


 






IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1334-12


AUSTIN LOVING, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS

TRAVIS COUNTY



 Hervey, J., delivered the opinion of the Court in which Keller, P.J.,
Meyers, Womack, Johnson, Keasler, Cochran, and Alcala, JJ., joined.
Cochran, J., filed a concurring opinion in which Johnson and Alcala, JJ., joined.
Price, J., concurred in the result.

O P I N I O N


 Appellant, Austin Loving, was convicted of three counts of indecency with a child
by contact and two counts of indecency with a child by exposure involving two sisters.
See Tex. Penal Code § 21.11(a)(1), (a)(2). He was sentenced to seven years'
imprisonment for each of the indecency-by-contact counts and ten years' imprisonment,
probated for ten years, on the indecency-by-exposure counts. The Austin Court of
Appeals vacated one of Appellant's convictions for indecency by exposure on double-jeopardy grounds, and it affirmed the remainder of his convictions. Loving v. State, Nos.
03-11-00074-CR, 03-11-00075-CR, 2012 WL 3601127, at *6 (Tex. App.--Austin Aug.
17, 2012) (memo. op.) (not designated for publication). We granted the State's petition
for discretionary review to determine if Appellant's vacated exposure conviction is barred
by double jeopardy. We will reverse the judgment of the court of appeals in part and
affirm its judgment as modified.
I. BACKGROUND
	Appellant, a nineteen-year-old man, was accused of indecent behavior with two
sisters. The victims, ages eight and nine, were invited to play video games in Appellant's
bedroom at his mother's apartment. While the sisters were playing video games,
Appellant went to a computer near the living room and opened a pornographic website on
the computer. The girls came out of the bedroom and saw the pornography on the
computer. While the girls were present, Appellant went to the couch in the living room,
exposed his genitals, and began masturbating. The girls then left the living room to play
more video games. After the sisters reentered the living room, and while Appellant was
still masturbating, he touched the youngest girl. After he finished masturbating, he
touched the older girl and asked her to touch his penis, but she testified that she "punched
it" instead.
	In a consolidated trial, Appellant was convicted on three counts of indecency with
a child by contact and two counts of indecency with a child by exposure. One contact and
one exposure conviction were for his actions regarding the younger sister. The other three
convictions were for his indecent behavior with the older sister. The issues presented in
this case address only Appellant's convictions for indecency with a child by exposure for
exposing his genitals to the older sister and indecency with a child by contact for causing
the older sister to touch his genitals. We do not address any of Appellant's other
convictions.
	The court of appeals affirmed the convictions relating to the younger girl and the
contact count alleging Appellant touched the older girl's breast. As to the other counts,
the appellate court vacated Appellant's conviction for exposure of his genitals, and it
affirmed the contact conviction for causing her to touch his penis. The court held that
Appellant's exposure conviction violated double-jeopardy principles because it was
factually subsumed by the contact offense. Loving, 2012 WL 3601127, at *5; see U.S.
Const. amend. V. The court concluded that the exposure was subsumed because the
offenses were the same, and the Legislature did not clearly intend for two punishments to
be imposed based on the facts of the case. Thus, Appellant's exposure conviction was
barred by double jeopardy.
	We granted the State's Petition for Discretionary Review to address the following
issues:
1. Did the Legislature intend to allow separate punishments for indecency
with a child by exposure and contact committed against the same victim
when the exposure precedes the contact?

2. Was the exposure in this case subsumed by the sexual contact?II. Arguments of the Parties
 A. State's Argument
	The State argues that the court of appeals reached the wrong result because it
incorrectly concluded that indecency by exposure in this case is a lesser-included offense
of indecency with a child by contact and is factually subsumed. The State also contends
that when a proper double-jeopardy analysis is performed, indecency with a child by
exposure and contact do not have the same elements under Blockburger, and the offenses
are not the same under the cognate-pleadings approach adopted in Hall v. State, 225
S.W.3d 524, 535 (Tex. Crim. App. 2007). See Blockburger v. United States, 284 U.S.
299, 304 (1932). The offenses are not the same under Blockburger, the State argues,
because they have different abstract elements, and they are not the same under Hall,
because the exposure was not alleged in the allegations of the indictment, nor could it be
deduced from the face of the indictment. Id. Moreover, the State argues that the court of
appeals expressly relied on the facts of the case to reach its conclusion, but the facts of
the case are irrelevant in a cognate-pleadings analysis. See Hall, 225 S.W.3d at 535-36.

	The State also argues that if two offenses are not the same under Blockburger, it is
presumed that the Legislature intended to allow multiple punishments, absent a clear
manifestation of intent to the contrary. See Gonzales v. State, 304 S.W.3d 838, 845 (Tex.
Crim. App. 2010); see also Blockburger, 284 U.S. at 304. And the State contends that, if
the Legislature's intent is unclear as to whether multiple punishments are authorized in
this case, the list of nonexclusive factors set out by this Court in Ex parte Ervin, 991
S.W.2d 804, 814 (Tex. Crim. App. 1999), should be considered. (1)
	Addressing the gravamen-of-the-offense factor in Ervin, the State asserts that the
focus of the indecency with a child statute is the prohibited conduct, which shows that the
Legislature intended for the State to be able to punish a criminal defendant multiple
times. To support its argument, the State cites three related cases. See Gonzales, 304
S.W.3d at 848 ("[I]f the focus of the offense is the conduct--that is, the offense is a
'nature of conduct' crime--then different types of conduct are considered to be different
offenses."); Pizzo v. State, 235 S.W.3d 711, 717 (Tex. Crim. App. 2007) (holding in a
jury-unanimity case that indecency with a child by contact is a conduct-oriented offense);
see also Vick v. State, 991 S.W.2d 830, 832-33 (Tex. Crim. App. 1999) (holding in a
multiple-punishment case that aggravated sexual assault focuses on prohibited conduct).
	Finally, the State argues that indecency with a child is not a continuum case under
this Court's decisions in Weinn v. State, 326 S.W.3d 189 (Tex. Crim. App. 2010) and
Lopez v. State, 108 S.W.3d 293 (Tex. Crim. App. 2003), in which this Court held that
when the gravamen of a statute is to prevent a continuum of behavior, a person cannot be
convicted for violating multiple offenses within that continuum in a single action for a
single act.
 B. Appellant's Arguments
	Appellant argues that the Legislature did not clearly intend for multiple
punishments to be imposed for acts of indecency with a child by exposure and contact
when the acts were committed against the same victim at the same time. He asserts that
under the cognate-pleadings approach, the elements of indecency with a child by
exposure and contact are functionally the same because "[s]ubsumed within both methods
[of sexual contact] is either direct genital contact or genital contact through clothing."
Appellant's Brief on Discretionary Review at 8, Loving v. State, No. PD-1334-12 (Tex.
Crim. App. Mar. 4, 2013); see McKithan v. State, 324 S.W.3d 582, 588 (Tex. Crim. App.
2010) (quoting Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009)). Appellant
also contends that the offenses are the same for cognate-pleading purposes because the
indictment merely alleges that Appellant caused the victim to touch his genitals and does
not specifically state that the touching happened over his clothing. 
	Appellant also argues that, notwithstanding the gravamen of the statute, under an
analysis of the other Ervin factors described by this Court, the two offenses in question
are substantially the same for double-jeopardy purposes. Ex parte Ervin, 991 S.W.3d at
814. Specifically, Appellant contends that the offenses are contained in the same statute,
are similarly named, the provisions are separated in the alternative using the word "or,"
the provisions share a common focus, and the offenses tend to indicate a single instance
of conduct. However, Appellant concedes that the punishment ranges for these offenses
are different. Nonetheless, Appellant concludes that the Ervin factors support his
assertion that the Legislature did not intend to authorize separate punishments in this case.
III. The Law
 Both parties' arguments are predicated on the assumption that the proper analysis
includes the application of the Blockburger test and the cognate-pleadings approach.
However, we employ that analysis only when the charged conduct involves multiple
offenses in different statutory provisions that are the result of a single course of conduct.
See Vick, 991 S.W.2d at 830 (holding that, when the Legislature intends to punish
separate acts, even ones in close temporal proximity, the Blockburger test does not apply
"because the precondition for employing that test (that the two offenses involve the same
conduct) is absent"). In this case, the proper analysis is to determine whether the
Legislature intended for the separate statutory subsections in a single statute to constitute
distinct offenses. (2)  In other words, we must determine the allowable unit of prosecution
for indecency with a child by exposure and contact. In making this determination, we rely
on the plain language of the statute and our caselaw interpreting that plain language. See
Gonzales, 304 S.W.3d at 849 (relying on the phrasing of the statute and our decision in
Vick to reach the conclusion that the Legislature intended for an accused to be punished
twice under those circumstances); see Vick, 911 S.W.2d at 832-33 (interpreting the
language of the aggravated-sexual-assault statute to determine its focus); see also Harris
v. State, 359 S.W.3d 625, 630 (Tex. Crim. App. 2011); Pizzo, 235 S.W.3d at 715.
	When Appellant was charged with committing these crimes, (3) the indecency with a
child statute read, in part:
§ 21.11.  Indecency with a Child 
(a) A person commits an offense if, with a child younger than 17 years,
whether the child is of the same or opposite sex, the person:(1) engages in sexual contact with the child or causes the child to
engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:(A) exposes the person's anus or any part of the person's genitals,
knowing the child is present; or(B) causes the child to expose the child's anus or any part of the
child's genitals.
*          *          *

(d) An offense under Subsection (a)(1) is a felony of the second degree
and an offense under Subsection (a)(2) is a felony of the third degree.

Tex. Penal Code § 21.11.
	The Double Jeopardy Clause of the Fifth Amendment prohibits the punishment of
an accused in a second trial when the accused has already been convicted or acquitted of
that crime, and it forbids punishing an accused more than once for the same offense in a
single prosecution. See U.S. Const. amend. V; Gonzales, 304 S.W.3d at 845; Bigon v.
State, 252 S.W.3d 360, 369-70 (Tex. Crim. App. 2008); see also Harris, 359 S.W.3d at
629. This is a multiple-punishments case. The relevant inquiry in a multiple-punishments
double-jeopardy case is always whether the Legislature intended to permit multiple
punishments. Hunter, 459 U.S. at 368.
	However, because two subsections of a single statute are at issue in this case, we
must first "ascertain whether [the] alleged conduct violates two distinct statutory
provisions within one statute." Vick, 991 S.W.2d at 832 (holding that multiple
prosecutions for aggravated sexual assault based on different statutory subsections are
permissible because the Legislature defined the "allowable unit of prosecution" as each
completed act); Gonzales, 304 S.W.3d at 847-48 (holding that two punishments imposed
under the same statutory subsection in a single trial were permissible where the
subsection prohibits separate acts in separate phrases). "Whether a particular course of
conduct involves one or more distinct 'offenses' under the statute depends on [the
Legislature's] choice." Sanabria v. United States, 437 U.S. 54, 70 (1978). The allowable-unit-of-prosecution inquiry is necessary because, although we are bound by the decisions
of the United States Supreme Court interpreting the Double Jeopardy Clause, state
legislatures define offenses and can reject grouping offenses in a statute by transaction.
See Vick, 991 S.W.3d at 833; see also Spradling v. State, 773 S.W.2d 553, 556 (Tex.
Crim. App. 1989).
	Absent an express statement defining the allowable unit of prosecution, the
gravamen of an offense best describes the allowable unit of prosecution. Gonzales, 304
S.W.3d at 847-48; Vick, 991 S.W.2d at 832. We have recognized that the gravamen of an
offense can be (1) the result of the conduct, (2) the nature of the conduct, or (3) the
circumstances surrounding the conduct. Tex. Penal Code § 6.03; see Tovar v. State, 978
S.W.2d 584, 585 n.3 (Tex. Crim. App. 1998); see e.g., Young v. State, 341 S.W.3d 417,
423 (Tex. Crim. App. 2011) (examining all three general categories of crime). To
determine the gravamen of a statutory provision, we have used various tools, including a
focus on grammar, and when examining the statute, we focus on sentence syntax and
whether the statute refers to an item in the singular or plural (usually the direct object).
See Jones v. State, 323 S.W.3d 885, 888 (Tex. Crim. App. 2010); Huffman v. State, 267
S.W.3d 902, 906 (Tex. Crim. App. 2008) (citing Stuhler v. State, 218 S.W.3d 706, 718
(Tex. Crim. App. 2007)). We have also held that the unit of prosecution can be defined by
the element of the offense requiring a completed act and that, if each statutory provision
protects a victim from a different type of harm, that is evidence that the Legislature
intended for each commission of a prohibited act to be punished separately. See Jones,
323 S.W.3d at 890; Haight v. State, 137 S.W.3d 48, 50-51 (Tex. Crim. App. 2004).
IV. Analysis
	We first address whether indecency with a child by exposure and contact are
separate and distinct offenses. See Pizzo, 235 S.W.3d at 711; Vick, 991 S.W.2d at 830. In
Vick, the appellee was acquitted of aggravated sexual assault for allegedly penetrating the
child victim's female sexual organ. Later, and for the same conduct, the appellee was
charged with causing his penis to contact the child victim's sexual organ and causing the
child victim's sexual organ to contact his mouth. Compare Tex. Penal Code
§ 22.011(a)(2)(B)(I), with § (a)(2)(B)(ii) & (iii). All of the alleged offenses were
contained within separate subsections of the same statute. Id. § 22.011; Vick, 991 S.W.3d
at 832. The trial court granted the appellee's motion to dismiss based on double-jeopardy
grounds, and the court of appeals affirmed that judgment. After ascertaining the
gravamen of the statute, we held that,
The penetration offense alleged in the first indictment clearly required a
separate and distinct act (involving appellee's sexual organ with the child's
female sexual organ) from the act alleged in the second indictment (which
involved appellee's mouth with the child's sexual organ). In this case the
second indictment alleged that appellee caused the child's sexual organ to
contact his mouth. That conduct constituted a separate and distinct statutory
offense from the alleged penetration of the child's sexual organ by
appellee's sexual organ, despite the fact both are violations of a single
statute.

Vick, 991 S.W.2d at 833 (emphasis supplied). Thus, we determined that there was no
difficulty in concluding that the Legislature authorized two punishments when the
accused violated different subsections of the same statute, in the same transaction,
because the gravamen of the statute was to proscribe certain specific types of conduct
(i.e., the nature of the appellee's conduct). Id. We reached this conclusion because the
level of detail in the statute reflected the Legislature's intent that discreet acts constitute
separate offenses. Id. at 849; see also Haight, 137 S.W.3d at 51 (holding that the
Legislature can define separate offenses within the same statutory subsection, even if the
acts are in close temporal proximity).
	Turning to this case, the gravamen of the indecency with a child statute is the
prohibited conduct. Appellant concedes to this view, the plain language of the statute
supports it, and so does our caselaw. See Harris, 359 S.W.3d at 630 (stating that a
grammatical analysis suggests that the unit of prosecution for indecency with a child by
exposure is the exposure and, ultimately, adopting that viewpoint); Pizzo, 235 S.W.3d at
718 (holding that three phrases contained within the same subsection of the
indecency-with-a-child statute defined three separate offenses for jury-unanimity
purposes when separated in the disjunctive); see also Wallace v. State, 550 S.W.2d 89, 91
(Tex. Crim. App. 1977).
	This Court has previously addressed the indecency-with-a-child statute as it refers
to sexual contact. See Pizzo, 235 S.W.3d at 718. In Pizzo, we had to decide, for jury-unanimity purposes, whether different types of conduct under the same statutory
subsection were separate offenses, even though they occurred during the same
transaction. Id. at 716. After examining the grammar of the statute, we held that
indecency with a child by contact is a conduct-oriented offense and that, "sexual contact"
as charged in that case, "criminalizes three separate types of conduct--touching the anus,
touching the breast, and touching the genitals with the requisite mental state." Id. at 719.
We concluded that, because the subsection prohibits the commission of any one of those
acts, each act is a separate offense, and the allowable unit of prosecution for indecency
with a child by contact is the commission of the prohibited touching. Id. This outcome is
similar to Harris, 359 S.W.3d at 631, in which we held that the allowable unit of
prosecution for indecency with a child by exposure is each exposure.
	Although the definition of sexual contact has changed, (4) the new definition
reinforces our conclusion that the various types of activity found in the statute are
separate offenses. "Sexual contact" now expressly includes touching through the clothing,
and the definition divides prohibited sexual contact into two categories: first, it prohibits
any touching by a person of a child's anus, breast, or genitals; second, it prohibits any
touching of any part of a child's body with the anus, breast, or genitals of any person.
Tex. Penal Code § 21.11(c)(1), (2). Both categories of prohibited touching also require
the requisite mental state. See id. § 21.11(c). Therefore, the plain language of the statute
forbade the touching at issue here because Appellant caused the older sister to touch his
genitals when she punched his penis. In addition, the plain language of the statute
supports that once an actor commits the prohibited conduct, the offense is complete.
Moreover, indecency with a child by exposure and by contact protect children from
different potential harms. These are indicia that the Legislature intended to punish the
prohibited conduct.
	When Pizzo, Vick, and Harris are read together, we can draw two conclusions.
First, the gravamen of the indecency-with-a-child statute is the nature of the prohibited
conduct, regardless of whether the accused is charged with contact or exposure. Second,
because the commission of each prohibited act determines how many convictions may be
had for a particular course of conduct, Appellant's conduct in this case violated the
indecency-with-a-child statute two separate times.
V. CONCLUSION
	We conclude that Appellant's exposure conviction was not barred by double-jeopardy principles because the Legislature intended to allow separate punishments under
these circumstances. We reverse the judgment of the court of appeals vacating
Appellant's conviction for indecency with a child by exposure in Count III of the
indictment regarding the older sister, and we affirm its judgment as modified.
								Hervey, J.
Delivered: June 26, 2013

Publish
1. Those factors include (1) whether the provisions are contained within the same statutory
section, (2) whether the offenses are phrased in the alternative, (3) whether the offenses are
named similarly, (4) whether the offenses have common punishment ranges, (5) whether the
offenses have a common focus (i.e., whether the "gravamen" of the offense is the same), (6)
whether that common focus tends to indicate a single instance of conduct, (7) whether the
elements that differ between the offenses can be considered the "same" under an imputed theory
of liability which would result in the offenses being considered the same under Blockburger (i.e.,
a liberalized Blockburger standard utilizing imputed elements), and (8) whether there is
legislative history containing an articulation of an intent to treat the offenses as the same or
different for double-jeopardy purposes. Ex parte Ervin, 991 S.W.2d at 814.
2. This analysis should be distinguished from a multiple-punishments case in which two
separate statutes are at issue. In those cases, the Blockburger test and a modified version called
the cognate-pleadings approach are applied to the offenses to determine if they should be treated
the same for double-jeopardy offenses. See Vick, 991 S.W.2d at 835 (Meyers, J., concurring,
joined by Mansfield and Johnson, JJ.) (stating that the Blockburger test is employed when
multiple offenses for the same act in the same transaction are at issue, not when multiple acts
constitute multiple offenses in the same transaction). In those analyses, we can also consider
other factors to determine, despite the outcome of the Blockburger and cognate-pleadings test, if
the Legislature intended to authorize multiple punishments. Compare Missouri v. Hunter, 459
U.S. 359, 369-69 (1983) (authorizing multiple punishments, if it is the intent of the Legislature,
despite the Blockburger test indicating the offenses are the same for double-jeopardy
purposes), with Ex parte Ervin, 991 S.W.2d 804, 807 (Tex. Crim. App. 1999) (holding that
because the ultimate question is legislative intent, "the Blockburger test cannot authorize two
punishments where the [L]egislature clearly intended only one").
3. In the relevant indictment, Appellant was charged with committing these crimes on or
about February 1, 2010. The indecency-with-a-child statute was last amended in 2009. Therefore,
the current statute applies to Appellant's actions.
4. See Pizzo, 235 S.W.3d at 715 n.23. In Pizzo, the subsection defining sexual contact
stated, "Any touching of the anus, breast, or any part of the genitals of another person with intent
to arouse or gratify the sexual desire of any person." Id. at 715.
