Torres v. State

1

MILTON TORRES, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-22-00004-CR

Court of Appeals of Texas, Eighth District, El Paso

July 27, 2022

Do Not Publish

Appeal from the 13th Judicial District Court of Navarro County Texas (TC# D40902-CR)

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

JEFF ALLEY, JUSTICE

A jury convicted Appellant Milton Torres of: (1) two counts of aggravated sexual assault of an elderly person; (2) one count of burglary of a habitation with the commission or attempted commission of injury to an elderly person; and (3) one count of injury to an elderly person, by intentionally or knowingly causing her bodily injury, all of which arose from a single prolonged home invasion. On appeal, Appellant argues that his two convictions for aggravated sexual assault, as well as his convictions for burglary of a habitation and injury to an elderly person, violated the Double Jeopardy Clause's prohibition against imposing multiple punishments for the same offense. For the following reasons, we reverse one of Appellant's convictions for aggravated sexual assault and reverse his conviction for injury to an elderly person. We affirm his remaining convictions.^[1]

I. Background

In separate counts in the indictment, the State alleged that on or about June 14, 2015, Appellant committed the following offenses against Sylvia Singleton, an elderly person:

Count I: aggravated sexual assault of an elderly person by penetration of Sylvia's sexual organ by Appellant's sexual organ;

Count II: aggravated sexual assault of an elderly person by penetration of Sylvia's mouth by Appellant's sexual organ;

Count III: aggravated sexual assault of an elderly person by contact of Sylvia's sexual organ by Appellant's sexual organ;

Count IV: Paragraph One: burglary of a habitation with the commission or attempted commission a felony, namely injury to an elderly person,

Count IV: Paragraph Two: burglary of a habitation with the commission or attempted commission of a felony, namely sexual assault;

Count V: injury to an elderly person.

The indictment also contained an enhancement paragraph that alleged Appellant had a prior final conviction for the felony offense of domestic violence by strangulation.

The evidence at trial showed that shortly after midnight on the date of the crime that a person called 911 to report an attempted sexual assault of a woman (not Sylvia) in a mobile home park in Rice, Texas. Several hours later, and after law enforcement had already been sent to the scene to investigate that offense, the 911 dispatcher received another call from Sylvia's friend, who reported that Sylvia had been sexually assaulted in her trailer in the same mobile home park. The 911 dispatcher called Sylvia who answered the phone in a "very distraught" tone. Sylvia reported that a man, later identified as Appellant, came into her residence, who physically and sexually assaulted her over the course of several hours.

Sylvia was transported to the hospital where a nurse observed bruises to her face, knees, back, wrists, and thighs; all caused by Appellant's fists. The State also presented testimony from a sexual assault nurse examiner who conducted a sexual assault examination of Sylvia and discovered that she had injuries to her vagina that were consistent with nonconsensual sex. During the examination, Sylvia told nurse examiner that Appellant came into her trailer while she was asleep, told her that he had a gun and threatened to kill her, forced her to remove her clothing, penetrated her vagina with his penis, and continually threw her around inside the trailer. The assault continued until daylight, but Sylvia did not recall when Appellant left the trailer because she lost consciousness before he left.

In addition to the nurse testimony, the State also introduced Sylvia's medical records that established the presence of bruises on her body and a subarachnoid hemorrhage (i.e., a brain bleed), as well as photographs of Sylvia's injuries that were taken at the hospital. One law enforcement officer opined that Sylvia's bruises to her back were consistent with being thrown down. The State also admitted into evidence a law enforcement officer's interview with Sylvia, during which she described the nature of the sexual assault and the injury to her shoulder that Appellant caused by slamming her against a board in her trailer. Sylvia, who was 73 years old at the time of the offenses, passed away before the trial and did not testify.

Prior to submitting the case to the jury, the State abandoned Paragraph Two of Count IV of the indictment (burglary of a habitation with the commission or attempted commission of a felony, namely sexual assault). The jury acquitted Appellant of Count II (aggravated sexual assault of an elderly person by penetration of Sylvia's mouth by Appellant's sexual organ). The jury, however, convicted Appellant of Counts I (aggravated sexual assault of an elderly person by penetration of Sylvia's sexual organ by Appellant's sexual organ), III (aggravated sexual assault of an elderly person by contact of Sylvia's sexual organ by Appellant's sexual organ), IV (burglary of a habitation with the commission or attempted commission a felony, namely injury to an elderly person), and V (injury to an elderly person). The jury assessed punishment of 40 years' imprisonment on Count I, 15 years' imprisonment on Count III, 15 years' imprisonment on Count IV, and 10 years' imprisonment on Count V. The trial court sentenced Appellant in accordance with the jury's verdicts, with each sentence running concurrently.

On appeal, Appellant challenges his convictions in two issues, arguing in Issue One that his punishments for both Counts I (aggravated sexual assault by penetration) and III (sexual assault by contact) constitute a violation of the Double Jeopardy Clause's prohibition against imposing multiple punishments for the same criminal act. In Issue Two, Appellant argues that his convictions for Counts IV (burglary of a habitation with intent to commit injury to an elderly person) and V (injury to an elderly person) also violate double jeopardy because injury to an elderly person is a lesser-included offense of burglary of a habitation with the commission or attempted commission of a felony.

The State does not contest either of Appellant's double jeopardy issues, but rather asserts that overturning Appellant's conviction for Count III and V "will not affect the State's legitimate interests" because Appellant's conviction for Count I, with the longer sentence, would be retained. Although the State in effect confesses error on these matters and such confession carries "great weight," we as a reviewing court also have a duty to conduct an independent examination of the merits of the claims of error. See Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App. 2002) ("When presented with confessions of error, we have agreed frequently that the able prosecutors have correctly concluded that error was presented. But we have always done so after an independent examination of the merits of the claim of error."); Gallegos v. State, No. 08-14-00275-CR, 2015 WL 8334835, at *2 (Tex.App.--El Paso Dec. 9, 2015, no pet.) (not designated for publication) ("We are required to independently examine the error confessed because the proper administration of the criminal law cannot be left merely to the stipulation of parties."). As such, we will consider the merits of Appellant's claim.

Prior to addressing these contentions, we address the general principles associated with the Double Jeopardy Clause and whether Appellant has properly preserved his claims for our review.

II. Discussion

A. General Double Jeopardy Principles

The Double Jeopardy Clause of the Fifth Amendment provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. The Double Jeopardy Clause guards against three distinct scenarios: (1) prosecution for a second time for the same offense after an acquittal; (2) prosecution for a second time for the same offense after conviction; and (3) multiple punishments for the same offense. Ramos v. State, 636 S.W.3d 646, 651 (Tex.Crim.App. 2021); Licano v. State, No. 08-19-00230-CR, 2021 WL 508345, at *2 (Tex.App.--El Paso Feb. 11, 2021, no pet.) (not designated for publication). This case solely implicates the prohibition against multiple punishments. A multiple-punishments claim arises when either the same conduct is punished twice under the lesser-included offense context, or when the same criminal act is punished twice under distinct statutes when there was a clear legislative intent to only be punished once. Langs v. State, 183 S.W.3d 680, 685 (Tex.Crim.App. 2006).

To determine what constitutes the "same offense," we apply the two well-known Blockburger tests. See Blockburger v. United States, 284 U.S. 299, 301-02, 304 (1932). Under the first test, we determine whether each criminal act is a separate and distinct one, separated by time; if the offense is a single continuous impulse, with a single act in which several different statutory provisions are necessarily violated, the offenses merge together under the "merger doctrine" or, in Texas, "the doctrine of subsumed acts." Aekins v. State, 447 S.W.3d 270, 274-75 (Tex.Crim.App. 2014), citing Blockburger, 284 U.S. at 301-02; Patterson v. State, 152 S.W.3d 88, 92 (Tex.Crim.App. 2004). Thus, if more than one statutory offense is necessarily committed by a single criminal act and impulse, then the offenses merge and the defendant may be subjected to only one punishment. Id. at 275.

Under the second Blockburger test, "To decide if conviction on multiple counts stemming from a single criminal...