Anthony Joseph Dunbar v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-22-00390-CR

Anthony Joseph Dunbar,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
12th District Court of Walker County, Texas
Judge David W. Moorman, presiding
Trial Court Cause No. 29092

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

A jury found Appellant Anthony Joseph Dunbar guilty of one count of

continuous sexual abuse of a child, four counts of indecency with a child by

exposure, and two counts of indecency with a child by sexual contact. The jury

assessed Dunbar’s punishment at life imprisonment for the continuous-sexual-

abuse-of-a-child offense, at ten years’ confinement for each of the indecency-

with-a-child-by-exposure offenses, and at twenty years’ confinement for each
of the indecency-with-a-child-by-sexual-contact offenses. The trial court

sentenced Dunbar accordingly. Dunbar has appealed. In his sole issue,

Dunbar contends that the jury charge permitted him to be convicted multiple

times for the same conduct, which violates the Double Jeopardy Clause. We

will affirm.

Background

Dunbar was charged with indecency with a child by sexual contact in

Counts 4 and 8. In Count 4, the indictment specifically alleged that Dunbar

“on or about June 1, 2017 did then and there, with the intent to arouse or

gratify [his] sexual desire . . . , engage in sexual contact with . . . the

complainant[ ] by touching the breast of the complainant, a child younger than

17 years of age.” In Count 8, the indictment alleged that Dunbar committed

the same type of conduct as that alleged in Count 4 but that the conduct in

Count 8 occurred on or about July 1, 2017.

In Counts 6, 10, and 12, Dunbar was charged with indecency with a child

by exposure. 1 In Count 6, the indictment alleged that Dunbar “on or about

June 1, 2017 did then and there, with the intent to arouse or gratify [his] sexual

desire . . . , expose [his] genitals, knowing that [the complainant], a child

younger than 17 years of age, was present.” In Count 10, the indictment

1 Dunbar was also charged with indecency with a child by exposure in Count 2; however, in Count 2,

the indictment alleged that Dunbar committed a different type of conduct than that alleged in Counts
6, 10, and 12. Accordingly, we need not discuss the details of Count 2 in this opinion.

Dunbar v. State Page 2
alleged that Dunbar committed the same type of conduct as that alleged in

Count 6 but that the conduct in Count 10 occurred on or about July 1, 2017. In

Count 12, the indictment alleged that Dunbar committed the same type of

conduct as that alleged in Counts 6 and 10 but that the conduct in Count 12

occurred on or about August 11, 2017.

At trial, the State presented evidence that Dunbar committed the

multiple charged offenses. Specifically, the complainant testified that Dunbar

committed multiple acts of indecency with her every couple of weeks from

spring break 2017 to the end of the summer 2017. Dunbar acknowledges this

and does not challenge the sufficiency of the evidence to support that he

committed the multiple charged offenses.

The jury charge regarding Count 4 provided in relevant part:

The state accuses the defendant of having committed the
offense of indecency with a child. Specifically, the accusation is
that the defendant with the intent to arouse or gratify the sexual
desire of the defendant, engaged in sexual contact by touching the
breast of [the complainant], a child younger than seventeen years
old.

....

Definitions

....

On or about

The indictment alleges that the offense was committed on or about
June 1, 2017. The state is not required to prove that the alleged

Dunbar v. State Page 3
offense happened on that exact date. It is sufficient if the state
proves that the offense was committed before May 27, 2021[,] the
date the indictment was filed.

Application of Law to Facts

You must determine whether the state has proved, beyond a
reasonable doubt, three elements. The elements are that—

1. the defendant, in Walker County, Texas, on or about June
1, 2017, engaged in sexual contact by touching the breast of
[the complainant];

2. [the complainant] was a child younger than seventeen
years old; and

3. the defendant did this with the intent to arouse or gratify
the defendant’s sexual desire.

The state has presented evidence of more than one incident to
prove indecency with a child as alleged in count IV. To reach a
guilty verdict [on] count IV, you must all agree that the state has
proved elements 1, 2, and 3 listed above, and you must also all
agree that these elements occurred in the same incident. While it
is permissible for you all to agree on more than one incident, to
reach a guilty verdict in this case, you must all agree that these
elements occurred in the same incident or incidents.

If you all agree the state has failed to prove, beyond a reasonable
doubt, one or more of elements 1, 2, and 3 listed above, you must
find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt,
the three elements listed above, and you all agree on the same
incident or incidents when these elements occurred, you must find
the defendant “guilty[.]”

The jury charge regarding Count 8 read essentially identically to the jury

charge regarding Count 4 except that, regarding Count 8, the jury charge

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stated that the indictment alleged that the offense was committed on or about

July 1, 2017, and that the first element of the offense that the State had to

prove beyond a reasonable doubt was therefore that “the defendant, in Walker

County, Texas, on or about July 1, 2017, engaged in sexual contact by touching

the breast of [the complainant].”

The jury charge regarding Count 6 then provided in relevant part:

The state accuses the defendant of having committed the offense
of indecency with a child. Specifically, the accusation is that the
defendant with the intent to arouse or gratify the sexual desire of
the defendant, exposed his genitals, knowing [the complainant], a
child younger than seventeen years old, was present.

....

Definitions

....

On or about

The indictment alleges that the offense was committed on or about
June 1, 2017[. T]he state is not required to prove that the alleged
offense happened on that exact date. It is sufficient if the state
proves that the offense was committed before May 27, 2021, the
date the indictment was filed.

Application of Law to Facts

You must determine whether the state has proved, beyond a
reasonable doubt, four elements. The elements are that—

1. the defendant, in Walker County, Texas, on or about June
1, 2017, exposed any part [of] his genitals; and

Dunbar v. State Page 5
2. the defendant did this with the intent to arouse or gratify
the sexual desire of the defendant; and

3. the defendant knew [the complainant] was present; and

4. [the complainant] was a child younger than seventeen
years old.

The state has presented evidence of more than one incident to
prove indecency with a child as alleged in count VI. To reach a
guilty verdict [on] count VI, you must all agree that the state has
proved elements 1, 2, 3, and 4 listed above, and you must also all
agree that these elements occurred in the same incident. While it
is permissible for you all to agree on more than one incident, to
reach a guilty verdict in this case, you must all agree that these
elements occurred in the same incident or incidents.

If you all agree the state has failed to prove, beyond a reasonable
doubt, one or more of elements 1, 2, 3, and 4 listed above, you must
find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt,
the three [sic] elements listed above, and you all agree on the same
incident or incidents when these elements occurred, you must find
the defendant “guilty[.]”

The jury charge regarding Count 10 read essentially identically to the

jury charge regarding Count 6 except that, regarding Count 10, the jury charge

stated that the indictment alleged that the offense was committed on or about

July 1, 2017, and that the first element of the offense that the State had to

prove beyond a reasonable doubt was therefore that “the defendant, in Walker

County, Texas, on or about July 1, 2017, exposed any part [of] his genitals.”

Likewise, the jury charge regarding Count 12 read essentially identically to

the jury charge regarding Counts 6 and 10 except that, regarding Count 12,

Dunbar v. State Page 6
the jury charge stated that the indictment alleged that the offense was

committed on or about August 11, 2017, and that the first element of the

offense that the State had to prove beyond a reasonable doubt was therefore

that “the defendant, in Walker County, Texas, on or about August 11, 2017,

exposed any part [of] his genitals.”

The jury found Dunbar guilty of all the foregoing indecency-with-a-child

counts.

Discussion

As stated above, Dunbar contends in his sole issue that the jury charge

permitted him to be convicted multiple times for the same conduct, which

violates the Double Jeopardy Clause. More specifically, Dunbar complains

that the jury charge permitted the jury to convict him of indecency with a child

in Count 4 for a specific incident of conduct that included touching the

complainant’s breast and then erroneously permitted the jury to convict him

again of indecency with a child in Count 8 for the same incident. Similarly,

Dunbar complains that the jury charge permitted the jury to convict him of

indecency with a child in Count 6 for a specific incident of conduct that included

exposing any part of his genitals, knowing the complainant was present, and

then erroneously permitted the jury to convict him of indecency with a child in

Counts 10 and 12 for the same incident.

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When an appellant presents us with a jury charge issue, we must first

determine if there is error in the charge. Ngo v. State, 175 S.W.3d 738, 743

(Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex.

Crim. App. 2003)). If we conclude that there is error in the charge, then we

analyze that error for harm. Id.

Article 36.14 of the Code of Criminal Procedure provides that the trial

court “shall . . . deliver to the jury . . . a written charge distinctly setting forth

the law applicable to the case[.]” TEX. CODE CRIM. PROC. ANN. art. 36.14. “The

purpose of the jury charge is to inform the jury of the applicable law and guide

them in its application to the case.” Beltran De La Torre v. State, 583 S.W.3d

613, 617 (Tex. Crim. App. 2019) (quoting Hutch v. State, 922 S.W.2d 166, 170

(Tex. Crim. App. 1996)).

The Double Jeopardy Clause prohibits multiple convictions and multiple

punishments for the same offense. See Langs v. State, 183 S.W.3d 680, 685

(Tex. Crim. App. 2006). But the same offense does not mean the same

statutory offense by name. Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex.

Crim. App. 1998). If a defendant commits a criminal act on multiple but

separate occasions, each of the multiple incidents individually establishes a

different offense or unit of prosecution. See Cosio v. State, 353 S.W.3d 766, 772

(Tex. Crim. App. 2011). For Double Jeopardy purposes, the same offense

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means the “identical criminal act.” Goodbread, 967 S.W.2d at 860 (quoting

Luna v. State, 493 S.W.2d 854, 855 (Tex. Crim. App. 1973)).

Here, the jury charge referred to separate dates for Counts 4 and 8 and

to separate dates for Counts 6, 10, and 12, thereby attempting to prevent an

interpretation by the jury that it was permitted to convict Dunbar multiple

times for an identical criminal act. Dunbar argues, however, that the separate

dates were meaningless because “the jury’s explicit instructions of the

applicable law[ ] state that precise dates do not matter” and because “the

charge permits the jury to consider multiple acts in each count.”

But it is well-settled that the inclusion of “on or about” language in an

indictment allows the State to prove at trial that the charged offense occurred

on a date other than the specific date alleged in the indictment, provided that

the offense date that is proven at trial occurred before the presentment of the

indictment and within the applicable statutory limitations period. Templeton

v. State, 629 S.W.3d 616, 623 (Tex. App.—Eastland 2021, no pet.); see Klein v.

State, 273 S.W.3d 297, 303 n.5 (Tex. Crim. App. 2008). Additionally, Texas law

requires that a jury reach a unanimous verdict about the specific crime that

the defendant committed, which means that the jury must “agree upon a single

and discrete incident that would constitute the commission of the offense

alleged.” Cosio, 353 S.W.3d at 771 (quoting Stuhler v. State, 218 S.W.3d 706,

717 (Tex. Crim. App. 2007)). Accordingly, to ensure unanimity when the State

Dunbar v. State Page 9
charges one offense and presents evidence that the defendant committed the

charged offense on multiple but separate occasions, the jury charge must

instruct the jury that its verdict must be unanimous as to the single offense or

unit of prosecution among those presented. See id. at 772. Therefore, the jury

instructions about which Dunbar complains were not legally erroneous.

“[J]ury instructions which are not themselves legally erroneous but

might be ‘ambiguous and therefore subject to an erroneous interpretation’ or

application are reviewed to determine ‘whether there is a reasonable likelihood

that the jury has applied the challenged instruction’ in an erroneous way.”

Luquis v. State, 72 S.W.3d 355, 367 n.37 (Tex. Crim. App. 2002) (quoting Boyde

v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990)).

The U.S. Supreme Court stated:

Jurors do not sit in solitary isolation booths parsing instructions
for subtle shades of meaning in the same way that lawyers might.
Differences among them in interpretation of instructions may be
thrashed out in the deliberative process, with commonsense
understanding of the instruction in light of all that has taken place
at the trial likely to prevail over technical hairsplitting.

Boyde, 494 U.S. at 380–81, 110 S.Ct. at 1198.

Nothing in this record suggests that the jury interpreted this jury charge

to indicate that it was permitted to convict Dunbar multiple times for the

identical criminal act in Counts 4 and 8 and the identical criminal act in

Counts 6, 10, and 12. Furthermore, the context of the proceedings led the jury

Dunbar v. State Page 10
to apply the jury charge appropriately. The State presented evidence that

Dunbar committed multiple acts of indecency with the complainant every

couple of weeks from spring break 2017 to the end of the summer 2017.

Additionally, during closing arguments, the State indicated that Dunbar was

charged with multiple counts because Dunbar committed indecency with the

complainant on multiple but separate occasions. For example, when

discussing Count 8, the State argued: “Indecency with a child. The defendant

engaged in sexual assault, again, by touching the breasts of the victim. Didn’t

do it once. He did it multiple times.”

For these reasons, we conclude that there is not a reasonable likelihood

that the jury applied the challenged instructions in an erroneous way. See

Luquis, 72 S.W.3d at 367 n.37. Accordingly, we overrule Dunbar’s sole issue.

Conclusion

Having overruled Dunbar’s sole issue, we affirm the trial court’s

judgments.

MATT JOHNSON
Chief Justice

Dunbar v. State Page 11
OPINION DELIVERED and FILED: April 24, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Do not publish
CRPM

Dunbar v. State Page 12