Barry Louis Pizzo v. State ( 2005 )

                             NUMBER 13-03-392-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

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BARRY LOUIS PIZZO,                                               Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

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                   On appeal from the 12th District Court

                            of Grimes County, Texas.

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                     MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                      Memorandum Opinion by Justice Rodriguez

  

Appellant, Barry Louis Pizzo, was charged by indictment with three counts of sexual assault of a child and five counts of indecency with a child.  After resting its case, the State abandoned two counts of sexual assault of a child and three counts of indecency with a child.  Tried to a jury, Pizzo was found guilty of indecency with a child by contact as set out in Count II of the indictment, see Tex. Pen. Code Ann. ' 21.11(a)(1) (Vernon 2003), and was acquitted of sexual assault of a child and of the remaining count of indecency with a child.  The jury assessed punishment at nine years confinement in the Institutional Division of the Texas Department of Criminal Justice and a $7,000.00 fine.^[1]  The trial court has certified that this is not a plea bargain case and that Pizzo has the right of appeal.  See Tex. R. App. P. 25.2.  By one point of error, Pizzo contends that the trial court reversibly erred by overruling his objection to the court's charge requesting that the terms "breast or genitals" be charged in the conjunctive rather than in the disjunctive.  We affirm.

I.  Background

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See id. at rule 47.4.

II.  Analysis

By his sole point of error, Pizzo contends that the trial court improperly instructed the jury as to indecency with a child by instructing the manner of sexual contact in the disjunctive and that harm resulted.

Pizzo was ultimately charged with two counts of indecency with a child by contact.  The indictment alleged, as to Count II, that Pizzo committed the offense "by touching the genitals and breasts of . . . a child younger than 17 years of age and not [his spouse]."  (Emphasis added.)  In relevant part, the trial court's charge read as follows:

As to Count II, if you find from the evidence, beyond a reasonable doubt, that on or about the 21st day of June, 2001 in Grimes County, Texas the defendant, BARRY LOUIS PIZZO, did then and there intentionally or knowingly engage in sexual contact with [A.S.] by touching the genitals or breast of [A.S.] and [A.S.] was then and there under the age of seventeen years and not the spouse of the defendant, and that said act, if any, was committed with the intent on the part of the defendant to arouse or gratify the sexual desire of himself, then you will find the defendant guilty as alleged in Count II of the indictment.

(Emphasis added.)

This case is governed by Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991).  The court in Kitchens concluded the following:

This Court has held that alternate pleading of the differing methods of committing one offense may be charged in one indictment.  And although the indictment may allege the differing methods of committing the offense in the conjunctive, it is proper for the jury to be charged in the disjunctive.  It is appropriate where the alternative theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted.  Indeed, the [United States] Supreme Court has determined that "there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict."

Id. at 259 (emphasis added) (citations omitted).  In the present case, we conclude the trial court properly charged both means of sexual contact disjunctively.  See id.  Pizzo's sole issue is overruled.

III.  Conclusion

Accordingly, we affirm the judgment of the trial court.                                                                                     

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 14th day of July, 2005.

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^[1]The State abandoned one of two enhancement paragraphs of the indictment, and appellant pleaded true to the remaining enhancement paragraph.