“Did the Legislature intend punishments for both continuous sexual abuse, Tex. Penal Code § 21.02, and prohibited sexual conduct, Tex. Penal Code § 25.02, against the same child?”
Ramos was convicted of continuous sexual abuse and prohibited sexual conduct for sexually abusing his step-daughter. On appeal, he claimed punishment for both offenses violated the Double Jeopardy Clause. The court of appeals held under Blockburger v. U.S., 284 U.S. 299 (1932), Ramos could be punished for both offenses. It concluded otherwise under the unit-of-prosecution test announced in Ervin v. State. 991 S.W.2d 804 (Tex. Crim. App. 1999). Considering the elements alleged in the charging instrument, the court held that aggravated sexual assault by penetration, which was a predicate offense for continuous, was based on the same conduct alleged under the prohibited sexual conduct offense. “When the two charges stem from the impermissible overlap of the same underlying instances of sexual conduct against the same victim during the same time period, the record shows a double jeopardy violation.”
The State argues that the court of appeals ignored the presumption in favor of multiple punishments and thus erred by failing to rebut it. Next, it compared the wrong offenses by comparing the predicate aggravated sexual assault and prohibited sexual conduct. It also erred by considering the wrong gravamen of continuous and prohibited sexual conduct. Continuous, the State observes, focuses on a pattern of sexual abuse over a specified period of time. Further, the gravamen of continuous and prohibited sexual conduct is not that consent is irrelevant because it’s a legal impossibility but why it’s irrelevant. Under prohibited sexual conduct, it’s irrelevant because society does not care whether family members consent to sexual intercourse with one another. Knowledge of the relationship between the victim and abuser is the circumstance surrounding the conduct that makes the offense illegal. Next, the court ignored the Legislature’s clear intent to have multiple punishments. Lawmakers made an informed choice not to include prohibited sexual conduct as a predicate for continuous. Lastly, according to the State, the court created a preservation paradox. If the analysis hinges on the predicate offenses, then jeopardy may no longer be apparent on the face of the record. Here, because aggravated sexual assault by contact and indecency were also alleged as predicates, it’s not a foregone conclusion that the jury considered penetration, which was required for prohibited sexual conduct. It’s possible the rejected aggravated sexual assault under the continuous offense but still convicted Ramos of prohibited sexual conduct.