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Atkinson v. State

Because the analysis of whether indecency with the child is a lesser-included offense of aggravated sexual assault depends on the specific facts of the case, and those facts cannot be determined on the basis of the existing record, the court concluded that appellant failed to preserve his double jeopardy complaint for review. Houston's 1st Court of Appeals, Nos. 01-08-00454-CR & 01-08-00455-CR, 01-14-2010

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OPINION

A jury convicted appellant, Leonard Ray Atkinson, of indecency with a child and aggravated sexual assault of a child and assessed punishment at ten years’ imprisonment for indecency with a child and twenty years’ imprisonment for the sexual assault, with the sentences to run concurrently. In two points of error, appellant argues that: (1) the Fifth Amendment protection from double jeopardy prevents the trial court from convicting appellant of both indecency with a child and aggravated sexual assault of a child; and (2) he was egregiously harmed by the lack of a reasonable doubt instruction regarding extraneous offense evidence in the punishment phase of trial.

We affirm.

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