No Mercy for Child Sexual Assault Cases

The First District Court of Appeals (Houston) recently issued an opinion in Atkinson v. State, affirming the conviction and sentence of a child sex offender. Personally, I have nothing but utter disdain for child sex offenders and believe that they deserve to serve every second of the sentence that they receive. Apparently, the 1st District feels the same way.

I will spare you all of the intimate facts of the case, because you can read about them HERE if you like. All you really need to know is that Appellant had sex with a 6 year-old little girl. There was only one sexual encounter between Appellant and the girl, and during the encounter, Appellant "rubbed" the girl between her legs and then proceeded to have sex with her. Appellant was convicted of both: 1) Indecency with a Child by "Touching," and 2) Aggravated Sexual Assault, arising from a sexual encounter with a 6 year-old girl. Having never objected to the charges in the indictment at trial, Appellant argued for the first time on appeal that the convictions of both the greater charge and the lesser charge violated 5th Amendment's prohibition on Double Jeopardy. Specifically, the despicable appellant argued that the indecency charge was subsumed within the aggravated sexual assault charge because the conduct was part of one disgusting transaction.

The Law:  A conviction of both the greater and a lesser-included offense arising out of the same act violates double jeopardy. Hutchins v. State, 992 S.W.2d 629 (Tex.App-Austin 1999, pet. Ref'd, untimely filed). The Texas Court of Criminal Appeals held, in Patterson v. State that "conviction for a sexual offense against a child bars conviction for conduct that, on the facts of case, is demonstrably part of the commission of the greater offense." 152 S.W.3d 88 (Tex. Crim. App 2004). Case over, a victory for the Appellant, right? WRONG!

The Court held that because it is not clear from the record whether Appellant "rubbed" the victim with his finger or penis, then the constitutional error is not "clearly apparent from the face of the record," and therefore he did not preserve his appeal.

I am happy to see the Court resort to nit-picking and semantics in order to uphold this convictions (I'm not being facetious). I hope Mr. Atkinson's 20 years in TDC are miserable. As a practical matter, even if the conviction of the lesser offense had been set aside, he would still be serving 20 years for the greater offense. I hate to say, I think the First District probably got this one wrong - But in a way I can appreciate.

Oral Motion = Forfeiture

Under Articles 29.03 and 29.08 of the Texas Code of Criminal Procedure, a motion for a continuance must be WRITTEN and SWORN to by a person having personal knowledge of the facts relied on for the continuance.

David Lee Anderson II, Anderson v. State (Tex.Crim.App. 2009), learned this lesson the hard way. In his trial for aggravated sexual assault of a child, the State sought to introduce the results of DNA testing which were prepared only a few weeks before trial. Complaining of his inability to prepare for the critical evidence, Appellant's defense counsel made an oral motion for a continuance, which was denied by the trial judge.
Upon his conviction, Appellant appealed the ruling of the trial judge, arguing that he was denied a "meaningful opportunity to present a complete defense."

Citing its previous holding in Marin v. State, 851 S.W.2d 275, the Court of Criminal Appeals held that the right to present a meaningful defense is constitutional in nature and, as such, it may be forfeited by procedural default. Accordingly, the Court held that "by making an unsworn pretrial oral motion for a continuance, Anderson failed to preserve his claim that trial judge erred by denying his motion for appellate review."

TAKEAWAY: Always, always, always make your motions for a continuance in writing and sign them! And, in general, follow the rules of the CCP, so as not to allow the appellate courts the ability to punt your case on a procedural issue.