Larry Wayne Carter v. the State of Texas

Court of Appeals Tenth Appellate District of Texas 10-24-00036-CR Larry Wayne Carter, Appellant v. The State of Texas, Appellee On appeal from the 54th District Court of McLennan County, Texas Judge Susan N. Kelly, presiding Trial Court Cause No. 2022-1704-C2 JUSTICE HARRIS delivered the opinion of the Court. MEMORANDUM OPINION Larry Wayne Carter was convicted of one count of trafficking, enhanced, and one count of continuous sexual abuse of a young child. See TEX. PENAL CODE §§ 20A.02; 21.02. The jury assessed punishment at life in prison on both counts. The trial court’s Judgment of Conviction by Jury, Count No. I is affirmed, and the trial court’s Judgment of Conviction by Jury, Count No. II is affirmed as modified. BACKGROUND Carter began sexually assaulting Z.C. when Z.C. was approximately eight years old. The assaults continued until after Z.C. turned 14 years old. Sometimes Carter would sexually assault Z.C. at home and sometimes the assaults would occur in Carter’s work tractor/trailer trucks. Sometimes those assaults in the trucks would occur in different locations in the State of Texas and in different states. After Z.C. turned 14, she became tired of Carter’s assaults and told her sister about what had been happening. MULTIPLE PROSECUTIONS Carter’s first issue can best be described by what was communicated in in his appellate brief under the heading, Issues Presented: “Whether the count I conviction for trafficking of persons violates double jeopardy and/or Tex. Pen. Code § 21.02(e) and/or Tex. Pen. Code § 20A.02(d). U.S. CONST. amends. V, XIV.” He also includes an alternative argument under this issue: “In the alternative, the evidence is legally insufficient to support the trafficking count.” This issue is multifarious because Carter bases a single issue on more than one legal theory. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). Thus, we could, and should, reject each issue as inadequately briefed. 1 1 We reject Carter’s double jeopardy violation sub-issue as inadequately briefed because Carter never made a double jeopardy claim in the trial court and spends no time in his brief discussing how we may reach his unpreserved claim. See Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014) (review Carter v. State Page 2 Balderas v. State, 517 S.W.3d 756, 780 (Tex. Crim. App. 2016). However, in the interest of justice, we will address one of the sub-issues which disposes of the issue in its entirety. See Balderas, 517 S.W.3d at 780; Davis, 329 S.W.3d at 803. That sub-issue is whether Carter’s conviction for trafficking violates the statutory prohibition of a conviction in the same criminal action of an offense listed as a predicate offense under (c) of the Continuous Sexual Abuse of a Young Child statute where the victim is the same in the two convictions. See TEX. PENAL CODE § 21.02(e). Texas Penal Code section 21.02, the continuous sexual abuse statute, provides: A defendant may not be convicted in the same criminal action of an offense listed under Subsection (c) the victim of which is the same victim as a victim of the offense alleged under Subsection (b) (the elements of the continuous sexual abuse offense) unless the offense listed in Subsection (c): (1) is charged in the alternative; (2) occurred outside the period in which the offense alleged under Subsection (b) was committed; or (3) is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (b). TEX. PENAL CODE § 21.02(e). Trafficking is an offense listed under subsection (c) of section 21.02. See of unpreserved double jeopardy claims). See also TEX. R. APP. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (inadequate briefing). Carter v. State Page 3 id. (c)(7). Z.C. is the victim in the continuous sexual abuse offense and the trafficking offense, and Carter was convicted of both offenses in the same criminal action. Further, the trafficking offense was neither charged in the alternative nor considered by the jury to be a lesser included offense of the continuous sexual abuse offense. Thus, for Carter to be properly convicted of trafficking, the evidence must show that the trafficking offense occurred outside the period of time in which the continuous sexual abu