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                                 MEMORANDUM OPINION

                                         No. 04-08-00076-CR

                                         Timothy K. EVANS,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2005-CR-6637
                            Honorable Sharon MacRae, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: November 12, 2008

AFFIRMED IN PART, REVERSED AND RENDERED IN PART

           Timothy K. Evans was convicted of aggravated sexual assault of a child and indecency with

a child by contact. In one issue on appeal, Evans contends that because both convictions were based

upon the same fact scenario, his right to be free from double jeopardy under both the United States

and Texas Constitutions was violated. We agree that Evans’s right to be free from double jeopardy

was violated and, therefore, affirm the judgment on Count I, but reverse and render a judgment of

acquittal on Count II.
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                          FACTUAL AND PROCEDURAL BACKGROUND

       Timothy Evans was indicted on two counts. In Count I, he was charged with aggravated

sexual assault of a child, and in Count II, he was charged with indecency with a child by contact.

After being found guilty on both counts, Evans was sentenced to sixty years confinement with

respect to Count I and twenty years confinement with respect to Count II. The sentences are to run

concurrently.

       At the time of the incident, the victim, C.C., was twelve years old. On the evening of the

incident, C.C. and some of his family members had been to a party. At the end of the evening, C.C.’s

dad gave him permission to spend the night at the home of some family friends. The family friends

were Mario Borjas, who was at the party that evening, and Borjas’s partner, David Ewell, who had

remained home that evening with Borjas and Ewell’s adopted son. When C.C. left the party with

Borjas, Evans also left with them. When they arrived at the home shared by Borjas and Ewell, Evans,

who was drunk, decided to spend the night there also.

       Borjas got C.C. settled in to sleep on a couch in the living room. Evans slept on another

couch in the same room. C.C. testified that he went to sleep while watching television, but was

awakened when he felt Evans’s teeth on his “private.” He described his private as the part of his

body that he uses to pee. According to C.C., Evans was on his knees, and his teeth were going up

and down. C.C.’s pants and underwear were down at his knees, but C.C. had not pulled them down.

C.C. then rolled over so Evans would get off. Evans told C.C. not to tell anyone.

       David Ewell testified that he was asleep that night, but was awakened when he heard Borjas,

Evans, and C.C. come into the house. At some point, he heard the television and decided to get up

and see why it was still on. He peeked into the living room and saw C.C. asleep on the couch with


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Evans on his knees right beside C.C. Evans was kissing C.C. on the head. Ewell continued to watch

and saw Evans caressing C.C.’s shoulders. Evans then got up and went to the kitchen. Ewell, not

wanting Evans to see him, went back to his bedroom. Ewell heard Evans getting a drink of water and

then returning to the living room. Ewell went back to watch Evans and saw him again kissing C.C.’s

forehead and massaging him. Evans then moved to the other end of the couch and began kissing

C.C.’s feet and toes. Evans then went back to the kitchen for another drink of water, and Ewell again

went back to his own bedroom. After Ewell heard Evans return to the living room, Ewell again went

back to the living room and saw Evans kiss C.C. again on the head. Ewell then heard Evans say this

cannot be talked about with anybody. Ewell did not see any form of copulation nor did he see

Evans’s mouth contact C.C.’s penis. Evans then passed out on the floor.

       The following morning, Ewell told Borjas what he had seen. Borjas confronted Evans with

what Ewell had told him. When asked how Evans reacted to the accusation, Borjas testified Evans

reacted “real bad. He was saying that he couldn’t believe it. That he was sorry . . . . [That] he

couldn’t believe it. . . . That he wasn’t gay. And that he was really sorry that he had done it. And he

couldn’t remember, and he wanted to throw up.” Later that day, Borjas took C.C. home. However,

because C.C.’s family was having a party, Borjas did not tell C.C.’s dad what had happened until the

next day.

       After Borjas called C.C.’s dad to report the incident, Evans also called C.C.’s dad and told

him, “I think I f_____ up.” C.C.’s dad, however, told Evans he could not talk because he was at work

and in the middle of a meeting with his boss. After the meeting was finished, C.C.’s dad called

C.C.’s school counselor, who was also a friend, and asked her to talk to C.C. C.C. told the school




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counselor, and later his dad, what had happened with Evans. C.C.’s dad then called the police to

report the incident. Evans was then arrested and charged.

                                       DOUBLE JEOPARDY

       The Double Jeopardy Clause of the Fifth Amendment, applicable to all states through the

Fourteenth Amendment, protects an accused (1) against a second prosecution for the same offense

for which he has already been acquitted or convicted and (2) from being punished more than once

for the same offense. Littrell v. State, No. PD-1555-07, 2008 WL 4569886, at *1 (Tex. Crim. App.

Oct. 15, 2008). This case involves the issue of multiple punishments resulting from a single

prosecution.

       In Count I, the indictment against Evans charged that Evans intentionally and knowingly

caused the sexual organ of C.C., a child younger than fourteen years, to contact and penetrate

Evans’s mouth. In Count II, the State alleged that Evans intentionally and knowingly engaged in

sexual contact with C.C., a child younger than seventeen years by touching part of the genitals of

C.C. with the intent to arouse or gratify the sexual desire of any person.

       Relying primarily on Ochoa v. State, 982 S.W.2d 904 (Tex. Crim. App. 1998), Evans argues

that his rights under the Double Jeopardy Clause were violated because the jury was allowed to

convict him of two offenses relating to the same fact scenario. Like Evans, Ochoa was indicted for

and found guilty of both indecency with a child and aggravated sexual assault. Id. at 905. Both

offenses were alleged to have occurred on the same date. Id. According to Ochoa, the same alleged

criminal act on his part was being used to convict him of both offenses. Id. at 907. The Texas Court

of Criminal Appeals agreed, holding that because the evidence, which consisted of the child’s

statement that he “put his thing in my butt,” referred to only one incident, Ochoa committed only one


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offense. Id. According to the court, Ochoa “committed one act, which could be subject to two

different interpretations.” Id. at 908. In other words, the jury could have concluded that “penetration

occurred and convicted appellant of aggravated sexual assault,” or they could have concluded “only

contact occurred with intent to arouse and gratify sexual desire and convicted appellant of the lesser

offense of indecency with a child.” Id. However, the jury could not convict the appellant of both. Id.

       By comparison, in a similar case where a defendant was charged with both indecency with

a child and aggravated sexual assault of a child, this court found no violation of the Double Jeopardy

Clause where the evidence showed there were separate incidents occurring on distinctly different

occasions. See Martinez v. State, No. 04-05-00743-CR, 2006 WL 2612517, at *4 (Tex. App.—San

Antonio 2006, no pet.) (not designated for publication) (holding that there was no violation of the

Double Jeopardy Clause where the jury could find from the evidence the defendant was guilty of

separate acts of penetration and sexual contact).

       Here, the evidence relating to the incident involving Evans and C.C. consists of Ewell’s

testimony and C.C.’s testimony. Ewell testified that he observed three separate occasions where

Evans was massaging and kissing C.C.’s face, shoulders, and feet. As Evans points out, however,

this testimony does not support a conviction for indecency with a child because Ewell did not

observe Evans touching C.C.’s anus, breast, or genitals. See TEX . PENAL CODE ANN . § 21.11(c)

(Vernon 2003). Moreover, Ewell testified that he did not observe any penetration. Thus, although

Ewell did observe some contact between Evans and C.C., none of what he observed would support

a conviction for either indecency with a child by contact or aggravated sexual assault of a child.

Further, C.C. did not provide testimony of two separate and distinct sexual acts that would support




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Evans being found guilty of two offenses. C.C. testified that when he awoke, Evans had his teeth on

C.C.’s penis and was moving up and down. This is evidence of only one sexual act.

       We note that the State argues there was evidence that allowed the jury to reasonably infer that

Evans not only caused C.C.’s sexual organ to penetrate Evans’s mouth, but also that Evans touched

C.C.’s sexual organ. Specifically, the State contends that the jury could reasonably infer Evans

touched C.C.’s genitals as he pulled down C.C.’s pants, as he prepared to perform oral sex on C.C.,

and as he put C.C.’s genitals in his mouth. We do not agree. The evidence shows only one sexual

act, not separate and distinct sexual acts. See Martinez, 2006 WL 2612517, at *4. Therefore, because

there was evidence of only one sexual act committed by Evans, we hold that Evans’s rights under

the Double Jeopardy Clause were violated.

                                          CONCLUSION

       When a defendant’s double jeopardy rights are violated, the remedy is to vacate the lesser

conviction and sentence. Ochoa, 982 S.W.2d at 908. We, therefore, affirm the judgment on Count

I, aggravated sexual assault of a child, but reverse and render a judgment of acquittal on Count II,

indecency with a child.



                                                       Karen Angelini, Justice

DO NOT PUBLISH




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