                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                           ________________________

                                No. 07-14-00371-CR
                                No. 07-14-00372-CR
                                No. 07-14-00373-CR
                                No. 07-14-00374-CR
                                No. 07-14-00375-CR
                           ________________________

                        CALEB LOGAN HART, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE



                         On Appeal from the 31st District Court
                                 Gray County, Texas
                  Trial Court Numbers 9662, 9663, 9664, 9665, & 9666;
                         Honorable Steven R. Emmert, Presiding


                                 Novem ber 19, 2015

                                     OPINION
                 Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Following pleas of not guilty in each case, a jury found Appellant, Caleb Logan

Hart, guilty of five sexually-related offenses proscribed by the Texas Penal Code. In
each case the jury assessed sentence and the trial court entered separate judgments

as depicted below:


 No. 9662   Aggravated Sexual Assault              § 22.021(a)(1)(B)(i),   99 years confinement
                                                         (a)(2)(B)
            (Penetration of the sexual organ of
            A.H., a child under 14 years of age,   1st Degree Felony
            by defendant’s sexual organ on or
            about June 15, 2013)

 No. 9663   Indecency with a Child                    § 21.11(a)(1)        20 years confinement

            (Sexual contact by touching A.H., a    2nd Degree Felony
            child under 17 years of age, with
            defendant’s sexual organ on or about
            September 15, 2011)

 No. 9664   Aggravated Sexual Assault              § 22.021(a)(1)(B)(i),   99 years confinement
                                                         (a)(2)(B)
            (Penetration of the sexual organ of
            A.H., a child under 14 years of age,   1st Degree Felony
            by defendant’s sexual organ on or
            about September 16, 2011)

 No. 9665   Aggravated Sexual Assault              § 22.021(a)(1)(B)(i),   99 years confinement
                                                         (a)(2)(B)
            (Penetration of the anus of A.H., a
            child under 14 years of age, by        1st Degree Felony
            defendant’s sexual organ on or about
            January 5, 2012)

 No. 9666   Prohibited Sexual Conduct of              § 25.02(a)(1)        20 years confinement
            Ancestor/Descendant
                                                   2nd Degree Felony
            (Engaging in sexual intercourse with
            a person defendant knew to be his
            niece on June 15, 2013)




See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2015), §

21.11(a)(1) (West 2011), § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2015), §

22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2015), § 25.02(a)(1) (West 2011).




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       All five sentences were ordered to run consecutively.              By his original brief,

Appellant presents a single issue asserting a double jeopardy violation based upon his

belief that his conviction for indecency with a child by sexual contact in Cause Number

9663 was subsumed by the offense of aggravated sexual assault in Cause Number

9664, due to the fact that both offenses were based on a single incident or transaction.

By his supplemental brief filed pursuant to an order of this court,1 Appellant contends

that his conviction in Cause Number 9666 is “void” because there was no evidence to

support his conviction for “prohibited sexual conduct with an ancestor or descendant.”

Alternatively, he further contends the sentence imposed in Cause Number 9666 is an

illegal sentence.


       In its supplemental brief, the State agrees that Appellant’s sentence in Cause

Number 9666 is illegal; however, it does not address Appellant’s argument concerning a

void conviction. Appellant does not present a challenge regarding his convictions in

Cause Numbers 9662 or 9665.            We affirm Appellant’s conviction in all five cases;

however, we reverse the judgment entered in Cause Number 9666, and we remand that

case for a new punishment hearing and entry of a corrected judgment.


       BACKGROUND

       Appellant was the paternal uncle of the victim, A.H., a child who was under 14

years of age at the time each offense occurred. Appellant was accused of illegal sexual

conduct with A.H. beginning when she was eleven years old and continuing until she

was thirteen. His double jeopardy argument stems from offenses which occurred in

       1
          Hart v. State, No. 07-14-00375-CR, 2015 Tex. App. LEXIS 9842, at *2-3 (Tex. App.—Amarillo
Sept. 21, 2015, order) (not designated for publication).


                                                3
September of 2011. Except as it peripherally relates to his argument that the verdict in

Cause Number 9666 is void, Appellant does not raise a challenge to the sufficiency of

the evidence; thus, only the facts necessary to disposition of his double jeopardy

argument will be presented.


        A.H. was fourteen years old at the time of trial and she testified. According to her

testimony, in September 2011, she and her sister customarily went to their

grandmother’s house after school while their mother was at work.                  When their

grandmother was unavailable to supervise the girls, Appellant would watch after them.

According to A.H.’s testimony, on one occasion Appellant asked her to speak with him

upstairs. She testified that they proceeded upstairs, whereupon Appellant disrobed her

and “put his unmentionable spot in my unmentionable spot.”2 The prosecutor followed

up with “that time when you were 11 years old, upstairs, did [Appellant] touch you in any

other way . . . with his unmentionable spot?”           A.H. answered, “[y]es, he put his

unmentionable spot on my chest” and “rubbed it on my chest.” The jury convicted

Appellant of both aggravated sexual assault and indecency with a child based upon the

events A.H. described as having occurred at her grandmother’s house in September of

2011.


        DOUBLE JEOPARDY ANALYSIS

        There are three constitutional protections against double jeopardy: (1) protection

against a second prosecution for the same offense after an acquittal; (2) protection

against a second prosecution for the same offense following a conviction; and (3)

        2
         The record reflects that A.H. used her hand to point to her female sexual organ as her
unmentionable spot. She described Appellant’s unmentionable spot as his private area.


                                              4
protection against multiple punishments for the same offense. Garfias v. State, 424

S.W.3d 54, 58 (Tex. Crim. App. 2014). Essentially, Appellant is complaining that he

received multiple punishments for conduct that occurred in a single incident.           The

remedy, he contends, is to retain the most serious offense and vacate the lesser

offense. The State argues there was no double jeopardy violation because Appellant

committed two separate and distinct acts. We agree with the State.


       What constitutes the “same” offense for double jeopardy purposes in the

multiple-punishments context is strictly a matter of legislative intent. In that context, we

must ask ourselves, under the facts of this case, how many different offenses did the

Legislature contemplate an accused should be susceptible to being punished for?

Gonzales v. State, 304 S.W.3d 838, 845 (Tex. Crim. App. 2010). Thus, the true inquiry

in a multiple-punishments case is whether the Legislature intended to authorize the

separate punishments. Garfias, 424 S.W.3d at 58 (citing Ervin v. State, 991 S.W.2d

804, 814 (Tex. Crim. App. 1999)). When, as here, the offenses in question stem from

different   statutory   sections   of   the   Penal   Code—sections      21.11(a)(1)    and

22.021(a)(2)(B), we conduct an “elements” analysis to determine legislative intent.

Garfias, 424 S.W.3d at 58.


       In Cause Number 9663, charging Appellant with indecency with a child by

contact, the indictment read as follows: “Defendant . . . did then and there, with the

intent to arouse or gratify the sexual desire of said Defendant, intentionally or knowingly

engage in sexual contact with A.H., a child younger than 17 years of age, by touching

A.H. with Defendant’s sexual organ . . . .” In Cause Number 9664, charging Appellant

with aggravated sexual assault, the indictment read: “Defendant . . . did then and there

                                              5
intentionally or knowingly cause the penetration of the sexual organ of A.H., a child who

was then and there younger than 14 years of age, by Defendant’s sexual organ.”


      Relying on Cunningham v. State, 726 S.W.2d 151, 155 (Tex. Crim. App. 1987),

Appellant maintains that the indictment for indecency with a child was subsumed as a

lesser included offense of aggravated sexual assault because sexual contact was a

component part of the penetration alleged in Cause Number 9664.            Under certain

circumstances, indecency with a child is a lesser included offense of aggravated sexual

assault of a child when both offenses are predicated on a single act of molestation.

Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009).


      In Evans, the defendant was charged with aggravated sexual assault of a child

and indecency with a child by contact committed against the same victim on the same

date. Count One was charged as follows: Evans “did intentionally and knowingly cause

the SEXUAL ORGAN of [the complainant], a child who was younger than 14 years, to

CONTACT AND PENETRATE the MOUTH of THE DEFENDANT.” Count Two charged

that Evans “did intentionally and knowingly engage in sexual contact with [the

complainant], A MALE CHILD YOUNGER THAN SEVENTEEN (17) YEARS by touching

the PART OF THE GENITALS of [the complainant] with the intent to arouse or gratify

the sexual desire of any person.”     In reaching its conclusion in a case where the

appellant and complainant were both male, the Court stated “we cannot imagine how it

would be even theoretically possible to commit this particular form of penetration without

an intent to arouse or gratify one’s sexual desire.” Id. at 140 n.3. Hence, under the

facts of that case, because the factual elements of indecency with a child by contact



                                            6
were contained within the factual elements of aggravated sexual assault, the lesser

charge was subsumed by the greater charge.


      Appellant also cites Ochoa v. State, 982 S.W.2d 904 (Tex. Crim. App. 1998), to

support his argument that his conviction for indecency with a child should be vacated.

In Ochoa, the appellant asserted he was improperly convicted of two offenses stemming

from one criminal act. Id. at 907. The Fourth Court of Appeals agreed and vacated the

most serious offense. Ochoa v. State, 955 S.W.2d 389, 392 (Tex. App.—San Antonio

1997), aff’d, 982 S.W.2d 904 (Tex. Crim. App. 1998).           The facts, however, are

distinguishable.


      Ochoa was charged with five counts of aggravated sexual assault against his six-

year-old niece alleged to have occurred on five separate dates and five counts of

indecency with his niece also alleged to have occurred on the same five dates. He was

convicted of one count of aggravated sexual assault and one count of indecency with a

child allegedly occurring on the same date. The evidence showed Ochoa touched and

penetrated the victim’s sexual organ.     Id. at 392.   Resultantly, if the State proved

penetration, it also proved the necessary elements for the corresponding count of

indecency with a child. Id. The Fourth Court of Appeals found that the trial court’s

failure to instruct the jury on the lesser included offense resulted in Ochoa being

convicted of two crimes arising from the same criminal act or transaction.


      The holdings in Evans and Ochoa are inapposite to the facts in this case.

Notwithstanding that Appellant was charged with offenses occurring during a single

incident, he committed two separate and distinct acts. According to the evidence, he


                                            7
violated section 22.021(a)(2)(B) of the Penal Code by causing his sexual organ to

penetrate A.H.’s sexual organ. He then violated section 21.11(a)(1) by rubbing his

sexual organ on A.H.’s chest. The Legislature intended that Appellant’s conduct be

punishable as two separate and distinct acts. Unlike the facts in Evans and Ochoa, the

indecency with a child by contact offense was not subsumed in the aggravated sexual

assault offense and cannot be characterized as a lesser included offense entitling

Appellant to have his conviction for indecency with a child vacated. Appellant’s issue is

overruled.


       VOID CONVICTION ANALYSIS

       Appellant further contends that his conviction in Cause Number 9666 is “void”

because there was no evidence to support the jury’s verdict finding him “guilty of the

offense of prohibited sexual conduct with an ancestor or descendant, as charged in the

indictment.”   Appellant contends the evidence is insufficient because the evidence

showed sexual conduct with his niece, not an ancestor or descendant.             While the

heading of the indictment in Cause Number 9666 does refer to the offense charged as

“PROH SEXUAL CONDUCT WITH ANCESTOR/DESCENDANT,” a second degree

felony, the substantive allegations of the indictment were that Appellant “did intentionally

or knowingly engage in sexual intercourse with A.H., a person [Appellant] knew to be,

without regard to legitimacy, [Appellant’s] niece.” Because the substantive allegations

of the indictment correctly charge the offense of Prohibited Sexual Conduct, a third




                                             8
degree felony, the additional language in the heading was merely inapposite

surplusage.3 See TEX. PENAL CODE ANN. § 25.02(a)(5), (c).


        While the Court’s Charge on guilt or innocence did repeat this misnomer, the

application paragraph tracked the indictment. As such, the jury was not misled and the

evidence was legally sufficient to support its finding of guilt as to the offense

substantively charged in the indictment, to-wit: the third degree felony offense of

Prohibited Sexual Conduct. To the extent that the judgment entered misidentifies the

offense charged and applicable range of punishment, it is in error and should be

reformed.


        ILLEGAL SENTENCE ANALYSIS

        As stated above, the offense charged was the third degree felony offense of

Prohibited Sexual Conduct. Because the Court’s Charge on Punishment incorrectly

recites Appellant “has been found guilty by you of the offense of PROHIBITED SEXUAL

CONDUCT WITH ANCESTOR OR DESCENDANT, a felony of the Second Degree,” it

is erroneous. Because the charge further instructs the jury that the range of punishment

applicable to Appellant’s offense is “confinement . . . for not less than 2 years nor more

than 20 years,” the judgment entered in response to that charge is reversible. 4


        While the offense of prohibited sexual conduct with an actor’s ancestor or

descendant by blood or adoption is indeed a second degree felony, id. at § 25.02(a)(1),


        3
           There is no offense entitled “Prohibited Sexual Conduct with Ancestor or Defendant.” The
offense is simply “Prohibited Sexual Conduct.” See TEX. PENAL CODE ANN. § 25.02(a) (West 2011).
        4
           Where, as here, the issue is that of an illegal sentence, preservation of error was not required in
the trial court. See Mizell v. State, 119 S.W.3d 804, 806 n.6 (Tex. Crim. App. 2006).


                                                      9
(c), that is not the offense applicable in this case. Appellant was charged and convicted

of the offense of prohibited sexual conduct with his niece, a third degree felony. Id. at

(a)(5), (c). Punishment for a third degree felony is “any term of not more than 10 years

or less than 2 years.” Id. at § 12.34(a). A sentence outside the range of punishment

authorized by law is an illegal sentence, Ex Parte Parrott, 396 S.W.3d 531, 534 (Tex.

Crim. App. 2013), which is void and must be reversed. Farias v. State, 426 S.W.3d

198, 200 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (holding that a sentence

outside the statutory range of punishment for an offense is void and must be reversed,

citing Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim. App. 1994)).              Because

Appellant’s sentence exceeds the maximum sentence allowed by law, it is an illegal

sentence. Accordingly, we reverse that sentence and remand this cause to the trial

court for a new punishment hearing.


      CONCLUSION

      The trial court’s judgments in Cause Numbers 9662, 9663, 9664, and 9665 are

affirmed. In Cause Number 9666, that portion of the judgment pertaining to conviction

is affirmed. That portion of the judgment pertaining to punishment is reversed and the

cause is remanded to the trial court for a new punishment hearing and entry of a

corrected judgment.




                                                Patrick A. Pirtle
                                                    Justice

Publish.




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