No More Bites of the Apple: Probation Revocation and Res Judicata

A community supervision (probation) revocation hearing is distinct from a criminal trial, but are its issues and procedures similar enough to a criminal trial to bind parties in future criminal trials?

That was the question presented the Texas Court of Criminal Appeals in Ex Parte Doan.  Doan was serving community supervision in Brazos County when he was alleged to have committed theft in Travis County.  The Brazos County DA moved to revoke Doan’s community supervision but was unable to obtain sufficient proof.  As a result, the court denied the motion to revoke.  When the Travis County DA later charged Doan with misdemeanor theft, Doan filed a pretrial application for writ of habeas corpus “seeking to bar any further prosecution of the theft offense under the doctrine of issue preclusion.”

The issue in this case is whether the doctrine of res judicata applies to bar a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant’s community supervision on the ground that he committed the same offense.

In a 6-3 opinion authored by Judge Womack, the CCA noted that probation revocation hearings were often tagged as “administrative” in nature, but wrongly so.

In this case…the issues and procedures were nearly identical in the Travis County (criminal) and Brazos County (revocation) proceedings. In both proceedings, prosecutors plead and sought to prove that the appellant committed the same act. Both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors. The Brazos County Attorney had the authority to litigate the matter to a final adjudication. The only difference between the interests of the Brazos County Attorney and the Travis County Attorney in this case is that one sought to prove theft in order to criminally punish the appellant for theft, while the other sought to prove theft in order have the appellant’s criminal punishment from a prior case altered to his detriment.

Judge Womack held that while the difference in procedures is enough to narrowly escape the “grasp of the Double Jeopardy clause,” it is not enough to avoid the application res judicata to the later criminal trial. The CCA reversed the lower court (which previously held that the two prosecuting authorities were not the same party for res judicata purposes).

Is That Your Final Answer? Double Jeopardy and Partial Verdicts

The United States Supreme Court released its decision in Blueford v. Arkansas last week.  The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter…and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury’s informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson’s report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury’s deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court’s instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson’s report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford’s reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.

Single Act, Single Offense - Indecency with a Child by Exposure

If a person commits indecency with a child by exposure, and there were three children present during the act, can he be convicted for three offenses?  In other words, is the allowable unit of prosecution the identity of the child or the act itself?

The 13th District Court of Appeals (Corpus Christie), as it explained in its unpublished opinion in Harris v. State, No. 13-08-537-CR (April 15, 2010), believes that an offense is committed for every child that is present at the time of the exposure – three children equals three counts.  Hence, double jeopardy does not bar multiple prosecutions for the same act.

Appellant (Harris) challenged this holding to the Texas Court of Criminal Appeals, contending that the offense of indecency by exposure is a “non-victim-based crime for which double jeopardy bars multiple prosecutions.” The CCA agreed, holding that

the offense of indecency with a child by exposure is complete once the defendant unlawfully exposes himself in the required circumstances…[T]he child does not even have to be aware of the exposure…The offense is based on the defendant’s actions and mental state, not the other person’s comprehension.

Reversing the court of appeals, the CCA explained, “the act of exposure is the gravamen of the indecent exposure.” Appellant’s conviction for three offenses violated double jeopardy. “Appellant committed only one offense under Section 21.11(a)(2)(A) when he exposed himself to three children at the same time.”

See Judge Hervey's majority opinion in Harris v. State HERE.

Presiding Judge Keller dissented. She “would hold that each victim of indecency with a child is a separate unit of prosecution.”

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 8^th 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.

Cutting Out the Middle Man - Manufacture and Possession Combined

Pursuant to a State's petition for discretionary review of the holding of the 7th District Court of Appeals (Amarillo) in Weinn v. State, the Texas Court of Criminal Appeals was presented the following issues:

1. Can a defendant be convicted and punished for both Manufacture and the subsequent Possession with Intent to Deliver of the same quantity of controlled substances? and
2. Are the offenses of Manufacturing a Controlled Substance and Possession with Intent to Deliver a Controlled Substance the same for double jeopardy purposes, even though the separate offenses are meant to punish separate dangers?

In a shocking 6-3 decision, the CCA held:

the legislature intended that manufacture and simultaneous possession with intent to deliver of the same single quantity of controlled substances constitutes a single offense.  Punishing appellant twice for the same offense would violate his constitutional rights against double jeopardy.

Presiding Judge Keller and Judge Keasler filed dissenting opinions and were joined by Judge Hervey.  Presiding Judge Keller wrote:

the big problem with the [majority's holding] is that it means that a person who manufactures a
controlled substance is free to later sell that substance to a third party without subjecting himself to prosecution for an additional offense.

Perhaps Judge Keller failed to read the entire majority opinion, which clearly explained on the final page that

our holding [does] not bar a prosecution for delivery of a controlled substance if a person who manufactures (and thereby possesses) a quantity of a controlled substance later delivers that same quantity to a third party. A later sale of that substance to a third party would be a second distinct act, a separate violation of the statute, and a basis for a second punishment.

This appears to be a well-reasoned holding by the CCA.  If you really think about it, a person that manufactures drugs is obviously going to, at the same time, possess those drugs, and most likely will also have the intent to sell the drugs.  So long as the State is free to charge to subsequent delivery as a separate and distinct offense, I don't really see that the State loses anything (other than a stacked charge sheet) from this holding.  It should actually make the entire process simpler, as the State will be able to charge one or the other (manufacture or possession with intent to deliver), but not both.

Conspiracy to Conspire?

Here’s a quick update on some cases that were released last week. Links to the cases are provided.

Unquestionable Incompetency
Gonzales v. State, (Tex. Crim. App.), June 16, 2010 – Held: A trial judge is not required to conduct a competency hearing on his own initiative after hearing evidence that, due to alcohol or drug abuse, the defendant suffered amnesia with respect to events giving rise to the charged offense.

Cruel, but not Unusual
Davis v. State, (Tex. Crim. App.), June 16, 2010 – Held: Death sentence affirmed. Appellant raises 11 points of error challenging the propriety of the Texas Death Penalty scheme, including the allegation that death by lethal injection is unconstitutional as cruel and unusual punishment. Having considered and rejected these exact claims in previous cases, the CCA overruled all points of error and upheld the death sentence. (I guess in Texas, the death penalty, while arguably cruel, is by no means unusual.)

A Threat to Society From Behind Bars
Estrada v. State, (Tex. Crim. App.), June 16, 2010 – Held: For a non-parole eligible capital defendant, the relevant question to ask the jury, who is called upon to determine whether the death penalty should be levied, remains “whether there is a probability that the defendant would constitute a continuing threat to society whether in or out of prison.” The CCA rejected defendant’s argument that the issue should be restricted to future dangerousness in prison only (since he would be ineligible for parole). Side note – the death penalty was reversed and remanded on a separate issue (the State presented false and misleading testimony during the punishment phase).

Conspiracy to Conspire
Barrera v. State, (4th Dist.—San Antonio), June 16, 2010 – Held: “Conspiracy to commit aggravated kidnapping” and “engaging in organized criminal activity though conspiring to commit aggravated kidnapping” are not the same offense for double jeopardy purposes. (Truly a technical distinction with which I do not agree. Good thing there isn’t another offense on the books for “engaging in organized criminal activity by conspiring to engage in organized criminal activity”!)

Jeopardy Does not Attach to a Mistrial for Lack of Jurisdiction

Sometimes, when I’m in a more peculiar mood, I think it’s fun to title a post in an ambiguous and intriguing fashion, hoping that out of pure curiosity, readers will click to see what I’m writing about. Other times, it’s easier just to give the BLUF (bottom line up front). Today is the latter.

The 2nd District Court of Appeals (Fort Worth) released its opinion in Gallemore v. State last week and designated the opinion for publication because it “present[ed] important questions of Texas law.” One of those questions was: Does the Double Jeopardy Clause of the United States Constitution prohibit a second prosecution of an accused after he has entered his plea in a bench trial where the judge declares a mistrial due to the court’s lack of jurisdiction?

Okay, so here’s the BLUF: No. The Double Jeopardy clause does not prohibit a retrial in a case in which the accused has entered a plea but the judge later determines that the court lacks jurisdiction and declares a mistrial.

The Double Jeopardy Clause of the United States Constitution provides that no person shall be subjected to twice having life or limb in jeopardy for the same offense. Generally, this clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Further, double jeopardy principles do not forbid multiple trials of a single criminal charge if the first trial resulted in a mistrial that: (1) was justified under the manifest necessity doctrine; or (2) was requested or consented to by the defense, absent prosecutorial misconduct which forced the mistrial. A mistrial declared because of a jurisdictional defect in the indictment is one example of manifest necessity. (citations omitted)

Can an Accomplice be Prosecuted for "Aiding & Abetting" if the Principal is Acquitted?

YES. In Texas, "collateral estoppel" does not bar an accomplice's trial. Simply put, "collateral estoppel" means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated by the same parties in any future lawsuit arising from the same event or condition. In the criminal arena, collateral estoppel is embodied within the double-jeopardy clause of the 5th Amendment and only concerns the relitigation of specific factual determinations between the same parties.

When multiple actors (a principal and his accomplices) are tried in separate trials for the same offense(s), double jeopardy and collateral estoppel are not implicated. This is primarily because the parties to each case are different. While it seems illogical that the law allows an accomplice to stand trial after a jury has acquitted the principal actor, it can (and does) happen. I mean, how can someone be prosecuted for aiding and abetting a person who is found "not guilty" of the ultimate crime? A silly question is seems. Here's what the 8th District Court of Appeals (El Paso) recently put together on the subject:

Does Collateral Estoppel Bar Accomplice's Trial?

Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), is the controlling case on whether an accomplice may be tried for the same offense after the principal was acquitted. In that case, Standefer was accused of aiding and abetting a revenue official in accepting compensation beyond that authorized by law. Id. at 11-12. After the revenue official was acquitted of accepting unlawful payments, Standefer moved to dismiss the charges, arguing, on principles of collateral estoppel, that because the principal was acquitted, he could not be convicted of aiding and abetting that principal. Id. at 13. In rejecting this argument, the Supreme Court traced the origins of aiding and abetting, and found that there was "a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense." Id. at 19. The Court further noted that collateral estoppel would not bar the accomplice's trial because through lenity, compromise, or mistake the jury might have reached an irrational result in the prior trial, which was not subject to review at the government's instigation. Id. at 21-23. Although "symmetry of results may be intellectually satisfying, it is not required;" thus, the acquittal of a principal does not bar the conviction of an accomplice. Id. at 25.

The Court of Criminal Appeals likewise rejected a similar complaint in Ex parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005). There, Thompson contended that he was factually innocent of capital murder when a different jury found the principal guilty of only felony murder. Id. at 551-52. In rejecting the argument, the Court noted that it "is well-established that one accomplice may be found guilty of a different, more serious offense than other accomplices," and that the acquittal of the principal does not prevent conviction of his accomplice, regardless of whether the acquittal of the principal occurs before or after the accomplice's trial. Id. at 553-54.

See full text of State v. Cotto, (29 Jan 2010) HERE.

No Mercy for Child Sexual Assault Cases

The First District Court of Appeals (Houston) recently issued an opinion in Atkinson v. State, affirming the conviction and sentence of a child sex offender. Personally, I have nothing but utter disdain for child sex offenders and believe that they deserve to serve every second of the sentence that they receive. Apparently, the 1st District feels the same way.

I will spare you all of the intimate facts of the case, because you can read about them HERE if you like. All you really need to know is that Appellant had sex with a 6 year-old little girl. There was only one sexual encounter between Appellant and the girl, and during the encounter, Appellant "rubbed" the girl between her legs and then proceeded to have sex with her. Appellant was convicted of both: 1) Indecency with a Child by "Touching," and 2) Aggravated Sexual Assault, arising from a sexual encounter with a 6 year-old girl. Having never objected to the charges in the indictment at trial, Appellant argued for the first time on appeal that the convictions of both the greater charge and the lesser charge violated 5th Amendment's prohibition on Double Jeopardy. Specifically, the despicable appellant argued that the indecency charge was subsumed within the aggravated sexual assault charge because the conduct was part of one disgusting transaction.

The Law:  A conviction of both the greater and a lesser-included offense arising out of the same act violates double jeopardy. Hutchins v. State, 992 S.W.2d 629 (Tex.App-Austin 1999, pet. Ref'd, untimely filed). The Texas Court of Criminal Appeals held, in Patterson v. State that "conviction for a sexual offense against a child bars conviction for conduct that, on the facts of case, is demonstrably part of the commission of the greater offense." 152 S.W.3d 88 (Tex. Crim. App 2004). Case over, a victory for the Appellant, right? WRONG!

The Court held that because it is not clear from the record whether Appellant "rubbed" the victim with his finger or penis, then the constitutional error is not "clearly apparent from the face of the record," and therefore he did not preserve his appeal.

I am happy to see the Court resort to nit-picking and semantics in order to uphold this convictions (I'm not being facetious). I hope Mr. Atkinson's 20 years in TDC are miserable. As a practical matter, even if the conviction of the lesser offense had been set aside, he would still be serving 20 years for the greater offense. I hate to say, I think the First District probably got this one wrong - But in a way I can appreciate.

Can a Civil Penalty Trigger Double Jeopardy?

This issue was recently addressed by the 13th District Court of Appeals in State v. Almendarez.

The 5th Amendment to the United States Constitution provides, in relevant part, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."  Many times there are civil and criminal penalties for certain actions, such as the administrative suspension of one's driver's license in addition to a subsequent prosecution for DWI.  Do civil penalties violate the double jeopardy clause?

As a general rule, the 5th Amendment's prohibition on double jeopardy does not bar remedial civil proceedings based on the same offense as a prior criminal prosecution, or vice versa.  State v. Solar, 906 S.W.2d 142 (Tex. App. - Fort Worth 1995, pet. ref'd).  The U.S. Supreme Court provided, "whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction."  Hudson v. U.S., 522 U.S. 93 (1997).  However, even if intended by Congress to be civil in nature, the double jeopardy clause may be triggered if the "statutory scheme is so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty."  Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002).

In order to evaluate whether the effects of the statute are criminally punitive, courts generally look to the non-dispositive factors set forth by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and restated by the Court in Hudson.  Termed the "Hudson factors," courts should consider:

1. whether the sanction involves an affirmative disability or restraint;
2. whether it has historically been regarded as a punishment;
3. whether it comes into play only on a finding of scienter;
4. whether its operation will promote the traditional aims of punishment-retribution and deterrence;
5. whether the behavior to which it applies is already a crime;
6. whether an alternative purpose to which it may rationally be connected is assignable for it; and
7. whether it appears excessive in relation to the alternative purpose assigned.

Hudson at 99-100.  Moreover (as if a 7-factor test weren't enough), the Court further provided, "these factors must be considered in relation to the statute on its face, and only the clearest proof will suffice to override legislative intent and transform was has been denominated a civil remedy into a criminal penalty."  Id at 100.

As you can see, whether a civil penalty precludes later criminal prosecution depends on the particular facts of the case.  The following examples from Texas caselaw help illustrate how this issue has played out in Texas courts:

• Termination of a person's rights to a horse and order to reimburse State for expense incurred in seizing horse did not constitute punishment and does not bar a subsequent criminal prosecution for animal cruelty and neglect.  State v. Almendarez, ___ S.W.3d ___ (Tex.App. - Corpus Christie 2009).
• Trial for termination of parental rights is a civil proceeding with a remedial result - protecting abused and neglected children - and does not trigger jeopardy bar to subsequent criminal prosecution for aggravated sexual assault of a child.  Malone v. State, 864 S.W.2d 156 (Tex.App. - Fort Worth 1993, no pet.).
• An administrative license suspension did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent DWI prosecution.  Ex parte Tharp, 935 S.W.2d 157 (Tex. Crim. App. 1996).
• Texas' civil asset-forfeiture scheme did not constitute punishment and therefore did not implicate the protections against double jeopardy in regard to a subsequent prosecution for the offense underlying the asset forfeiture.  Fant v. State, 931 S.W.2d 299 (Tex. Crim. App. 1996).
• Disciplinary actions brought against an attorney did not constitute criminal punishment to bar subsequent criminal proceedings.  Capps v. State, 265 S.W.3d 44 (Tex.App. - Houston [1st Dist.] 2008, pet. ref'd).
• Cancellation of defendant's alcoholic beverage license because he lied on the application did not constitute punishment and therefore did not bar his subsequent prosecution for making false statements on the application.  Ex parte Sheridan, 974 S.W.2d 129 (Tex.App. - San Antonio 1998, pet. ref'd).

TAKEAWAY:  Good luck establishing a double jeopardy challenge to a later prosecution for conduct which was the subject to a civil penalty.  According to the bulk of caselaw, it seems to be quite a steep road.