                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00479-CR


CHARLES WAYNE HOLBROOK                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
                     TRIAL COURT NO. CR13-0038

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                         MEMORANDUM OPINION 1

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      A jury convicted Appellant Charles Wayne Holbrook of continuous sexual

abuse of a child as alleged in count I of the indictment; aggravated sexual assault

of a child as alleged in count II of the indictment; and indecency with a child as

alleged in counts IV and V of the indictment. The jury assessed his punishment

at confinement for life on counts I and II and at twenty years’ confinement on

      1
       See Tex. R. App. P. 47.4.
counts IV and V.      The trial court sentenced him accordingly, stacking the

sentences for counts II, IV, and V onto the sentence for count I, so that Appellant

would serve his life sentence for count I before the others began to run

concurrently. Appellant brings two points on appeal, arguing that the trial court

reversibly erred by denying his motion to quash the indictment and that

convicting and sentencing him for the offenses alleged in counts II, IV, and V

constituted double jeopardy because those offenses were included in the offense

set out in count I. Appellant does not challenge the sufficiency of the evidence.

      Because the trial court did not reversibly err, we affirm the trial court’s

judgment.

Denial of Motion to Quash

      Count I of the indictment alleged that Appellant committed continuous

sexual abuse of a child during a period beginning September 1, 2007 and ending

August 23, 2012. The remaining offenses were alleged to have been committed

on or about January 1, 2012 or August 2, 2012.

      Appellant filed a pretrial motion to quash the indictment, contending that

penal code section 21.02(d) is unconstitutional because it does not require jury

unanimity, depriving the defendant of due process and due course of law, and

because it violates the Separation of Powers Clause of the Texas Constitution

and subjects the defendant to unconstitutional double jeopardy. As the Texas

Court of Criminal Appeals has explained,




                                         2
      The sufficiency of an indictment is a question of law. When the
      resolution of a question of law does not turn on an evaluation of the
      credibility and demeanor of a witness, then the trial court is not in a
      better position to make the determination, so appellate courts should
      conduct a de novo review of the issue.2

      In his first point, Appellant appears to argue that his motion to quash the

indictment should have been granted because the underlying statute is

unconstitutional. The constitutionality of a statute is also a question of law which

is reviewed de novo. 3 The current state of the law in Texas is that a statute that

does not implicate First Amendment freedoms can be held unconstitutional on its

face only if it is unconstitutional in all of its applications. 4 Otherwise, the accused

must show the statute is unconstitutional as applied to him.

            An “as applied” challenge is brought during or after a trial on
      the merits, for it is only then that the trial judge and reviewing courts
      have the particular facts and circumstances of the case needed to
      determine whether the statute or law has been applied in an
      unconstitutional manner. Since a contention that a statute is
      unconstitutional as applied requires a recourse to evidence, it cannot
      be properly raised by a pretrial motion to quash the charging
      instrument. 5




      2
       State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
      3
       See Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App.
2007), cert. denied, 553 U.S. 1007 (2008).
      4
        See State v. Rosseau, 396 S.W.3d 550, 557–58 (Tex. Crim. App. 2013);
Scott v. State, 322 S.W.3d 662, 669–71 (Tex. Crim. App. 2010), cert. denied, 131
S. Ct. 2096 (2011).
      5
        State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011)
(citations and selected internal quotation marks omitted).


                                           3
      While Appellant complained in his pretrial motion to quash that the statute

is unconstitutional as applied to him, a pretrial motion to quash does not preserve

that complaint. 6 And Appellant directs us to no place in the record where he later

timely raised this complaint.

      To the extent that Appellant complains about jury unanimity, this court has

already addressed and rejected that argument. 7       Finally, although Appellant

mentions the Almanza 8 egregious harm standard for charge error, we do not

understand his complaints to include charge error. Based on the record before

us, we overrule Appellant’s first point on appeal as we understand it.

Double Jeopardy

      The first count of the indictment alleged the acts constituting

continuing sexual abuse of a child between September 1, 2007 and

August 23, 2012:

a.    Penetration of the child’s anus with the sexual organ of Appellant;

b.    Penetration of the child’s anus with a vibrating device;

c.    Penetration of the child’s anus with Appellant’s fingers;

d.    Penetration of the child’s sexual organ with a vibrating device;


      6
          See id.
      7
       See Pollock v. State, 405 S.W.3d 396, 405 (Tex. App.—Fort Worth 2013,
no pet.).
      8
          Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on
reh’g).



                                         4
e.       Penetration of the child’s sexual organ with Appellant’s sexual
         organ;

f.       Touching the child’s genitals with intent to arouse or gratify
         Appellant’s sexual desire; and

g.       Touching the child’s anus with intent to arouse or gratify Appellant’s
         sexual desire.

All seven allegations were submitted to the jury in the jury charge on

guilt.

         Counts II, IV, and V of the indictment charged that Appellant did

II.      Penetrate the child’s anus with Appellant’s sexual organ on or about
         August 2, 2012;

IV.      Cause the child to contact his genitals, with intent to arouse or gratify
         Appellant’s sexual desire, on or about January 1, 2012; and

V.       Touch the child’s breast with intent to arouse or gratify Appellant’s sexual
         desire on or about January 1, 2012.

         In his second point, Appellant argues that he was denied double jeopardy

protections guaranteed by state and federal constitutions when the jury was

allowed to convict him of both the allegations in count I of the indictment and

those in counts II, IV, and V. As our sister court in Beaumont noted in Price v.

State, the Texas Legislature expresses its intent regarding multiple punishments

for continuous sexual abuse in the statute itself. 9 The statute provides,

               (e) A defendant may not be convicted in the same criminal
         action of an offense listed under Subsection (c) the victim of which is


         9
       413 S.W.3d 158, 162 (Tex. App.—Beaumont 2013), aff’d, 434 S.W.3d 601
(Tex. Crim. App. 2014).



                                           5
      the same victim as a victim of the offense alleged under Subsection
      (b) unless the offense listed in Subsection (c):

                   (1) is charged in the alternative;

                  (2) occurred outside the period in which the offense
            alleged under Subsection (b) was committed; or

                  (3) is considered by the trier of fact to be a lesser
            included offense of the offense alleged under Subsection (b).

            (f) A defendant may not be charged with more than one count
      under Subsection (b) if all of the specific acts of sexual abuse that
      are alleged to have been committed are alleged to have been
      committed against a single victim. 10

The Price court explained,

            An offense listed under section 21.02(c) will always be a
      lesser included offense of the offense alleged under Subsection (b).
      Based on the language in section 21.02(c), it appears the
      Legislature did not intend to allow a defendant convicted of
      continuous sexual abuse to also be convicted for the aggravated
      sexual assault of the same child if the aggravated sexual assault at
      issue and the continuous sexual abuse both occurred within the
      same time periods. 11

      Contrary to Appellant’s assertions, count V does not repeat the allegations

of count I or of any other count. Specifically, section 21.02(c)(2) provides, in

pertinent part, that acts of sexual abuse include “(2) indecency with a child under

Section 21.11(a)(1), if the actor committed the offense in a manner other than by



      10
        Tex. Penal Code Ann. § 21.02(e), (f) (West Supp. 2014).
      11
         Price, 413 S.W.3d at 162 (internal quotation marks and citations omitted)
   (relying in part on Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim. App.
   2011)); see also Tex. Penal Code Ann. § 21.02(b)–(c) (West Supp. 2014).



                                         6
touching, including touching through clothing, the breast of a child.” 12 But count

II of the indictment does repeat the allegations of count I(a), and count IV of the

indictment repeats the allegations of count I(a) and (e).

      In response to Appellant’s request that the State make an election and

after many discussions between the parties, however, the State separated the

time periods covered by Counts II and IV from the time period covering Count I.

The State points out that the jury charge limited Counts II and IV to the nine

months preceding the continuous sexual abuse statute’s becoming law, or from

December 7, 2006, until August 31, 2007. The continuous sexual abuse count

covers the same period of time as contained within the indictment, or from

September 1, 2007, until August 23, 2012. In addition to the jury charge

reflecting the different time periods, the State also explained during its closing

argument that under the charge as to counts II and IV, the jury was only to

consider the evidence of events which occurred from December 7, 2006, until

August 31, 2007, and for the charge on count I, the jury was to consider only

evidence of events which occurred from September 1, 2007, until August 23,

2012. The State also explained that for the jury to consider post-September 1,

2007 evidence in determining counts II and IV “would violate double jeopardy.”

Because the State’s election insulated the jury verdict from a double jeopardy



      12
        Tex. Penal Code Ann. § 21.02(c).



                                         7
challenge on counts II and IV 13 and because Count V had no double jeopardy

risk, we overrule Appellant’s second point on appeal.

Conclusion

      Having overruled Appellant’s two points, we affirm the trial court’s

judgment.


                                                  /s/ Lee Ann Dauphinot
                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 20, 2014




      13
       See Phillips v. State, 193 S.W.3d 904, 909–10 (Tex. Crim. App. 2006).



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