Hendrix, William Curtis v. State

• Court: Court of Appeals of Texas
• Decided: November 16, 2004
• Docket: 14-03-00953-CR
• Status: Published

Opinion

Affirmed in part and Reversed and Remanded in part; Majority and Concurring Opinions filed November 16, 2004

Affirmed in part and Reversed and Remanded in part; Majority and Concurring Opinions filed November 16, 2004.

In The

Fourteenth Court of Appeals

____________

NOS. 14-03-00950-CR

          14-03-00951-CR

          14-03-00952-CR

          14-03-00953-CR

          14-03-00954-CR

WILLIAM CURTIS HENDRIX, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause Nos. 955262, 955263, 955264, 955265, 955266

M A J O R I T Y  O P I N I O N

Appellant William Curtis Hendrix was charged with aggravated sexual assault in five cases consolidated for trial.  Three cases (trial court cause numbers 955262, 955263, and 955264) involved acts alleged against M.S.; two cases (trial court cause numbers 955265 and 955266) involved acts alleged against B.S.  A jury found appellant guilty as charged in all five cases and assessed punishment at life imprisonment in each case.  The trial court ordered the sentences to run consecutively.

Appellant raises four points of error on appeal, arguing the trial court erred by (1) charging separate offenses in the disjunctive (point of error one); (2) failing to charge the jury on the lesser included offenses of indecency with a child by exposure and by contact (points of error two and three), and (3) cumulating appellant=s sentences absent proof the convictions were for offenses occurring on or after September 1, 1997 (point of error four).  We overrule points of error two, three, and four, and part of point of error one; we sustain point of error one as it relates to cause number 955264.  Accordingly, we (1) affirm the judgments in trial court cause numbers 955262, 955263, 955265, and 955266; and (2) reverse the judgment of the trial court in cause number 955264 and remand that cause for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

M.S. and B.S. are the minor children of Alfred S., Jr.^[1]  In 1995, Alfred separated from the children=s mother, and B.S., his son, moved in with Alfred.  M.S., his daughter, continued to live with her mother.  In 1997, Alfred filed for divorce, and M.S. moved in with Alfred and B.S.

Alfred characterized appellant, ABill,@ as Athe best friend of the family for a long time@ who was like a Abig brother@ to him.  Alfred shared a residence with appellant on two occasions.  The first time was in 1997, when Alfred and B.S. stayed in appellant=s apartment.  The second time was in 1999, when appellant came to live with Alfred, M.S., and B.S., in a house on Burr Street that Alfred inherited when his father passed away in 1998.  There was a period of about five months when Alfred and M.S. were living with Alfred=s girlfriend at a different location, and, during this time, B.S. lived alone with appellant in the house on Burr Street.  According to B.S., he and appellant slept in the same bed during that time.  Later, when Alfred and M.S. moved back into the house on Burr Street, M.S. began sleeping in the bed with appellant, and B.S. slept on the floor.

On August 29, 2002, Alfred, B.S., and M.S. were visiting Alfred=s stepmother, Debbie.  M.S. was upset and asked Debbie=s fifteen-year-old daughter to talk with her in private.  After hearing what M.S. had to say, Debbie=s daughter told the adults what M.S. had said, and Debbie then talked with M.S.  M.S. told Debbie appellant had molested her and also talked about other things that appellant had done to her.  Debbie observed some bruises on M.S. and that her vaginal area looked irritated.  When Debbie told M.S. that Debbie had to tell Alfred, M.S. became hysterical, begging Debbie not to tell because appellant had threatened M.S. that, if she told, he would shoot Alfred, and CPS would take M.S. away.

After Debbie told Alfred what M.S. had said, Alfred asked M.S. what had happened.  M.S. replied, AHe touched me, dad.@  Alfred then took M.S. to the police station.  From the police station, they went to Texas Children=s Hospital, where Dr. Kathleen Ferrer conducted a sexual assault examination of M.S. the following day.

Dr. Ferrer found bruises, in different stages of healing, on M.S.=s buttocks and left leg.  The genital examination did not reveal bruising, redness, tears, or lacerations, and the hymenal ring was intact.  A visual examination of M.S.=s anus did not reveal any abnormal findings.  M.S. told Dr. Ferrer that it had been about a week or so since the last time she was sexually assaulted.  At the hospital, M.S. also told a pediatric emergency room physician that ABill@ was the assailant and the Alast contact@ had been a week ago.

After M.S.=s outcry, she and B.S. were placed in foster care.  In October 2002, their uncle, Marcus S., became their temporary legal guardian.  At that point in time, B.S. had not disclosed that appellant had sexually assaulted him.  In late November 2002, Marcus took M.S. and B.S. to see a counselor, and, toward the end of the intake session when the psychologist asked B.S. whether he had been sexually abused, B.S. said, Ayes.@  The psychologist knew who the perpetrator was from talking with M.S.  When he asked B.S. if he did the same thing to him, B.S. said, Ayes.@  The day after B.S. met with the psychologist, B.S. disclosed the sexual abuse to Marcus.  Marcus contacted Child Protective Services, who, in turn, contacted the police department.

On February 11, 2003, Dr. Sheela Lahoti, a pediatrician at the Children=s Assessment Center, examined B.S.  B.S. told Dr. Lahoti ABill@ had touched his whole body with his hands and Aprivate@ and, specifically, that B.S.=s buttocks, mouth, and back were touched with appellant=s Aprivate.@  B.S. told Lahoti that he did not know how many times this had occurred, but the last time was in 2001.  B.S. stated the contact hurt, but he did not bleed.  The only abnormality Dr. Lahoti observed was some mild redness around the anus.

On July 15, 2003, the grand jury returned five indictments containing charges against appellant summarized as follows:

Trial Court Cause No. 955262

On or about August 15, 2002, appellant caused the penetration of the anus of M.S. by placing his sexual organ in the anus of M.S.;

On or about August 15, 2002, appellant caused the anus of M.S. to contact the sexual organ of appellant.

Trial Court Cause No.  955263

On or about August 15, 2002, appellant caused the penetration of the mouth of M.S. with the sexual organ of appellant;

On or about August 15, 2002, appellant caused the mouth of M.S. to contact the sexual organ of appellant.

Trial Court Cause No. 955264

On or about August 15, 2002, appellant caused the penetration of the female sexual organ of M.S. by placing his sexual organ in the female sexual organ of M.S.;

On about August 15, 2002, appellant caused the penetration of the female sexual organ of M.S. by placing his finger in the female sexual organ of M.S.;

On or about August 15, 2002, appellant caused the sexual organ of M.S. to contact the sexual organ of appellant.

Trial Court Cause No. 955265

On or about August 3, 1997, appellant caused the penetration of the anus of B.S. by placing his sexual organ in the anus of B.S.;

On or about August 3, 1997, appellant caused the anus of B.S. to contact the sexual organ of appellant.

Trial Court Cause No. 955266

On or about August 3, 1997, appellant caused the penetration of the mouth of B.S. with the sexual organ of appellant;

On or about August 3, 1997, appellant caused the mouth of B.S. to contact the sexual organ of appellant.

Appellant pleaded not guilty in each cause, and the five causes were tried together to a jury.  At trial, the State presented testimony from the following witnesses:  (1) Dr. Ferrer, who conducted the initial sexual assault examination of M.S.; (2) Officers Stacy Romano and Blake Present, who handled M.S.=s complaint of alleged sexual abuse; (3) M.S.; (4) Debbie S.; (5) Tiffany G., the outcry witness for M.S.; (6) Ellen Taft, a nurse who performed a sexual assault examination of M.S.; (7) Officer Matthew Dexter, who investigated the sexual abuse allegations of B.S.; (8) B.S.; (9) Alfred; (10) Frank M., Alfred=s brother-in-law; (11) Mary M., M.S. and B.S.=s nine-year-old cousin; (12) Marcus S.; (13) Dr. Lahoti, the pediatrician who examined B.S.; (14) Daniel Sanders and Audrey King, psychologists; and (15) Judy Rambur, a psychologist at the Children=s Assessment Center.  The defense presented the testimony of Virginia Hendrix, appellant=s mother, and Reagan Martinez, appellant=s uncle.

All five causes were submitted to the jury in the same charge.  For each cause number, the trial court set forth the allegations in the disjunctive.^[2]  Appellant requested that the court submit lesser included offenses of indecency with a child by contact and by exposure for each cause number.  The trial court submitted the lesser included offense of indecency by contact in cause number 955264, but denied appellant=s request to submit the lesser included offenses in the remaining four causes.

The jury found appellant guilty as charged in all five causes and assessed punishment at life imprisonment in each cause.  The trial court ordered each of the sentences to run consecutively.

DISCUSSION

Point of Error One: Disjunctive Jury Charge

In his first point of error, appellant contends the trial court erred in charging the jury in the disjunctive for each cause number.  He contends the charge submitted permitted the jury to convict him without reaching a consensus as to which paragraph of the indictment the State had proven beyond a reasonable doubt, resulting in a less than unanimous verdict.

Texas law requires a unanimous jury verdict in felony criminal cases.  Tex. Const., art. V, ' 13; Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2004); see also Molandes v. State, 571 S.W.2d 3, 4 (Tex. Crim. App. 1978) (discussing constitutional right to unanimous verdict in felony cases); Phillips v. State, 130 S.W.3d 343, 351B52 & nn.6B7 (Tex. App.CHouston [14th Dist.] 2004, pet. filed) (noting right to unanimous verdict is found in the Texas Constitution). Generally, instructing the jury on alternative theories of committing the same offense does not violate the unanimity requirement.  Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).  Charging on alternative theories, however, differs from charging on separate offenses involving separate incidents.  Martinez, 129 S.W.3d at 103.  The latter runs afoul of the unanimity requirement.  See Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000) (holding that instances of indecency with a child constituted separate offenses against the same victim, and it was impermissible to charge the jury in the disjunctive).

Appellant contends the jury charge for each cause alleged separate offenses in the disjunctive and not alternative theories of committing the same offense.  In support he relies on three cases:   Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999); Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000); and In re M.P., 126 S.W.3d 228 (Tex. App.CSan Antonio 2003, no pet.).  We begin our analysis of the alleged charge error by examining these three cases.

In Vick, in the context of deciding a double jeopardy question, the Texas Court of Criminal Appeals concluded that the Legislature intended each separately described act proscribed by Penal Code section 22.021 to constitute a separate statutory offense.  991 S.W.2d at 832-33.   Section 22.021 provides in relevant part:

(a) A person commits an offense:

(1) if the person:                                               . . .         

(B) intentionally or knowingly:

   (I) causes the penetration of the anus or sexual organ of a child by any means;

   (ii) causes the penetration of the mouth of a child by the sexual organ of the actor;

   (iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

  (iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor;  or

   (v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor;  and

(2) if:

                                                        . . .

(B) the victim is younger than 14 years of age. . . .

Tex. Pen. Code Ann. ' 22.021(a) (Vernon Supp. 2004).

In reaching the conclusion that section 22.021 describes separate offenses, the Texas Court of Criminal Appeals reasoned:

Article 22.021 is a conduct‑oriented offense in which the legislature criminalized very specific conduct of several different types.  Also, the statute expressly and impliedly separates the sections by Aor,@ which is some indication that any one of the proscribed conduct provisions constitutes an offense.  A more compelling demonstration of legislative intent is reflected in the specific conduct prohibited in the four sections applicable to this case.  Section (i) prohibits penetration of a male or female child=s anus or the sexual organ of a female child.  The focus is on penetration of the child=s genital area.  Somewhat related is section (ii), which prohibits penetration of the child=s mouth by the defendant=s sexual organ.  Both section (i) and section (ii) concern penetration of the child, one focusing on the genital area, and the other on the mouth.  In contrast, sections (iii) and (iv) address penetration and contact of another in a sexual fashion, by the sexual organ or anus of the child.  The statute criminalizes many types of sexually assaultive conduct with a child.  Yet, each section usually entails different and separate acts to commit the various, prohibited conduct.  This specificity reflects the legislature=s intent to separately and distinctly criminalize any act which constitutes the proscribed conduct.  An offense is complete when a person commits any one of the proscribed acts.  In sum, Sec. 22.021 is a conduct‑oriented statute;  it uses the conjunctive Aor@ to distinguish and separate different conduct;  and its various sections specifically define sexual conduct in ways that usually require different and distinct acts to commit.  These considerations lead us to conclude that the Legislature intended that each separately described conduct constitutes a separate statutory offense.

Vick, 991 S.W.2d at 832B33.^[3]

In Francis, the defendant was charged with one count of indecency with a child in a single paragraph indictment.^[4]  36 S.W.3d at 122.  The State presented evidence of four distinct acts of indecency with a child, two acts of touching the victim=s breasts and two acts of touching the victim=s genitals, with each act occurring at a different date and time.  Id.  The State elected to pursue a conviction based on two separate incidents, one involving touching the victim=s breasts and one involving touching the victim=s genitals.  The jury charge inquired whether the defendant engaged Ain sexual contact by touching the breast or genitals.@  Id. at 124.  The Francis court found two separate offenses were submitted erroneously to the jury in the disjunctive.  Id. at 125.  ABy doing so, it is possible that six members of the jury convicted appellant on the breast‑touching offense (while the other six believed he was innocent of the breast‑touching) and six members convicted appellant on the genital‑touching offense (while the other six believed he was innocent of the genital‑touching).@  Id.

In re M.P., the final case cited by appellant, involves a challenge to the jury charge in an aggravated sexual assault case.  126 S.W.3d at 231.  In M.P., the juvenile defendant was charged with a single offense, and, as described by the appellate court, the jury charge contained the following paragraphs:

Paragraph A:         M.P. caused the penetration of the mouth of M.R. by placing his sexual organ in M.R.=s mouth, or

Paragraph B: M.P. caused the mouth of M.R. to contact his sexual organ, or

Paragraph C: M.P. caused the anus of M.R. to contact his sexual organ, or

Paragraph D:         M.P. caused the sexual organ of M.R. to contact his sexual organ.

Id. at 229B30.  Relying on Vick and Francis, the San Antonio Court of Appeals held the trial court erred by submitting the charge in the disjunctive because Aby submitting these offenses in the disjunctive it is possible that some jurors chose to find M.P. guilty of one of the offenses and some jurors chose another offense and still others another.@  Id. at 231.

In this case, appellant was charged with five separate indictments in five separate cause numbers.  With the exception of trial court cause number 955264, the charges submitted for the four other causes contained two alternatives: (1) causing penetration of a single body part of one victim by appellant=s sexual organ; or (2) causing the same body part of the same victim to contact appellant=s sexual organ.  The four charges did not require the jury to unanimously agree upon one of the two alternatives, penetration or contact, upon reaching its verdict. Thus, it is possible that some of the jurors could have found appellant guilty of penetration, and some of the jurors could have found appellant guilty of contact. 

However, with respect to cause numbers 955262, 955263, 955265, and 955266, the penetration alleged also necessarily included contact.  See Vick, 991 S.W.2d 830, 834 n.2 (stating Apenetration of the genitals necessarily includes contact@)  Therefore, in these four causes, the jury, at a minimum, unanimously found appellant guilty of contact.^[5]  We conclude that unlike Vick, Francis, and M.P., the charges submitted in cause numbers 955262, 955263, 955265, and 955266 did not deprive appellant of a unanimous verdict because all of the jurors who believed there was penetration necessarily also believed that antecedent contact had occurred, and a non-unanimous verdict was not possible.  Thus, there was no error implicating appellant=s right to a unanimous verdict in cause numbers 955262, 955263, 955265, and 966266.

Trial court cause number 955264, however, presents a different situation because in addition to being charged on the lesser included offense of indecency with a child by contact, the jury was charged it could find appellant guilty:

[I]f you find from the evidence beyond a reasonable doubt that on or about the 15th day of August 2002, in Harris County, Texas, the defendant did then and there unlawfully, intentionally or knowingly cause the penetration of the female sexual organ of [M.S.], a person younger than fourteen years of age and not the spouse of the defendant, by placing his sexual organ in the female sexual organ of [M.S.];

or

If you find from the evidence beyond a reasonable doubt that on or about the 15th day of August 2002, in Harris County, Texas, the defendant, did then and there unlawfully, intentionally or knowingly cause the penetration of the female sexual organ of [M.S.], a person younger than fourteen years of age and not the spouse of the defendant, by placing his finger in the female sexual organ of [M.S.];

If you find from the evidence beyond a reasonable doubt that on or about the 15th day of August 2002, in Harris County, Texas, the defendant did then and there unlawfully, intentionally or knowingly cause the sexual organ of [M.S.], a person younger than fourteen years of age and not the spouse of the defendant, to contact the sexual organ of the defendant;

then you will find the defendant guilty as charged in the indictment.

(Emphasis added.)

By submitting the above three offenses in the disjunctive, it is possible that some jurors found appellant guilty of digital penetration of M.S.=s sexual organ and other jurors chose to find appellant guilty of penetrating or contacting M.S.=s sexual organ with his sexual organ.  See Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(i), (iii); M.P., 126 S.W.3d at 230-31.  Unlike the other four charges describing penetration and contact by the same means, the charge in cause number 955264 disjunctively submits two distinct means of penetrating M.S.=s sexual organ, digital and genital, and sexual organ to sexual organ contact.^[6]  We conclude appellant was entitled to a unanimous jury verdict, and the trial court erred in submitting this charge in the disjunctive.  See id.; Midence v. State, 108 S.W.3d 564, 565 (Tex. App.CHouston [14th Dist.] 2003, no pet.). 

Harm Analysis

Having found error in the court=s charge, we must determine whether sufficient harm resulted from the error to require reversal.  Appellant concedes that he did not object to the jury charge, and, therefore, we may reverse only Aonly if the error is so egregious and created such harm that [appellant] >has not had a fair and impartial trial=Cin short >egregious harm.=@  Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).  An appellate court must examine the relevant portions of the entire record to determine whether appellant suffered any actual harm as a result of the error.  Hisey v. State, 129 S.W.3d 649, 653 (Tex. App.CHouston [14th Dist.] 2004, pet. granted).  We are to determine the actual degree of harm Ain light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.@  Almanza, 686 S.W.2d at 171. 

The Texas Constitution guarantees due course of law and provides that a defendant charged with a felony must be convicted by a unanimous jury. See Tex. Const. art. I, ' 19, art. V, ' 13; Tex. Code Crim. Proc. Ann. art. 36.29; see Kitchens, 823 S.W.2d at 258 n.2; Midence, 108 S.W.3d at 565; Hanson v. State, 55 S.W.3d 681, 693 (Tex. App.CAustin 2001, pet. ref=d).  The Texas Penal Code requires that Ano person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.@  Tex. Pen. Code Ann. ' 2.01 (Vernon 2003). 

The errors in the charge for cause number 955264 enabled the jury to possibly return a non-unanimous guilty verdict.  Because the erroneous charge made it possible for the jury to return a less than unanimous guilty verdict, we find the charge error was harmful.  See Clear v. State, 76 S.W.3d 622, 623-24 (Tex. App.CCorpus Christi 2002, no pet.) (holding submission of disjunctive charge instructing the jury to find the defendant guilty of aggravated sexual assault if it found that he either penetrated the child=s female sexual organ with his finger or penetrated or contacted it with his sexual organ constituted egregious harm because it deprived the defendant of his right to a unanimous jury verdict Ain that we cannot determine that the jury was unanimous in finding [the defendant] guilty of either penetration offense.@)

Accordingly, we sustain appellant=s first point of error as to trial court cause number 955264, and reverse the judgment of the trial court and remand cause number 955264 for further proceedings consistent with this opinion.  As to trial court cause numbers 955262, 955263, 955265, and 966266, we conclude there was no error and overrule appellant=s first point of error as to these four causes. 

Points of Error Two and Three: Refusal to Submit Lesser Included Offenses

In his second and third points of error, appellant challenges the trial court=s refusal to submit the lesser included offenses of indecency with a child by exposure and indecency with a child by contact.  Appellant requested that these lesser included offenses be submitted in each cause.  The court submitted indecency by contact in cause number 955264, in which digital and penile contact were charged in the disjunctive.  As to the remaining four causes, the trial court denied appellant=s request and responded, A[Y]ou can=t have a lesser of penile contact with anything.  That=s not indecency if it=s penile contact, that=s aggravated sexual assault.@ 

To determine whether a defendant is entitled to a lesser included offense instruction, a two-prong test applies: (1) the lesser included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense.  See Arevalo v. State, 970 S.W.2d 547, 548 (Tex. Crim. App. 1998); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.1993).  Indecency with a child may be a lesser included offense of aggravated sexual assault on a case-by-case basis.  See Cunningham v. State, 726 S.W.2d 151, 153 (Tex. Crim. App.1987).  AWhat must be decided in light of the offense charged and the facts proved is whether in this cause indecency with a child is a lesser included offense of the one alleged.@  Id. (citing Campbell v. State, 571 S.W.2d 161 (Tex. Crim. App. 1978)). 

Here, the first prong of the test is satisfied if the evidence at trial raises the issue that the defendant intended to arouse or gratify his sexual desire while in the course of committing the alleged penetration or contact.  See id. at 154B55;  see also Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998) (in context of double jeopardy case, stating a charge on the lesser included offense of indecency with a child, in addition to aggravated sexual assault, is required if the evidence at trial raised the issue that the defendant intended to arouse or gratify his sexual desire while in the course of committing the alleged penetration or contact).  In the present case, there is ample evidence from which a rational fact finder easily could infer that when appellant made sexual contact with the complainants, his conduct included an intent to arouse or gratify his own sexual desire.  See Cunningham, 726 S.W.2d at 154 (citing cases containing evidence comparable to evidence in present case).

          As to the second prong, for a defendant to be entitled to a lesser included offense instruction on indecency with a child, there must be some evidence in the record that would permit a jury rationally to find that, if the defendant is guilty, he is guilty only of indecency with a child.  See Rousseau, 855 S.W.2d at 673-75; Easter v. State, 867 S.W.2d 929, 941 (Tex. App.CWaco 1993, pet. ref=d).  This requirement may be satisfied (1) if evidence either affirmatively refutes or negates an element establishing the greater offense, or (2) the evidence on the issue is subject to two different interpretations, and one of the interpretations negates or rebuts an element of the greater.  Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996).  Anything more than a scintilla of evidence from any source is sufficient to entitle a defendant to submission of the issue, and this court may not consider whether the evidence is credible, controverted, or in conflict with other evidence.  See id. at 18; Havard v. State, 800 S.W.2d 195, 216 (Tex. Crim. App.1989); Upchurch v. State, 23 S.W.3d 536, 538 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d).  The Court of Criminal Appeals has stated:

It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense.  Rather, there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted.

Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997).

Appellant contends the following evidence permitted the jury to find appellant was guilty only of indecency by contact or by exposure: (1) medical testimony and records indicating normal physical examinations with no evidence of anal or oral penetration; (2) testimony by both children involving incidents lacking penetration, such as touching their anal or genital areas and masturbation in their presence; (3) a cousin=s testimony appellant touched B.S. and M.S. and that sometimes M.S. was clothed when the touching occurred; (4)  expert testimony that children often confuse penetration with mere rubbing or friction on their body parts; and (5) the children=s medical records containing numerous statements by the children that they had been touched on their sexual organs and anuses. 

The evidence cited by appellant is not inconsistent with and does not refute the evidence of aggravated sexual assault in this case.  B.S. and M.S. both testified that appellant penetrated their mouths and anuses with his sexual organ.  M.S. also testified that appellant penetrated her sexual organ with his sexual organ.  Their testimony is not subject to different interpretations.  The additional evidence cited by appellant showing that there also was inappropriate touching and masturbation does not negate or rebut the penetration element of the greater offense of aggravated sexual assault.

As to the expert testimony cited by appellant, there was medical testimony from experts stating that a normal exam was not inconsistent with the type of abuse about which B.S. and M.S. complained.  Additionally, the medical expert testimony that children may often confuse penetration with rubbing or friction does not rebut the specific testimony by M.S. and B.S. that appellant penetrated their mouths and anuses, and, in M.S.=s case, her sexual organ.

Although there may have been evidence to support appellant=s claim that he committed the lesser included offense of indecency, we find no conflict raised by the evidence that would enable a rational finder of fact to conclude that appellant was guilty only of the lesser included offenses of indecency with a child by exposure or by contact.  Accordingly, we hold the trial court did not err in denying appellant=s requests for instructions on the lesser included offenses and overrule points of error two and three. 

Point of Error Four:   Cumulation of Life Sentences

In his fourth point of error, appellant challenges the trial court=s order cumulating his five life sentences.  Appellant contends that the trial court erred by cumulating his sentences because the indictments in cause numbers 955265 and 955266 allege offense dates predating the effective date of the statute authorizing cumulation, and the jury charge permitted the jury to base its verdicts on offenses committed any time within the ten-year period of limitations.  Additionally, appellant complains of the State=s failure to elect a Aparticular date for conviction of any of the myriad offenses brought out by the evidence.@ 

We first address appellant=s complaint regarding the State not electing a particular date.  Generally, when the evidence shows two or more acts of sexual assault, each of which is an offense for which the defendant may be convicted, and the indictment charges only one offense, if the accused makes a motion for election, the State is required to elect which act it will rely upon to secure a conviction.  Crawford v. State, 696 S.W.2d 903, 906 (Tex. Crim. App. 1985);  Bates v. State, 305 S.W.2d 366, 368 (Tex. Crim. App. 1957).  This case involves repeated sexual assaults against B.S. and M.S.  The record reflects no request

 by appellant in the trial court that the State elect the separate acts upon which it was relying for a conviction.  The absence of a request for election by appellant waives this issue on appeal.  See Tex. R. App. P. 33.1; Gallegos v. State, 756 S.W.2d 45, 47 (Tex. App.CSan Antonio 1988, pet. ref=d).  We overrule this part of point four. 

We next address appellant=s contention that the trial court erred in cumulating the sentences for causes 955265 and 955266.  Appellant raises the cumulation issue for the first time on appeal.  Because A[a]n improper cumulation order is, in essence, a void sentence, and such error cannot be waived,@ we examine whether it was error for the trial court to cumulate these two sentences.  See LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992); Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d); see also Levy v. State, 818 S.W.2d 801, 802 (Tex. Crim. App. 1991) (holding sentences not authorized by law are void and that a defect which renders a sentence void may be raised at any time). 

Texas Penal Code section 3.03 addresses when sentences for offenses arising out of the same criminal episode are to run concurrently or consecutively.  Tex. Pen. Code Ann. ' 3.03 (Vernon 2003).  As a general rule, when a defendant is convicted of multiple offenses that have been properly joined and prosecuted in a single trial, such sentences must run concurrently.  Tex. Pen. Code Ann. ' 3.03(a).  In 1997, the legislature carved out several exceptions to this general rule.  Tex. Pen. Code Ann. ' 3.03(b).  The exception applicable to this case permits a trial court to impose consecutive sentences for a defendant found guilty of more than one offense arising out of the same criminal episode when each sentence is for a conviction of aggravated sexual assault of a child.  Tex. Pen. Code Ann. ' 3.03(b)(2)(A).  This exception applies only to offenses committed on or after September 1, 1997:

(a)     The change in law made by this Act applies only to an offense committed on or after the effective date [September 1, 1997] of this Act.  For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.

(b)     An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.

Act of June 13, 1997, 75th Leg., R.S., ch.667, ' 7, 1997 Tex. Gen. Laws 2250, 2252-53. 

          Appellant asserts that the pre-September 1, 1997 offense date recited in the indictments and judgments for causes 955265 and 955266 bars cumulation of the two sentences.  Both indictments state that the offenses against B.S. occurred Aon or about August 3, 1997,@ and both judgments recite an offense date of August 3, 1997.^[7]          

Under section 3.03, the date that appellant committed the offenses against B.S. determines whether the sentences are to run consecutively or concurrently.  If the evidence shows that appellant committed the offenses against B.S. before September 1, 1997, the sentences for these offenses may not be cumulated.  However, if the evidence shows the offenses were committed on or after September 1, 1997, cumulation is permitted.

Typically, the date alleged in the indictment is an approximation that allows the State to prosecute a defendant for acts occurring within the limitations period.  See Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App.1997); Addicks v. State, 15 S.W.3d 608, 611 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  The Aon 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 limitations period.  Id.; see Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App.1988) (AWhere an indictment alleges that some relevant event transpired >on or about= a particular date, the accused is put on notice to prepare for proof that the event happened at any time within the statutory period of limitations.@).  The statute of limitations for aggravated sexual assault of a child is ten years from the eighteenth birthday of the victim.  Tex. Code Crim. Proc. Ann. art. 12.01(5)(B)(Vernon Supp. 2004).

In his brief, appellant acknowledges that the prosecutor Aaccurately@ informed the jury that they could base their verdicts on offenses occurring Asometime within the natural lifetime of [M.S.] and [B.S.].@  The jury charge also properly permitted the jury to base its verdicts in each of the five causes on offenses occurring any time within the ten-year period of limitations.^[8]  We overrule appellant=s sub-point regarding limitations. 

Appellant=s primary complaint regarding cumulation is that the indictments and judgments in causes 955265 and 955266 each state an offense date of August 3, 1997, a date prior to the exception in section 3.03 allowing for cumulation, and that the pre-September 1, 1997 date renders the cumulation orders for these two causes invalid.  We disagree that the August 3, 1997 offense date recited in the judgments renders the cumulation orders in these two causes invalid.  The trial court had the discretion to cumulate the two sentences under section 3.03(b), as long as there was some evidence that the offenses occurred after September 1, 1997.  See Owens v. State, 96 S.W.3d 668, 671-72 (Tex. App.CAustin 2003, no pet.) (AAlthough the victim=s testimony sometimes conflicted as to dates of the sexual assaults, a reasonable view of the evidence as a whole supported the trial court=s exercise of its discretion to run [the] sentences consecutively.@).  Because the State used the phrase Aon or about@ in the indictment, it was free to prove that these offenses occurred on any date prior to the presentment of the indictment, July 15, 2003, and within the statutory limitations period, which had not expired.  See Glenn v. State, 436 S.W.2d 344, 345-46 (Tex. Crim. App. 1969); Owens, 96 S.W.3d at 671-72 (holding trial court has discretion to cumulate sentences under section 3.03(b) when there is some evidence that the offenses occurred after September 1, 1997); Yebio v. State, 87 S.W.3d 193, 195-96 (Tex. App.CTexarkana 2002, pet. ref=d) (concluding prior statute applied where evidence showed that assaults occurred during the day before the beginning of the 1997 school year (before September 1, 1997), although the indictments alleged the offenses occurred on or about September 5, 1997, and reforming the judgment to provide that the defendant=s sentences run concurrently instead of consecutively). 

We review the record to determine whether there is some evidence that the offenses occurred on or after September 1, 1997.  The record shows that B.S. was born on November 5, 1989, and he was thirteen years old when he testified at trial.  B.S. testified that the last time appellant sexually abused him was in 2001, when he was eleven years old.  Dr. Lahoti corroborated B.S.=s testimony, testifying that he told her that the last time he was assaulted by appellant was in 2001.  Alfred, B.S.=s father, testified that the first time he and B.S. shared a residence with appellant was in 1997, after Alfred was injured.  In 1999, Alfred, B.S., M.S., and appellant all lived in the Burr Street house together, after Alfred=s father passed away.  The evidence showed that B.S. and appellant continued to live together and sleep in the same room up until the time of M.S.=s outcry in late August 2002. 

M.S. testified that when they lived at the Burr Street house, which was after September 1, 1997, she saw appellant A[s]tick his private part in [B.S.=s] behind and mess with [B.S.=s] private part.@  Additionally, Marcus, the children=s uncle and current legal guardian, testified about an incident that occurred on January 17, 2001, when he went to the Burr Street house and found the door to the bedroom that appellant and B.S. shared locked.  When Marcus finally gained entry into the room, he noticed appellant was sweating and B.S. looked scared. 

The evidence shows that the incidents of sexual abuse against B.S. continued to occur up until 2001, well after the September 1, 1997 effective date of the cumulation statute.  Appellant does not address the evidence in the record showing that incidents of sexual abuse against B.S. occurred on or after September 1, 1997, and appellant has not cited any evidence, besides the offense dates recited in the indictment and judgments, showing that  the offenses against B.S. occurred prior to September 1, 1997. 

We conclude that, as a whole, the evidence supports the trial court=s exercise of its discretion under section 3.03(b) to order appellant=s sentences in causes 955265 and 955266 to run consecutively.  We overrule appellant=s fourth point of error.

                                                   CONCLUSION

 We affirm the judgments in trial court cause numbers 955262, 955263, 955265, and 955266, and reverse and remand cause number 955264 for further proceedings consistent with this opinion.

/s/      John S. Anderson

Justice

Judgment rendered and Majority and Concurring Opinions filed November 16, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.  (Hudson, J. concurring.)

Publish C Tex. R. App. P. 47.2(b).

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^[1]  At the time of trial in August 2003, B.S. was thirteen and M.S. was eleven.

^[2]  For example, the following charge for trial court cause number 955262 was submitted to the jury:

Cause No. 955262

Now, if you find from the evidence beyond a reasonable doubt that on or about the 15th day of August 2002, in Harris County, Texas, the defendant did then and there unlawfully, intentionally or knowingly cause the penetration of the anus of [M.S.], a person younger than fourteen years of age and not the spouse of the defendant, by placing his sexual organ in the anus of [M.S.];

If you find from the evidence beyond a reasonable doubt that on or about the 15th day of August 2002, Harris County, Texas, the defendant did then and there unlawfully, intentionally or knowingly cause the anus of M.S., a person younger than fourteen years of age and not the spouse of the defendant, to contact the sexual organ of the defendant;

then you will find the defendant guilty as charged in the indictment.

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict ANot Guilty.@

(Emphasis added).

^[3]  The State argues on appeal that A[t]he indictments in each of the five cases alleged alternative theories of committing the same offense, not multiple offenses involving separate incidents.@  The State=s argument is contrary to Vick=s holding that section 22.021 describes separate offenses, and the State fails to explain why Vick is not controlling.

We conclude the Texas Court of Criminal Appeals= construction of the statute in Vick is controlling because the Legislature has not made any changes to section 22.021 in this regard since Vick, and A[w]hen the Legislature meets, after a particular statute has been judicially construed, without changing that statute, we presume the Legislature intended the same construction should continue to be applied to that statute.@  Marin v. State, 891 S.W.2d 267, 271-72 (Tex. Crim. App. 1994). 

^[4]  Texas Penal Code section 21.11, which proscribes indecency with a child, provides in relevant part the following:

(a)        A person commits an offense if, with a child younger than 17 years and not the person=s spouse, whether the child is of the same or opposite sex, the person:

(1)        engages in sexual contact with the child or causes the child to engage in sexual contact;  or

(2)        with intent to arouse or gratify the sexual desire of any person:

    (A)   exposes the person=s anus or any part of the person=s genitals, knowing the child is present;  or

      (B) causes the child to expose the child=s anus or any part of the child=s genitals.

Tex. Pen. Code Ann. ' 21.11(a) (Vernon 2003).         

^[5]  We note that the prosecutor argued with regard to one of the charged offenses that:

For [M.S.] we have penetration for mouth, contact or penetration.  And you don=t have to agree which way the State proved it, still a guilty verdict if six believe he contacted mouth and six believe that he penetrated her with his sexual organ, it is still guilty of aggravated sexual assault because she is so young.  The law says penetration or contact, it=s still a guilty verdict.  So you don=t need to spend a whole lot of time about whether it=s penetration or contact.

^[6]  As discussed supra, section 22.021 describes separate offenses, and an offense under this section is complete when a person commits any one of the proscribed acts.  To ensure a jury=s verdict is unanimous, each offense should be submitted separately, and the jury should be instructed to reach a unanimous verdict as to each offense for which the jury finds guilt beyond a reasonable doubt.

^[7]  The indictments in cause numbers 955262, 955263, and 955264 state the offenses against M.S. occurred Aon or about August 15, 2002,@ well after the effective date of section 3.03.  Appellant does not specifically complain on appeal that cumulation of his three sentences involving M.S. was improper.  Moreover, the record contains evidence indicating that appellant committed these offenses against M.S. after September 1, 1997.

^[8]  The charge instructed the jury as follows:

The State is not bound by the specific date that the offense, if any, is alleged in the indictment to have been committed, but a conviction may be had upon proof beyond a reasonable doubt that the offense, if any, was committed at any time within the period of limitations.  The limitation period applicable to the offense of aggravated sexual assault of a child is ten years from the date of the 18th birthday of the victim of the offense.