
Opinion issued January 14, 2010 












     




In The
Court of Appeals
For The
First District of Texas




NO. 01-08-00454-CR
NO. 01-08-00455-CR




LEONARD RAY ATKINSON, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause Nos. 1096852 & 1096853




O P I N I O N

          A jury convicted appellant, Leonard Ray Atkinson, of indecency with a child
and aggravated sexual assault of a child and assessed punishment at ten years’
imprisonment for indecency with a child and twenty years’ imprisonment for the
sexual assault, with the sentences to run concurrently.  In two points of error,
appellant argues that: (1) the Fifth Amendment protection from double jeopardy
prevents the trial court from convicting appellant of both indecency with a child  and
aggravated sexual assault of a child; and (2) he was egregiously harmed by the lack
of a reasonable doubt instruction regarding extraneous offense evidence in the
punishment phase of trial.
          We affirm. 
Background
          On September 12, 2006, Denise Abrego left her two minor children, her
thirteen-year-old son, J.W., and her six-year-old daughter, the complainant, in the
care of her live-in boyfriend, appellant, while she was at work.  At some time during
the evening, appellant took the complainant to the bedroom that he shared with
Abrego.  While in the bedroom, appellant removed the complainant’s shorts and
rubbed her vagina.  He then removed his shorts, exposing his penis, put the
complainant on his lap and put his penis inside her vagina.  When appellant was
finished, he asked to take a shower with the complainant, but she took a bath alone. 
J.W. heard the complainant crying while she was in the bath.  He went into the
restroom and found his sister sitting in the bath tub.  The complainant told J.W. what
had happened, and J.W. told his uncle.  After Abrego was informed of the events, she
returned home, where she began punching appellant and questioning his behavior. 
Appellant responded that he had “blacked out” and could not remember what
happened.  Abrego took the complainant to the Texas Children’s Hospital, where the
complainant informed Nurse Melissa Fonseca that her “middle part” was hurting. 
The complainant also told Fonseca that appellant took off her shorts and rubbed her
“middle part” and then put his “middle part” in her “middle part.”  A physical
examination followed the interview and Fonseca concluded that there was some
redness around the hymenal area of the vagina and that it could be consistent with the
complainant’s story.  
          A trial was held and the jury found appellant guilty on both charges.  The jury
assessed appellant’s punishment as ten years’ imprisonment for indecency with a
child and twenty years’ imprisonment for aggravated sexual assault of a child.  This
appeal followed.
 Double Jeopardy
          In his first point of error, appellant contends that the trial court erred because
his conviction for both indecency with a child and aggravated sexual assault of a
child violated the United States Constitution’s Fifth Amendment prohibition against
double jeopardy.  Appellant was indicted for two separate crimes—indecency with
a child “by touching” and aggravated sexual assault.  The jury was given two separate
charges—one on indecency with a child and one on aggravated sexual assault—and
found appellant guilty of both crimes.  Appellant contends that his convictions arose
out of the same conduct during the same event.  Specifically, he argues that the
indecency charge was subsumed within the aggravated sexual assault charge because
the evidence established only that he touched the complainant with his penis.  He
essentially argues that he was convicted for both the greater offense of aggravated
sexual assault of a child and the lesser-included offense of indecency with a child for
the same act. Appellant never objected to the charge at trial or asserted any double jeopardy
complaint prior to this appeal.  However, he argues that we can review his complaint
because a double jeopardy claim can be raised for the first time on appeal if the
undisputed facts show the double jeopardy violation is apparent from the record.  See
Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000).  Specifically, a
defendant may raise a double jeopardy claim for the first time on appeal when (1) no
further proceedings are required to “expand the record with new evidence” and the
claim can be resolved “on the basis of the existing record”; and (2) “enforcement of
the usual rules of procedural default serves no legitimate state interest.”  Id. at 643–44
(citing United States v. Broce, 488 U.S. 563, 575, 109 S. Ct. 757, 763–66 (1989) and
Menna v. New York, 423 U.S. 61, 63, 96 S. Ct. 241, 242 (1975)); see also Langs v.
State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006) (“[A] potential multiple-punishment double jeopardy claim may be forfeited if a defendant does not properly
preserve that claim.”) (citing Gonzales, 8 S.W.3d at 642–43).  Therefore, we must
first determine whether appellant’s double jeopardy complaint can be resolved on the
basis of the existing record and is, therefore, preserved.
          Double jeopardy is the principle that a person shall not be “subject for the same
offense to be twice put in jeopardy of life or limb.” U.S. Const. amend V.  These
prohibitions protect against a second prosecution for the same offense after acquittal,
a second prosecution for the same offense after conviction, and multiple punishments
for the same offense.  Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990). 
When a defendant is subjected to a single trial only, the protection against multiple
punishments is applicable.  See id. at 624. 
          For double jeopardy purposes, “[t]he same offense means the identical criminal
act, not the same offense by name.”  Luna v. State, 493 S.W.2d 854, 855 (Tex. Crim.
App. 1973).  A conviction for both a greater and a lesser-included offense arising out
of the same act violates double jeopardy.  See Hutchins v. State, 992 S.W.2d 629, 632
(Tex.App.—Austin 1999, pet. ref’d, untimely filed).  If the State’s pleadings do not
determine whether the offenses prosecuted are the same, this court will look to the
proof offered at trial.  See Luna, 493 S.W.2d at 855. 
          A defendant is guilty of aggravated sexual assault of a child when the evidence
shows that he intentionally or knowingly caused his sexual organ or his mouth to
contact or penetrate the anus or sexual organ of a child by any means.  Tex. Penal
Code Ann. § 22.021(a)(1)(B)(i) (Vernon Supp. 2009).  A defendant is guilty of
indecency with a child when the evidence shows (1) that he engaged in sexual contact
with a child younger than 17 years or (2) that, with the intent to arouse or gratify his
sexual desire, he exposed his anus or any part of his genitals knowing the
complainant was present.  Id. §§ 21.11(a)(1), (a)(2)(A) (Vernon Supp. 2009).  A
defendant engages in sexual contact if he touches, including touching through
clothing, the anus, breast, or any part of the genitals of a child.  Id. § 21.11(c)(1).
          Indecency with a child can be a lesser-included offense of aggravated sexual
assault.  See Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998) (citing
Cunningham v. State, 726 S.W.2d 151, 153–54 (Tex. Crim. App. 1987)).  In
analyzing a case where the appellant exposed his genitals and penetrated the
complainant’s anus, the Texas Court of Criminal Appeals stated:
Just as a conviction for a completed offense bars prosecution for an
attempt to commit the same offense, a conviction for [a sexual offense
against a child] bars conviction for conduct that, on the facts of the case,
is demonstrably part of the commission of the greater offense.  For
example, indecency by genital exposure of oneself in the course of
manual penetration of another are separate offenses, while penile contact
with mouth, genitals, or anus in the course of penile penetration will be
subsumed.  Thus, indecency by exposure may or may not be a part of
sexual assault or indecency by contact, depending on the facts of the
case.  
 
Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004).
          Here, the evidence undisputedly shows that appellant caused his penis to
penetrate the complainant’s vagina, supporting his conviction for aggravated sexual
assault of a child.  See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i).  However, the
evidence is ambiguous concerning other contact between appellant and the
complainant.  Fonseca testified that the complainant told her appellant exposed his
penis, “took my shorts off and rubbed my middle part,” and put his “middle part” in
her “middle part.”  The complainant also used dolls to demonstrate for the jury the
contact between herself and appellant, but the record does not explain in any detail
exactly what she showed the jury.
          Appellant argues that evidence that he “rubbed” the complainant’s genitals is
evidence of indecency by contact that is subsumed within the aggravated sexual
assault for penetration of her genitals with his penis and that there is no other
evidence of genital contact.  The State argues that the word “rubbed” is generally
used to indicate touching with hands and that the jury could have concluded from the
evidence at trial that appellant first touched the complainant’s genitals with his finger
and then subsequently penetrated her with his penis.  It is not clear from the record
on appeal whether appellant “rubbed” the complainant with his penis or with his
finger.  Because our analysis of whether indecency with the child is a lesser-included
offense of aggravated sexual assault depends on the specific facts of the case, and
those facts cannot be determined “on the basis of the existing record,” we conclude
that appellant has failed to preserve his double jeopardy complaint for review.  See
Gonzalez, 8 S.W.3d at 644; see also Langs, 183 S.W.3d at 687 (“The fact that the
jury’s verdict could have relied on a theory that would violate the Double Jeopardy
Clause, is not sufficient to show a constitutional violation ‘clearly apparent on the
face of the record.’” (quoting Gonzales, 8 S.W.3d at 643)).
          We overrule appellant’s first issue.
Failure to Instruct on Reasonable Doubt 
          In his second point of error, appellant contends that he was egregiously harmed
when the trial court did not offer a reasonable doubt burden-of-proof instruction in
the punishment charge after evidence of the extraneous offense of PCP use was
admitted.  The State responds that appellant’s claim lacks merit because the alleged
offense was same transaction contextual evidence.
A.      Background Relevant to Jury Charge
          At the guilt-innocence phase of trial, the State called multiple witnesses,
including Michael Abrego, the complainant’s uncle, and Denise Abrego, the
complainant’s mother.  In the course of testifying about the events on the day the
complainant was assaulted, Michael testified during cross-examination by appellant’s
counsel that appellant vacated the apartment at some point in the evening and that,
on his return, appellant was not himself.  On re-direct examination, the State asked
Michael what he meant when he testified that appellant was not himself.  Michael
testified that appellant appeared to be high and that he had seen appellant high on
other occasions.  When the State asked Michael to account for the number of times
appellant was high, the defense objected that the drug use was an extraneous offense. 
The trial court sustained the objection.  
          Denise Abrego testified that when she heard of the complainant’s assault, she
began punching appellant and asked him why he had harmed the complainant. 
Denise testified that appellant informed her that he blacked out and could not
remember what happened because he was under the influence of PCP.  When the
State asked Denise to testify as to the number of times she had seen appellant under
the influence of PCP, the defense objected, claiming the testimony constituted
evidence of an extraneous offense, and, again, the trial court sustained the objection.
          The jury charge for the guilt-innocence phase included an instruction that it
could consider other crimes, wrongs, or bad acts allegedly committed by the
defendant if it believed beyond a reasonable doubt that the defendant committed the
other crime, wrong, or bad act.  After deliberation, the jury convicted appellant of
indecency with a child and aggravated sexual assault of a child.  
          During the punishment phase of trial, the State offered several exhibits
containing proof of prior convictions for assault, driving while intoxicated, two
instances of felony cocaine possession, and failure to stop and give information. The
State also introduced appellant’s stipulation as to these prior convictions.  These were
admitted without objection.  The State then said, “In addition, the State would re-offer
all the evidence from the guilt-innocence phase and we would rest at this time.” 
Appellant made no objection and did not present any evidence at the punishment
phase.
          The jury charge for the punishment phase did not include an instruction on how
to consider either extraneous offenses or same transaction contextual evidence. 
Appellant stated that he did not have an objection to the jury charge on the
punishment.  The jury assessed punishment at ten years’ imprisonment for indecency
with a child and twenty years’ imprisonment for aggravated sexual assault, with the
sentences to run concurrently.
B.      Standard of Review
          In determining whether there is reversible error in the jury charge, we first
decide whether error exists.  Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.
App. 2003); Almanza v. State, 686 S.W.2d 157, 171–72 (Tex. Crim. App. 1984).  If
error exists, we must next determine whether the defendant was harmed.  Middleton,
125 S.W.3d at 453; Almanza, 686 S.W.2d at 171–72.  The appellate court must apply
the egregious harm standard to review an erroneous jury charge when, as here, the
defendant’s counsel failed to object to the charge.  Almanza, 686 S.W.2d at 171. 
C.      Use of Evidence at Punishment Phase
          By operation of law, the evidence admitted during the guilt-innocence phase
of the trial is also before the jury at the penalty phase, and the jury may consider all
the evidence adduced at the guilt-innocence phase in assessing a defendant’s
punishment.  Wright v. State, 212 S.W.3d 768, 776 (Tex. App.—Austin 2006, pet
ref’d).  The State’s cursory request to re-offer the evidence from the guilt-innocence
phase during the punishment phase has no effect on the use of that evidence at the
punishment phase.  Id. at 777 (citing Rayme v. State, 178 S.W.3d 21, 27 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d)).  “We see no distinction in our
evaluation of the evidence merely because the State moved to re-admit it in the
punishment phase of the trial.”  Rayme, 178 S.W.3d at 27.
          After a finding of guilt, additional evidence may be introduced by both the
State and the defendant at the punishment phase of the trial.  Id. at 24–25.  Article
37.07 section 3(a) of the Texas Code of Criminal Procedure governs the admissibility
and use of evidence at punishment in all non-capital cases.  See Huizar v. State, 12
S.W.3d 479, 484 (Tex. Crim. App. 2000).  Article 37.07 section 3(a) provides:
          Sec. 3.  Evidence of prior criminal record in all criminal cases
after a finding of guilt.
 
          (a)(1) Regardless of the plea and whether the punishment be
assessed by the judge or the jury, evidence may be offered by the state
and the defendant as to any matter the court deems relevant to
sentencing, including but not limited to the prior criminal record of the
defendant, his general reputation, his character, an opinion regarding his
character, the circumstances of the offense for which he is being tried,
and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any
other evidence of an extraneous crime or bad act that is shown beyond
a reasonable doubt by evidence to have been committed by the
defendant or for which he could be held criminally responsible,
regardless of whether he has previously been charged with or finally
convicted of the crime or act. . . .
 
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2008) (emphasis
added).
          Although the Code of Criminal Procedure does not expressly require a jury
instruction concerning extraneous offenses admitted in the punishment phase of a trial
under section 3(a), the Court of Criminal Appeals has held that “such instruction is
logically required if the jury is to consider extraneous-offense and bad-act evidence
under the statutorily prescribed reasonable-doubt standard.”  Huizar, 12 S.W.3d at
484.  Therefore, the trial court must sua sponte charge the jury under section 3(a)
when extraneous evidence was admitted in the punishment phase of trial.  Huizar, 12
S.W.3d at 484; Rayme, 178 S.W.3d at 25.
          This Court has extended Huizar by holding that the trial court must also sua
sponte charge the jury under section 3(a) when extraneous evidence is used in the
punishment phase of trial, even though the evidence was admitted during the guilt-innocence phase.  Rayme, 178 S.W.3d at 25 (citing Graves v. State, 176 S.W.3d 422,
432 (Tex. App.—Houston [1st Dist.] 2004, pet. stricken)).  However, we have
declined to extend Huizar to require a trial court to sua sponte charge the jury under
section 3(a) when extraneous acts were admitted and used only during the guilt-innocence phase.  See id. at 26.
          We also note that Huizar specifically addressed the question of whether a trial
court was required to charge the jury sua sponte on the burden of proof for evidence
of extraneous offenses and bad acts admitted in the punishment phase.  See Huizar,
12 S.W.3d at 484.  The Court of Criminal Appeals has declined to extend its holding
in Huizar to require trial courts to charge the jury in the punishment phase on the
burden of proof for other types of evidence listed in section 3(a).  See Bluitt v. State,
137 S.W.3d 51, 54 (Tex. Crim. App. 2004).  Bluitt noted that section 3(a) provided
a non-exclusive list of six types of evidence that may be offered by either party during
sentencing, including, among others, the prior criminal record of the defendant, the
circumstances of the offense on trial, and extraneous offenses and bad acts that are
shown beyond a reasonable doubt to have been committed by the defend or for which
he could be held criminally responsible.  Id.  The court stated, “The only types of
evidence for which a burden of proof is articulated are unadjudicated offenses and
bad acts,” and went on to hold that “[t]he criminal record of the defendant is not
grouped with extraneous offenses, and therefore we presume that the legislature did
not intend to require the same burden of proof that it attached to extraneous,
unadjudicated offenses.”  Id.
          Here, the State argues that the evidence appellant claims entitles him to the
burden of proof instruction is not extraneous offense evidence but is same transaction
contextual evidence.  When several crimes are intermixed, blended, or connected with
one another so that they form an indivisible criminal transaction, they are collectively
referred to as same transaction contextual evidence.  Lamb v. State, 186 S.W.3d 136,
141 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  Contextual evidence is admitted,
not because it has any particular evidentiary purpose, but rather, because in narrating
the one offense, it is impracticable to avoid mentioning the other extraneous offense. 
Id. at 142 (citing Mayes v. State, 816 S.W.2d 79, 86–87 (Tex. Crim. App. 1991)); see
also Garza v. State, 2 S.W.3d 331, 335 (Tex. App.—San Antonio 1999, pet. ref’d)
(“Crimes do not occur in a vacuum, and the state is entitled to prove the
circumstances surrounding the crime even though they may seem like irrelevant
details.”).  Thus, same transaction contextual evidence illuminates the nature of the
crime alleged by imparting to the trier of fact information essential to understanding
the context and circumstances of events.  Lamb, 186 S.W.3d at 142 (citing Camacho
v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993)).
          The Texas Court of Criminal Appeals has not specifically addressed whether
a reasonable doubt instruction under section 3(a) is required when same transaction
contextual evidence is admitted during the guilt phase and re-offered at the
punishment phase, but several courts of appeals have addressed this issue.  See, e.g.,
Glockzin v. State, 220 S.W.3d 140, 152 & n.6 (Tex. App.—Waco 2007, pet. ref’d)
(holding burden of proof instruction was not required at guilt or punishment phase
for same transaction contextual evidence admitted during guilt phase and used during
punishment phase); Moore v. State, 165 S.W.3d 118, 124 (Tex. App.—Fort Worth
2005, no pet.) (holding appellant was not harmed “even if we assume that the trial
court did err in failing to sua sponte provide beyond-a-reasonable-doubt jury
instruction” on his same transaction contextual evidence admitted during punishment
phase); Garza, 2 S.W.3d at 335 (stating, “[S]ince same transaction contextual
evidence is not offered as evidence against a defendant, but simply to explain the
circumstances of the offense, a reasonable doubt instruction is not required.”).  We
note that admission of same transaction contextual evidence during the guilt-innocence phase does not require a reasonable doubt instruction.  Camacho, 864
S.W.2d at 535; see Garza, 2 S.W.3d at 335 (“Although the jury may use the [same
transaction contextual] evidence to assess the defendant’s character, by holding that
a limiting instruction is not required, the Texas Court of Criminal Appeals has already
decided that we should not concern ourselves with that possibility.”). 
            Here, at the guilt-innocence phase of trial, the State attempted to offer
appellant’s use of PCP into evidence though the testimony of Michael and Denise. 
Upon hearing the line of questioning by the State, the defense objected on the ground
that the testimony contained an extraneous offense, and the trial court sustained the
objections.  To the extent that appellant’s use of PCP was admitted into evidence at
trial, it was admitted to provide the context for the occurrence of the charged
offense—essentially, to explain why appellant, who had been living with the
complainant and caring for her with no previous instances of abuse or trouble, had
suddenly assaulted her on that night.  It was not offered to establish appellant’s
character, and it is properly categorized as same transaction contextual evidence.  See
Garza, 2 S.W.3d at 335 (comparing use of extraneous offense evidence that is
intended to help jury evaluate defendant’s character for purposes of assessing
punishment, which requires that State bear burden of proving such offenses because
they will be used against defendant, and same transaction contextual evidence used
to explain circumstances, which does not require reasonable doubt instruction). 
Nevertheless, without appellant’s requesting it, the trial court instructed the jury on
the State’s burden of proof for any “other crimes, wrongs or bad acts” allegedly
committed by appellant, and the jury found appellant guilty.
          At the punishment phase, no new evidence was introduced and neither party
referred to or used in any way the testimony regarding appellant’s PCP use.  We have
already determined that appellant was given a proper burden of proof instruction
during the guilt-innocence phase, even though it was not required for the same
transaction contextual evidence he complains of here, and our evaluation of the
evidence does not change merely because the State made a cursory re-offer of it at the
punishment phase.  See Rayme, 178 S.W.3d at 27.  Therefore, we conclude that
appellant was not entitled to a reasonable doubt instruction during the punishment
phase.  See Glockzin, 220 S.W.3d at 152 & n.6; Garza, 2 S.W.3d at 335; see also
Bluitt, 137 S.W.3d at 54 (holding that only types of evidence for which burden of
proof is expressly articulated in article 37.07 section 3(a) are unadjudicated
extraneous offenses and bad acts); cf. Rayme, 178 S.W.3d at 26 (holding that
reasonable doubt instruction was not required when extraneous acts evidence was not
introduced, used, or referred to during punishment phase).
          Because we conclude that there was no error in the jury charge at the
punishment phase, we do not consider whether appellant was egregiously harmed. 
See Almanza, 686 S.W.2d at 172.
          We overrule appellant’s second point of error.  Conclusion
We affirm the judgment of the trial court.
 



                                                             Evelyn V. Keyes
                                                             Justice
 
Panel consists of Justices Keyes, Alcala, and Hanks.
Publish.  Tex. R. App. P. 47.2(b).
