Martinez, Luis Ruben Islas v. State ( 2015 )

PD-0029-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/5/2015 1:28:47 PM
Accepted 2/6/2015 9:02:43 AM
ABEL ACOSTA
NO. PD-0029-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
____________________________
LUIS RUBEN ISLAS MARTINEZ,
Appellant/Petitioner
vs.
THE STATE OF TEXAS,
Appellee/Respondent
_________________________________
APPELLANT’S PETITION FOR
DISCRETIONARY REVIEW
________________________________
Cause No. 05-13-00953-CR
Court of Appeals, Fifth District
At Dallas, Texas
___________________________________
Lawrence B. Mitchell
SBN 14217500
P.O. Box 797632
Dallas, Texas 75379
Tel. No. 214.870.3440
E-mail: judge.mitchell@gmail.com
February 6, 2015 Attorney for Petitioner/Appellant
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
PRESIDING JUDGE: Honorable Gary R. Stephens, sitting by assignment for
the Honorable Carter Thompson, the Presiding Judge of
Criminal District Court No. 5, Dallas County, Texas
PARTIES: Luis Ruben Islas Martinez, Appellant/Petitioner
The State of Texas, Appellee/Respondent
Counsel: Trial counsel: Faustino Larrea, Jr., P.O. Box 191947,
Dallas, Texas 75219
Appeal counsel: Lori Ordiway, P.O. Box 793991, Dallas,
Texas 75379
Petition for Discretionary Review Counsel: Lawrence B.
Mitchell, P.O. Box 797632, Dallas, Texas 75379
Trial counsel for the State: Shawnkeedra Housto-Martin,
Assistant District Attorney, Dallas County, Texas, 133
N. Riverfront Blvd., Dallas, Texas 75207
Appellate counsel for the State: Patricia P. Noble,
Assistant District Attorney, Dallas County, Texas, 133
N. Riverfront Blvd., Dallas, Texas 75207
Trial, Appellate and Petition counsel for the State: Susan
Hawk, Criminal District Attorney, Dallas County, Texas
or her designated representative, 133 N. Riverfront
Blvd., Dallas, Texas 75207
i
TABLE OF CONTENTS
Identity of Judge, Parties, and Counsel......................................................................i
Table of Contents ......................................................................................................ii
Index of Authorities..................................................................................................iii
Statement Regarding Oral Argument........................................................................v
Statement of the Case and Procedural History ........................................................vi
Ground for Review: ..................................................................................................1
I.
WHETHER THE COURT OF APPEALS ERRED IN
JUDICIALLY DEFINING THE WORD “CONTACT” AS
CONTAINED IN THE OFFENSE OF AGGRAVATED
SEXUAL ASSAULT SO AS TO ALLOW THE
EVIDENCE TO BE DETERMINED LEGALLY
SUFFICIENT WHEN THE EVIDENCE SHOWED ONLY
THAT THE GENITAL TO GENITAL “CONTACT”
OCCURRED WHILE BOTH APPELLANT AND THE
VICTIM WERE CLOTHED
Argument....................................................................................................................2
Conclusion.................................................................................................................8
Certificate of Word-Count Compliance....................................................................9
Certificate of Service.................................................................................................9
Appendix
ii
INDEX OF AUTHORITIES
Cases:
Boykin v. State, 818 S.W.2d 782 (Tex .Crim. App.1991).........................................4
Cagle v. State, 976 S.W.2d 879 (Tex. App. - Tyler, 1998).........................................3
Daniels v. State, 754 S.W.2d 214 (Tex. Crim. App.1988)........................................3
Dowthitt v. State, 931 S.W.2d 244 (Tex .Crim. App.1996)....................................4
Ex parte Kuester, 21 S.W.3d 264 (Tex. Crim. App.2000)........................................4
L. B. Foster Co. v. State, 106 S.W.3d 194
(Tex. App.–Houston [1st Dist.]2003)...............................................................4
Jones v. State, 2000 WL 675714 (Tex. App. - Houston [14th Dist.] 2000)...............3
Fleming v. State, 341 S.W.3d 415 (Tex. Crim. App. 2011).....................................5
Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952)........6
Nguyen v. State, 1 S.W.3d 694 (Tex. Crim. App.1999)............................................4
State v. Laird, 38 S.W.3d 707 (Tex. App. - Austin 2000)........................................4
Weyandt v. State, 35 S.W.3d 144 (Tex. App.-Houston [14th Dist.] 2000)............3,4
iii
STATUTES:
TEX. PENAL CODE ANN. §21.11(a) (1) & (c) (1) & (2)........................................5
TEX. PENAL CODE §22.021 (a) (1) (B) (iii)(2) (B) (e).....................................vi,2
TEX. PENAL CODE §22.021 (a) (1) (B) (iv)...................................................................6
TEX. GOV’T. CODE ANN. §311.011 (a).................................................................4
TEX GOV’T. CODE ANN. §311.021 (a)...............................................................4
T. TEX. GOV'T. CODE ANN. § 311.023(4)................................................................5
Texas Rules of Appellate Procedure:
TEX. R. APP. P. 47.4 (a)............................................................................................8
TEX. R. APP. P. 66.3 (b).........................................................................................v,8
TEX. R. APP. P. 9.4 (i) (3)..........................................................................................9
TEX. R. APP. P. 9.4 (i) (1)..........................................................................................9
TEX. R. APP. P. 9.4 (i) (2) (D)...................................................................................9
iv
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument because the issue to be resolved is an
important one that has not been but should be settled by the Court of Criminal
Appeals. See TEX. R. APP. P. 66.3 (b). The purpose of the argument is to help
determine the meaning and breadth of a heretofore undefined word, to wit: “contact”
as used as an element of the offense of Aggravated Sexual Assault. This Honorable
Court has judicially explained the meaning of similar allegations of “contact” while
interpreting other sexual offences. However, because of significant differences in the
various penal statutes, especially the offense of Indecency with a Child, that
definition is inappropriate for the offense of Aggravated Sexual Assault when genital
to genital contact is alleged in the indictment. Oral argument will highlight and
clarify the distinctions and therefore assist the Court in resolving the issue.
v
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
In Cause No. F13-00162-L Appellant was charged by indictment returned by
the Dallas County Grand Jury with the first degree felony offense of Aggravated
Sexual Assault. The case was assigned to Criminal District Court No. 5 for
disposition. The indictment alleged an offense prohibited by TEX. PENAL CODE
§22.021 (a) (1) (B) (iii)(2) (B) (e): intentional or knowing sexual contact with a child
younger than fourteen (14) years of age. (CR: 8). Appellant waived the right to a jury
trial (with the consent and approval of the district court and the State) and entered a
plea of “Not Guilty”. (CR 11, 14); (RR3: 5-7). Appellant was found guilty and
sentence was assessed at confinement in the penitentiary for eight (8) years and a fine
of $4000.00. (RR4: 83; RR5: 8). Appellant’s timely Motion for New Trial was
overruled by the district court; Appellant then gave Notice of Appeal to the Court of
Appeals for the Fifth District of Texas at Dallas. The published opinion of the court
of appeals affirming and modifying appellant’s conviction was delivered on
December 9, 2014. No Motion for Rehearing was filed.
vi
GROUND FOR REVIEW
I.
WHETHER THE COURT OF APPEALS ERRED IN
JUDICIALLY DEFINING THE WORD “CONTACT” AS
CONTAINED IN THE OFFENSE OF AGGRAVATED
SEXUAL ASSAULT SO AS TO ALLOW THE
EVIDENCE TO BE DETERMINED LEGALLY
SUFFICIENT WHEN THE EVIDENCE SHOWED ONLY
THAT THE GENITAL TO GENITAL “CONTACT”
OCCURRED WHILE BOTH APPELLANT AND THE
VICTIM WERE CLOTHED
1
ARGUMENT
The indictment returned against Appellant alleged the offense of Aggravated
Sexual Assault committed by genital to genital contact. The indictment alleged that
Appellant intentionally and knowingly caused the victim’s sexual organ to contact
the sexual organ of Appellant and that the victim was under the age of fourteen (14).
(CR: 8). See TEX PENAL CODE ANN. §22.021(a)(1)(B)(iii)(2)(B). As set forth in the
opinion below, and undisputed by the parties, the contact occurred while both
Appellant and the victim were clothed and that none of the contact occurred “skin to
skin” or “skin to clothed body”.
Appellant argued on direct appeal that the evidence presented at trial was
insufficient when the only contact proven happened while he and the victim were
clothed. In reviewing the sufficiency claim, the court of appeals set forth the relevant
testimony (See Appendix attached hereto) which described genital contact occurring
while both parties were clothed. In order to determine that this evidence was
sufficient to prove the offense charged, the court of appeals had to determine if such
contact would prove the offense charged.
In resolving the issue, the court of appeals was unable to cite to any dispositive
decision on the issue by this Honorable Court. Instead, the court of appeals referred
to two decisions by sister courts of appeals. In each of those cases, “contact” was
2
defined by the reviewing court as any touching of the genital areas even with the
interposition of clothing. See Cagle v. State, 976 S.W.2d 879, 882 (Tex. App. - Tyler,
1998) and Jones v. State, 2000 WL 675714 (Tex. App. - Houston [14th Dist.] 2000).
Though both cases do provide a “touching” definition for the word “contact”, the
cases are somewhat ambiguous. Neither case sets forth the allegations in the
indictment. Although both cases do refer to “contact”, each case also explains that
there was also sexual penetration and in both cases it appears that the object used by
the defendant was “skin” contacting or penetrating the victim who was in some
fashion clothed. Neither case therefore appears to resolve the exact issue as to
whether “contact” can occur when both genital areas are clothed. No decision by this
Honorable Court has so held.
There is, of course, nothing improper or unusual for an appellate court to
determine the meaning of a word contained within a statute when that word has not
been defined by the Legislature. It is often noted in case law that, generally,
undefined words in statutes are given their plain meaning by the appellate court
unless the statute clearly shows that they were used in another sense or specifically
defined by the Legislature. See Daniels v. State, 754 S.W.2d 214, 219 (Tex. Crim.
App.1988); Weyandt v. State, 35 S.W.3d 144, 155 (Tex. App.-Houston [14th Dist.]
2000). Under those circumstances, statutory words are to be read in context and
3
construed according to the rules of grammar and common usage. Weyandt, 35 S.W.3d
at 155; L.B. Foster Co. v. State, 106 S.W.3d 194, 203 (Tex. App.–Houston [1st Dist.]
2003). This follows the mandate contained in the Code Construction Act: “Words
and phrases shall be read in context and construed according to the rules of grammar
and common usage.” TEX. GOV’T CODE ANN. §311.011 (a).
Traditionally the courts have held that the starting point for statutory analysis
is to review the text of the statute under review. Ex parte Kuester, 21 S.W.3d 264,
266 (Tex. Crim. App.2000); State v. Laird, 38 S.W.3d 707, 712 (Tex. App. - Austin
2000). In determining the plain meaning of a statute, the words and phrases will be
read in context and that plain language of the statute will be applied unless the
language is ambiguous or could lead to an absurd result. Boykin v. State, 818 S.W.2d
782, 785 (Tex .Crim. App.1991); Dowthitt v. State, 931 S.W.2d 244, 258 (Tex .Crim.
App.1996). The reviewing court should give rational effect to the whole statute, not
interpreting any phrase or word in isolation, but looking at the phrase or word in the
context of the entire statute. Nguyen v. State, 1 S.W.3d 694, 696 (Tex. Crim.
App.1999). The reviewing court will presume that a proper interpretation of the
statute will lead to “...a just and reasonable result...”. TEX GOV’T. CODE ANN.
§311.021 (a). Furthermore, the Code Construction Act allows an appellate court to
construe a provision in light of existing statutes covering the same or similar subjects.
4
TEX. GOV'T CODE ANN. § 311.023(4). It is this last rule of statutory construction
that is especially relevant to the current issue.
The related offense of Indecency with a Child also criminalizes genital to
genital contact although with a child younger than seventeen (17) years of age. TEX.
PENAL CODE ANN. §21.11(a) (1) & (c) (1) & (2). More specifically, the statute
proscribes genital contact even through clothing if the contact is done with the intent
to arouse or gratify the sexual desire of any person. With this additional mens rea, the
definition prohibiting genital contact with a child, even through clothing, whether
provided by Legislative enactment or through court interpretation, is sensible and
appropriate.
Unlike the offense of Indecency with a Child, the offense of Aggravated Sexual
Assault does not require that genital contact be done “with the intent to arouse or
gratify the sexual desire of any person. The offense alleged by indictment against
Appellant is under Texas’s strict-liability child sexual assault statute. Fleming v.
State, 341 S.W.3d 415, 415 (Tex. Crim. App. 2011). If the actor engaged in the
conduct intentionally and knowingly, any genital to genital contact with a child would
be in violation of the penal statute, as interpreted by the court of appeals, to include
contact even though both the actor and the victim were clothed when the contact
occurred. This broad and expansive definition could criminalize otherwise legal
5
behavior.
For example, the Aggravated Sexual Assault statute forbids contact by the
actor’s sexual organ with the anus of the victim. TEX. PENAL CODE §22.021 (a) (1)
(B) (iv). However, many forms of modern dancing, and Latin dancing as well, are
performed with very close personal contact between the genital area, usually the male,
and the posterior of the female. “Sandungueo” is a dance and party music associated
with “reggaeton” that emerged in the early 2000's in Puerto Rico. It is a dance that
focuses on grinding, also known as “perreo,” with one partner facing the back of the
other (usually male behind female). Other similar forms of dancing are known as
“booty dancing,” “grinding,” “dirty grinding,” or “twerking.” Under the definition
provided by the court of appeals, this otherwise legal activity would be criminalized.
This would violate the basic principle of criminal law that a person should not be
convicted of a crime if he had no reason to believe that the act he committed was a
crime or that it was wrongful. Morissette v. United States, 342 U.S. 246, 252, 72 S. Ct.
240, 244, 96 L. Ed. 288 (1952). Appellant’s behavior may have, at the discretion of
the fact-finder, been a violation of the Indecency with a Child statute, even though
the contact was through clothing if it was done with intent to arouse and gratify
sexual desire. However, if the word “contact” is properly defined judicially as by
either “skin to skin” contact or “skin through clothing” contact, then he did not
6
commit the crime of Aggravated Sexual Assault and the evidence would have been
insufficient to support the guilty verdict and subsequent sentence.
7
CONCLUSION
The decision of the court of appeals as to the proper definition of the word
“contact,” as contained in the Aggravated Sexual Assault statute, has decided an
important question of State law that has not been, but should be, settled by the Court
of Criminal Appeals. See TEX. R. APP. P. 66.3 (b). It should also be noted that the
court of appeals designated its opinion for publication. Under the applicable
appellate rule, an opinion should be designated a memorandum opinion unless, as
relevant to the issue resolved in the case, the opinion “...establishes a new rule of
law...” See TEX. R. APP. P. 47.4 (a). An appropriate reason for this Honorable Court
to grant this Petition for Discretionary Review having been presented, the Petition
should be granted and further briefing by the parties should be ordered.
Respectfully submitted,
/s/Lawrence B. Mitchell
Lawrence B. Mitchell
SBN 14217500
P.O. Box 797632
Dallas, Texas 75379
214.870.3440
judge.mitchell@gmail.com
Counsel for Petitioner/Appellant
8
CERTIFICATE OF WORD-COUNT COMPLIANCE
I hereby certify, in compliance with Rule 9.4 (i) (3) of the Texas Rules of
Appellate Procedure, that this document contains 1,392 words, including all contents
except for the sections of the Petition to be excluded by Rule 9.4 (i) (1) of the Texas
Rules of Appellate Procedure, and in compliance with Rule 9.4 (i) (2)(D) of the Texas
Rules of Appellate Procedure.
/s/ Lawrence B. Mitchell
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Petition for Discretionary
Review is being served of this the 5th day of February, 2015 via the service function
in eFile Teas, on the attorneys for the State: (1) Patricia Noble, Assistant District
Attorney, Dallas County, Texas to pnoble@dallascounty.org and (2) the State
Prosecuting Attorney at information@spa.texas.gov.
/s/ Lawrence B. Mitchell
9
APPENDIX
10
Court of Appeals of Texas,
Dallas.
Luis Ruben IslasMartinez, Appellant
v.
The State of Texas, Appellee
No. 05–13–00953–CR
Opinion Filed December 9, 2014.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas
Trial Court Cause No. F13–00162–L
Before Justices O‘Neill, Lang–Miers, and Brown
OPINION
Opinion by Justice Lang–Miers
Luis Ruben IslasMartinez FN1 appeals his conviction for aggravated sexual assault of a
child by contact. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (2)(B) (West Supp.2014). In two
issues, appellant argues that the evidence is insufficient to support the conviction and his trial
lawyer rendered ineffective assistance. We modify the judgment to reflect the pronouncement of
a $4,000 fine and, as modified, affirm the trial court's judgment.
FN1. In his brief, appellant spells his last name with a space between “Islas” and “Martinez.” However, in the
indictment and the trial court's judgment, appellant's last name is spelled “IslasMartinez,” without a space. We use
the spelling that comports with the judgment.
Factual Background
For several months in 2011, appellant and his wife did not live together, and appellant
had custody of his stepdaughter E.R. and E.R.'s five siblings. E.R. was the oldest and was around
twelve or thirteen years of age at the time. For a reason E.R. did not recall, she began sleeping in
appellant's bed “sometimes.” She said she considered appellant “like a boyfriend” and thought
she was in love with him. She described how she and appellant would lie in the bed with their
clothes on and hug, kiss with their tongues, and “hump.” She explained that by “hump” she
meant appellant would lie on his back on the bed, she would lie on top of him with her legs on
either side of appellant, and they would “hump.” She did not recall how this conduct started, and
she estimated that they engaged in this activity “[t]en or less” times and always wore clothing.
Using diagrams of unclothed children, E.R. circled the parts of her and appellant's bodies
that touched when they would “hump.” She circled the genital area on both diagrams and referred
to the area on the girl diagram as the “vagina.” She did not know what the circled area on the boy
diagram was called, but she said it was “hard,” it felt “good,” it rubbed against her “vagina,” and
it made her “vagina” feel “good.” E.R. testified that appellant also rubbed her breast under her
shirt when she was sleeping and rubbed her butt under her panties once when they were watching
a movie.
Two of E.R.'s younger sisters testified that they saw E.R. and appellant in bed together.
Both said E.R. was lying on top of appellant. One sister saw E.R. kiss appellant's cheek. She said
she thought this was “normal” behavior at first, but she changed her mind the more she thought
about it. She said there were times when appellant would send all the children except E.R. to bed
early and then she would hear appellant's bed “squeaking.” She testified that she was confused
and told Mother about what she saw and heard. The other sister testified that she was sleeping in
the bed with appellant and E.R. one night when she awoke because the bed was moving. She
pretended to be asleep and saw E.R. on top of appellant. E.R. told appellant to kiss her and
appellant said, “Where?” She did not see E.R. moving on top of appellant.
Mother purchased a clock with a hidden video camera and gave it to one of E.R.'s sisters
to place in appellant's home. The sister placed the clock/camera in the living room and facing
appellant's bedroom. Mother obtained the recordings and watched them. They showed E.R. and
appellant face-to-face in a full frontal embrace, walking around the living room and bedroom
areas. E.R. was walking backwards with her feet on top of appellant's feet; appellant was often
smoking a cigarette. In one of the recordings they were leaning against a wall in this embrace. In
another they were walking into the bedroom and appellant fell backwards onto the bed and E.R.
fell on top of him. E.R. stayed on top of appellant for several seconds. Both were fully clothed in
the recordings.
When Mother asked E.R. about what had happened with appellant, E.R. said nothing had
happened. Mother showed the recordings to the police and a detective interviewed E.R., but E.R.
also told the detective that nothing had happened. About a month later, E.R. began to open up to
Mother. Mother said E.R. was “a really nervous person” so Mother wrote down several questions
to E.R. asking what happened, and E.R. answered the questions in writing. Although some of the
questions and answers were difficult to read, we were able to discern several, including the
following:
3 have you ever kiss [sic] in the mouth?
3 Yes I kiss hem [sic] in hes [sic] mouth
7 did he touch your breasts?
7 sometimes he will touch my breast when I sleep in his bed and then
he will turn away
8 did he touch your vagina?
8 I dont [sic] think so
12 did he ever show you his private parts?
12 NO
13 did Luis ever told [sic] you not to tell anyone what was happening between you
and him?
13 NO
Although we were unable to read question 10, E.R. answered that question as follows:
10 We dint [sic] not have real sex. he will have his pajamas on when he will get
on top of me I will fill [sic] his private part rubbig [sic] against my virgina [sic].
After getting E.R.'s answers, Mother called the detective investigating the case and he
interviewed E.R. again. The detective obtained a warrant for appellant's arrest, and the State
charged appellant with aggravated sexual assault of a child by sexual-organ-to-sexual-organ
contact.
Appellant waived his right to a jury trial and pleaded not guilty before the court. After the
State put on the evidence recounted above, appellant testified in his defense and denied any
inappropriate behavior with E.R. He denied that he “hump[ed]” E.R., fondled her breast, kissed
her with his tongue, and that they were “boyfriend and girlfriend.” He admitted that E.R. at times
slept in his bed, but he said all his “children were wherever they felt comfortable.” He said he
had not seen the recordings from the hidden video camera, his lawyer did not show him the
recordings, and he was unaware that the recordings showed him and E.R. “walking around
hugging from room to room, falling on the bed, [him] smoking a cigarette.” When asked whether
he thought this behavior was appropriate, he said he and E.R. “were always playing [.]” Later,
appellant testified that his lawyer discussed the contents of the recordings with him “[m]ore or
less, not very well.”
The trial court found appellant guilty and assessed punishment at eight years' confinement
and a $4,000 fine. Appellant's motion for new trial was overruled, and this appeal followed.
SUFFICIENCY OF THE EVIDENCE
APPLICABLE LAW
As alleged in this case, a person commits the offense of aggravated sexual assault of a
child if the person intentionally or knowingly causes the female sexual organ of a child, who was
not the spouse of the actor, to contact the sexual organ of the actor and the child is under the age
of fourteen. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii), (2)(B). The offense as charged is a
first-degree felony carrying a sentence of five to ninety-nine years or life and a fine up to
$10,000. Id. §§ 12.32, 22.021(e).
STANDARD OF REVIEW
In analyzing a claim of insufficient evidence, we view all the evidence and reasonable
inferences from the evidence in the light most favorable to the verdict and determine whether a
rational factfinder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Wise v.
State, 364 S.W.3d 900, 902 (Tex. Crim. App.2012). The factfinder resolves all conflicts in the
evidence and is the exclusive judge of the credibility of the witnesses and the weight to give their
testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App.2000).
DISCUSSION
Appellant first argues that the evidence is insufficient to support his conviction because
the “contact” between his sexual organ and E.R.'s female sexual organ was not flesh-to-flesh.
The State argues that the statute does not require flesh-to-flesh contact and that courts have
construed “contact” in this context to include contact through clothing. We agree with the State.
The statute proscribing aggravated sexual assault of a child by contact does not define the
term “contact.” See TEX. PENAL CODE ANN. § 22.021. Our sister courts have construed “contact”
in this context to include contact through clothing.
In Caldwell v. State, No. 03–96–00603–CR, 1998 WL 10280 (Tex.App.—Austin Jan. 15,
1998, no pet.) (mem. op., not designated for publication), the Austin Court of Appeals rejected
the appellant's argument that sexual-organ-to-sexual-organ contact could not be through clothing.
The evidence showed that the appellant got on top of the child, contacted the child's female
sexual organ over her underwear with his sexual organ and “started going up and down.” Id. at
*1–2. The court said, “ ‘Contact’ may be defined as ‘touching.’ ” Id. at *2. “Proof of an act of
sexual contact or touching need not be shown by flesh-to-flesh contact. If intentionally or
knowingly done, sexual contact or touching may be through clothing.” Id. To support its
conclusion the court relied on opinions from the Texas Court of Criminal Appeals construing the
terms “contact” and “sexual contact” in other sexual-offense contexts to include contact or
touching through clothing. Id. at *2 (citing Resnick v. State, 574 S.W.2d 558, 559–60 (Tex.
Crim. App. [Panel Op.] 1978), and Miles v. State, 157 Tex. Crim. 188, 247 S.W.2d 898, 899–900
(Tex. Crim. App.1952)).
In Miles, the court of criminal appeals construed the meaning of the word “contact” in the
context of the offense of “indecent handling of a minor's sexual parts.” 157 Tex. Crim. 188, 247
S.W.2d at 899–900. The appellant argued that his bare hand never touched the child's bare sexual
organ and, as a result, the evidence was insufficient to support the conviction. Id. at 899. The
court rejected that argument reasoning that “nothing in the statute suggest[ed] that the crime
there denounced could be committed only by the application of the bare hand of the accused to
the bare or naked sexual part of the child.” Id. at 899–900. The court said, “under the guise of
statutory construction, [we] cannot write into the statute that which obviously is not contained
there.” Id. at 900.
And when faced with a similar argument in a public-lewdness context, the court again
construed “contact” to include contact through clothing. Resnick, 574 S.W.2d at 559–60. The
court cited the dictionary definition of “touch” and stated:
This definition makes it quite plain that the essence of the act of
touching is to perceive by the sense of feeling. It is a matter of the
commonest knowledge that the interposition of a layer of fabric
between a person's hand and an object upon which the hand is
placed will not prevent that person from feeling the object thus
concealed. Were we to accept appellant's contention that he did not
“touch” the officer's genitals because no flesh-to-flesh contact was
made, absurd results would follow. Under such an analysis, a
defendant who thrust his hand beneath a victim's undergarments
and fondled his or her genitals in a public place could not be
prosecuted for public lewdness if he were wearing a glove.
Id. at 560.
The Tyler Court of Appeals also has construed “contact” in the context of aggravated
sexual assault of a child to include contact through clothing. In Cagle v. State, 976 S.W.2d 879,
882 (Tex. App.—Tyler 1998, no pet.), the appellant argued there was no flesh-to-flesh contact
and the evidence was insufficient to support the conviction. The court gave the term “contact”
“its ordinary meaning according to its common usage,” stating “contact” means “ ‘the act of
touching or meeting’ and ‘close juxtaposition or touching of the bodies or person.’ WEBSTER'S
NEW TWENTIETH CENTURY DICTIONARY, unabridged, 2nd Ed.” Id. The court concluded
“that even assuming there was fabric between [the a]ppellant's penis and [the child's] anus,
contact could have occurred.” Id.
And the Houston First District Court of Appeals reached a similar result in Jones v. State,
Nos. 01–98–01400–CR & 01–00–00489–CR, 2000 WL 675714 (Tex. App.—Houston [1st Dist.]
May 25, 2000, pet. ref'd) (mem. op., not designated for publication), where the evidence showed
that the appellant contacted the child's anus with his sexual organ through the child's boxer
shorts. The court cited the Cagle opinion. Id. at *2. It also relied on the court of criminal
appeals's decision in Resnick. Id. The court said “the same analysis [that the court in Resnick
applied in the context of public lewdness] applies to ‘contact’ as it applies to aggravated sexual
assault. There is no reason to apply a different meaning in the context of aggravated sexual
assault.” Id.
In this case, appellant argues that the cases discussed above were decided before
legislative amendments to the definition of “sexual contact” in 2001 and, as a result, no longer
apply. We disagree. In 2001, the legislature amended the definition of “sexual contact” for
indecency with a child to include touching through clothing. See Act of May 23, 2001, 77th Leg.,
R.S., ch. 739, § 2, sec. (c), 2001 Tex. Gen. Laws 1463, 1463 (current version at TEX. PENAL
CODE ANN. § 21.11(c) (West 2011)). But indecency with a child is a different offense, and the
legislature did not amend the statute for aggravated sexual assault of a child. The term “contact”
was not statutorily defined before 2001, and it remains statutorily undefined. See TEX. PENAL
CODE ANN. § 22.021. Consequently, we presume the legislature knew the construction that
courts had given to the term when it chose not to define it. See Miller v. State, 33 S.W.3d 257,
260–61 (Tex. Crim. App.2000); Williams v. State, No. 05–03–00648–CR, 2004 WL 95204, at *2
(Tex. App.—Dallas Jan. 21, 2004, no pet.) (mem. op, not designated for publication) (rejecting
argument that change to definition of “sexual contact” for indecency with a child impacted
definition of “sexual contact” for public lewdness). And we presume the legislature intended the
same construction to continue to be applied after the 2001 amendments. See Miller, 33 S.W.3d at
260–61; Williams, 2004 WL 95204, at *2.
In the context of aggravated sexual assault of a child by penetration, this Court and other
courts have said that penetration may occur through clothing. See, e.g., Flores v. State, No.
13–12–00362–CR, 2013 WL 3326982, at *3 (Tex. App.—Corpus Christi June 27, 2013, no pet.)
(mem. op., not designated for publication); Villanueva v. State, No. 04–07–00599–CR, 2008 WL
3057289, at *7–8 (Tex. App.—San Antonio Aug. 6, 2008, no pet.) (mem. op., not designated for
publication); Limon v. State, Nos. 05–98–01432–CR, 05–98–01433–CR, 05–98–01434–CR,
05–98–01435–CR, 2000 WL 1176591, at *4 (Tex. App.—Dallas Aug. 21, 2000, no pet.) (mem.
op., not designated for publication); Belasco v. State, No. 01–97–00666–CR, 1999 WL 430802,
at *2 (Tex.App.—Houston [1st Dist.] June 10, 1999, pet. ref'd) (mem. op., not designated for
publication); Rodda v. State, 926 S.W.2d 375, 378 (Tex. App.—Fort Worth 1996, pet. ref'd). In
those cases, the courts recognized that “[t]he offensive act is the penetration of the female sexual
organ.... It does not matter whether [the defendant's] hand was encased in a glove or between her
panties and her shorts or outside her shorts so long as his hand accomplished the penetration.”
Rodda, 926 S.W.2d at 378. Here, the offensive conduct is the sexual-organ-to-sexual-organ
contact with a child under the age of fourteen. See TEX. PENAL CODE ANN. § 22.021; Jones,
2000 WL 675714, at *2; Cagle, 976 S.W.2d at 882; Caldwell, 1998 WL 10280, at *2. It does not
matter that the contact occurred through clothing—it is the deliberate and sexual nature of the act
that is offensive. Appellant's construction that “contact” in this context must be flesh-to-flesh
would lead to the absurd result that an actor could never be prosecuted for aggravated sexual
assault of a child if the actor contacted a child's bare female sexual organ with his sexual organ
while wearing a condom. See Resnick, 574 S.W.2d at 560. Under the guise of statutory
construction, we will not write into a statute language that is not there. See Miles, 247 S.W.2d at
190. As other courts have done, we reject the argument that “contact” must be flesh-to-flesh and
conclude that in the context of aggravated sexual assault of a child, contact may occur through
clothing.
Appellant next argues that the evidence is insufficient because “the evidence shows that
the complainant falsely accused [him] in this case and that he did not commit any offense.”
Appellant argues that no one saw any “sex act,” some of the evidence was conflicting, and E.R.
was not credible.
The testimony of a child victim alone is sufficient to support a conviction for aggravated
sexual assault of a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp.2013). E.R.
testified that she and appellant “hump[ed]” through clothing on multiple occasions. She
identified the areas of their respective bodies that touched during these acts as her “vagina” and
appellant's genital area. She described how appellant's genital area felt “hard” and made her
“vagina” feel “good.” And she testified that she was twelve or thirteen years of age at the time. In
addition to E.R.'s testimony, the court heard testimony from Mother and E.R.'s siblings, and
watched recordings of appellant and E.R. walking around in a full frontal embrace and falling on
the bed with E.R. on top of appellant. The factfinder resolved credibility issues and conflicts in
the evidence against appellant, which it had the exclusive province to do. See Wesbrook, 29
S.W.3d at 111. We conclude that the State proved beyond a reasonable doubt that appellant
committed aggravated sexual assault of a child as alleged in the indictment. We resolve issue one
against appellant.
INEFFECTIVE ASSISTANCE OF COUNSEL
In issue two, appellant argues that his lawyer rendered ineffective assistance because his
lawyer did not tell him about the video recordings. Appellant argues that if his lawyer had told
him about the recordings, he “may well have decided to plead no contest or even guilty.” He also
argues that the trial court may have granted him deferred adjudication “in light of the fact that
this was his first charge for a sexual offense” and “because of the State's questionable proof of
the elements.” He contends that the trial court's assessment of only eight years' incarceration,
which is at the “low end of the available punishment of five years to life,” supports his argument.
He also argues that “there simply was no sound trial strategy for trial counsel's failure to carefully
review these videotapes with [him] before trial.”
APPLICABLE LAW
To prevail on this claim, appellant must show that his lawyer's representation fell below
an objective standard of reasonableness and there is a reasonable probability that, but for his
lawyer's errors, the result of the proceeding would have been different. Rylander v. State, 101
S.W.3d 107, 110 (Tex. Crim. App.2003). An ineffective assistance claim must be “firmly
founded in the record” and the record must “affirmatively demonstrate” the claim has merit.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.2005).
STANDARD OF REVIEW
Our review of a lawyer's performance is highly deferential; we begin with the
presumption that the lawyer's conduct fell within the wide range of reasonable professional
assistance. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App.2005). Generally, a silent
record providing no explanation for the lawyer's action will not overcome this strong
presumption of reasonable assistance. Rylander, 101 S.W.3d at 110–11.
DISCUSSION
Appellant did not raise his claim of ineffective assistance of counsel in his motion for
new trial and did not develop a record showing why he thought his lawyer was ineffective.
Although appellant initially testified at trial that his lawyer never told him about the video
recordings, he later clarified this testimony by stating that his lawyer told him about the
recordings “[m]ore or less, not very well.” Consequently, the record shows that appellant's
lawyer did discuss the recordings with appellant. But the record is silent about what was
discussed and how the recordings factored into the lawyer's trial strategy or advice to appellant.
On this record, we conclude that appellant has not overcome the strong presumption that his
lawyer provided effective assistance. We resolve issue two against appellant.
ASSESSMENT OF FINE
In pronouncing appellant's sentence, the trial court ordered appellant to pay a $4,000 fine,
which the court said would be satisfied by “time served and time to be served.” However, the
judgment reflects that a fine was not ordered. We may modify the judgment when we have the
necessary information to do so. French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.1992)
(citing Asberry v. State, 813 S.W.2d 526, 531 (Tex.App.—Dallas 1991, pet. ref'd)).
Consequently, we modify the judgment to reflect the $4,000 fine that was orally pronounced.
CONCLUSION
We modify the judgment to reflect that the trial court ordered a $4,000 fine as part of
appellant's sentence and affirm the trial court's judgment as modified.
Tex.App.-Dallas, 2014
IslasMartinez v. State
--- S.W.3d ----, 2014 WL 6900498 (Tex. App.-Dallas)