                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00053-CR



         JAMES ALLEN JACKSON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 273rd District Court
                Sabine County, Texas
             Trial Court No. CR1607299




      Before Morriss, C.J., Moseley and Burgess, JJ.
            Opinion by Chief Justice Morriss
                                               OPINION
           A Sabine County1 jury convicted James Allen Jackson of aggravated sexual assault of Jane

Doe, a child younger than fourteen. In accordance with the jury’s assessment, Jackson was

sentenced to life imprisonment. Among other things, Jackson argues on appeal that he was

subjected to double jeopardy because, in our companion case numbered 06-18-00054-CR, the

State also obtained a conviction for continuous sexual abuse of Jane Doe for the time period within

which the offense in this case occurred. 2 The State concedes the point. Because we conclude that

Jackson’s conviction for aggravated sexual assault of Jane Doe was not authorized by the statute,

because it would otherwise have violated his right to be free from multiple punishments for the

same offense, we vacate the trial court’s judgment as to this conviction for aggravated sexual

assault.

           “The Fifth Amendment guarantee against double jeopardy protects ‘against multiple

punishments for the same offense.’” Price v. State, 434 S.W.3d 601, 609 (Tex. Crim. App. 2014)

(quoting Whalen v. United States, 445 U.S. 684, 688 (1980)); see U.S. CONST. amends V, XIV. A

claim that a defendant was subjected to multiple punishment arises if a defendant “is punished for:

(1) the same primary offense twice, ‘once for the basic conduct, and a second time for that same

conduct plus more,’ or (2) the same criminal act twice under two distinct statutes ‘when the



1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We follow the
precedent of the Twelfth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
 In our companion case numbered 06-18-00055-CR, Jackson also appeals his conviction for continuous sexual abuse
of Jane’s sister, Mary Doe.


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legislature intended the conduct to be punished only once[.]”’ Id. (quoting Langs v. State, 183

S.W.3d 680, 685 (Tex. Crim. App. 2006)). 3

        A person commits the offense of continuous sexual abuse of a child if “during a period that

is 30 or more days in duration, the person commits two or more acts of sexual abuse” and “the

actor is 17 years of age or older and the victim is a child younger than 14 years of age.” TEX.

PENAL CODE ANN. § 21.02(b)(2) (West Supp. 2018). Section 21.02 lists predicate offenses which

constitute “acts of sexual abuse” under the statute, including aggravated sexual assault of a child.

TEX. PENAL CODE ANN. § 21.02(c)(4) (West Supp. 2018). The statute further states,

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

TEX. PENAL CODE ANN. § 21.02(e) (West Supp. 2018).

        In Price, the Texas Court of Criminal Appeals found “that the statutory language is plain

in providing that, when the acts alleged were committed against a single child, the Legislature did

not intend to permit dual convictions for continuous sexual abuse and for an enumerated act of


3
 Although Jackson did not raise this issue with the trial court, “a double jeopardy claim may be raised for
the first time on appeal when (1) the double jeopardy violation is clearly apparent on the face of the record, and
(2) when enforcement of the usual rules of procedural default serves no legitimate state interests.” Stinecipher v.
State, 438 S.W.3d 155, 159 (Tex. App.—Tyler 2014, no pet.) (citing Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim.
App. 2014)).

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sexual abuse unless the latter occurred during a different period of time.” Price, 434 S.W.3d at

606. Accordingly, it concluded that a person “charged with continuous sexual abuse who is tried

in the same criminal action for an enumerated offense based on conduct committed against the

same victim may not be convicted for both offenses unless the latter offense occurred outside the

period of time in which the continuous-sexual-abuse offense was committed.” Id.

       Here, the State alleged that Jackson committed aggravated sexual assault of Jane

“beginning on or about the 1st day of April, A.D. 2016, and ending on or about the 29th day of

July, 2016.” In companion case 06-18-00054-CR, the State alleged that Jackson committed

continuous sexual abuse of Jane Doe by committing two or more acts of aggravated sexual assault

“from on or about April 1, 2016 through July 29, 2016.” Jackson’s conviction for both offenses

is not authorized because “the Legislature did not intend to allow a defendant convicted of

continuous sexual abuse to be also convicted for aggravated sexual assault of the same child if the

aggravated sexual assault at issue and the continuous sexual assault both occurred within the same

time periods.” Carmichael v. State, 505 S.W.3d 95, 100–01 (Tex. App.—San Antonio 2016, pet.

ref’d). We sustain Jackson’s first point of error on appeal. See id. at 101; Weber v. State, 536

S.W.3d 31 (Tex. App.—Austin 2017, pet. ref’d).




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       When an appellant is erroneously subjected to multiple punishments for the same conduct,

the remedy is to affirm the conviction for the most serious offense and vacate the other conviction.

Carmichael, 505 S.W.3d at 101 (citing Bigon v. State, 252 S.W.3d 360, 372 (Tex. Crim. App.

2008)). Accordingly, we vacate Jackson’s conviction for aggravated sexual assault of Jane Doe.




                                              Josh R. Morriss, III
                                              Chief Justice


Date Submitted:        November 13, 2018
Date Decided:          December 21, 2018

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