The panel erred when it failed to find the evidence was legally insufficient to support the jury’s finding of guilt beyond a reasonable doubt as to each and every element of the offense of indecency with a child by sexual contact, especially considering the panel unilaterally substituted a date of offense contradictory to the indictment and the court’ charge which created double jeopardy issues.
Allen was charged in a multi-count indictment that included continuous sexual abuse of a young child and indecency by contact against the same child. The indictment alleged the continuous offense occurred between Oct. 1, 2009 and Aug. 15, 2012 and the indecency on Sept. 25, 2009. At trial, the State argued to the jury that the dates in the indictment were “just kind of suggestions, basically,” and the jury convicted on the submitted counts.
On appeal, Allen challenged sufficiency of the evidence. Despite the date allegations in the indictment, the court of appeals upheld the conviction for continuous based on conduct that occurred once a month in 2009 until the child moved out of state in the summer of that year. Allen argued the State failed to prove a September 2009 indecency, as alleged in the indictment. The court of appeals concluded that, in the context of this trial, “on or about” meant any date within the limitations period and affirmed the indecency conviction based on an incident in 2011 when the child had returned to Texas. In a motion for rehearing, the State argued this incident fell within the indictment dates for the continuous offense and violated Allen’s double jeopardy rights. In its substitute opinion, the court of appeals concluded there was no double jeopardy violation because “the statutory period” during which Allen committed continuous sexual abuse was in 2009. The court of appeals modified the judgment for indecency to reflect December 2011 as the offense date and affirmed both convictions.
Allen argues that the trial court should have directed a verdict on the indecency count sua sponte because it alleged a date when he was not in Texas and other counts alleging that date were not submitted to the jury. Under Tex. Penal Code § 21.02(e)(2), a defendant cannot be convicted of both continuous and an act of sexual abuse unless it “occurred outside the period in which [the alleged continuous offense] was committed.” Allen asserts that double jeopardy prohibits his conviction for indecency and continuous “when the exact same offense of Indecency with a Child by Sexual Contact is considered to be one of the acts of ‘sexual abuse’ as defined by … the continuous sexual abuse of a child statute.”