Price, Jimmy Don

434 S.W.3d 601, 2014 Tex. Crim. App. LEXIS 919, 2014 WL 2865755
Court of Criminal Appeals of Texas·Decided June 25, 2014·No. PD-1460-13·Published·Cited by 108 cases

Opinions

OPINION

ALCALA, J.,

delivered the opinion of the Court in which Keller,

P.J., MEYERS, PRICE, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ„ joined.

In this case, we address whether the statute defining the offense of continuous sexual abuse of a young child permits a defendant to be convicted both of that offense and of a criminal attempt to commit a predicate offense under that statute. See Tex. Penal Code §§ 15.01(a); 21.02(b), (c), (e).1 The court of appeals answered that question in the negative by examining the statute’s language and determining that the Legislature could not have intend[604]*604ed to permit both convictions because that outcome would violate a defendant’s constitutional rights against double jeopardy. See Price v. State, 413 S.W.3d 158, 163-64 (Tex.App.-Beaumont 2013). Accordingly, the court of appeals vacated the conviction for attempted aggravated sexual assault against Jimmy Don Price, appellant. See id. We agree with the court of appeals’s judgment vacating appellant’s conviction for criminal attempt and with its ultimate assessment that permitting both convictions would violate his constitutional rights against double jeopardy. See id. We reach that conclusion, however, by first deciding that the statute’s text is ambiguous with respect to whether both convictions should be permitted, and we then consider the pertinent extra-textual factors. See Tex. Penal Code § 21.02(c); Tex. Gov’t Code § 311.023. We affirm the judgment of the court of appeals.

I. Background

The complainant is appellant’s ten-year-old stepdaughter. She testified at appellant’s trial that from approximately March 2009 to January 2010, he committed multiple, repeated sexual acts against her, including genital penetration of her anus and mouth, digital and oral penetration of her genitals, and touching of her breasts. She also testified that during the same time period, appellant tried to penetrate her genitals with a vibrator and with his genitals. These facts resulted in a jury convicting appellant of four offenses, only two of which are pertinent to this appeal: the conviction for continuous sexual abuse that was alleged to have occurred on or about June 1, 2009, through January 29, 2010, and the conviction for attempted aggravated sexual assault of a child that was alleged to have occurred on or about January 29, 2010. See Tex. Penal Code §§ 21.02(b); 22.021(a)(1)(B), (a)(2)(B).

On appeal, the parties disputed whether the statutory language would permit dual convictions for the offenses of continuous sexual abuse and attempted aggravated sexual assault. Appellant asserted that attempted aggravated sexual assault is a lesser-included offense of aggravated sexual assault, which is specifically enumerated as one of the predicate offenses that may be used to establish the offense of continuous sexual abuse. See Tex.Code Crim. Proc. art. 37.09(4); Tex. Penal Code §§ 15.01(a); 21.02(b), (c)(4). Because the attempt offense is a lesser-included offense of the predicate aggravated-sexual-assault offense, appellant argued that upholding his convictions for both offenses would violate his rights against double jeopardy. The State responded that the plain language of the continuous-sexual-abuse statute references only aggravated sexual assault, not attempted aggravated sexual assault, and therefore, a defendant may be convicted for both continuous sexual abuse and the lesser attempted offense. See Tex. Penal Code § 21.02(c).

The court of appeals agreed with appellant. Price, 413 S.W.3d at 163. It held that the statute’s language expressed the Legislature’s intent to disallow convictions for both continuous sexual abuse and a predicate offense that could be used to establish that offense. Id. at 162-63. The court acknowledged the State’s claim that appellant was charged with attempting to commit, rather than with the commission of, a predicate offense and that the statute does not specifically mention criminal attempt. Id. at 162. Despite the absence of any mention of criminal attempt in the statute, the court determined that the Legislature would not have intended to permit dual convictions that would violate a defendant’s rights against double jeopardy. Id. at 163-64.

[605]*605Challenging the court of appeals’s purported failure to apply the plain language of the statute, the State’s petition for discretionary review argues that because an attempt to commit a predicate offense is not included in the acts of sexual abuse enumerated in the statute, the Legislature intended to permit dual convictions for continuous sexual abuse and for an attempt to commit a predicate offense under the statute.2 The State further suggests that, even if the attempted offense occurred during the same period of time as the conduct giving rise to the conviction for continuous sexual abuse, both of appellant’s convictions should be upheld because the facts show that he committed both completed acts of abuse against the complainant as well as a failed attempt to penetrate her with a vibrator. Appellant responds that, by including in the statutory language a provision that expressly disallows convictions for predicate offenses when a defendant is convicted under the continuous-sexual-abuse statute, the Legislature signaled its desire to protect against double-jeopardy violations and, therefore, it would be absurd to read the statute as permitting both convictions, which would result in a double-jeopardy violation.

II. The Legislature Did Not Intend to Permit Dual Convictions for Continuous Sexual Abuse and a Lesser-Included Offense

After reviewing the statutory language, we decide that it is ambiguous as to whether it permits dual convictions for the offenses of continuous sexual abuse and attempted aggravated sexual assault. We then consider the extra-textual factors before ultimately deciding that permitting dual convictions under these circumstances would violate the statutory scheme set forth by the Legislature.

A. The Statute is Ambiguous

1. Applicable Law for Determining Whether Language is Ambiguous

In construing a statute, this Court must seek to effectuate the “collective” intent or purpose of the legislators who enacted the legislation. Reynolds v. State, 423 S.W.3d 377, 382 (Tex.Crim.App.2014); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). In interpreting statutes, we presume that the Legislature intended for the entire statutory scheme to be effective. Mahaffey v. State, 364 S.W.3d 908, 913 (Tex.Crim.App.2012). When statutory language is clear and unambiguous, we give effect to its plain meaning unless to do so would lead to absurd consequences that the Legislature could not have possibly intended. Ex parte Valdez, 401 S.W.3d 651

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Price, Jimmy Don, 434 S.W.3d 601, 2014 Tex. Crim. App. LEXIS 919, 2014 WL 2865755 (Tex. 2014).

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