                         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

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                         MEMORANDUM OPINION 1

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                                 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.

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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.

1998).

         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




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