C O N C U R R I N G O P I N I O N

We recently held that each instance of sexual assault is a separate crime and may be prosecuted in separate trials. Ex parte Goodbread, 967 S.W.2d 859, 861 (Tex. Crim. App.1998). In Goodbread, we cited as authority Vernon v. State , 841 S.W.2d 407, 410 (Tex. Crim. App. 1992), a case in which we determined that it is inaccurate to characterize a defendant's repeated acts of indecency with a child as a single continuing offense under Texas law. Goodbread, 967 S.W.2d at 861. Following these precedents, it is clear that the two alleged acts of indecency with a child were not two different ways of committing a single offense, but were instead separate offenses from which the state should have been required to elect a single offense.

The State Prosecuting Attorney urges that error is waived because appellant failed to mount a pretrial challenge to the form and substance of the indictment. As noted above, our decisions in Goodbread and Vernon, supra, indicate that each act of indecency with a child is a separate offense. The indictment against appellant contained one count of indecency with a child, alleging two kinds of contact on the same date. The indictment was valid on its face; if both types of contact occurred at the same time, they would comprise a single act. The indictment was therefore not subject to a pretrial motion to quash. The proof offered at trial showed four separate acts on four different dates, with no allegation that both breasts and genitals were touched on a single occasion. The proof thus exposed a defect in the allegations as it, in conjunction with the indictment's single count, either improperly treated the separate offenses as a single continuing offense or as two ways of committing a single offense and thus made the state's pleadings duplicitous.

With these comments, I join the opinion of the Court.

Johnson, J.

Date Delivered: December 6, 2000

En Banc

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