In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-19-00260-CR ___________________________
GILBERT ANGEL ESCOBEDO, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1 Tarrant County, Texas Trial Court No. 1597841R
Before Gabriel, Kerr, and Birdwell, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
Gilbert Angel Escobedo was convicted of one count of aggravated sexual
assault of a child and three counts of indecency with a child by contact. Escobedo
raises two points on appeal: (1) whether two of his four convictions—for aggravated
sexual assault by using his finger to penetrate S.C.’s1 sexual organ and for indecency
by touching S.C.’s genitals—punish him twice for the same criminal act in violation of
the Double Jeopardy Clause; and (2) whether the trial court violated Escobedo’s rights
under the Due Process and Due Course of Law Clauses by giving the jury a partially
inapplicable but statutorily mandated jury instruction regarding good-conduct time.
We affirm.
I. Background
This case arises from an outcry of sexual abuse made by then-12-year-old S.C.
against Escobedo.
Escobedo was the longtime live-in boyfriend of S.C.’s great-aunt and guardian,
N.N.2 After running away from N.N.’s home, S.C. was taken to a Child Protective
Services office where she reported Escobedo’s sexual abuse. At trial, the State offered
1 We redact the complainant’s name under Texas Rule of Appellate Procedure 9.10(a)(3). 2 S.C.’s familial relationship with N.N. is complex. Child Protective Services placed S.C. and two of her maternal half-siblings, A.R. and J.Y., with N.N. when S.C. was two years old. N.N. is both S.C.’s great-aunt (the sister of S.C.’s paternal grandfather) and the paternal grandmother of S.C.’s half-sibling, J.Y. Put another way, S.C.’s father is N.N.’s nephew, while J.Y.’s father is N.N.’s son.
2 evidence that Escobedo performed multiple inappropriate sexual acts with S.C.,
including sucking and kissing her breasts; causing her to stroke his penis until he
ejaculated; inserting his fingers into her vagina; and touching, squeezing, and fondling
her genitals. S.C. testified that Escobedo performed these acts nearly every day when
she was six to twelve years old—“about 1,800 times.” Theresa Fugate, S.C.’s sexual
assault nurse, testified S.C. reported that Escobedo touched her “a lot” from ages ten
to twelve and that the touching included “multiple acts of him inserting his finger into
her vagina or her female sexual organ, as well as just touching her vagina.” Lindsey
Dula, who conducted S.C.’s forensic interview, also testified that S.C. said Escobedo
had “touched her vagina” and “penetrated her vagina with his finger.” Escobedo
testified in his own defense and denied ever inappropriately touching S.C.
A grand jury indicted Escobedo and the State tried him for one count of
continuous sexual abuse of a child, one count of aggravated sexual assault of a child
by penetrating S.C.’s sexual organ with his finger, and three counts of indecency with
a child for (1) causing S.C. to touch his genitals, (2) touching S.C.’s genitals, and
(3) touching S.C.’s breast. Tex. Penal Code Ann. §§ 21.11(a)(1), (d), 22.021(a)(2)(B),
(e). The jury found Escobedo not guilty of continuous sexual abuse of a child but
guilty of aggravated sexual assault of a child and guilty on all three counts of
indecency with a child.
Punishment was then tried to the jury. The court’s punishment charge included
an instruction regarding parole and good-conduct time that was substantially similar
3 to that set forth in Article 37.07, Section 4(a) of the Code of Criminal Procedure. Tex.
Code Crim. Proc. Ann. art. 37.07, § 4(a) (amended 2019). 3 The jury returned the
maximum prison sentence for each offense—life in prison for aggravated sexual
assault and 20 years’ confinement for each count of indecency. Tex. Penal Code Ann.
§§ 12.32(a), 12.33(a), 21.11(a)(1), (d), 22.021(a)(2)(B), (e). The trial court sentenced
Escobedo in accordance with the jury’s verdict and ordered that his sentences run
concurrently.
II. Discussion
Escobedo raises two points on appeal: (1) whether his conviction for indecency
by touching S.C.’s genitals was factually subsumed within his conviction for
aggravated sexual assault by penetrating S.C.’s sexual organ, thereby punishing him
twice for the same offense in violation of the federal Double Jeopardy Clause; and
(2) whether the trial court violated Escobedo’s rights to due process and due course
of law by instructing the jury regarding good-conduct time using the partially
inapplicable instruction set forth in Article 37.07, Section 4(a) of the Texas Code of
Criminal Procedure.
3 All citations to Article 37.07, Section 4(a) of the Texas Code of Criminal Procedure refer to the version in effect when Escobedo was sentenced on June 26, 2019. Article 37.07, Section 4(a) has since been amended, effective September 1, 2019. See Act approved May 28, 2019, 86th Leg., R.S., ch. 260, § 1 (H.B. 1279) (codified at Tex. Code Crim. Proc. Ann. art. 37.07, § 4).
4 A. Double Jeopardy
In his first point, Escobedo argues that two of his four convictions—his
convictions for aggravated sexual assault of a child by penetrating S.C.’s sexual organ
with his finger and for indecency with a child by touching S.C.’s genitals—violate the
federal Double Jeopardy Clause by punishing him twice for the same conduct.4 U.S.
Const. amends. V, XIV. Escobedo concedes that he failed to raise this issue before
the trial court. Consequently, Escobedo can raise his unpreserved double-jeopardy
claim for the first time on appeal only if (1) the undisputed facts show a double-
jeopardy violation clearly apparent on the face of the record; and (2) enforcing the
usual procedural-default rules serves no legitimate state interests. Gonzalez v. State,
8 S.W.3d 640, 643 (Tex. Crim. App. 2000); Cabral v. State, 170 S.W.3d 761, 764 (Tex.
App.—Fort Worth 2005, pet. ref’d) (mem. op.).
The Double Jeopardy Clause of the Fifth Amendment, made applicable to the
states through the Fourteenth Amendment, protects a defendant from, among other
things, multiple punishments for the same offense. U.S. Const. amends. V, XIV;
Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); Bien v. State, 550 S.W.3d
180, 184 (Tex. Crim. App. 2018), cert. denied, 139 S. Ct. 646 (2018); Ex parte Benson,
459 S.W.3d 67, 71 (Tex. Crim. App. 2015).
4 Escobedo does not raise a double-jeopardy challenge under the Texas Constitution.
5 To determine whether two offenses are the same for double-jeopardy
purposes, we first apply the “elements” test set forth in Blockburger, informed by the
cognate-pleadings approach. Bien, 550 S.W.3d at 184 (referring to Blockburger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932)); Bigon v. State, 252 S.W.3d 360,
370 (Tex. Crim. App. 2008). We then proceed to the “units” analysis to determine the
legislature’s intended unit of prosecution for the offenses at issue. Stevenson v. State,
499 S.W.3d 842, 850 (Tex. Crim. App. 2016); Benson, 459 S.W.3d at 73–74. The
Double Jeopardy Clause is not violated if the legislature intended for the offenses to
constitute separate allowable units of prosecution. Speights v. State, 464 S.W.3d 719,
722 (Tex. Crim. App. 2015); Benson, 459 S.W.3d at 73; see also Collins v. State, No. 02-
16-00146-CR, 2017 WL 119486, at *3 (Tex. App.—Fort Worth Jan. 12, 2017, pet.
ref’d) (mem. op., not designated for publication). Where, as here, “two distinct
statutory provisions are at issue, the offenses must be considered the same under both
an ‘elements’ analysis and a ‘units’ analysis for a double-jeopardy violation to occur.”
Benson, 459 S.W.3d at 71.
The Texas Court of Criminal Appeals has held that “indecency with a child is a
lesser-included offense of aggravated sexual assault of a child when both offenses are
predicated on the same act.” Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App.
2009). But when the offenses are not predicated on the same act, each discrete
prohibited act is a separate unit of prosecution. Maldonado v. State, 461 S.W.3d 144,
150 (Tex. Crim. App. 2015). Thus, “[a] single count alleging sexual contact is not
6 subsumed by a count alleging penetration where there is evidence of multiple
incidents of both contact and penetration which could have formed the basis for each
count.” Id. Moreover, “[t]he fact that the jury’s verdict could have relied on a theory
that would violate the Double Jeopardy Clause[] is not sufficient to show a
constitutional ‘violation clearly apparent on the face of the record.’” Langs v. State,
183 S.W.3d 680, 687 (Tex. Crim. App. 2006) (quoting Gonzalez and holding no
double-jeopardy violation on the face of the record in the context of a disjunctive jury
charge); Gonzalez, 8 S.W.3d at 643–46 (holding no double-jeopardy violation on the
face of the record in the context of a disjunctive jury charge); see also Rodriguez v. State,
No. 02-14-00377-CR, 2015 WL 7717204, at *1 (Tex. App.—Fort Worth Nov. 25,
2015, pet. ref’d) (mem. op., not designated for publication) (quoting Langs and holding
no double-jeopardy violation on the face of the record when defendant was convicted
of aggravated sexual assault of a child by contacting the complainant’s sexual organ
with his sexual organ and indecency with a child by touching the complainant’s sexual
organ, but complainant testified to multiple occasions of touching).
Escobedo argues that the undisputed facts show a double-jeopardy violation on
the face of the record because his convictions for aggravated sexual assault and for
indecency by touching S.C.’s genitals were based on the same criminal act, and this
indecency charge was necessarily part of the commission of his aggravated sexual
assault charge. Specifically, Escobedo contends that he could not have “insert[ed] his
finger into the sexual organ of [S.C.]”—thereby committing aggravated sexual
7 assault—without incidentally “touching the genitals of [S.C.]”—thereby committing
indecency with a child by contact. Since both offenses were alleged to have occurred
“on or about the 1st day of January 2014,” Escobedo claims that the two convictions
were based on the same criminal act and punish him twice for the same conduct in
violation of the Double Jeopardy Clause. U.S. Const. amends. V, XIV. The State
responds by arguing that Escobedo committed numerous instances of sexual touching
and penetration over a six-year period, so the jury did not necessarily rely on the same,
singular act for both convictions.
The question is thus whether the undisputed facts show multiple instances of
Escobedo’s touching S.C.’s genitals or only one instance of his touching S.C.’s genitals
incident to the penetration of S.C.’s sexual organ. The record supports numerous
instances of touching and penetration; therefore, no double-jeopardy violation is
clearly apparent on the face of the record.
First, although Escobedo’s indictment alleges the commission of both relevant
offenses on the same date, “[i]t is well settled that the ‘on or about’ language of an
indictment allows the State to prove a date other than the one alleged in the
indictment as long as the date is anterior to the presentment of the indictment and
within the statutory limitation period.” Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim.
App. 1997); see also Cabral, 170 S.W.3d at 764 (applying same rule and citing Sledge).
The trial court instructed the jury that “the state is not bound by the specific date . . .
alleged in the indictment,” and the State emphasized as much in its closing argument.
8 We thus attach no significance to the fact that the indictment alleged both offenses to
have occurred “on or about” the same date.
Examining the entirety of the time period at issue, the record is replete with
evidence that Escobedo touched, squeezed, fondled, and penetrated S.C.’s genitals
with his finger on numerous occasions over a multi-year period. Indeed, S.C. testified
that Escobedo used his fingers to touch her “everywhere”—including her “front
part”—“mostly every day” when she was six to twelve years old. And S.C.’s sexual-
assault nurse and forensic interviewer both testified that S.C. had reported multiple,
separate instances of Escobedo’s touching and penetrating her sexual organ with his
finger.
In a case involving similar facts, Maldonado v. State,5 the Court of Criminal
Appeals found no double-jeopardy violation. 461 S.W.3d at 150. There, Maldonado
was convicted of aggravated sexual assault of a child by penetrating her sexual organ
Escobedo urges us to follow Evans v. State and Ochoa v. State, rather than 5
Maldonado. See Evans, 299 S.W.3d at 139; Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998). In both Evans and Ochoa, the Court of Criminal Appeals held that the defendants’ double-jeopardy rights were violated by dual convictions for indecency with a child and aggravated sexual assault of a child. Evans, 299 S.W.3d at 139; Ochoa, 982 S.W.2d at 908. But in both cases, the record supported a single episode of criminal conduct on a single day. See Evans, 299 S.W.3d at 140 n.4 (reciting the facts of the case, in which complainant testified to a single incident while spending the night with family friends and awoke to find an intoxicated Evans with his teeth on the complainant’s “private[s]”); Ochoa, 982 S.W.2d at 907 (“[T]he State presented evidence of only one sexual offense committed by appellant against C.O. on June 16, 1994. C.O. did not testify that appellant touched her more than one time on that day.”). The record in this case contains evidence of multiple incidents of touching and penetration over the course of multiple years. Evans and Ochoa are not on point.
9 with his finger and indecency with a child by touching her sexual organ, both alleged
to have occurred against the same complainant “on or about” the same date. Id. at
146. The complainant testified that Maldonado abused her between three and five
times per week when she was eight to thirteen years old. Id. When Maldonado raised a
double-jeopardy challenge, the court held that, because “there were many separate
acts of both contact and penetration,” and “[b]ecause the focus of sex offenses is the
prohibited conduct and the legislature intended to allow separate punishments for
each prohibited act, the multiple convictions do not violate the Double Jeopardy
Clause.” Id. at 150; see also Cabral, 170 S.W.3d at 764–65 (holding no double-jeopardy
violation and that Cabral’s conviction for indecency with a child by exposure was not
factually subsumed within his conviction for aggravated sexual assault because,
although Cabral’s indictment alleged that the acts occurred on or about the same date,
the complainant testified to two distinct acts of abuse on two distinct occasions).
The same rationale applies here. Because the record contains evidence of
multiple, discrete instances of both touching and penetration anterior to the
indictment and within the limitations period, the face of the record does not clearly
indicate that Escobedo’s indecency and aggravated-sexual-assault convictions were
based on the same criminal act. Therefore, no double-jeopardy violation is apparent
on the face of the record, and Escobedo cannot raise his double-jeopardy claim for
the first time on appeal. See Langs, 183 S.W.3d at 687; Gonzalez, 8 S.W.3d at 643;
Cabral, 170 S.W.3d at 764. We overrule Escobedo’s first point.
10 B. Jury Instruction
Escobedo next argues that the trial court violated his rights under the federal
Due Process Clause and Texas Due Course of Law Clause6 by instructing the jury
regarding good-conduct time, even though he is not eligible for early release based on
good-conduct time due to the nature of his offenses.7 See U.S. Const. amends. V,
XIV; Tex. Const. art. I, §§ 13, 19; Tex. Code Crim. Proc. Ann. art. 42A.054(a)(7), (9);
Tex. Gov’t Code Ann. §§ 508.145(d), 508.149(a)(5), (8). Again, Escobedo
acknowledges that he did not raise this issue at trial.
We must review “all alleged jury-charge error . . . regardless of preservation in
the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Review of
an alleged charge error is a two-step process; we first determine whether the jury
6 Escobedo does not distinguish between the alleged violation of his right to due process under the United States Constitution and the alleged violation of his right to due course of law under the Texas Constitution. See U.S. Const. amends. V, XIV; Tex. Const. art. I, §§ 13, 19. We treat them the same in this context. See Luquis v. State, 72 S.W.3d 355, 364 (Tex. Crim. App. 2002) (treating due-process and due-course-of- law challenges the same in context of similar challenge to Section 4(a) instruction, where the appellant similarly failed to distinguish between the two alleged constitutional violations); McCambridge v. State, 712 S.W.2d 499, 502 n.9 (Tex. Crim. App. 1986) (“Attorneys, when briefing constitutional questions, should carefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground.”). 7 Escobedo further claims that he is ineligible to accumulate good-conduct time at all. But this is not the case; Escobedo can, in fact, accumulate good-conduct time. See Tex. Gov’t Code Ann. § 498.003. Although such time cannot result in Escobedo’s release on mandatory supervision, it can confer other benefits. See Luquis, 72 S.W.3d at 360 n.4 (discussing the accrual and benefits of good-conduct time).
11 instruction is erroneous, then we analyze the error for harm. Id. If the charge is not
erroneous, our analysis ends. Id. Here, Escobedo cannot show error.
Generally, Article 36.14 of the Texas Code of Criminal Procedure directs a trial
court to instruct the jury on “the law applicable to the case.” Tex. Code Crim. Proc.
Ann. art. 36.14. But the jury instruction at issue was specifically required under Article
37.07, Section 4(a) of the Texas Code of Criminal Procedure. Id. art. 37.07, § 4(a).
This provision sets out a lengthy jury instruction regarding parole and good-conduct
time, and it requires trial courts to give the instruction when a defendant is being
sentenced by a jury for an offense listed in Article 42A.054(a).8 Id. It is undisputed
that Escobedo’s offenses are among those listed in Article 42A.054(a) and that the
trial court instructed the jury using language nearly identical to that in Article 37.07,
Section 4(a).9 Id.; see also id. art. 42A.054(a)(7), (9).
8 Until 2017, Article 42A.054(a) was codified at Section 3g, Article 42.12 of the Code of Criminal Procedure. See Act of May 26, 2015, 84th Leg., R.S., ch. 770, §§ 1.01, 3.01, 2015 Tex. Gen. Laws 2321, 2321–65, 2395 (H.B. 2299) (eff. Jan. 1, 2017) (enacting nonsubstantive revisions of certain community-supervision laws, including the addition of Chapter 42A and repeal of Article 42.12). Consequently, the offenses listed in Article 42A.054(a) are often referred to as “3g” offenses. 9 The trial court’s punishment charge omitted the phrase “if sentenced to a term of imprisonment” from the first line of the Section 4(a) instruction; changed multiple statutory references to “the defendant” to “he”; and added the words “he is” to the second-to-last paragraph of the instruction to form the phrase “ . . . might be applied to this defendant if he is sentenced to a term of imprisonment . . . ” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a). The Texas Court of Criminal Appeals has discouraged any deviations from the verbatim language dictated in Section 4(a). See Luquis, 72 S.W.3d at 363 (“There are even quotation marks around the wording of the instruction. That is at least some indication that the Legislature did not want any
12 In Luquis v. State. the Court of Criminal Appeals held that the Section 4(a)
instruction is mandatory and constitutional—even when the defendant is not eligible
for early release based on good-conduct time. 72 S.W.3d at 363–68. Indeed, the court
recognized that “no defendant whose punishment charge properly includes the
language set out in art. 37.07, § 4(a) is eligible for release on mandatory supervision”
based on good-conduct time; rather, the instruction’s discussion of good-conduct
time is a remnant of outdated parole law.10 Id. at 365 n.25. Nonetheless, a trial court is
“not free to ignore [the] explicit legislative directions” in Section 4(a), and a court
neither errs nor violates a defendant’s rights to due process and due course of law by
including the partially inapplicable Section 4(a) instruction in the jury charge. Id. at
363–68.
Escobedo acknowledges, as he must, that the allegedly erroneous Section 4(a)
instruction was statutorily required and that the Court of Criminal Appeals rejected
similar constitutional challenges to the instruction in Luquis. Id. at 362–68. He raises
the issue to “advocate for a change or reversal in the law and to preserve the issue for
further review.” But we are not free to ignore on-point holdings from the Court of
creative deviations from its chosen language.”). Nonetheless, Escobedo did not object to the discrepancy at trial, nor has he raised the issue on appeal. 10 The 86th Session of the Texas Legislature amended Article 37.07 in 2019 to remove the inapplicable, challenged portions of Section 4(a) regarding good-conduct time. Act approved May 28, 2019, 86th Leg., R.S., ch. 260, § 1 (H.B. 1279) (codified at Tex. Code Crim. Proc. Ann. art. 37.07, § 4). The amendments apply to defendants sentenced on or after September 1, 2019. Id. §§ 2–3.
13 Criminal Appeals. Knight v. State, 504 S.W.3d 524, 532 (Tex. App.—Fort Worth 2016,
pet. ref’d) (overruling similar argument regarding Article 37.07, § 4(a) and following
Luquis); see also Flores v. State, No. 02-17-00114-CR, 2018 WL 1528262, at *2 n.4 (Tex.
App.—Fort Worth Mar. 29, 2018, pet. ref’d) (mem. op., not designated for
publication) (listing seven additional cases in which this court overruled the same
argument and followed Luquis). Thus, in accordance with Luquis, we overrule
Escobedo’s second point.
III. Conclusion
Having overruled both of Escobedo’s points, we affirm the trial court’s
judgments.
/s/ Elizabeth Kerr Elizabeth Kerr Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: November 19, 2020