by overruling his objection to this comment. Jennings
claims that the prosecutor’s comment violated his state and federal
constitutional rights against self-incrimination and article 38.08 of the code of
criminal procedure. See U.S. Const. amend V; Tex. Const. art. I, § 10; Tex.
Code Crim. Proc. Ann. art. 38.08 (Vernon 2005).
The defense called five witnesses at the punishment stage of trial. During
cross-examination of each defense witness, the State asked whether Jennings
had taken any responsibility for his actions, whether he had shown any
remorse, or whether he had expressed that he felt bad about the incident. Each
witness testified that he had not. During the State’s closing argument, the
prosecutor stated,
Every single defense witness who came up here testified that he’s a good person. You know what? Maybe he is. And you know what? All of those five individuals asked you for a second chance. But that defendant never asked those five individuals for a second chance. He never said he was sorry for what he did, and he’s never shown an ounce of remorse.
8 Defense counsel objected that this argument was a comment on Jennings’s
failure to testify, and the trial court overruled his objection.
A comment on an accused’s failure to testify violates the accused’s state
and federal constitutional privileges against self-incrimination. Montoya v.
State, 744 S.W.2d 15, 34 (Tex. Crim. App. 1987) (op. on reh’g), overruled on
other grounds by Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996); Smith v. State, 65 S.W.3d 332, 339 (Tex. App.—Waco 2001, no pet.).
In addition, the Texas Code of Criminal Procedure provides that a defendant’s
failure to testify on his own behalf may not be held against him and that
counsel may not allude to the defendant’s failure to testify. Tex. Code Crim.
Proc. Ann. art. 38.08.
To violate the right against self-incrimination or article 38.08, we must
decide whether the language used was manifestly intended or was of such a
character that the jury naturally and necessarily would have considered it to be
a comment on the defendant’s failure to testify. See Bustamante v. State, 48
S.W.3d 761, 765 (Tex. Crim. App. 2001); Fuentes v. State, 991 S.W.2d 267,
275 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999). The offending
language must be viewed from the jury’s standpoint, and the implication that
the comment referred to the accused’s failure to testify must be clear.
Bustamante, 48 S.W.3d at 765; Swallow v. State, 829 S.W.2d 223, 225 (Tex.
9 Crim. App. 1992). A mere indirect or implied allusion to the defendant’s failure
to testify does not violate the accused’s right to remain silent. Wead v. State,
129 S.W.3d 126, 130 (Tex. Crim. App. 2004); Patrick v. State, 906 S.W.2d
481, 490–91 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106 (1996).
A statement referencing evidence that can come only from the defendant
is a direct comment on the defendant’s failure to testify. Goff v. State, 931
S.W.2d 537, 548 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1171 (1997);
Madden v. State, 799 S.W.2d 683, 700 (Tex. Crim. App. 1990), cert. denied,
499 U.S. 954 (1991). Direct testimony as to contrition or remorse can come
only from the accused, and when offered by witnesses other than the accused
himself, the testimony is inadmissible. Swallow, 829 S.W.2d at 225 (citing
Thomas v. State, 638 S.W.2d 481, 484 (Tex. Crim. App. 1982)).
Reference to a defendant’s failure to express remorse himself during the
trial is a comment on the defendant’s failure to testify. Cooper v. State, 959
S.W.2d 682, 686 (Tex. App.—Austin 1997, pet. ref’d) (citing Swallow, 829
S.W.2d at 226). On the other hand, reference to the defendant’s failure to
introduce evidence of remorse through other witnesses may be erroneous for
other reasons but does not constitute a comment on the defendant’s failure to
testify. Id. (citing Swallow, 829 S.W.2d at 227 n.2, which cites Thomas, 638
S.W.2d at 485); see Caldwell v. State, 818 S.W.2d 790, 800 (Tex. Crim. App.
10 1991), cert. denied., 503 U.S. 990 (1992), overruled on other grounds by
Castillo v. State, 913 S.W.2d 529, 533 (Tex. Crim. App. 1995) (noting that
evidence of lack of remorse may come from other sources besides the accused
and reference to that evidence would not constitute a comment on defendant’s
failure to testify).
Jennings relies in part on Swallow to support his contention that the
complained-of statement during the State’s closing argument constituted an
impermissible comment on his failure to testify. See Swallow, 829 S.W.2d at
225–26. In Swallow, the State argued in its closing argument that a defendant
who expresses remorse and admits guilt is worthy of the average DWI
punishment. 829 S.W.2d at 225. The court of criminal appeals held that this
remark was an impermissible comment on the defendant’s failure to testify. Id.
at 226. But the court distinguished the comment from the prosecutor’s
comment in Thomas. Id. at 227 n.2. In Thomas, the State argued that the
jury “‘didn’t hear one single solitary bit of contrition on the part of this
defendant from his witnesses nor his attorney.’” 638 S.W.2d at 482. The
court of criminal appeals held that the argument was not a direct reference to
the defendant’s failure to testify but rather a comment that called attention to
the lack of testimony from the defense witnesses and the defendant’s
11 attorney. Id. at 485 (“[The prosecutor’s] language literally indicted others than
appellant individually and personally.”).
Here, when taken in a vacuum, the State’s comment that Jennings never
expressed remorse might be construed as a comment on his failure to testify.
See Cooper, 959 S.W.2d at 686. But we do not view the statement in a
vacuum; instead, when taken in context with the State’s entire argument and
in light of the State’s questioning all five defense witnesses about whether
Jennings expressed any remorse to them, the State’s comment was more like
that in Thomas rather than that in Swallow. Compare Thomas, 638 S.W.2d at
484–85, with Swallow, 829 S.W.2d at 225, 227 n.2. The complained-of
comment did not “naturally and necessarily” refer to Jennings’s failure to
testify; rather, the comment was equally likely a direct reference to testimony
from Jennings’s defense witnesses—testimony that Jennings did not express
any remorse to them. Caldwell, 818 S.W.2d at 800; see Thomas, 638 S.W.2d
at 485; Cooper, 959 S.W.2d at 686; see also Chimney v. State, 6 S.W.3d 681,
703 (Tex. App.—Waco 1999, pet. ref’d) (distinguishing prosecutor’s comment
that witnesses did not testify that defendant expressed remorse from comment
that defendant himself had no remorse and holding that former was not
comment on failure to testify). Although the comment might have called for
inadmissible testimony, it was not necessarily a reference to Jennings’s failure
12 to testify. See Thomas, 638 S.W.2d at 484–85; Cooper, 959 S.W.2d at 686.
Thus, viewing the State’s comment from the jury’s standpoint, we hold that the
comment was not manifestly intended or of such a character that the jury
naturally and necessarily would have considered it to be a comment on
Jennings’s failure to testify. See Bustamante, 48 S.W.3d at 765; Fuentes, 991
S.W.2d at 275; Thomas, 638 S.W.2d at 485–86.
Alternatively, even if the trial court erred by overruling Jennings’s
objection to the State’s comment, we conclude that any error was harmless.
See Tex. R. App. P. 44.2(a); see Wimbrey v. State, 106 S.W.3d 190, 192
(Tex. App.—Fort Worth 2003, pet. ref’d). Under Texas Rule of Appellate
Procedure 44.2(a), upon determining constitutional error exists, we should
reverse unless we determine beyond a reasonable doubt that the error did not
contribute to the defendants conviction or punishment. See Tex. R. App. P.
44.2(a). Our primary inquiry is what effect the error had, or reasonably may
have had, on the jury’s decision. Wimbrey, 106 S.W.3d at 192. “We consider
the source and nature of the error, the extent that it was emphasized by the
State, its probable collateral implications, the weight a juror would probably
place on the error, and whether declaring it harmless would likely encourage the
State to repeat it with impunity.” Harris v. State, 790 S.W.2d 568, 587 (Tex.
Crim. App. 1989).
13 As we explained above, the complained-of comment was, at most, an
indirect comment on Jennings’s failure to testify, and a review of the State’s
entire argument reveals that the comment referred to testimony elicited from
Jennings’s five defense witnesses that Jennings had not expressed remorse to
them. See Harris, 790 S.W.2d at 587; Cooper, 959 S.W.2d at 686. Our
neutral, impartial review of the record further demonstrates that the comment
was a small part of the State’s argument and was not emphasized or mentioned
again and that a juror would probably not attribute much, if any, weight to the
error. See Harris, 790 S.W.2d at 587. Although the trial court overruled
Jennings’s objection, the court read its charge on punishment to the jury prior
to closing arguments. The charge included an instruction not to consider
Jennings’s failure to testify, and the jury is presumed to follow these
instructions. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App.
After carefully reviewing the record and performing the harm analysis
required under rule 44.2(a), we alternatively hold that if the trial court erred by
overruling Jennings’s objection to the comment at issue then beyond a
reasonable doubt such error did not contribute to Jennings’s conviction or
punishment. See Tex. R. App. P. 44.2(a). We overrule Jennings’s second
point.
14 V. J URY C HARGE ON P UNISHMENT
In his third point, Jennings argues that the trial court erred by overruling
his objection to the portion of the jury charge on punishment concerning the
possibility that he could receive good conduct time while in prison.3 Jennings
acknowledges that this instruction tracked article 37.07, section 4(b) of the
Texas Code of Criminal Procedure, but he argues that the instruction is
erroneous and unconstitutional as applied to him because he was ineligible to
receive good conduct time credit. See Tex. Code Crim. Proc. Ann. art. 37.07,
§ 4 (Vernon Supp. 2008) (requiring jury instruction during the punishment
phase to inform jury of existence and mechanics of parole law and good
conduct time). Jennings also acknowledges that the court of criminal appeals
has directly addressed this issue and found no violation of due process. See
3 … Specifically, Jennings complains of the following instruction: “Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time.” Defense counsel objected, “This is a 3G offense, Your Honor, and good conduct time is not allowed. And so [Jennings] can’t earn good conduct time, and yet the Court is telling him that he can. We would object to that as being a violation of due process and equal protection . . . .“ See Tex. Gov’t Code § 508.145(d) (Vernon Supp. 2008) (prohibiting release on mandatory supervision if inmate is convicted of those offenses listed in art. 42.12, § 3g(a)(1), which are the same offenses for which the section 4(a) jury instruction is required); Tex. Code. Crim. Proc. Ann. art 42.12, § 3(g) (Vernon Supp. 2008) (listing aggravated sexual assault and indecency with a child).
15 Luquis v. State, 72 S.W.3d 355, 363–64 (Tex. Crim. App. 2002). He
contends, however, that he brings his complaint “to preserve the issue for
review.”
In Luquis, the court of criminal appeals acknowledged that the instruction
dictated by the code of criminal procedure may appear to be misleading and
inapplicable to some defendants. Id. at 363. Nevertheless, it construed article
37.07, section 4(b) of the code of criminal procedure to be an absolute
command that the good conduct time instruction be given to the jury. Id.
Accordingly, a trial judge who gives the instruction does not commit error. Id.
The court also held that the required instruction as a whole is not so misleading
as to deny a defendant due process. Id. at 368.
This court is bound by the precedent of the Texas Court of Criminal
Appeals and has no authority to disregard or overrule it. Sierra v. State, 157
S.W.3d 52, 60 (Tex. App.— Fort W orth 2004), aff’d, 218 S.W.3d 85 (Tex.
Crim. App. 2007). Accordingly, following Luquis, we hold that the trial court
did not err by overruling Jennings’s objection to that portion of jury charge on
punishment regarding good conduct time. See Luquis, 72 S.W.3d at 363, 368;
see also Sanders v. State, 255 S.W.3d 754, 765–66 (Tex. App.—Fort Worth
2008, pet. ref’d) (following Luquis and noting that in Cagle v. State, 23 S.W.3d
590, 594 (Tex. App.—Fort Worth 2000, pet. ref’d), our court also determined
16 that a jury charge like the one here does not violate a defendant’s due process
rights). We overrule Jennings’s third point.
VI. C ONCLUSION
Having overruled Jennings’s three points, we affirm the trial court’s
judgment.
SUE WALKER JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: June 4, 2009