Bottenfield v. State

LEE ANN DAUPHINOT, Justice,

dissenting on rehearing.

I would grant Appellant Steven Edward Bottenfield’s motion for rehearing. I withdraw my March 14, 2002 dissenting opinion and substitute the following.

In cause number 0746178D, I must respectfully dissent to the majority’s holding that the evidence showed two distinct sex acts committed by Appellant against A.H.: aggravated sexual assault by penetrating AH.’s female sexual organ with his finger and indecency with a child by touching A.H.’s genitals with his hand. I also respectfully dissent to the majority’s holding that the trial court did not err in allowing the jury to find that Appellant committed two distinct offenses against T.H. in cause number 0746179D.

A.H.

The record reflects that on a single occasion, Appellant removed A.H.’s clothes and touched her inside her “privates.” Specifically, A.H. testified as follows:

Q. [State] Did something happen in that bedroom?

A. Yes.

Q. And what happened?

A. Steve touched me in a bad way.

Q. And when you say in a bad way, was it a bad touch?

A. Yes.

Q. And where did he touch you ... ?

A. On my private parts.

Q. And were your clothes on or off?

A. Off.

Q. And who took your clothes off?

A. Steve.

Q. Were there doors in that bedroom?

A. Yes.

Q. Were those doors open or closed?

A. Closed.

Q. And in that bedroom, ... you didn’t have any clothes on, what happened then?

A. He — He took them off and touched me in a bad way.

Q. And where did he touch you?

A. On my private parts.

Q. And what did he touch you with?

A. His hands.

Q. Okay. And were you standing up or sitting down?

A. Standing up.

Q. And was he standing up or sitting down?

A. Yes.

Q. Which one, was he standing up or sitting down?

A. Standing.

Q. Okay. And did he have all of his clothes on?

A. Yes.

Q. Okay. And when he touched you in your private, what did you do?

A. I went out the door.

Q. Okay. Did you get your clothes first?

A. Yes.

Q. Who put your clothes on?

A. I did.

Q. Did you say anything to — to Steve?

A. No.

Q. How did it make you feel when he touched you?

*361 A. Mad.

Q. Did he touch you on the outside of your privates or the inside?

A. Inside.

Q. And what did that feel like?

A. Bad.

Q. Did it hurt or not?

A. It hurt.

Q. And did this last just a real short time or a long time?

A. Short time.

Q. And did he use his hand or his finger?

A. Finger.

Q. And what did he do with his finger, can you remember?

A. He put it up my private part.

Q. And did he say anything to you?

A. Yes.

Q. What did he tell you?

A. Keep it a secret.

Q. And did you keep it a secret?

A. No. [Emphasis added.]

A.H. testified that she immediately told her father, who ordered Appellant out of the house. The indictment alleged a single date, September 30, 1997, for both the sexual assault and indecency counts. A.H. was born on November 10,1998.

Dr. Leah Lamb performed the physical examination of A.H. on July 12, 1999. Dr. Lamb, however, did not testify at trial. Rather, Virginia Caldwell, a registered nurse and sexual assault nurse examiner at Cook Children’s Medical Center, testified regarding Dr. Lamb’s examination of A.H. Although she did not assist with the exam, Caldwell testified at trial from A.H.’s medical records, which were never admitted into evidence. While Caldwell testified that the records were completed at or near the time of the examination, she revealed no basis for this statement. Caldwell stated that Dr. Lamb took a “history” or a “narrative” for A.H. When asked who actually writes down the narrative, Caldwell responded, “The doctor does, or the examiner.”

The written narrative for A.H. contains the following quotation: “This guy, Steve, he stuck his finger up my winkie ... I was five years old when he did it.... Steve did it with my winkie two times.” Nothing in the record, however, shows who provided this narrative. It is, therefore, unclear whether A.H. provided the narrative to Dr. Lamb, the examiner, the CPS case worker, the child psychologist, a police officer, or an interviewer for the district attorney’s office. Indeed, it is not clear from the record whether the narrative was provided by A.H. at all. The record does not support the majority’s assertion that A.H. made the statements contained in the narrative to “medical personnel who conducted her sexual assault exam.”

Although she was not present for A.H.’s examination, Caldwell described the process by which she obtains a child’s history in the course of conducting an examination:

Q. [State] Do many of them come right out and tell you what happened or do you have to pry a little bit with some of them?

A. Some are — are not as — don’t as easily talk, we spend a lot of time establishing rapport with the children. ... Some children are easier to talk to than others. Some children will talk to one person whereas they might not talk to another. It may be how you word questions, it’s just presentation .... So it varies how children are going to-going to talk to you or not.

Q. Well, generally, how are younger children at giving — staying on the subject and giving specific details?

*362 A. Well, you have to look at the developmental level of your children. In your pre-school children, they may be more distractable, you can’t ask them specific things about times, and when you ask them about something that happened, they can usually only remember a core element of something, they can’t necessarily describe something ... from A to Z. So, they may can [sic] tell you something about an event, but you may have to listen — ask questions to elicit more information that you need. And when you get into the school age area, then they can give you a little more peripheral detail without prompting, so you have to know your developmental level of your children. [Emphasis added.]

Caldwell also testified that she obtains a history from the care giver or a parent before speaking with the child. Caldwell did not state the source of the information contained in AJI.’s history. Nor was there any suggestion that the examination on A.H. was conducted for the purpose of medical diagnosis or treatment. It was done to seek evidence of a crime pursuant to the Tarrant County Physical and Sexual Abuse Medical Protocol.

I have examined the entire record in this case and can find no evidence that the separate offenses of indecency by contact and sexual assault occurred with respect to A.H. The majority concludes that because A.H. testified that Appellant touched her on her “private parts” with his hands, she was describing the indecency offense. As I understand the majority’s reasoning, because A.H. stated that Appellant touched her “private part” with his hands and put his finger in her “private part,” this is evidence that Appellant committed more than one sexual offense. But when asked by the prosecutor to clarify where Appellant touched her, “on the outside of [her] privates or the inside,” A.H. replied, “Inside.” When asked if he used his hand or his finger, A.H. responded, “Finger.” A.H. stated that Appellant “put [his finger] up my private part.”

The majority also relies on the narrative about which Caldwell testified over the defense’s objection that the medical records had not been admitted into evidence. The narrative contains the statement, “Steve did it with my winkie two times.” Even if this statement is considered probative of the offenses alleged in the indictment, it can only be considered as referring to two instances of penetration, or moving the finger into the genitals, out, and into the genitals again. The only conduct referenced in the narrative is that Appellant “stuck his finger up my winkie.” There is no evidence of fondling only.

A person commits sexual assault if there is any penetration of the female sexual organ. 1 While indecency by contact may be a lesser included offense of sexual assault, 2 neither the State nor the defendant is entitled to a charge on a lesser included offense unless there is evidence that if the defendant is guilty, he is guilty of the lesser offense only. 3 That is, there must be some evidence from which a rational jury could acquit the defendant on the greater offense while convicting him of the lesser included offense. 4

I would hold that the trial court erred in allowing the jury to convict Appellant for *363 two separate offenses against A.H., indecency with a child and aggravated sexual assault. Accordingly, I would vacate Appellant’s conviction for indecency in the case involving A.H. and affirm his conviction for aggravated sexual assault.

T.H.

In the case involving T.H., the jury was erroneously allowed to convict Appellant of both an offense and a lesser included offense. The jury received no instruction precluding this improper result. Appellant raised this charge error, but the majority chose not to address it specifically. The majority concludes that “[bjecause appellant’s conviction for aggravated sexual assault was not based on the same conduct underlying his conviction for indecency, the evidence was sufficient to show that more than one offense was committed by appellant with T.H., and submission of both aggravated sexual assault and indecency was proper.” The problem, however, is that there is no evidence that the convictions were not based on the same conduct.

The indictment in this case contained two live counts at trial. Count two alleged aggravated sexual assault by causing the child’s genitals to contact Appellant’s penis. The pleading is very specific and the jury charge tracked the indictment exactly. There is no confusion concerning what the jury was required to find in order to convict Appellant of aggravated sexual assault. The indecency allegation contained in count three, however, is another matter, and that is where the charge error lies.

The indictment alleged indecency by touching. While the majority correctly holds that “appellant’s touching of T.H.’s genitals with his finger was a separate and distinct criminal act from contacting her sexual organ with his penis,” the indecency count did not allege that Appellant touched T.H.’s genitals with his fingers. The indecency count did not limit the manner and means of touching T.H.’s genitals in any way. Consequently, proof of contact between Appellant’s penis and T.H.’s genitals satisfied the State’s burden to support a conviction for indecency as well as for aggravated sexual assault. The intent to arouse and gratify sexual desire is implicit in the fact that the object Appellant used to contact T.H.’s genitals was his penis. Thus, as alleged in the indictment, indecency with a child is a lesser included offense of aggravated sexual assault. 5

The trial court should have required the jury to acquit Appellant of aggravated sexual assault before considering the lesser included offense of indecency by contact. Alternatively, the trial court should have required the State to elect as Appellant requested. The trial judge could not lawfully submit both offenses given the vague, albeit sufficient, indictment. 6 Additionally, the trial judge could not have limited the jury’s consideration on the indecency charge to touching with some object other than Appellant’s penis. 7 Although there *364 was evidence of Appellant’s touching T.H.’s genitals with his hand, neither the indictment nor the jury charge required the jury to find that specific type of touching in order to convict Appellant of indecency.

Because the charge did not limit the jury’s consideration of the manner and method of touching, the jury that had found Appellant guilty of aggravated sexual assault by causing contact between his penis and T.H.’s genitals would have been compelled to reach a guilty verdict on the indecency count; that is, indecency by contact necessarily occurred when Appellant touched T.H.’s genitals with his penis. That is why indecency is a lesser included offense of aggravated sexual assault in this case, under these facts and this general indictment.

For these reasons, I would hold that both convictions cannot stand. Because the State would probably elect the greater offense, I would reform the judgment in cause number 0746179D to sustain Appellant’s conviction for aggravated sexual assault and vacate his conviction and sentence for the lesser included offense of indecency with a child by contact. 8

. Tex. Penal Code Ann § 22.011(a)(1)(A) (Vernon Supp.2002).

. See Ochoa v. State, 982 S.W.2d 904, 908 (Tex.Crim.App.1998).

. Lofton v. State, 45 S.W.3d 649, 652 (Tex.Crim.App.2001); Moore v. State, 969 S.W.2d 4,8 (Tex.Crim.App.1998).

. Moore, 969 S.W.2d at 8 .

. See Ochoa, 982 S.W.2d at 908 .

. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997) ("[Legal] sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.... [This] standard ... ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State’s proof of the crime....”).

. See Gollihar v. State, 46 S.W.3d 243 , 255 n. 20 (Tex.Crim.App.2001) ("[T]he hypothetically correct charge may not modify the indictment *364 allegations in such a way as to allege 'an offense different from the offense alleged in the indictment.' ”); Malik, 953 S.W.2d at 240 (the hypothetically correct -jury charge may not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability beyond the limitations authorized by the indictment).

. See Ochoa, 982 S.W.2d at 908 ; Landers v. State, 957 S.W.2d 558, 560-61 (Tex.Crim.App.1997) (holding that proper remedy for double jeopardy violation occurring when defendant is convicted in single criminal action of two offenses that are the "same” for double jeopardy purposes is for appellate court to retain conviction carrying most serious punishment and vacate conviction and punishment for remaining offense).