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Click here for the full text of this decision FACTS:The unnamed complainant testified at trial that her stepfather Silverio Martinez sexually assaulted her numerous times beginning when she was 12 years old. Martinez assaulted her in her bedroom or her mother’s bedroom, usually at night, while her mother was at work and her brothers were playing. The complainant testified that the abuse spanned a 10-month period and some of the abuse took place in Hays County after the family moved there from complainant’s mother’s home in Travis County. At some point, authorities arrested Martinez. By a three-count indictment, a Travis County grand jury charged him under Texas Penal Code ��21.11(a)(1), (a)(2) and 22.021(a)(1)(B) with indecency with a child by contact, indecency with a child by exposure and aggravated sexual assault of a child. The indictment contained three sections labeled Counts, which contained a total of eight paragraphs. Count I contained four paragraphs alleging that Martinez committed several acts of indecency with a child by contact by: touching the victim’s anus; touching the victim’s breast; touching the victim’s genitals; and caused the victim to touch Martinez’s genitals. Count II contained one paragraph, alleging that Martinez committed indecency with a child by exposing his genitals while knowing the victim was present. Count III contained three paragraphs, alleging that Martinez committed the following acts of aggravated sexual assault of a child: penetrating the victim’s anus with his sexual organ; causing the victim’s sexual organ to contact his mouth; and penetrating the victim’s mouth with his sexual organ. At the charge conference, Martinez moved for the state to elect among the various acts alleged in Counts I and III. The state requested that it be allowed to obtain a general verdict on each count. The trial court then decided sua sponte to rename each paragraph as a separate count. Martinez repeatedly objected, arguing that the trial court had no authority to change the paragraphs into counts and that that would result in Martinez being suddenly “charged” with eight offenses instead of three. The trial court overruled appellant’s objections, and the state then chose to proceed on six of the eight counts in the judicially altered indictment. As a result, the trial court’s charge permitted the jury to convict Martinez of six offenses. The jury found Martinez not guilty on the complaints that he touched the complainant’s anus and penetrated the complainant’s anus with his sexual organ. The jury found appellant guilty on the remaining four of the six offenses. In accordance with the jury’s verdicts, the trial judge entered judgment of conviction for four offenses, two of which were derived from one count contained in the original indictment issued by the grand jury. In the 3rd Court of Appeals, Martinez argued that the trial court’s actions with respect to the indictment violated his right to notice and his rights to jury unanimity and against double jeopardy were also offended. The 3rd Court affirmed the trial court’s judgment. HOLDING:The CCA reversed the judgment of the 3rd Court as it related to the conviction for Count I, paragraph three, of the indictment and reformed the judgment of the district court to delete that conviction. In all other respects, the CCA affirmed the judgment of the 3rd Court. When the state wishes to charge multiple offenses in a single indictment, the CCA stated that it must set out each separate offense in a separate count under Texas Code of Criminal Procedure Art. 21.24(a). Separate paragraphs within a single count may allege different methods of committing the same offense. But since each count alleges a single offense, an indictment cannot authorize more convictions than there are counts. Here, the indictment clearly enumerated three separate counts, with two of the counts containing multiple paragraphs. Because there were only three counts, though, the indictment authorized only three convictions (and only one conviction per count). Permitting more convictions than authorized by the indictment, the CCA stated, implicates a defendant’s due-process right to notice. Under the due process clause of the 14th Amendment, a defendant has the right to notice of the charges against him. The charge must be known before the proceedings commence, and the charges cannot be amended or supplemented once the proceedings are underway. Permitting more convictions than the indictment authorizes, the CCA stated, thus also implicates the defendant’s constitutional right to a grand jury screening of the charges. Therefore, the CCA found that the trial judge was clearly wrong to believe that the paragraphs could all be treated as separate counts. But the CCA found that the trial judge committed no error in submitting the various paragraphs in six separate verdict forms. These paragraphs were all pleaded in the indictment, so the state was entitled to prosecute all of them. An election in this case, the CCA stated, was not necessary because the trial judge was not faced with a situation in which the parties had offered evidence of multiple instances of conduct that conformed to a single indictment allegation. But even though the state was entitled to submit all of the allegations included in the indictment to the jury, the CCA stated that the state could not mix what were really separate offenses into a single general-verdict submission, because that would violate the defendant’s constitutional right to a unanimous verdict. When confronted with a single count that contains multiple allegations that are really separate offenses, trial judges, the CCA stated, should protect the rights of both parties by submitting the separate allegations to the jury, but in such a way as to ensure that each allegation is decided unanimously. In this case, the CCA noted, the trial court correctly submitted separate verdict forms. The mistake the trial judge made, the CCA found, was in rendering judgment on all of those counts. “The jury,” the CCA stated, “need not be concerned with the legal niceties surrounding the structure of the offenses within the indictment. That is the trial judge’s job. Once the judge receives the jury’s verdicts, he should perform the task of deciding what judgment is authorized by those verdicts in light of the controlling law, the indictment, and the evidence presented at trial. In this case, the trial judge did not perform that task. He should have realized that the four verdicts of the jury had the legal effect of authorizing only three judgments of conviction, because the law does not permit more than one conviction per count in the indictment.” This error affected Martinez’s substantial rights, the CCA held. To remedy the trial court’s harmful error, the CCA struck one of the two convictions under Count I of the indictment. OPINION:Holcomb, J., delivered the opinion of the court, in which Keller, P.J., and Price, Womack, Johnson, Keasler, Hervey and Cochran, JJ., joined. Meyers, J., did not participate.

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