      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      444444444444444
                                      NO. 03-00-00189-CR
                                      444444444444444


                                 Bradley Edmonson, Appellant

                                                 v.

                                  The State of Texas, Appellee


44444444444444444444444444444444444444444444444444444444444444444
   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NO. 98-2236, HONORABLE TOM BLACKWELL, JUDGE PRESIDING
44444444444444444444444444444444444444444444444444444444444444444


               Appellant Bradley Edmonson appeals his convictions for sexual assault of a child and

indecency with a child by contact. See Tex. Penal Code Ann. § 22.011(a)(2)(A), § 21.11(a)(1) (West

Supp. 2001).1 The jury found appellant guilty of the two offenses charged in separate counts of the

indictment. By separate verdicts, the jury assessed punishment at seven years’ imprisonment on each

count but recommended community supervision. The trial court suspended the imposition of the

sentences and in one order placed appellant on a single community supervision for seven years subject

to certain conditions.




       1
          The current penal code provisions are cited for convenience. Appellant was prosecuted for
sexual assault of a child under Act of May 30, 1977, 75th Leg., R.S., ch. 1031, §§ 1, 2, 1977 Tex.
Gen. Laws 3838, 3839; Act of May 28, 1977, 75th Leg., R.S., ch. 1286, § 1, 1997 Tex. Gen. Laws
4911. Appellant was prosecuted for indecency with a child by contact under Act of May 29, 1993,
73d Leg., R.S., ch. 900, § 1.01, 1995 Tex. Gen. Laws 3586, 3616. The current 1999 amendments
to the statutes in question left unchanged those provisions under which appellant was prosecuted.
                                             Points of Error

                Appellant advances two points of error. The first point contends that the trial court

erred in authorizing the jury to convict appellant of both sexual assault of a child and indecency with

a child by contact. The second point claims that “defense counsel was ineffective in failing to object

to a jury charge that improperly authorized the jury to convict appellant of multiple offenses.”

                Appellant states that the “issue before this Court is whether appellant was properly

convicted of both sexual assault and indecency with a child, a lesser included offense, where both

offenses involved the same victim and allegedly happened on the same day.”

                The State counters that the indictment properly charged different statutory offenses

in separate counts; that the evidence showed two distinct offenses occurring on different dates which

support the jury verdicts; and that no double jeopardy violation is reflected. The State also urges that

appellant has not preserved error. See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex. Crim. App. 2000).

Even that contention requires some consideration of the claimed error. Id. We shall examine

appellant’s initial point in light of the record.

                The thrust of appellant’s contentions is that he has been subjected to a multiple

punishment type of double jeopardy violation for the same offense. Appellant cites case law but does

not expressly cite either the federal or state constitutional provisions. See U.S. Const. amends. V,

XIV; Tex. Const. art I, § 14. Appellant has waived any state constitutional claim by failing to

distinguish the double jeopardy protection guarantee under the state constitution from that of the

federal constitution. See Jackson v. State, 992 S.W.2d 469, 475 n.8 (Tex. Crim. App. 1999);

Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992); Muniz v. State, 851 S.W.2d 238,



                                                    2
251 (Tex. Crim. App. 1993); Queen v. State, 940 S.W.2d 781, 783 (Tex. App.—Austin 1997, pet.

ref’d).

               Therefore, our discussion of appellant’s contention will be to determine whether there

was a double jeopardy violation under the federal constitution. While this Court is bound by the

United States Supreme Court’s decisions interpreting the scope of the double jeopardy clause of the

United States Constitution, the determination of what constitutes an “offense” is largely a matter of

state law. Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App. 1999) (citing Iglehart v. State, 837

S.W.2d 122, 127 (Tex. Crim. App. 1992)). The state legislature has the power to establish and define

crimes and “few, if any, limitations are imposed by the double jeopardy clause on the legislative

power to define offenses.” Iglehart, 837 S.W.2d at 127.

               The double jeopardy clause of the Fifth Amendment to the United States Constitution

embodies three protections: (1) against a second prosecution for the same offense after acquittal; (2)

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

punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Ex parte Broxton,

888 S.W.2d 23, 25 (Tex. Crim. App. 1994); Queen, 940 S.W.2d at 783.

               When a defendant is tried in a single trial only the third aspect of the double jeopardy

protections against multiple punishments is involved. Ex parte Herron, 790 S.W.2d 623, 624 (Tex.

Crim. App. 1990). Convictions of both the greater inclusive and lesser included offense arising out

of the same act violates the multiple punishments prohibition in the double jeopardy clause. Hutchins

v. State, 992 S.W.2d 629, 632 (Tex. App.—Austin 1999, pet. ref’d untimely filed). It is clear that




                                                  3
appellant has attempted to invoke only the multiple punishments protection in his federal

constitutional claim.

                  In light of appellant’s contentions, we shall examine the indictment, facts, and the jury

charge.


                                             The Indictment

                  On its face, the indictment in this cause alleges separate and distinct offenses under

different statutes and in separate counts.2 Two or more offenses may be joined in a single indictment

with each offense stated in a separate count, if the offenses arise out of the same criminal episode,

as defined in chapter 3 of the Penal Code. See Tex. Code Crim. Proc. Ann. art. 21.24(a) (West

1989).

                  Section 3.01 of the Penal Code provides that:


               In this chapter, “criminal episode” means the commission of two or more
          offenses, regardless of whether the harm is directed toward or inflicted upon more
          than one person or item of property, under the following circumstance:




          2
          The first count of the indictment alleged in pertinent part that appellant on or about the 1st
day of September, 1997, “did then and there knowingly and intentionally cause the penetration of the
female organ of S.B., a child younger than 17 years of age and not his spouse, by the finger of the
said Bradley Edmonson.”

           The second count of the indictment alleged in pertinent part that appellant on or about the
1st day of September 1997: “did then and there, with intent to arouse and gratify his sexual desire,
knowingly and intentionally engage in sexual contact by touching the genitals of S.B., a child younger
than 17 years of age and not his spouse.”

              The applicable statutes are set forth in footnote one.

                                                     4
            (1) the offenses are committed pursuant to the same transaction or pursuant to
                two or more transactions that are connected or constitute a common scheme
                or plan; or

            (2) the offenses are the repeated commission of the same or similar offenses.


Tex. Penal Code Ann. § 3.01 (West 1994).

               In Howell v. State, 795 S.W.2d 27, 28 (Tex. App.—El Paso 1990, pet. ref’d), the

court upheld as the “repeated commission of similar offenses,” the joinder in a single two-count

indictment of the offenses of sexual assault of a child and of indecency with a child by contact,

committed “on or about” the same day with the same child. See also 42 George E. Dix & Robert O.

Dawson, Criminal Practice and Procedure § 32.15, at 326 (Texas Practice 1995). The instant

indictment is in accord with Howell, 795 S.W.2d at 28. This manner of pleading separate counts for

separate offenses “should be one method of delineating separate offenses from alternative legal

theories.” Vick, 991 S.W.2d at 834. 3

               The indictment also alleges that the offenses occurred “on or about the 1st day of

September 1997.” In support of his claim of a double jeopardy violation, appellant seizes upon the

date alleged to urge that the offenses occurred on the same day and were the same act or transaction.

               The use of the “on or about” dates is almost universal in the drafting of indictments

and other criminal pleadings. Article 21.02, setting forth the requisites of an indictment, provides in

part: “The time mentioned must be some date anterior to the presentment of the indictment, and not

so remote that the prosecution of the offense is barred by limitations.” Tex. Code Crim. Proc. Ann.


       3
          This method of pleading undermines any contention of appellant that the instant indictment
alleges a primary offense and an alternative legal theory in two counts.

                                                  5
art. 21.02(6) (West 1989). The “on or about” language of an indictment allows the State to prove

a date other than the one alleged in the indictment as long as the date is anterior to the presentment

or return of the indictment and within the statutory limitation period. Sledge v. State, 953 S.W.2d

253, 256 (Tex. Crim. App. 1997); Scoggan v. State, 799 S.W.2d 679, 680 n.3 (Tex. Crim. App.

1990); Poole v. State, 974 S.W.2d 892, 901 (Tex. App.—Austin 1998, no pet.). When an indictment

alleges that some relevant event transpired “on or about” a particular date, the accused is put on

notice to prepare for proof that the event happened at any time within the statutory limitation period.

Thomas v. State, 753 S.W.2d 688, 692 (Tex. Crim. App. 1988); Ferrell v. State, 968 S.W.2d 471,

473 (Tex. App.—Fort Worth 1998, pet. ref’d) (involving allegations of aggravated sexual assault of

a child and indecency with a child); Stahle v. State, 970 S.W.2d 682, 694 (Tex. App.—Dallas 1998,

pet. ref’d) (same). The rule has long been established. See O’Connell v. State, 18 Tex. 343, 366

(1857); State v. Tandy, 41 Tex. 291, 292 (1874); 41 George E. Dix & Robert O. Dawson, Criminal

Practice and Procedure § 20.151 at 285-86) (Texas Practice 1995) (hereinafter Dix); 42 Dix § 31.89

at 195-98.

               The instant indictment alleged both offenses occurred “on or about the 1st day of

September 1997,” but the State was not required to prove that either offense occurred on the specific

date alleged. The indictment was returned on May 20, 1998 and the present statute of limitations for

both offenses is ten years from the complainant’s eighteenth birthday. See Tex. Code Crim. Proc.

Ann. art. 12.01(5) (West Supp. 2001).4


       4
           The current code is cited for convenience. Actually there are two possible statute of
limitation periods applicable in the instant case for both offenses. If the offenses alleged occurred
prior to September 1, 1997, the statutory limitation period is ten years from the date of the

                                                  6
                                                  Facts

                Having examined the propriety of the indictment to which appellant did not object,5

we briefly recite the facts essential to appellant’s contentions. S.B., the complainant, whose birth date

is July 22, 1981, testified that she transferred from one high school to another in Austin; that after

this change she began going to her maternal aunt’s house in the afternoons after school and continued

this practice for approximately one year in 1997; that she preferred this arrangement because of the

unsettled conditions at her home and difficulties with her stepfather; that in the late afternoon or early

evening each school day she would eventually go home. S.B. related that appellant was married to

her aunt.

                S.B. explained that each day she visited her aunt’s house, appellant gave her marijuana

and smoked it with her while they watched television. S.B. reported that she frequently performed

chores at the house, such as cleaning, and that appellant gave her $20.00 each time she performed

chores.

                S.B. related that at first the thirty-year-old appellant engaged in horseplay, wrestling

and tickling her; that this escalated into back rubs, into the rubbing of her thighs, her breasts, and her

vagina on the top of her clothing; that appellant then went underneath her underwear; that this

rubbing or touching was on top of and outside of her vagina and genitals; and that appellant kissed


commission of the offense. Act of May 24, 1995, 74th Leg., R.S., ch. 476, § 1, 1995 Tex. Gen. Laws
3195, effective September 1, 1995. If the offenses alleged occurred on or after September 1, 1997,
the statutory limitation period is ten years from the eighteenth birthday of the victim of the crime.
Act of May 24, 1997, 75th Leg., R.S. ch. 740, § 1, 1997 Tex. Gen Laws 2403, effective September
1, 1997.
          5
         See Tex. Code Crim. Proc. Ann. art. 1.14(b) (West Supp. 2001) (failure to object waives
any defect, error, or irregularity to form or substance of indictment).

                                                    7
her breasts. S.B. could not remember how many times appellant touched her vagina underneath her

clothing in this manner. During interrogation, she was not pinned down as to dates except that these

incidents occurred in 1997.

               S.B. did recall that on September 1, 1997, appellant penetrated her vagina with his

finger and rubbed her clitoris. She stated that this was the only time he did that. S.B. explained that

on this occasion appellant took a shower, then came into the bedroom where she was on the bed

watching television; that he had a towel wrapped around his body; that appellant got on the bed,

exposed himself, and penetrated her vagina with his finger. S.B. revealed that after this incident,

appellant continued to “touch” her “under a dozen” times before she stopped going to her aunt’s

house probably sometime in December 1997. She was scared her family would not believe her if she

told what had happened and would think it was her fault. In the early part of 1998, S.B. talked to

her mother abut a magazine article, indicated that she had a problem with appellant but did not go

into details. Her mother arranged for her to see a counselor.

               Shelly Graham, a licenced professional counselor, testified that S.B.’s mother

contacted her in March 1998, feeling that S.B. had “something” to disclose. Graham conducted

fifteen sessions with S.B. and learned details about appellant’s contact with her. S.B. reported that

appellant touched her breasts and vagina two or three times a week during a year and a half period

of time; and S.B. described to Graham the incident that occurred on September 1, 1997. Graham

described appellant’s actions toward S.B. as “grooming.”

               The State also called as witnesses, an expert on child abuse, S.B.’s mother, a high

school band director, an investigative detective, and a custodian of the district attorney’s records.



                                                  8
Appellant did not testify, but called as witnesses his father, S.B.’s aunt, brother, stepfather, and a

child protective services investigator. None of these witnesses were eye-witnesses to the alleged

offenses.


                                    Summary and Submission

               The undisputed evidence shows that the sexual assault of a child alleged in the first

count of the indictment occurred on September 1, 1997. The complainant testified that this

penetration of her female organ by appellant’s finger occurred only once. Although inherent in this

evidence would be a touching of the genitals—an indecency with a child by contact—there was no

prosecutorial effort to show any other offense occurred at the same time. There was no evidence that

would permit a jury rationally to find that if appellant was guilty, he was guilty only of the lesser

included offense. Cf. Westerbrook v. State 29 S.W.3d 103, 113 (Tex. Crim. App. 2000); Rousseau

v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993).

               The evidence showed that on a number of occasions other than September 1, 1997,

and during a period of approximately a year and a half, appellant touched and rubbed S.B.’s genitals

underneath her clothing. Although the prosecutor never established dates for these other touchings,

the times established were within the State’s allegation of “on or about” the 1st day of September

1997 as alleged in the second count of the indictment. See Sledge, 953 S.W.2d at 256. The

interrogation of the complainant and counselor Graham by the prosecutor clearly distinguished




                                                  9
between the sexual assault on September 1, 1997, and the multiple acts of indecency with a child by

contact (touching complainant’s genitals) prior to September 1, 1997.6

               The trial court submitted both offenses to the jury in accordance with the indictment’s

allegations rather than as a primary offense and an alternative legal theory. The trial court also

instructed the jury that the State was not bound by the allegation of “on or about the 1st day of

September 1997” in accordance with article 21.02(6) of the Code of Criminal Procedure. 7 There was

no objection to the trial court’s jury instructions and no claim of a double jeopardy violation.

               The jury returned separate verdicts, general in nature, finding appellant guilty of each

count “as charged in the indictment.” Where the jury returns a general verdict finding a defendant

guilty as charged in the indictment, the verdict must be applied to the phase of the offense which is

supported by the evidence. Vasquez v. State, 665 S.W.2d 484 (Tex. Crim. App. 1984).


                                       Preservation of Error

               With this background, we now confront the preservation of error issue. In Gonzalez,

the Court of Criminal Appeals held that the defendant forfeited his multiple punishments double

jeopardy claim “by failing to preserve, in some fashion, a double jeopardy objection at or before the

charge [was] submitted to the jury.” 8 S.W.3d at 642. The Gonzalez court noted that past case law



       6
           There was evidence of “touchings” after September 1, 1997, but the prosecutor did not
sufficiently develop the facts to show that these “touchings” met the allegations of the second count
of the indictment alleging touching of the genitals.
       7
          The prosecutor in his jury argument discussed this instruction. He stated in part: “Based
on your common sense, I think everybody realizes it’s hard to know exactly the date something
occurred. And . . . in the cases of sexual assault of children, it’s hard for them to pin down a day,
especially after there have been many multiple occasions of sexual abuse.”

                                                 10
on the preservation of double jeopardy error had not been “a model of clarity.” Id. at 642-43. The

court then articulated a revival test explaining when a double jeopardy claim may be raised for the

first time on appeal or on collateral attack:“when the undisputed facts show the double jeopardy

violation is clearly apparent on the face of the record and when enforcement of usual rules of

procedural default serves no state interest.” Id. at 643 (emphasis added).8

                After finding that the defendant there had forfeited his multiple punishments double

jeopardy claim by failing to make a trial objection, the Gonzalez court applied the aforementioned

revival test and found that “the face of the record” failed to demonstrate a multiple punishments

violation and that legitimate state interests would have been served by a trial objection. Id. at 645-46.

                Some courts interpreting Gonzalez have simply held that in the absence of a trial

objection a double jeopardy claim cannot be raised for the first time on appeal, excluding any mention

or discussion of the two-pronged revival test. See Hernandez v. State, 28 S.W.3d 660, 669 (Tex.

App.—Corpus Christi 2000, pet. ref’d); Mallet v. State, 28 S.W.3d 603, 607 (Tex. App.—Corpus

Christi 2000, pet. filed on ineffective assistance of counsel issue only); Hernandez v. State, 10 S.W.3d

812, 817-18 (Tex. App.—Beaumont 2000, pet. filed).

                In Murray v. State, 24 S.W.3d 881, 888-89 (Tex. App.—Waco 2000, pet. ref’d), the

court applied the Gonzalez test and found both prongs satisfied, but rejected the double jeopardy




        8
         The use of the word “and” indicates that the court intended the Gonzalez test to be a two-
pronged test.

                                                   11
claim holding that the aggravated sexual assault of a child and the indecency with a child offenses

were two separate offenses, not the same offense. Id. at 889. 9

                Appellant concedes that he failed to make the required trial objection under Gonzalez

and he forfeited his right to raise his double jeopardy claim for the first time on appeal. However,

appellant contends that an application of Gonzalez’s two-pronged test will excuse his procedural

default. He urges that the undisputed facts show a double jeopardy violation that is clearly apparent

on the face of the record10 and in the instant case the usual procedural rules serve no legitimate state

interests.




        9
          Murray did note the procedure established by Gonzalez and added: “This puts double
jeopardy claims in an odd category under our preservation requirement principles.” Murray v. State,
24 S.W.3d 881, 888 n.2 (Tex. App.—Waco 2000, pet. ref’d.).

          The Beaumont Court of Appeals in Hernandez, 10 S.W.3d 812, 818(Tex.
App.—Beaumont 2000, pet ref’d), stated: “Indeed, if the error is a forfeitable right as Gonzales
suggests by modern sensibilities the incurability of the error is irrelevant to the issue of whether the
complaint has been preserved. See Cockrell v. State, 943 S.W.2d 73, 89 (Tex. Crim. App. 1996);
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).” The Beaumont Court, taking note that
Gonzalez had acknowledged past case law on the preservation of double jeopardy claims had not
been a model of clarity, added: “The tradition continues.” Hernandez, 10 S.W.3d at 818 n.1.
        10
           How broad is “the face of the record” for the purpose of the Gonzalez test? The Court of
Criminal Appeals did not address this issue. “Face” means “1. The surface of anything, esp. the
front, upper, or outer part <the face of the clock>.” Black’s Law Dictionary 609 (7th ed. 1999).
Certain civil cases have held that “face of the record” means “all papers on file in the appeal including
the statement of facts.” Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex.
1997) (involving a former writ of error review); Fowler v. Quinland Indep. Sch. Dist., 963 S.W.2d
941, 943 (Tex. App.—Texarkana 1998, no writ) (involving Tex. R. App. P. 30 (repealed)). Contra,
Gourmet, Inc. v. Hurley, 552 S.W.2d 509, 512-13 (Tex. Civ. App. 1977, no writ) (as to statement
of facts).

                                                   12
                Anticipating this issue and keeping in mind the other point of error, much of the

background of this case has already been noted. Assuming appellant has satisfied the Gonzalez test,11

we conclude from an examination of the record appellant has not demonstrated a double jeopardy

violation on the face of the record and that a trial objection would have served no legitimate state

interest. We hold that appellant forfeited his right to raise for the first time on appeal a double

jeopardy violation by failing to object at trial. Moreover, he has failed to sustain his burden of proof

to revive that right under the two-pronged test of Gonzalez.


                                          Double Jeopardy

                If we are wrong regarding appellant’s preservation of error, we will examine

appellant’s claim that he was punished twice for the same offense. The double jeopardy bar applies

only if the two offenses are the same offense. See Ex parte Gregerman, 974 S.W.2d 800, 803 (Tex.

App.—Houston [14th Dist.] 1998, no pet.). Appellant acknowledges that the element of indecency

with a child by contact—“with intent to arouse and gratify his sexual desire”—as alleged in the

second count of the indictment is not an element of the sexual assault of a child as alleged in the first

count of the indictment. Under the Blockburger-Parish test this would seem to prevent the two

offenses from being the same for double jeopardy purposes. See Blockburger v. United States, 284


        11
            The Gonzalez court did not expressly set forth whose burden it was to meet the two-
pronged test described or the standard of proof to be applied. In deciding the first prong of the test
had not been met, the Gonzalez court did state: “Appellant, therefore, has not sustained his appellate
burden of presenting a record showing on its face any multiple punishments violations.” Gonzalez
v. State, 8 S.W.3d 640, 645 (Tex. Crim. App. 2000). While this may well place the burden on the
appellant, the language used is somewhat indicative of bringing forward the necessary record rather
than meeting the burden of demonstrating from the face of the record already before the appellate
court that an undisputed double jeopardy violation was involved.

                                                   13
U.S. 299, 304 (1932); Parrish v. State, 869 S.W.2d 352, 354 (Tex. Crim. App. 1994); Tex. Code

Crim. Proc. Ann. art. 37.09 (West 1981); see also Missouri v. Hunter, 459 U.S. 359, 366 (1983).

However, appellant argues the contrary in light of Cunningham v. State, 726 S.W.2d 151 (Tex. Crim.

App. 1987). In Cunningham, the defendant was indicted solely for aggravated sexual assault of a

child. In a bench trial, the defendant pleaded not guilty. The trial court found that the evidence did

not prove penetration of the child’s mouth by the defendant’s penis as alleged but nevertheless

convicted the defendant of the unindicted offense of indecency with a child by exposure. On appeal,

the court of appeals found indecency with a child was not a lesser included offense of the charged

offense and ordered an acquittal of the conviction for indecency with a child. Cunningham v. State,

694 S.W.2d 629 (Tex. App.—San Antonio 1985). The Court of Criminal Appeals reversed. The

court concluded that while the aggravated sexual assault statute does not by its terms require a

specific intent to arouse or gratify sexual desire as does the offense of indecency with a child, an actor

may nevertheless act with such intent when he causes or attempts to cause his penis to penetrate a

child’s mouth. If in such a case the evidence of penetration fails, the defendant may be convicted of

indecency with a child by exposure as a lesser included offense. Cunningham, 726 S.W.2d at 155.

                In Ochoa v. State, 982 S.W.2d 904 (Tex. Crim. App. 1998), the defendant was

indicted, inter alia, for aggravated sexual assault and indecency with a child by contact on or about

June 16, 1994. The evidence revealed that the defendant sexually assaulted his six-year-old niece by

penetrating either her female sexual organ or anus. On this evidence, the jury convicted him for both

aggravated sexual assault of a child by penetration and indecency with a child by contact. The State




                                                   14
contended on appeal that the two offenses were not the same under the Blockburger test and it was

therefore permissible to convict the defendant of both without a double jeopardy violation.

               Citing Cunningham, the Ochoa court concluded that indecency with a child by contact

was a lesser included offense of aggravated sexual assault of a child under the circumstances shown.

“Because there was evidence of only one offense committed by [the defendant], we hold that the

State should have elected which offense upon which it would proceed or, in the alternative, received

a submission of the offense of indecency with a child to the jury only as a lesser included alternative

to the offense of aggravated sexual assault.” Ochoa, 982 S.W.2d at 908. The State is not entitled

to seek convictions for two offenses where the evidence at trial shows that only one was committed.

Id.

               Appellant relies upon Cunningham and Ochoa to contend that because the greater

inclusive and lesser included offenses arose from the same conduct, they were the same for double

jeopardy purposes. See Blockburger, 284 U.S. at 304; Parrish, 869 S.W.2d at 354. We disagree.

Cunningham and Ochoa are clearly distinguishable from the instant case on the facts and

circumstances. Moreover, the record evidence demonstrates that appellant committed more than one

act—penetrating the complainant’s female sexual organ with his finger on September 1, 1997, and

touching her genitals on several other dates. On these facts, indecency with a child is not a lesser

included offense of the greater inclusive offense of sexual assault of a child. Murray, 24 S.W.3d at

889 (citing Ochoa, 982 S.W.2d at 908).12 The first point of error is overruled.


       12
            We believe that the same result would be reached under the Blockburger-Parrish test,
although the precondition for employing that test (that the two offenses involve the same conduct)
is absent. See Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999).

                                                  15
                                  Ineffective Assistance of Counsel

                In his second point of error, appellant asserts that “defense counsel was ineffective in

failing to object to a jury charge that improperly authorized the jury to convict appellant of multiple

offenses.” It is clear from the argument advanced that appellant is claiming that counsel was

ineffective for not objecting on the basis of a double jeopardy violation that the sexual assault of a

child and the multiple acts of indecency with a child by contact were the same offense.13 Appellant’s

claim is limited to a specific objection.

                Our discussion in point of error one makes clear that appellant would not have been

entitled to have the objection sustained if it had been made. See Anguiano v. State, 706 S.W.2d 759,

763 (Tex. App.—San Antonio 1986). Counsel is not required to urge futile or meritless objections

to jury charges to avoid a claim of ineffective assistance. See Patrick v. State, 906 S.W.2d 481, 496

(Tex. Crim. App. 1995); Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). We shall

nonetheless examine appellant’s claim in light of the record and the case law.

                A defendant is entitled to the reasonably effective assistance of counsel. Stafford v.

State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). However, a defendant is not entitled to




        13
           The State argues that defense counsel’s decision not to request an election between the
multiple acts of indecency with a child did not constitute ineffective assistance of counsel, citing
Brown v. State, 6 S.W.3d 571, 577 (Tex. App.—Tyler 1999, pet. ref’d.). This, however, does not
appear to be the thrust of appellant’s argument.

           The State does make clear that the proof of the multiple acts of indecency with a child
which resulted in a conviction under the second count of the indictment can never be used as the basis
of another valid prosecution. Brown, 6 S.W.3d at 576; see also Crocker v. State, 573 S.W.2d 190
(Tex. Crim. App. 1978).

                                                  16
errorless counsel or counsel whose competency is judged by hindsight. Id. The United States

Supreme Court has promulgated a two-pronged test to determine whether representation was so

inadequate that it violated a defendant’s Sixth Amendment right to counsel.           Strickland v.

Washington, 466 U.S. 668, 687 (1984). The Strickland analysis has been adopted by the Texas

Court of Criminal Appeals and applies to claims arising under article one, section ten of the Texas

Constitution. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). First, the trial

counsel’s performance must fall “below an objective standard of reasonableness.” Strickland, 466

U.S. at 687-88. This deficiency must be of the extent that counsel failed to function as counsel.

Yates v. State, 917 S.W.2d 915, 920 (Tex. App.—Corpus Christi, 1996, pet. ref’d). Second, the

deficient performance must have prejudiced the defense by “a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at

689. “Failure to make the required showing of either deficient performance or sufficient prejudice

defeats the ineffective claim.” Id. at 700.

               The burden of proving ineffective assistance of counsel is on the appellant by a

preponderance of the evidence. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994);

Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). The assessment of whether a

defendant received effective assistance of counsel must be made according to the facts of each case.

Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App. 1979). A reviewing court looks to the totality

of the representation and the particular circumstances of each case. Ex parte Felton, 815 S.W.2d

733, 735 (Tex. Crim. App. 1991). The defendant must overcome a strong presumption that counsel’s

performance fell within the wide range of reasonable professional assistance. Thompson v. State, 9



                                                17
S.W.3d 808, 813 (Tex. Crim. App. 1999).            To defeat this presumption, any allegation of

ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate

the ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Moreover,

the defendant must overcome the presumption that the challenged conduct cannot be considered

sound trial strategy. Jackson, 877 S.W.2d at 771.

               In support of his claim, appellant urges one act of omission. While a single egregious

error of commission or omission may be sufficient, Thompson, 9 S.W.3d at 813, we have only the

appellate record here to evaluate the claim. Reviewing courts are hesitant to declare counsel

ineffective based on a single alleged miscalculation. Id. at 814.

               When claiming ineffective assistance for failing to object, a defendant must

demonstrate that if trial counsel had objected, the trial court would have committed error in refusing

to sustain the objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996); Brown v.

State, 6 S.W.3d 571, 575 (Tex. App.—Tyler 1999, pet. ref’d). Here, based on our discussion, the

trial court could have properly overruled the objection appellant claims counsel should have made.

Counsel cannot be faulted under the circumstances. Appellant asserts that his trial counsel should

have been aware of the 1998 case of Ochoa previously discussed and objected to the jury charge on

that basis. While the prosecution is not entitled to seek convictions for two offenses when the trial

evidence shows that only one was committed, Ochoa, 982 S.W.2d at 908, the contrary is true when

the trial evidence reflects that two offenses were committed by separate and distinct acts. Murray,

24 S.W.3d at 889 (citing Ochoa, 982 S.W.2d at 908). Indeed, appellant’s trial counsel may have

been well aware of Ochoa and did not object in light of the evidence.



                                                 18
               Because the record on direct appeal provides no reference to explain why counsel

failed to object to the jury charge, appellant has failed to rebut the presumption that such conduct was

reasonable trial strategy. Appellant has not satisfied his burden under Strickland. The second point

of error is overruled.

                                The judgment is affirmed.




                                       John F. Onion, Jr., Justice

Before Justices B. A. Smith, Yeakel and Onion*

Affirmed

Filed: June 7, 2001

Do Not Publish




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*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
    assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).




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