








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0792-12


RUDY VILLA, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS

GAINES COUNTY



 Keller, P.J., filed a dissenting opinion in which Keasler and Hervey, 
JJ., joined.

	The Court says that appellant's acquittal on the indecency charge indicates that the jury found
that he had no sexual intent when he touched the victim.  If the jury had given appellant the
minimum sentence of twenty-five years, I might agree.  During punishment-phase argument, defense
counsel asked the jury to do just that, and assess the minimum punishment because appellant's
conduct "really involved the application of medication."  But the jury imposed double that amount
of time: fifty years.  I think that if the jury really believed that appellant had no sexual intent, it
would not have imposed such a severe sentence.  There are other possible explanations for the jury's
acquittal on the indecency charge.  Perhaps the jury acquitted because it believed that aggravated
sexual assault was the more appropriate charge. (1)  Or perhaps the jury was exercising its own
common-sense notion of double jeopardy, given that the two offenses were based on the same
conduct.  We do not know why the jury acquitted appellant of the indecency offense, but it seems
to me unreasonable to believe that the jury would assess a fifty-year sentence if it believed that
appellant was acting for the child's own welfare.  Under Strickland, (2) appellant has the burden to
show prejudice.  I would hold that he has failed to do so.
	I respectfully dissent.
Filed: November 6, 2013
Publish  
1.   Compare Tex. Penal Code § 21.11 (c)(1) (criminalizing certain types of "touching") with
Tex. Penal Code § 22.021 (a)(1)(B)(i) (criminalizing certain types of "penetration"). 
2.   Strickland v. Washington, 466 U.S. 668 (1984).
