      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00074-CR
                                       NO. 03-11-00075-CR



                                     Austin Loving, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
                   NOS. D-1-DC-10-0300616 & D-1-DC-10-0300617
               HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found Austin Loving guilty on three counts of indecency with a child by

contact and two counts of indecency with a child by exposure. The offenses were committed against

two sisters. In appellate cause number 03-11-00074-CR concerning the older sister, appellant was

convicted of one count of indecent exposure and two counts of indecent contact. In appellate cause

number 03-11-00075-CR concerning the younger sister, appellant was convicted of one count each

of indecent exposure and indecent contact. The jury assessed punishment at seven years in prison

for each of the contact offenses and ten years in prison for the exposure offenses, but recommended

that the sentences for the exposure offenses be probated and that community supervision be imposed.

The trial court set the probated terms to run consecutively to the prison terms. Appellant contends

that code of criminal procedure article 42.12, section 4(d)(5) violates constitutional equal protection

and due process guarantees because it forces an otherwise probation-eligible defendant to plead

guilty rather than exercise his right to a jury trial. He also contends that the evidence is legally
insufficient to support one of the contact offenses and, alternatively, that one of the exposure

offenses is a lesser-included offense of a contact offense involving the same child. Because the

challenged exposure offense is a lesser-included offense of the second contact offense relating to that

child, we will modify the judgment by vacating the exposure offense against one of the children and

affirm the judgment as modified.


                                           DISCUSSION

               We will briefly summarize the events underlying the convictions because the facts

are not contested on appeal. Appellant, a nineteen-year-old man, invited his neighbors, two girls

aged eight and nine years, to play video games. While they were playing in his bedroom, appellant

went into the living room and began viewing pornography on his computer and masturbating. At

some point, he touched one girl’s breast and the other girl’s vagina over their clothes. With his penis

exposed, appellant asked or told one of the girls to touch it, and she punched it with her fist.


Constitutionality of statute limiting jury’s authority

               Appellant contends that the statute preventing imposition of community supervision

for offenses of indecency with a child by contact violates his federal and state constitutional rights

to equal protection and due process. The code of criminal procedure section that permits juries to

recommend community supervision contains exclusions, including the following:


       (d) A defendant is not eligible for community supervision under this section if the
       defendant:

               ....

               (5) is convicted of an offense listed in Section 3g(a)(1)(C), (E), or (H), if the
               victim of the offense was younger than 14 years of age at the time the offense
               was committed . . . .

                                                  2
Tex. Code Crim. Proc. Ann. art. 42.12, § 4(d)(5) (West Supp. 2011). This subsection (5) was

added by the legislature and effective in 2007. Act of May 21, 2007, 80th Leg., R.S., ch. 1205, § 3,

2007 Tex. Gen. Laws 4078, 4079 (eff. Sept. 1, 2007). Indecency with a child is one of the offenses

expressly excluded from community supervision. See id. § 3g(a)(1)(C). Appellant contends that the

statute unconstitutionally forces an otherwise probation-eligible defendant to plead guilty to obtain

community supervision rather than exercise his right to a jury trial.

                In assessing whether a law impinges on a substantive due process right, the first

step is to determine whether the asserted right is fundamental. See Leebaert v. Harrington, 332 F.3d

134, 140 (2d Cir. 2003). Where the right infringed is fundamental, strict scrutiny is applied to the

challenged governmental regulation. Reno v. Flores, 507 U.S. 292, 305 (1993). The right to trial by

jury is a fundamental right guaranteed by the Sixth and Fourteenth Amendments to the United States

Constitution and by the Texas Constitution. See U.S. Const. amends. VI, XIV; Tex. Const. art. I,

§ 15.

                Equal protection guarantees require that we treat like cases alike. Vacco v. Quill,

521 U.S. 793, 799 (1997). Appellant compares the current statute to the invalidated federal statute

that permitted only juries to impose the death penalty. See United States v. Jackson, 390 U.S. 570

(1968). The Supreme Court held that, by imposing the death penalty only on those who exercised

their right to a jury trial, the statute violated the guarantee of equal protection. Id. In rejecting the

government’s argument that the statute served only to mitigate punishment, the Court held that the

statute needlessly chilled defendants’ exercise of their right to a jury trial by encouraging guilty

pleas. Id. at 582. Appellant contends in this case that he faced a similarly needless coercion to plead

guilty because the legislature removed a beneficial sentencing option if he chose to have a jury trial.

Appellant notes that defendants who plead guilty to indecency with a child can receive deferred

                                                   3
adjudication probation from the judge. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a)

(West Supp. 2011). We note, however, that deferred adjudication is available for this offense only

if the judge “makes a finding in open court that placing the defendant on community supervision is

in the best interest of the victim.” Id. The statute permitting judges to assess standard community

supervision does not apply when the defendant is guilty of indecency with a child by contact. See

id. § 3g(a)(1)(C).

               We find that this case is better guided by Corbitt v. New Jersey, 439 U.S. 212 (1978).

In that case, New Jersey law described two levels of murder—first degree, which had a mandatory

life sentence, and second degree, which had a maximum sentence of 30 years in prison. Id. at 214.

In a jury trial, the jury had to decide the degree of the offense before sentence was imposed,

including the mandatory life term for first degree murder. The statute did not permit trials to the

court or guilty pleas, but did allow no-contest pleas. When sentencing a defendant who pleaded no

contest, the judge did not have to specify the degree of the offense. Id. The defendant in that case,

who was convicted of first-degree murder by a jury and sentenced to life in prison, contended that

the law violated his rights to a jury trial, equal protection, and against compelled self-incrimination

because it permitted persons who pleaded no contest to receive a lesser sentence for the same

behavior. Id. at 216. The Corbitt court distinguished Jackson primarily on the absence of the death

penalty which is “unique in its severity and irrevocability.” Id. at 217 (quoting Gregg v. Georgia,

428 U.S. 153, 187 (1976)). The Court held that the pressures to plead and avoid the possibility of

the maximum punishment were less when the death penalty was not an option, and also noted

that the judge receiving a no-contest plea could still impose life imprisonment. Id. The Court

acknowledged, however, that a pleader could avoid the mandatory life sentence even if the facts

supported a finding of first-degree murder. Id. at 218. The Court held that this “pressure or

                                                  4
encouragement” to plead guilty was not improper. Id. at 219. The Court relied on previous rulings

as follows:


       While confronting a defendant with the risk of more severe punishment clearly
       may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the
       imposition of these difficult choices [is] an inevitable’ -- and permissible -- ‘attribute
       of any legitimate system which tolerates and encourages the negotiation of pleas.’
       [Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973)]. It follows that, by tolerating and
       encouraging the negotiation of pleas, this Court has necessarily accepted as
       constitutionally legitimate the simple reality that the prosecutor’s interest at the
       bargaining table is to persuade the defendant to forgo his right to plead not guilty.


Id. at 220-21 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). The Court went on to

write that “The States and the Federal Government are free to abolish guilty pleas and plea

bargaining; but absent such action, as the Constitution has been construed in our cases, it is not

forbidden to extend a proper degree of leniency in return for guilty pleas.” Id. at 224. Finally, while

rejecting the defendant’s equal protection argument, the Court wrote that all defendants are given

the same choice and that those who choose to contest guilt may face a greater sentence, but may be

acquitted or found guilty of a lesser offense, so there is no invidious classification and improper

differential in treatment of those “classes” of defendants. Id. at 225-26. The defendants found

guilty by jury are no more penalized for exercising their right to jury than the defendants who plead

guilty are penalized because they surrender their chance to be acquitted. The Court wrote, “Equal

protection does not free those who made a bad assessment of risks or a bad choice from the

consequences of their decision.” Id. at 226.

               Here, appellant does not contend that he was treated differently from other defendants

accused of the same crimes. He had different options than defendants accused of committing the

same crime before the effective date of the amended statute, but the legislature can amend statutes.


                                                   5
See Tex. Const. art. III, § 36. He does not allege that he is treated differently from other defendants

accused of committing the same crime at the same time. Defendants who commit crimes listed in

article 42.12, section 4(d)(5) have different punishment options than they would if they had

committed a different crime, but the legislature can, within limits, assign different punishment

schemes to different offenses. In contrast to the statute in Jackson, which essentially increased the

maximum possible punishment to include the death penalty when a defendant pleaded not guilty, the

statute here only “increased” the minimum time served for a person found guilty (as opposed to

pleading guilty) by eliminating the possibility of jury-imposed community supervision.

                Appellant’s assertion that the statute “forces an otherwise probation eligible defendant

to plea[d] guilty rather than exercise his rights to a jury trial” is belied by the fact that he pleaded not

guilty and exercised his right to a jury trial. While the legislature has chosen to limit the availability

of community supervision for certain offenses, it has also chosen to allow prosecutors in certain

circumstances to offer the leniency of community supervision to defendants who admit their

guilt—perhaps to acknowledge the defendant’s acceptance of responsibility, to reward the

defendants’ choice to spare themselves, their victims, and the witnesses the time, expense, and

emotional toll of a trial, or perhaps to reward saving the time and expense of a full prosecution for

the State and the judicial system. Whatever the legislature’s motivation in adopting the statute, we

conclude that appellant was not treated differently from others similarly situated and that he has not

shown that the legislature unconstitutionally treated him and offenders like him differently from

defendants accused and convicted of other crimes.

                Appellant contends that the 2007 removal of the power of the jury to impose

community supervision removed a privilege without due process, rendering article 42.12,

section 4(d)(5) unconstitutional. There is no allegation or proof that the legislative process in the

                                                     6
adoption of section 4(d)(5) was in any way deficient. Appellant does not provide any support for

the proposition that a defendant is entitled to be punished under a statutory scheme that was altered

more than two years before he committed the offense for which he is being punished. Appellant did

not commit and was not accused of this crime until 2010, so no “entitlement” to any punishment

under the previous statutory scheme for these offenses attached and no privilege or process that was

due to him as a defendant was unconstitutionally removed or denied by the statute’s previous

amendment.


Sufficiency of the evidence

               Appellant also contends that the evidence was legally insufficient to support his

conviction for indecency with a child by contact when the child punched his penis. He does not

challenge the sufficiency of the evidence concerning his touching of the children with his hands.

Indecency with a child by contact occurs when a person “causes the child to engage in sexual

contact.” Tex. Penal Code Ann. § 21.11(a)(1) (West 2011). Another subpart of that section

specially defines sexual contact with children as follows:


       (c) In this section, “sexual contact” means the following acts, if committed with the
       intent to arouse or gratify the sexual desire of any person:

               (1) any touching by a person, including touching through clothing, of the
               anus, breast, or any part of the genitals of a child; or

               (2) any touching of any part of the body of a child, including touching
               through clothing, with the anus, breast, or any part of the genitals of a person.


Id. § 21.11(c). Appellant concedes that he invited the touch to gratify his sexual desire, but contends

that the child’s punch was not the contact he had in mind and was not a touch intended to gratify



                                                  7
sexual desire. He argues that the child’s choice to deviate from his requested contact broke the

causal chain of events stemming from his request.

                We measure the sufficiency of the evidence against the hypothetically correct

jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). We review the legal

sufficiency to sustain a criminal conviction by determining whether a rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We view all the

evidence in the light most favorable to the verdict and assume that the trier of fact resolved conflicts

in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports

the verdict. Clayton, 235 S.W.3d at 778.

                Putting the relevant subparts of section 21.11 together, indecency with a child by

contact occurs when a person causes a child to touch any part of the genitals of the person with the

intent to arouse or gratify sexual desire of any person. See id. Appellant takes the statutory language

out of context to argue that there is perhaps some grammatical ambiguity regarding whose

intent is relevant. In the context of a criminal prosecution for indecency with a child by contact,

however, the relevant intent is that of the alleged offender. See Jones v. State, 238 S.W.2d 529, 530

(Tex. Crim. App. 1951).1

                We conclude that legally sufficient evidence supports the verdict. There is ample

evidence that appellant viewed pornography and masturbated knowing the children were present.


       1
          The reason that the adult’s intent is the relevant intent becomes clear when we consider
an instance of touching that does not constitute indecency by an adult with a child. If a child touched
an unconscious adult’s genitals and the adult had no knowledge of the touching, much less any
intent that it should happen or that it should happen to arouse or gratify anyone’s sexual desire,
the intentless, unknowing adult would not be transformed into an offender irrespective of the
child’s intent.

                                                   8
Appellant has conceded on appeal that, during that same visit and with the requisite intent,2 he

invited one of the girls to contact his genitals. The child then punched his penis. The record

supports a finding that the child-genital contact occurred because of—i.e., was caused

by—appellant’s invitation. The statute criminalizes causing, with the relevant intent, a child to

engage in “any touching of . . . any part of the genitals of a person.” The statute does not

differentiate among type of contact that is caused, whether it was the exact type the defendant

invited, or whether it produced the result the defendant envisioned. The statute defines the contact

as “sexual” because of the body part(s) involved and the intent with which it is caused. The evidence

is legally sufficient to support the required findings.


Double jeopardy

                 Appellant complains finally that, in this case, the indecency-by-contact offense in

which the child punched his penis includes the offense of indecency by exposure with the same child.

Appellant never objected to the charge at trial or asserted any double-jeopardy complaint prior to this

appeal, but a double jeopardy claim can be raised for the first time on appeal if the undisputed

facts make the double-jeopardy violation apparent from the record. Bigon v. State, 252 S.W.3d 360,

369 (Tex. Crim. App. 2008). Specifically, a defendant may raise a double-jeopardy claim for the

first time on appeal when the error is apparent on the face of the record and enforcement of the usual

rules of procedural default serves no legitimate state interest. See Gonzalez v. State, 8 S.W.3d 640,

643 (Tex. Crim. App. 2000).

                 Conviction and punishment for both greater-included and lesser-included offenses

can violate the double-jeopardy prohibition by punishing the offender twice for the same offense.


       2
           The record supports finding of the requisite intent without regard to appellant’s concession.

                                                    9
See U.S. Const. amend. V; Tex. Const. art. I, § 14; see also Blockburger v. United States, 284 U.S.

299, 304 (1932); Littrell v. State, 271 S.W.3d 273, 275-76 (Tex. Crim. App. 2008). Two offenses

may be the “same” if one offense stands in relation to the other as a lesser-included offense, or if the

two offenses are defined under distinct statutory provisions but the Legislature has made it clear

that only one punishment is intended. An accused may be punished for two offenses that would be

regarded as the same under a Blockburger analysis if the Legislature has otherwise made manifest

its intention that he should be. Littrell, 271 S.W.2d at 276. In Texas, an offense is included

within another if, among other things, “it is established by proof of the same or less than all the

facts required to establish the commission of the offense charged.” Tex. Code Crim. Proc. Ann.

art. 37.09(1) (West 2006); Hutchins v. State, 992 S.W.2d 629, 632 (Tex. App.—Austin 1999,

pet. ref’d). Indecency by exposure may be, but is not necessarily, a lesser included offense of

indecency by contact. Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004). When a

defendant is convicted of two offenses in violation of the double-jeopardy prohibitions, the offense

carrying the more serious punishment will be retained and other offense will be set aside. Landers

v. State, 957 S.W.2d 558, 560 (Tex. Crim. App. 1997). Absent a clear indication of contrary

legislative intent, we must presume that the legislature did not intend to authorize multiple

punishments for two offenses that are the same under the Blockburger test. Hutchins, 992 S.W.2d

at 632 (citing Whalen v. United States, 445 U.S. 684, 691-92 (1980)). In this case, appellant exposed

his penis in the girls’ presence for a few minutes with the intent to arouse or gratify his sexual desire,

and then urged one of the girls to touch his exposed penis, which she did. We find no clear intent

by the legislature to impose two punishments for these offenses on this fact pattern. We conclude

that, under the facts presented, the exposure offense involving the older girl was subsumed by the



                                                   10
contact offense in which the older girl punched appellant’s exposed penis and that conviction for

both offenses violated the prohibition of double jeopardy.


                                        CONCLUSION

               We vacate appellant’s conviction and related punishment on the count of indecency

by exposure to the girl who punched him—Count III in trial court cause number D-1-DC-10-

0300616, appellate cause number 03-11-00074-CR. We affirm the judgments on the remaining

counts in both cases, including the three concurrent seven-year terms of imprisonment for the

indecency by contact offenses and a consecutive ten-year term of imprisonment—probated for

ten years—for the remaining indecency by exposure offense.




                                             Jeff Rose, Justice

Before Chief Justice Jones, Justices Puryear and Rose

03-11-00074-CR        Affirmed in part; Vacated in part

03-11-00075-CR        Affirmed

Filed: August 17, 2012

Do Not Publish




                                               11
