Thursday, October 28, 2010

Two Bites at the Apple for Indecency with a Child?

Ex Parter Amador - Tex. Crim. App. (Oct. 13, 2010)

Appellant pled guilty to and was convicted of indecent exposure after he was seen pleasuring himself in a public playground in El Paso.  Apparently not satisfied with the outcome of the first case, the State later attempted to prosecute him a second time for his actions, but this time under the offense of indecency with a child by exposure.  Appellant complained that the second indictment violated Double Jeopardy as he had already been convicted of an LIO for this same conduct.  Although the trial court and 8th District Court of Appeals did not agree with him, the Texas Court of Criminal Appeals came to his rescue.

Writing for the 5-4 majority, Judge Holcomb explained:

[D]ouble jeopardy prohibits the State from obtaining a conviction for an offense when the defendant has previously been convicted of a lesser-included offense of that offense…The Supreme Court has clearly stated that “the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”
The question then became whether the Indecent exposure under Section 21.08 is actually an LIO of Indecency with a child by exposure under Section 21.11(a)(2)(A).  The CCA has previously held, in Briceno v. State, 580 S.W.2d 842 (Tex. Crim. App. 1979), that it is.  The majority took this opportunity to reaffirm that holding, stating:

Indecency with a child by exposure is simply an aggravated version of indecent exposure inasmuch as, while the offense of indecent exposure requires the presence of a person who “will be offended or alarmed” by the defendant’s act, the offense of indecency with a child by exposure, by not having any such requirement, holds the defendant culpable even if the person (the child) towards whom the exposure is directed is not “offended or alarmed” by the defendant’s act.
Judge Cochran joined the majority, but also drafted a short (and particularly humorous) concurring opinion, wherein she emphasized:
A defendant cannot be convicted of indecent exposure for “wagging his weenie” at 9:00 a.m. in the local park and then later be prosecuted for that very same act of “wagging his weenie” by charging him with indecency with a child by exposure.  
She went on to use the phrase “wagging his weenie” two additional times in her opinion.  Perhaps the result of a dare or a lost bet?  Don’t ask me.

In a 21-page dissent, Presiding Judge Keller, joined by Judges Keasler and Hervey would hold that
an indecent –exposure charge can be based upon the same exposure that gave rise to indecency-with-a-child counts so long as the defendant was reckless with respect to the presence of at least one person other than the child victims.
Judge Womack also dissented, but did not join Presiding Judge Keller’s opinion.  The majority reminds the dissenters that even thought the State can charge the defendant with the greater and lesser-included offense, the defendant cannot be convicted of and sentenced for both.  Presiding Judge Keller and the band of dissenters want two bites at the apple, even though the U.S. Constitution and the Supreme Court say you only get one.

Takeaway:  The rule, as announced in 1979 in Briceno, remains – Indecent exposure is an LIO of Indecency with a child by exposure under the Texas Penal Code.  A defendant cannot be convicted of and sentenced for both if the underlying conduct is the same.