             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

                K ELLER, P.J., filed a dissenting opinion in which K EASLER and H ERVEY,
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
                                                                         VILLA DISSENT — 2

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
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       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).
