Case Summary - Robert L. Gonzales v. State

The State charged Gonzales with two counts of aggravated sexual assault against his eight-year-old daughter. One count was for anal penetration, the other was for vaginal penetration. On the morning the jury trial was to commence, Gonzales filed for a motion to appoint an expert to assist him in evaluating the State's medical evidence. [This was Gonzales's second attorney, but that attorney had been on the case more than eight months.] He also filed a motion for continuance so he could take full advantage of that expert. The trial court granted the expert, but denied the motion for continuance. In his motion for new trial, he complained about the denial of the motion for continuance and the trial court denied the motion for new trial without a hearing.

The court of appeals held (in its unpublished opinion) that all of the allegations in the motion for new trial were determinable form the record, so the trial court did not abuse its discretion in denying the motion for new trial without a hearing. However, the court of appeals also held that Gonzales had been subjected to multiple punishments in violation of the double jeopardy clause. Both of the offenses took place in the same incident and appear in the same subjection, and, according to the court of appeals, they involved the penetration of the child's "genital area." So, the court of appeals reformed the judgment to reflect a conviction in only one offense, namely the anal penetration case. Here's a link to the court of appeals case information if you're interested.

The CCA unanimously affirmed the denial of the motion for new trial and reversed the double jeopardy determination, sending the case back for the court of appeals to consider the issues it didn't address due to its double jeopardy holding. Judge Price, writing for the majority, explained that a hearing on a motion for new trial may be necessary to develop a record to show harm from a denial of a motion for continuance, but that doesn't mean it's a sufficient prerequitie to obtaining appellate relief. Gonzales could not first show that the trial court erroneously denied the motion for continuance. In order to even get to a need for a hearing to discuss harm, the denial had to be error. In this case it wasn't because the trial court did not abuse it's discretion in denying the motion for continuance on the day of trial after trial counsel had had more than eight months to prepare. Thus, a defendant must allege facts that show the trial court erroneously denied his pretrial motion for continuance and that he was harmed, before the trial court must have a hearing on the motion for new trial. If the trial court can determine from the record that the denial of the motion for continuance wasn't error, the defendant doesn't get a hearing on harm.

The CCA reversed the court of appeals on the issue of double jeopardy. Just because the different methods of penetration appeared in the same statutory subsections did not mean they were alternate means of committing the same offense. Penetration of the anus constitutes a discrete act from penetration of the sexual organ. In Vick, the Court had held that penetration of the sexual organ and penetration of the mouth were two separate offenses in different sections. The same reasoning applies to this case even though the two different offenses are described in the same subsection of the sexual assault statute. [The Court announced that deciding double jeopardy issues is really a matter of "focus" on determining what the gravamen of the offense is using grammar and other factors to suss that out.] Consequently, the conviction and punishment in the vaginal penetration case did not violate double jeopardy concerns.