FAUSTINO ZURITA, Appellant v. THE STATE OF TEXAS, Appellee.

Nos. 05-08-00599-CR, 05-08-00600-CR, 05-08-00601-CRCourt of Appeals of Texas, Fifth District, Dallas.
Opinion Filed August 17, 2009. Do Not Publish. Tex. R. App. P. 47.2(b).

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F06-45450-I, F07-39809-I, F07-39810-I.

Before Justices MOSELEY, O’NEILL, and MURPHY.

MEMORANDUM OPINION
Opinion By Justice MOSELEY.

Faustino Zurita pleaded guilty to two counts of sexual assault and not guilty to one count of aggravated sexual assault of a child younger than fourteen years. The jury found Zurita guilty of all charges and assessed punishment at sixty years’ imprisonment and a $10,000 fine in the aggravated sexual assault case, and twenty years’ imprisonment and a $10,000 fine in each of the sexual assault cases. Zurita’s first issue contends the jury charge and indictment in the aggravated sexual assault case (No. 05-08-00601-CR) and the indictment in one of the sexual assault cases (No. 05-08-00600-CR) mix up and mismatch the statutory elements of the offenses to permit a conviction based on facts that do not constitute an offense. His second issue contends the judgments should be modified to delete “Zurito” as his middle name.

The background of the cases and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We modify the trial court’s judgments and affirm as modified.

A person commits sexual assault if the person intentionally or knowingly “causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor.” Tex. Penal Code Ann. §§ 22.011(a)(2)(C), 22.021(a)(1)(B)(iii) (Vernon Supp. 2008). The offense is aggravated sexual assault under section 22.021 if the victim is younger than 14 years of age. Id. 22.021(a)(2)(B).

The indictments in the aggravated sexual assault case and one of the sexual assault cases alleged Zurita intentionally or knowingly “cause[d] the contact and penetration of the female sexual organ of [M.S.], a child, who was not then the spouse of the defendant, by an object, to-wit: the sexual organ of the said defendant.” The jury charge in the aggravated sexual assault case allowed the jury to convict if it found Zurita intentionally or knowingly “cause[d] the contact or penetration of the female sexual organ of [M.S.], a child, who was not then the spouse of defendant, by an object, to wit: the sexual organ of the defendant, and at the time of the offense, the child was younger than 14 years of age.”

Based solely on the language in sections 22.011(a)(2)(C) and 22.021(a)(1)(B)(iii), Zurita argues that under neither section “is contact of a child’s sexual organ by the sexual organ of the accused defined as an offense” and “[i]t is not an offense, therefore, for an accused to use his sexual organ to contact the sexual organ of the complainant.” Zurita further asserts these sections “were designed to cover situations where a child is forced to do something to another’s sexual organ, not where the accused does something to the child.” He contends the indictments allege conduct (contact) that is not an offense under the law, and the jury charge in the aggravated sexual assault case allowed the jury to convict him for such conduct.

We reject these arguments. By using his sexual organ to contact the sexual organ of a child, a defendant necessarily “causes the sexual organ of a child to contact . . . the . . . sexual organ of another person, including the actor.” Tex. Penal Code Ann. §§ 22.011(a)(2)(C), 22.021(a)(1)(B)(iii). Under the plain meaning of the statutory language, there is no distinction between an actor causing the contact of a child’s sexual organ by his sexual organ and the actor causing the child’s sexual organ to contact the actor’s sexual organ. See Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991); see also, Hicks v. State, 241 S.W.3d 543, 545-46 (Tex. Crim. App. 2007). Accordingly, we decide Zurita’s first issue against him.

In his second issue, Zurita argues the judgments include an incorrect middle name. Although Zurita’s brief states there is no viable appellate issue in one of the sexual assault cases (No. 05-08-0599-CR), this second issue applies to that case as well as the other two cases. The State agrees the judgments include the incorrect middle name and should be modified.

We have the power to modify incorrect judgments when we have the necessary data and information available. See
Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref’d). Accordingly, we sustain Zurita’s second issue, modify the judgments to delete “Zurito” as his middle name, and affirm the judgments as modified.