Ex Parte Amador

tribunal, that satisfy the true, parte AMADOR, testimony Appellant. is not but that Ex Manuel

witness’ opposite story; of his the truth is No. PD-1072-09. one, who has a the denial of motive uttered with such hesi- deny, may be Appeals Court of Criminal of Texas. tation, discomfort, arrogance or defi- Oct. ance, assurance he give as to that is that, is, if he there no fabricating, and is Rehearing Denied Dec. alternative but to assume the truth of what he denies.10 jury’s decide that the verdict this

We rationally supported by is common

case

sense, logical references from the circum- evidence, legally

stantial and sufficient evi- It a verdict

dence. was not based on a incriminating

“mere modicum” of evidence. Jackson,

See U.S. S.Ct.

2781.11 the court judgment appeals is

affirmed.

PRICE, J., concurred.

MEYERS, J., not participate. did argues planned 10. The State also in its brief on discre- event. The two drove to the vic- tionary review: apparent tim’s house with no reason other murder, robbery than and one of them case, jury present In the was able to see weapon took the murder into victim’s [appellant] and hear on the recorded state- promptly house and used it. While the ment, demeanor, including calculating his bystander may of an innocent self-serving implausible attempt and his plausible spur-of-the- when the crime is a robbery to shift the entire blame for the event, unplanned moment or common jury murder onto Gonzales. The should suggests you sense that do not take an un- similarly guilt by be able to infer recorded suspecting along planned friend to a mur- demeanor, present at least in cases like the der, get nor does that friend a share of the one where booty when the complet- murder has been during one or more others the commission ed. lacking and all that of the crime it [sic] pri- some indication that he was either the unnecessary 11. We find it to address the mary participant. actor or a appellant indirectly State's claim that confess- by way "adoptive ed of an admission” when stated, Finally, during jail-recorded telephone he common sense and reasonable in- (Ma- suggest girlfriend ference that the conversation with Gonzales’s [sic] circumstances rez), possi- themselves are that inconsistent with the Gonzales on him.” The ”snitch[ed] bility [appellant] simply appellant’s State claims that was an inno- use of the term bystander. suggests implied by appel- The evidence "snitch” was an admission spontaneous this was not a crime but lant of his involvement in the crime. Morales, Paso, Appel- El

Ruben P. lant. D.A., Stroud, Paso, Jeffrey

Lily El Asst. Austin, Horn, Attorney, L. State’s Van State. J.,

HOLCOMB, opinion fifty sixty away They delivered the feet from them. MEYERS, PRICE, Court, in which appellant’s penis noticed that was out from COCHRAN, JJ., joined. JOHNSON zipper pants, of his and that he was rubbing They immediately it. took the OPINION away playground children from the area in presented in this case is question The prevent order to them from seeing what jeopardy prohibits the whether double appellant doing. was Acosta called the obtaining a conviction for an State from arrived, police. By they the time appel- previously defendant has offense when the put penis lant had back pants his into his of a lesser-included offense been convicted sitting nearby and was on a bench where hold that it does. of that offense. We We police Appel- found and detained him. the continuing must also determine validi- trial, pled guilty, jury lant waived a and in ty holding of our Briceno v. days was to 120 sentenced confinement (Tex.Crim.App.1979), that the S.W.2d 842 County the El Paso Jail. exposure1 indecent is a offense of lesser- later, 12, 2007, A few April months on of the included offense offense of indecen- appellant was indicted for two counts of by cy exposure.2 with a child Id. felony the third-degree offense of indecen- holding. reaffirm that We cy with a child exposure.4 Appellant Background an application pretrial filed for a writ of corpus, arguing habeas that indecent expo- 25, 2006, On September appellant Manu- sure is a lesser-included offense of inde- charged el Amador was with the misde- by exposure, and that exposure.3 meanor offense of indecent jeopardy double therefore barred pros- his following On record shows facts. 22, 2006, indecency-with-a-child ecution for September Gabriela Acosta and a charges charges because those were based woman named Baez went to Houston Park Paso, on the They accompa- in El Texas. were same act on which his 2006 convic- and tion for daughter, nied Baez’s Acosta’s son was based. The trial daughter. approached hearing signed and As the ladies court conducted a and playground portion park, they of the a written order relief denying appel- on tree, appellant standing saw near a about application. lant’s writ "did then and there with the intent to arouse § 21.08. Tex. Pen.Code gratify the sexual desire said Defen- (a)(2)(A). § 2. Tex. 21.11 Pen.Code dant, intentionally knowingly expose any and [G.T.], part genitals of Defendant's a child that, alleged 3. The information on or about younger who was then and there than 17 September appellant, 22, 2006, years age spouse, and not defendant’s there, did then and with intent to arouse (Em- knowing present.” that said child was gratify the and sexual desire of the Defen- phasis original.) alleged Count Two dant, intentionally knowingly expose and date, appellant, on the same "did then and genitals, his and Defendant was reck- gratify there with the intent to arouse or present less about whether another was Defendant, sexual offended and desire of said intention- who would be alarmed his rubbing geni- ally knowingly expose any part act in that Defendant was his of Defen- Acosta, public park, [K.T.], tals in a and Gabriela genitals dant’s child who was then was and offended or alarmed younger years age and there than 17 said act of spouse, knowing not defendant’s that said (Emphasis original.) present.” (Emphasis original.) child was that, alleged 4. Count One of the indictment September on or appellant about 22, 2006, may appealed multiple-count the trial court’s deni seek indictment

Appellant application. al of relief on his writ His against a defendant based on violations of was that appeal sole issue on act; arising single different statutes from a offense of exposure is lesser-included but, legislative in the absence of a clear by exposure, contrary, may intent to the the defendant Jeopardy the Double Clause of the be convicted and sentenced for one barred his cur United States Constitution offense under such an indictment. Ball v. rent prosecution States, 856, 865, United 470 U.S. 105 S.Ct. was because that (1985). 1668, 84 L.Ed.2d based on the same act on which his 2006 ex prosecution and conviction for indecent II. to the Application Present Case court of posure appeals was based. The Appellant argues ap- that the court of disagreed, and affirmed the trial court’s peals holding “erred that Petitioner’s Amador, parte Ex No. 08-07-

judgment. for the conviction lesser included offense of 00331-CR, 1175117, 2009 WL 2009 Tex. exposure subsequent did not bar Paso, App. (Tex.App.-El April LEXIS 2953 for prosecution indecency with a child” 2009) (not 30, designated publication). for specifically because Court has held “[t]his solely granted We review to consider Briceno that indecent a exposure [in ] is Jeopardy whether “the Double Clause of lesser included offense of indecency a the States bars a sub United Constitution App. child.” PDR at 2. “Consequently,” in sequent prosecution for the offense of appellant argues, his “conviction for inde- decency after a to plea with a child the exposure arising out of the same set expo lesser-included offense of indecent prosecution of circumstances bars his for sure.” indecency with a child under the Double Jeopardy Clause United States Con- Jeopardy: Principles I. Double General Id. stitution.” Jeopardy The Double Clause Amendment, applicable the Fifth to all reviewing appeal, In this claim on the Amend through states Fourteenth appeals acknowledged holding court of our (1) ment, against protects accused in Briceno that indecent was a exposure prosecution second for the same offense indecency lesser-included offense of after for acquittal, prosecution second by exposure. 2009 WL 1175117 at conviction, the same offense after *3-4, Tex.App. 2009 LEXIS at *8. But it multiple punishments for the same offense. inapplicable concluded that Briceno was Ohio, 161, 165, Brown U.S. 97 S.Ct. present case because it did not “in- (1977); 2221, 53 L.Ed.2d 187 Evans v. jeopardy involving a double issue volv[e] (Tex.Crim. S.W.3d separate charges.” two Id. App.2009). The case involves a Briceno, con appellant was the same prosecution second by expo victed of context, after conviction. In this “the appeal contention on direct sure. His sole pros Fifth Amendment forbids successive failing was that “the trial court erred in ecution and cumulative for a punishment jury instruct on the lesser included greater and lesser included offense.” 432 exposure.” offense of indecent at 2221. The “se U.S. S.Ct. Thus, appeals at 843. the court of is cor

quence” of whether prosecution i.e., such — rect that Briceno did not involve a double greater prose or the lesser offense is not reduce jeopardy cuted first —is irrelevant. Id. The State issue. But that does express holding exposure in that is a lesser-included offense of of our the effect exposure by exposure. offense of indecent Id. at that “the case included offense of indecen- “agrees ... a lesser It with Briceno that the ele- by exposure. with a child” 580 S.W.2d ments of both offenses cy [indecent Supreme clearly Court has at 844. exposure] that “the Fifth Amendment forbids stated except are identical for the circumstances cumulative successive in which the occurs.”6 Id. at 9. in- greater and lesser punishment however, It argues, “Briceno omitted Brown, offense.” cluded U.S. analysis an from its element of indecent Thus, it is the state’s classi- 97 S.Ct. person to whom —that that one offense is the lesser-in- fication is directed be a who another, offense of and not cluded the expo- would offended alarmed in which context such classification is According Id. to the sure.” made, double-jeop- relevant to the Briceno, contrary holding analysis given in a case. The court of ardy exposure requires offense of indecent in appeals failing apply therefore erred just proof more than that the defendant present only to the case because Briceno presence is reckless as to the of another was not an in jeopardy double issue Brice- person requires proof ... that the [It] no itself.5 pres- defendant was reckless as to the “[gjreater- person admits that the ence of a who will be The State offended (the act, by defendant’s) inclusive and lesser-included offenses are alarmed his a double-jeopardy pur- fact that is not prove the ‘same offense’ needed to indecen- cy by Br. at 6. It with a child poses.” exposure^ State’s also admits which re- only the precedent quires presence that Briceno is established the of a child. proposition present in Texas for the that Proof that a child is is not nec- appeals also erred in 5. The court of consider The elements of and in- [indecent charging decency ing exposure] the instruments of both the with a child are identi- greater conducting and the lesser offenses in except indecency cal that with a child re- analysis in the quires its own lesser-included-offense the defendant a to know that child is *3-4, present See 2009 WL 1175117 at present, case. exposure requires where indecent Tex.App. explained LEXIS *8. As we pres- that the defendant is reckless as to the (Tex.Crim. in Hall v. 225 S.W.3d 524 person. higher ence of another Proof of this App.2007), charging we do not consider the degree culpability, knowing, proof of of the alleged state, instrument of the lesser-included of culpable lower mental reckless. Rather, analyses. Code, compare 6.02(3). in we fense such V.T.C.A.Penal Sec. Proof that offense, statutory greater the elements of the present necessarily proof a child is would be they alleged charging Thus, as have been in the presence person. a of offense, instrument of that the statu requires, proving with a addition to tory elements of the lesser-included offense. all the elements of indecent a show- ap Id. at 535-36. We have reaffirmed higher this ing culpable mental state and proach following in several decisions Hall. person that the is a child. See, Watson, e.g., V.A.C.C.P., 37.09(1), Ex Parte provides Article that (Tex.Crim.App.2009) reh’g) (op. on "An a offense is lesser included offense if: it ("Both statutory any descriptive elements by proof is established of the same or less alleged averments in the indictment for the required than all the facts to establish the greater-inclusive compared Thus, offense should be charged.” commission of the offense elements of the lesser of the offense of indecent under Sec. fense.”). 21.08, supra, is a lesser included offense of child, 21.11, supra. Sec. Briceno, (emphasis original). we reasoned as S.W.2d at 844 follows: per- Finally, of a we essarily proof presence argu- address some of the will offended or alarmed son who ments raised dissent. The dissent the defendant’s “would hold two counts of by exposure can be based (citations (emphasis original) Id. at 10 upon a single exposure if there are two omitted). reasoning, Based on this Op. child victims.” Dis. at 210. But that or distin- State asks us to overrule Briceno today. is not the issue before us Neither case. Id. at 9. guish it from party argument has raised this at any Ironically, the State disagree. We stage in this case—in the courts below or years argued ago itself few “inde granted before this Court—and we review merely cency by exposure solely to consider the continuing validity aggravated expo an version of indecent holding our expo- Briceno that indecent sure.” See Yanes v. sure is a lesser-ineluded inde- refd). 2004, pet. (Tex.App.-Austin by exposure. See in that The State was correct instance. op. Court’s at 1-2. The dissent “would Indecency with child is sim also hold that an indecent-exposure charge ply aggravated version of indecent ex upon can be based the same exposure that as, posure inasmuch while the offense of gave indecency-with-a-child rise to counts exposure requires presence long so defendant was reckless with who “will be offended or of at least one act, alarmed” the defendant’s see Tex. person other than the child victims.” Dis. 21.08, § indecency the offense of Pen.Code earlier, Op. at 210. As we noted the Su- by exposure, by having not preme prosecution allows the Court to any requirement, such holds the defendant a multiple-count against seek indictment (the child) culpable even if the to defendant based on violations of different wards the exposure whom is directed is act, arising statutes from a single but the by “offended or alarmed” the defen may be convicted and sentenced § dant’s act. See Tex. Pen.Code 21.11. for one offense under such an indict- in presumes The law effect that all chil Ball, op. (citing ment. See Court’s dren are or should “offended or 1668). 865, 470 U.S. at 105 S.Ct. In other Thus, by exposure. alarmed” such there words, though charge even the State can require is no need to the State show to with greater the defendant the and a less- given that a child was in fact “offended or offense, er-included the defendant cannot alarmed” a defendant’s act of expos ure.7 be convicted and sentenced for both. separate non-statutory descriptive 7. The State raises a claim that “the all of the additional not, cognate-pleadings charging test set forth in in both instru Hall is averments [the] be, proper greater the should not test in deter ments” of the and the lesser-ineluded mining prosecution appeals whether a successive is offenses. Id. at 30. But the court of Hall; jeopardy.” granted barred double State’s Br. at did not even mention and we review, argues proper part, continuing It that "the test for a in to consider the Briceno, double-jeopardy validity in We claim the context of a suc not Hall. therefore arguments by cessive is the test decline to address the above same-elements States, Blockburger except prevailing forth in State to note that is the [v. set United Hall standard, (1932),] superceding U.S. all tests be 52 S.Ct. 76 L.Ed. 306 state other it, expanded by conducting this Court in Parrish fore for a lesser-included-of [v. Hall, 1994)], (Tex.Crim.App. analysis any 869 S.W.2d 352 fense in context. See compares which elements and S.W.3d at 535. state, Thus, only question today scribing culpable before us mental Code in simply clearly fact a that “[cjulpable is whether states indecency with a according lesser-included mental states are classified to to the by exposure. According lowest,” child dis- degrees, highest relative from sent, it is not because the statute for inde- “knowing” ranking higher with than “reck- requires presence of a in the culpability. less” Code’s measure of alarmed,” person “who will be offended See § Tex. Pen.Code 6.02.

while statute concept does not. But the Conclusion already incorporated alarm offense or jeopardy prohibits Double the State fact, “indecency.”8 the term there obtaining from a conviction for an offense be no crime if the defendant’s act would previously if the defendant has been con- were not considered to be offensive or victed of a lesser-included offense of that alarming by someone. In the case of inde- Brown, offense. 482 U.S. at 97 S.Ct. child, however, it is the soci- holding We reaffirm our in Briceno ety that is “offended or alarmed” that indecent is a lesser-included subjected fact that children should its by expo- offense of to such The law therefore crim- sure. See 580 S.W.2d at 844. The court inalizes such of a of appeals failing therefore erred in might child whether or not the child itself apply holding present to the case. given have been offended or alarmed in a therefore judgment We reverse the case. appeals, court of and remand the case to argues

The dissent also that the Briceno the trial court proceedings consistent holding expo- “reckless” opinion. with this culpable sure is a less mental state of

“knowing” COCHRAN, J., a concurring filed applicable is not opinion. (“But op. at 218 case. See Dis. this hold- KELLER, P.J., dissenting filed a ing with to lesser-included-offense opinion, which KEASLER and instructions, jury highly while relevant to a HERVEY, JJ., joined. Jeopardy analysis, Double elements is not dispositive of the Double Jeopardy claim WOMACK, J., dissented. us.”). dissent,

before According to the our J., COCHRAN, concurring filed a only concern here is “not with the ele- opinion. offenses, ments of the statutory but also with of prosecution.” units Id. In other I particularly do not think that this is a words, First, the number of pres- victims difficult or complex issue. we have ent case makes all the difference. But our previously held that indecent ais Penal provide Code does not for such a indecency lesser-included offense of with a Rather, Second, distinction. for all pre- by exposure.1 offenses child we pre- have See, morals,” e.g., College to manners or and "inde- New Webster's World Dic- offensive (4th ed.2005) (defining "indecent” tionary cency” again—simply quality "the as or — obscene,” offensive; "morally and "inde- indecent.”) added). being (emphasis state of cency" simply quality being as "the state or indecent.”) added); (emphasis Webster’s (Tex.Crim. 1. Briceno v. 580 S.W.2d 842 Collegiate Dictionary Ninth New ("[T]he App.1979) expo- offense of indecent (defining "grossly unseemly "indecent” as or Indeed, in both viously jeopardy princi- expo- that double offense.3 held child, indecency with multiple punishments sure and it is im- ples prohibit of- material that no one —adult or greater both a and a lesser-included child —ac- tually privates. saw the defendant’s stemming from the same criminal The fense offense is based on the A cannot con- defendant’s ac- Q.E.D.: act.2 defendant be state, tions and mental not the per- other “wagging victed of indecent comprehension.4 son’s park his weenie” at 9:00 a.m. the local very later be for that prosecuted and then These are not result-oriented crimes and “wagging his weenie” same act of depend upon anyone do not or —adult indecency him with charging suffering any harm through seeing child — by exposure. Indeed, private parts. a defendant’s the offense of with a child Both only the child “pres- needs to be are “circum- during ent” the offense. He or she or all grava- stances of conduct” offenses. The blind, twenty may of them asleep, read- exposing each offense one’s pri- men of is book, ing looking at the clouds vates, intent or gratify with the to arouse sky, or whatever. The crime has been certain, desire, anyone’s spe- sexual under committed once the exposes cific recklessness circumstances: gratify himself with intent to arouse or person, about whether another who will anyone’s any sexual desire while child or alarmed, present-inde- is offended or any happen number of children to be (2) knowing that a exposure; “present.” present-indecency child with a child. is Thus, opens The to whom the defendant ex- if the defendant the door at grade not an element of the the back of the first poses himself is classroom and ... sure is a lesser included offense of inde- act twice under two distinct statutes when the child”). explained: legislature pun- This Court intended the conduct to be once”); Ohio, ished see also Brown v. two offenses are iden- elements of these 161, 168-69, 432 U.S. 97 S.Ct. except tical (1977) ("Whatever sequence L.Ed.2d 187 requires that a the defendant to know be, may the Fifth Amendment forbids succes- present, where indecent re- punishment sive and cumulative quires that the defendant is reckless as to offense.”). greater for a and lesser included person. of another Proof of higher degree culpability, knowing, this (Tex. 3. Wallace state, proof culpable of the lower mental York, Crim.App.1977); State v. child nec- reckless. Proof that a 798, 2000, ref’d) (Tex.App.Dallas pet 802 essarily presence proof would be of a (stating persons that “the names of the to Thus, indecency person. with a child re- allegedly exposed himself [defendant] whom quires, proving all the ele- in addition to merely evidentiary are facts which are in na showing ments of indecent a of ture, required State not in and the was to higher culpable mental state and that give in clude them the informations to [defen person is a child. offenses.”). charged notice of the dant] (citation omitted). Id. at 844 State, 544, (Tex. 680, (Tex. 4. Metts v. S.W.3d 2. Langs v. ref’d) (indecent pet. App.-Fort Worth Crim.App.2006) (stating multiple pun that a any require statute does that jeopardy ishments double claim can arise in (1) actually genitals); person see defendant’s Ur two contexts: "the lesser-included offense context, (Tex.App. pun ibe in which the conduct is same ref'd) twice, conduct, pet. (upholding conviction Austin ished once for the basic and a indecency plus with a child al second time for that same conduct more,” though genitals). "punishing criminal child did not see defendant's same indecency by exposure his weenie” while all can be “wags vigorously looking upon single are if there are of the children based twenty-seven Manners the front of two victims. I would also hold that intently at Miss child reading story about who is indecent-exposure charge the class can be based the defendant has com- proper etiquette, upon gave the same that rise to indecency the offense mitted indecency-with-a-ehild long counts so (as well as the offense of the defendant was reckless with may the State obtain a exposure; presence of at least one other one).5 But he has conviction for either hap- than the child victims. That is what act, with one and it committed one offense would, therefore, I pened this case. him, no child saw five matters not whether affirm judgment ap- of the court of him, twenty-seven all saw children saw or peals. presence

him. He it in their and that did Legislature want- is the situation that the Jeopardy A. General Double by prohibiting the ed to avoid and to deter Principles exposing act oneself with an intent of any in the gratification sexual Addressing appellant’s complaint re- child. quires an understanding ways the two which offenses can be the same or differ- reasons, agree I For these this ent Double Jeopardy under law when two may only convicted of one elements, are statutes involved: indecent ex- offense of —either (2) by units.1 For a Jeopardy Double vio- posure by expo- occur, lation to the offenses at issue must one, single “wagging act of sure—with his respects.2 be the “same” both join majority opinion. I his weenie.” inquiry An “elements” limited KELLER, P.J., dissenting filed charging law and the instrument.3 In de- KEASLER, opinion in which termining whether offenses are the same HERVEY, JJ., joined. under such an inquiry, begin we with the Blockburger test: “where the act or same allegedly exposed himself in a Appellant transaction constitutes a violation of two public park while two children and at least statutory provisions, distinct were He test to be present. one adult has been applied to determine exposure. convicted of indecent whether there are issue one, only two offenses or jeopardy whether double is whether each this case is provision principles subsequent prosecution requires proof bar a of a fact which the two counts of other does not.”4 If the offenses have the I that two would hold counts of same elements Blockburger, under then would, course, (1997) ("an Miss Manners be offended offense must not act, and, assume, or alarmed we this the same in law—it must also be the same in actually she saw or at least knew what the fact”)). up defendant was to. State, 360, (Tex. Bigon 3. v. 252 S.W.3d 370 Hawkins, 554, parte 1. Ex 6 S.W.3d 557 n. 8 State, Crim.App.2008); Hall v. 225 S.W.3d (discussing legal (Tex.Crim.App.1999) ele- 524, (Tex.Crim.App.2007). 532-33 prosecution). ments versus units of States, 299, Amar, Blockburger (quoting 4. v. United Jeop- 2. Id. Akhil Reed 284 U.S. Double 1807, 304, 180, (1932). ardy Simple, Law Made 106 Yale L.J. 52 S.Ct. 76 L.Ed. 306

211 instrument, subject of successive they cannot be the offenses are considered to elementally. be the same If the offenses have differ- prosecutions.5 Blockburger, ent elements under the of- (or But a “units” “allowable unit of pros- different, presumed are to be but fenses ecution”) inquiry is itself a separate inqui- if that can be rebutted other presumption ry, designed single to determine whether a Legislature never- factors reveal legally-proscribed offense has been com- to be theless intended the offenses treated more inquiry mitted than once.9 A units analysis part The Ervin as the same.6 (1) can also be parts: divided into two aspect Jeopar- of the “elements” of Double is,10 what the unit whether dy law.7 The allowable unit of requisite number of units has been question for the offenses in is a prescribed inquiry shown.11 A units can involve de- in relevant consideration the abstract un- termining things such as whether there analysis,8 victims, der an to determine Ervin were two murder whether a victim whether, charging Monday under the law and the who was assaulted on was assault- Perez, 268, State, (Tex.Crim.App. 5. State v. 947 S.W.2d 270 n. 3 vin v. 991 S.W.2d 804 1997) Ervin, (citing 1999)); (Tex.Crim.App. finality concern See also 991 at S.W.2d 804 context). successive-prosecution ("[T]he If Blockburger test cannot authorize two subject single prose the offenses are the cution, punishments legislature clearly where the in Blockburger merely then the test cre one.”); tended presumption legislature ates a that the did not multiple punishments intend that can be re (under Bigon, 7. See 252 S.W.3d at 372 legislative expression butted a clear of in analysis, looking charging Ervin instrument contrary. (citing tent to the Id. Missouri v. allegations underlying felony to determine the Hunter, 359, 673, 459 U.S. 103 S.Ct. 74 Hall, felony prosecution); murder see also State, (1983)); L.Ed.2d 535 Littrell v. 271 (recognizing 225 S.W.3d at n. 273, (Tex.Crim.App.2008); S.W.3d Hunt cognate pleadings analysis); Hunter involved a er, 366, ("With 459 U.S. at 103 S.Ct. 673 Ervin, (recognizing 991 S.W.2d at 807 "the imposed to cumulative sentences in a Hunter). inverse conclusion” from trial, single Jeopardy the Double Clause does prevent sentencing no more than court Bigon, 8. 252 S.W.3d at 371-72. greater punishment prescribing from than the intended.”). legislature But see State v. Fle States, 54, 9. See Sanabria v. United 437 U.S. 141, (Mo.1998) noy, (ap 968 S.W.2d 143-45 69-70, 24, 2170, 69 n. 98 S.Ct. 57 L.Ed.2d 43 plying successive-prosecution Hunter in a State, 270, (1978); v. 166 S.W.3d 272- Saenz case, part relying upon Justice Scalia's (Tex.Crim.App.2005). Dixon, v. statement United States 509 U.S. 688, 704, 2849, 113 S.Ct. 125 L.Ed.2d 556 830, e.g. 10. See Vickv. 991 S.W.2d 832-34 that, embarrassing "It is to assert that ( 1999) Tex.Crim.App. (penetration of anus (the single term 'same offence’ words of organ aggravated and sexual different units in here) the Fifth Amendment at issue has two Hawkins, assault); at 556 sexual S.W.3d meanings different what is the same —that (different victims are different units in a rob offense.”). yet offense is not the same Cavazos, 333, bery); parte Ex 203 S.W.3d (Tex.Crim.App.2006) (entry the al 335-37 845-46 Gonzales burglary). lowable unit in a ("The (Tex.Crim.App.2010) traditional indici- legislative ... um of intent is the so-called Blockburger, 284 U.S. at 52 S.Ct. 180 Blockburger,” ‘same elements' test but (second drug separate offense be sale was straightforward application "even if a of the original not the cause it "was result Blockburger suggest test would that two of one”); impulse, parte but of a fresh Ex Goodb jeopardy fenses are not the ‘same’ for double read, (Tex.Crim.App. purposes,” the are con offenses nevertheless same, 1998) (can multiple prosecutions have for dif “if indicia manifest a sidered other legislative type pun ferent incidents of the same of sexual intent that an accused not be offenses”) assault). (citing parte ished for both Er Ex

212 elementally, a are the “same” multiple statutes Tuesday, or whether on again

ed if, against a analysis appropriate were committed would be acts units kinds of sex can be consid- or the evidence example, pleadings at trial victim. Evidence requisite determining whether victims.17 ered in indicates that there are different shown.12 A course, units has been number of how an elements Of if it is unclear commonly arise might more inquiry resolved, units if it is and question should be and a is involved13 single when a statute prosecution different units of clear that to divide to discern how trying is court involved, a court could choose were then multi- assault with (e.g., a sexual conduct the units issue. simply to address means) into units.14 manners ple unlike a situa- statute “is Parsing single a Prosecution B. Units of which, statutes, involving tion different case, helpful to In this I think it itself, legislative in- indication is some pros- units of first the allowable determine multiple prosecutions authorize tent expo- of indecent ecution for the offenses separately the offenses are simply because by expo- a child sure and So, statutes.”15 while defined in different sure. elements are dif- that the a determination Blockburger up test sets under the ferent Principles 1. Unit of Prosecution ele- multiple-statute in a presumption particular into a statute’s inquiry An presumption such is cre- inquiry, ments no purely one allowable unit of inquiry.16 units single-statute in a ated construing Nevertheless, statutory different construction.18 if offenses under 180; legislature intended to S.Ct. determine whether Blockburger, 284 U.S. at 52 12. Goodbread, ("For distinctly any Double "separately 967 S.W.2d at 860 act criminalize conduct”); Jeopardy purposes, the same offense means proscribed which constitutes the act, criminal not the same of- the identical (noting application also id. at 833 n. 1 see when one cannot deter- fense name.... result). yield Blockburger would the same pleadings whether the the State’s mine from same, the prosecuted are the court offenses 15. Id. at 832. trial.”) (Cit- proof offered at must look to State, ing quoting favorably from Luna v. Vineyard v. 958 S.W.2d 16. See (Tex.Crim.App.1973)); id. at 493 S.W.2d 854 (“We (Tex.Crim.App.1998) also note this n. 5 (We trial look to evidence at to determine Blockburger test is not Court has stated the conforming what of conduct instances where ‘precisely applicable’ to cases like this jeopardy-barred.); indictment are see also statutory conduct violates one a defendant’s Quintano 585, 592, People, 105 P.3d once.”). provision than more (Colo.2005) (”[W]hile adopt any we do not specific determine whether list of factors to Hawkins, 17. See 6 S.W.3d at 557 n. factually constitute dis- defendant’s acts offenses, all the evidence tinct we look to (Tex. introduced at trial to determine whether the 18. Jones v. jury evidence on which the relied for convic- Crim.App.2010). even in the This is true support tion distinct and Sanabria, was sufficient prosecution context. successive offenses.”). separate 69-70, ("But once 437 U.S. at 98 S.Ct. Congress statutory has defined a ("Usual- Bigon, See pros prescription its of the ‘allowable unit of ly, prosecu- analysis an allowable unit of ecution,’ omitted], prescription [citations tion in which two offenses involves a situation scope protection afforded determines the from the same section are acquittal. Whether prior conviction charged.”). particular involves one course of conduct Vick, under the statute or more distinct ‘offenses' (examining 14. See 991 S.W.2d at 833 choice”); congressional depends language assault statute to on this of the sexual

213 statute, we look first to its literal We found it to be the “bet- text.19 exposure.”25 text, examining practice” plead the literal “we read ter “where applicable,” When phrases exposed words and context and con- the accused himself “to a according gram- specified to the rules of or persons,” strue them but the fail- If the lan- allege mar and ure to so did not render a charging usage.”20 to absurd guage ambiguous, “fundamentally or leads instrument defective.”26 Legislature pos- holding, could not This made at a time results that when the intended, may have then we consult sibly complaining failure to name a witness was of information.21 In extra-textual sources considered a fundamental leads to defect,27 any prior judicial we process, inescapable this consider conclusion that the offense construction of the statute.22 Absent an of indecent has no “complaining that “the allowable unit explicit statement witness” or victim that would define a unit such-and-such,” prosecution prosecution shall be for the offense. legislative best indicator of intent with re- holding in Wallace is consistent to the unit of seems to spect with the language the statute. The of the of- “gravamen” focus presence of another is a circumstance sur- fense.23 rounding the conduct of exposure. The indecent exposure requires statute a find- Exposure Indecent 2. ing that the defendant was “reckless” with exposure pro- The offense of indecent respect to this circumstance. Under the vides: Code, Penal a person is “reckless” with A an offense if he ex- person commits surrounding circumstances his poses any part genitals his anus or of his conduct “when he is aware of but con- gratify with intent to arouse or the sexu- sciously disregards a substantial and un- any al and he is reck- person, desire of justifiable risk that the circumstances ex- less about whether another is The definition of “reckless” does ist.”28 who will be offended or alarmed his say not itself that the circumstances actu- act.24 ally wording exist. The of the indecent State, v. we held that “to statute —that a defendant be Wallace pres- whom the is directed is not “reckless about whether another is essential element of the offense of indecent ent”—indicates that the circumstance of

Hawkins, 21.08(a). § (quoting 6 at 24. Tex Penal Code S.W.3d Sanabria), discussing (overruling "holding Crosby, Jeopardy that the Double State, 89, (Tex. 25. Wallace v. 550 S.W.2d by multiple prosecutions Clause is violated Crim.App.1977). robbery multiple when assaults are com theft”). mitted in the course of one 26. Id. 888; Jones, Boykin 19. S.W.3d Lewis, parte 27. Ex 544 S.W.2d See (Tex.Crim.App.1991). (Tex.Crim.App.1976); see also Fisher v. 1994) (Tex.Crim.App. 55 n. 8 Jones, 20. 323 S.W.3d at 888. (citing proposition Lewis for the that the ab charg sence of the victim’s name rendered 21. Id. ing fundamentally prior instrument defective amendment). to the 1985 constitutional Id. 6.03(c) (definition § 28. Tex. Penal Code “recklessly”). Id. at 889. appropriate charging does not have to exist. case a instrument presence another’s the defendant allege said could that a defendant was reckless Had the statute presence about the of anoth- “reckless of an “unknown” presence person was er,” readily (or adult.”). more maintain that one could perhaps an “unknown both the of required the statute defendant’s recklessness

another and the Indecency with a Child presence. as to that by Exposure addition, use of “another” in con- provision of the wording proscribing The “about whether” phrase nection with the quite rather than actual indi- possible suggests portion different. The relevant of that person means “a other “Another” vidual. provides: statute Literally incorporating than the actor.”29 if, A person commits offense with a in the statute read- this definition results younger years child than 17 age, “is reckless about ing that the defendant whether the child is of the same or other than the actor is person whether a sex, ... opposite with intent present.” gratify to arouse or the sexual desire of So, public if a walked onto a ... any person exposes person’s himself, consciously exposed street and any part person’s genitals, anus or unjustifia- disregarding substantial knowing present.30 the child is present, that another was but ble risk “with a phrases “knowing child” and person happened other fortuitously, no present” clearly spell the child is out the defendant would neverthe- present, requirement actually statute’s that a child crime guilty of the of indecent less be Moreover, be present. speci- the statute Conversely, if the defendant fies that the defendant be aware of the people, himself in a stadium full of exposed child,” presence of “the not “a child” or guilty he would still be one offense “any child.” This focus indicates that a exposure because the offense of indecent particular victim contemplated, child depend on the existence of a does indicating turn that the child victim defines the crime. victim of prosecution. the unit of it would be the “bet- suggested Wallace This conclusion is consistent with the ter to include the name of some- practice” wording provisions other in the in- offended, one as was who was decency-with-a-ehild statute. The statute Including done in the case before us. following sets out the methods of commit- help give name an individual would of such child, ting indecency with a including the particular the defendant notice of the already quoted above: question, crime in and as will be seen if, A person commits an offense with a below, distinguish also the offense of might younger years age, than 17 from with a whether the child is of the same or Here, alleged particular child. the State sex, opposite person: adult as the offended individual in the exposure prosecution engages individ- in sexual contact with the —an ual different from the victims the inde- child or causes the child to engage contact; cency-with-a-child allegations. But in an sexual n § 1.07(5). 21.11(a)(2)(A) § (emphasis 30. Tex. Penal Code added). child, gratify committing indecency to arouse or ods of with intent any person: sexual desire when the different tightly methods are so (A) person’s any together the anus or woven exposes language the of the knowing part genitals, Further, of the person’s statute. if Legislature the had present; the child is prescribe wanted to the pros- same unit of (B) expose causes the child to the child’s indecency ecution for by expo- with child any part genitals.31 anus or of the child’s sure as it had for exposure, it simply could have added a subsection contact” offense found in “sexual 21.11(a)(1) clearly contemplates § that a the indecent statute to increase particular child is the victim of sexual con- penalty the if the actor knew that a child tact, committing and the other method of present. Consequently, was I would hold indecency by with a child found exposure, prosecution that the unit of for indecency 21.11(a)(2)(B), § contemplates that the child, with a child each exposure is each particular defendant causes a child to be exposure32 meaning the State can seek — between two exposed. Sandwiched these two single exposure convictions for a when provisions, sharing and some of the lan- there are two child victims.33 each, guage indecency-with-a- of is the child-by-exposure offense at issue in the Measuring 4. Different Sticks present case. It would be anomalous to faced, then, We are with the fact that prescribes find that the statute different the the two prosecution units of for different meth- offenses at issue—inde- 21.11(a). § guilty 31. Tex. Penal Code Uribe held that a can child, indecency exposes if he himself prosecution I characterize the unit present, while the child even if is the child child, exposure” separate "each each because actually genitals. does not see the defendant’s exposures separate would also be offenses. If Uribe, holding if 7 S.W.3d at 297. Even that exposed a defendant himself to two children correct, is it does not mean that the unit of Monday, exposed on and then himself to prosecution indecency for again Tuesday, those two children on he simply exposure. is each Whether would have committed four offenses. or not the child has to see the defendant’s genitals, present, the child must still be and it Judge that Cochran contends the unit of presence focus on the child's actual that prosecution indecency for prosecution defines the unit of for the offense simply exposure. support each expo- with a child. Indecent contention, of this she cites Wallace and three sure, contrast, require does the actual not York, appeals opinions: court of State v. 31 presence any had no individual. Uribe 2000, ref'd); (Tex.App.Dallas pet. S.W.3d 798 single exposure occasion whether a to address (Tex.App.-Fort Metis v. S.W.3d 544 multiple could result convictions based ref’d); pet. Worth and Uribe v. upon presence multiple children be- ref’d). (Tex.App.-Austin pet. S.W.3d 294 that cause conviction issue in case was exposure, Wallace is about indecent not inde- Uribe, upon only based one child victim. by exposure, and therefore S.W.3d at 295-96. support explained her does not above, claim. As Moreover, simply appeals a court of Uribe is very there are real differences between binding decision-—it is not on us and should measuring the two that dictate offenses trump analysis language an of the prosecution differently. unit of York and indecency-with-a-child explained cases, statute. As indecent-exposure Metis are also above, analysis clearly (Metis of the statute shows support rely thus do not her claim does (in- indecency-with-a-child-by-exposure upon indecency-with-a-child decisions Metis, Uribe), Judge cluding offense is Cochran See S.W.3d at victim-centered. extent, attempt analyze my ap- makes no whatsoever to comments below ply)- language of the statute. (even though only with a child— one of the children cent prosecution unit of necessary measure the allowable to establish the inde- would differently. For generate who could two exposure) expo- is each prosecution allowable unit of prosecution units of child, indecency with a the al- For sure. presents child. The case the third child, each lowable unit is each situation, merely in which the units type of analysis would be sim- jeopardy A double to two children and overlap: exposure pler if the allowable unit of of at least recklessness as to the two offenses were the same.34 adult). In that person (e.g. one other under prosecution If the allowable unit of situation, indecent-exposure the offense were each then a both statutes (at least) encompasses persons, only three single be a unit single exposure would of whom can serve the for two basis only remaining question the would be offenses, indecency-with-a-child with nei- the offenses are the same under whether actually being ther of two for those needed if analysis. Conversely, an elements the indecent-exposure offense. of under both prosecution allowable unit victim, then three vic- statutes were each Elements C. (one children) adult, tims two would mean Comparison of the Offenses prosecution, three units of and there would analy- be no need to conduct an elements comparison A of the statutes reveals the sis. following elements: Instead, prescribe the statutes allowable with a Child Indecent Indecency by Exposure prosecution that sometimes co- units of Exposure imper- incide coincide perfectly, sometimes genitals genitals anus anus or or exposes exposes merely An fectly, overlap. or sometimes with intent to arouse or with intent to arouse or example of the first situation would be a gratify gratify sexual desire sexual desire exposes defendant who himself to one child (under 17 and spouse) privacy of his own home without knowing: being any person reckless about other be- reckless: unit ing present. prosecution one of a. the child is a. about whether another is present for with a child in that case will perfectly b. who be offended would coincide with the one unit or alarmed prosecution of exposure. for indecent On Indecency hand, exposure re if a exposed other defendant quires proof of at least three elements not privacy himself to two in the children (1) home, required exposure: for indecent that a his own with no recklessness as to presence any person actually other other than the defendant person, the units coincide, prosecution present, person that this other be a they would but child, would do so in an that the have the imperfect manner. The prosecution one unit of culpable knowledge for mental state of with encompass respect presence would two children to the of this other per appeals 34. At least two have exposure. courts of con- both offenses was each 2004). prosecution (Tex.App.-Austin cluded that the unit of for inde- S.W.3d State, Baggett Appeals In v. First Court same, opposite is the but with prosecution re- concluded that the unit of for sults. In Yanes v. the Third Court of both offenses was the victim. 860 S.W.2d 1993). Appeals held (Tex.App.-Houston that the unit of [1st Dist.] merely recklessness extend not exposure requires proof to the Indecent son. required person, of another presence element not but to the one that the defen by exposure: a child presence person with of another “who will be culpable mental state dant have a or alarmed.” offended of a “who we Evans held that indecen- or alarmed” the defen will be offended cy with a sexual contact was a The extra element for dant’s aggravated lesser-included offense of sexu- one of mental purely al assault of a child even though the inde- that a requirement there is no culpability: contained might appear what actually offended or alarmed person who is to be an extra element—intent to arouse Nevertheless, it is a differ present. gratify Relying upon sexual desire.39 ence, similar to the difference between State,40 my concurrence Ochoa v. intoxication, elements of recklessness and gra- Court found that “intent to arouse or in Ervin to be different which we found tify sexual desire” was not an extra ele- of the Blockbur application under a strict already part ment because it was of the ger test.35 contact,” definition of “sexual and sexual touching contact was a form of subsumed 2. Briceno “penetration” required prove within the held that In Briceno v. this Court But, aggravated sexual assault.41 unlike was a lesser-included exposure Evans, statutory language the in by expo- of phrase “who will be offended or alarmed” determining purpose sure for part of the main text of the indecent whether a defendant was entitled to a less- offense, not exposure part of a definition. The jury er-included-offense instruction.36 of the two held that the elements Court Culpable 3. Serious Mental State Less “identical, except that inde- offenses were not mean That does Briceno requires the defendant necessarily wrong court was its conclu- present, to know that a child is where that the defendant in that case sion was requires that the defen- jury entitled to a instruction on the offense presence to the of an- dant is reckless as 37.09(1) Article of indecent es- person.”37 Consequently, other Court sentially prescribes Blockburger’s “same found that indecent was a lesser- test, includes a child elements” but article 37.09 included offense of 37.09(1) determining other methods for whether under Article on the basis its lesser-included, However, considered one elements.38 the Court offense is fewer applicable here. Article failed to address the indecent of which 37.09(3) that an offense is lesser- provides that the defendant’s requirement statute’s Ervin, (intoxication by proof ... 991 fense if it is established 35. See S.W.2d required to manslaughter manslaughter same or less than all the facts not application” establish the commission of the offense "same” under a "strict of Block- ). charged.”). burger (Tex.Crim.App.2009). (Tex.Crim.App.1979). 39. 299 S.W.3d 36. 580 S.W.2d (Tex.Crim.App. (emphasis original). S.W.2d 37. Id. at 844 40. J., 1998) (Keller, concurring). Id.) art. see also Tex.Code Proc. Crim. Evans, 37.09(1) ("An 299 S.W.3d at 141-43. offense is a lesser included of- a imagine alarmed. But it is hard to from the offense if “it differs included that a less respect in the in which a defendant would have charged only situation mental state suffices culpable gratify serious or sexual de the intent to arouse explained As its commission.”42 establish sire, a pres and be reckless about child’s of indecent ex- above, element the “extra” ence, whether but not be reckless about offended will posure alarmed.45 the child would be offended or —“who culpable mental part alarmed” —is Further, government compelling has a state; who is offended or alarmed person a protecting well-being interest actually present. need children, inno among who are the more reckless- is whether question The next society.46 vulnerable members of will be offended or to “who ness as that, rationally argued It can at all least be men- culpable a “less serious” alarmed” is mental things being equal, culpable other indecency-with-a-child than the tal state respect state with to an actual who “knowing culpable mental state offense’s than a culpable is a child is “more serious” re- present.” Both statutes the child is respect presence mental state with to the culpable mental having more than quire possible person of a who will be offended of “a state with considerations, or alarmed. Given these in the indecent “person” person.” Briceno given prior holding rather possible statute can be I lightly, should not be overruled would actual, possible person must than and this expo reaffirm that the offense of indecent will be offended or be someone “who sure is included within the offense of inde child, For alarmed.” for the person be an actual who is “person” must purpose obtaining of lesser-included a child.43 jury I do though fense would instruction — that children “do not have The maxim 87.09(3) so on the basis of Article rather ability to consent in most situat legal 37.09(1). than Article ions,”44 in this context that a suggests holding But this with to lesser- exposure, to an which child cannot consent instructions, while jury included-offense in turn that the characteristic suggests highly Jeopardy relevant to a Double ele- to imputed “will offended or alarmed” is analysis, dispositive ments is not Moreover, a defendant who the child. Here, claim before us. Jeopardy Double might not be present a child is knows only we are not with the ele- concerned that child would be reckless about whether offenses, ments of the but also alarmed because the defendant offended or with Even in the prosecution.47 is not in fact offended or units knows the child Evans, ("[W]e at 142 can- 45. See 299 S.W.3d 37.09(3). 42. Proc. art. Tex.Code Crim. imagine how it would be even theoretical- particular ly possible to commit this form of indecency-with-a-child-by-exposure 43. The [causing organ penetration the victim's sexual not have to be aware that the defendant does penetrate contact and the defendant's State, person 665 S.W.2d is a child. Roof gratify without an intent to arouse or mouth] (concluding (Tex.Crim.App.1984) 491-92 desire.”). one’s sexual defen- that the reference "in Briceno that the a child is is dic- dant must know 46. See Black v. tum.”). (Tex. App.2000). Crim. ignores prose- Judge the "unit of 44. Alameda v. Cochran up aspect when (Tex.Crim.App.2007). cution” of the case she sets context, an jury procedural posture instruction offense is offense makes the may its elements not be lesser-included important. the case To receive a lesser- if a different unit of comprises submitted it jury included-offense instruction on inde- charged.48 the offense prosecution than charged 37.09(B), Or, as in Article explained rely upon with a child could mental state must be culpable less serious exposure fact that indecent can be based only way in which the lesser offense solely upon the child victim alleged con- If greater differs from the offense. nection charged with the offense. But in a lesser offense also differs because the cul- context, jeopardy double argu- the State pable encompasses peo- mental state more ably rely could upon the fact that indecent ple, satisfy then it does not Article upon need not based the child 37.09(3). victim in indecency-with-a-child count. Nature of the Elastic analysis 5. Ervin Unit of Prosecution Ervin, we forth a set nonexclusive list here complicating The factor is that the in determining factors to consider unit of in an indecent whether offenses that are different under essentially person elastic: A offense is the Blockbwrger test should nevertheless multiple persons could be reckless as (1) be considered the same: whether the but need be reckless as to one provisions are contained the same statu- guilty to be of indecent section, tory elastic nature of the indecent whether the are offenses "Q.E.D.” Langs. double-jeopardy her statement. She claims first that The two situations by Langs are addressed as follows: we have held that "indecent is a indecency with lesser-included offense of context, lesser-included (in by exposure.” holding But our Bri- twice; punished which the same conduct is ceno) solely was based on the elements of conduct, once for the basic and a second offenses, statutory accounting two without (for plus time for that same conduct more potential might unit that issues example, attempted assault Y and assault of Y; posed by multiple Judge victims. Cochran aggravated assault X and assault X); jeopardy princi- next contends that “double and (2) punishing ples prohibit multiple punishments the same criminal act twice for both a legisla- under two distinct statutes when the greater and a lesser-included offense stem- punished ture intended the conduct to be ming criminal act.” That is a from same (for only example, causing single once a only false statement if one looks to the ele- by committing death both intoxication man- offenses, considering ments of the without involuntary manslaughter). slaughter and legislatively prescribed prosecution. unit of added). (emphasis Langs, 183 S.W.3d at 685 example, For if a defendant rams his car into situations, Langs provided example In both another car that contains an adult and a child explicitly ques- that the crime in assumed six, doing intentionally age under and so only victim. But the case before tion had one car, occupants kills the two of that other with the in which there are us deals situation capital defendant has committed a murder of multiple victims. least) (at the child and a murder of the adult. is, elements, Murder its a lesser-included Campbell murder, capital offense of and the defendant (smaller, different (Tex.Crim.App.2004) but act, engaged in that situation has one stash) (In drug determining whether an of- but that defendant has nevertheless commit- lesser-included, as fense must be submitted Judge ted two offenses. Cochran’s citation of statutory elements and "one must consider (Tex.Crim. Langs v. 183 S.W.3d 680 surrounding and circumstances to see if facts acts.”) (em- App.2006) unavailing if one looks at the full is criminal there are two distinct quotes phasis original). context of the statements she from alternative, section, although they appear do in the named similar- phrased (3) punishment ranges, chapter. exposure the same Indecent ly, or have common punishment range have a common focus has a lower than inde- the offenses whether (4) exposure a whether the common fo- with that would gravamen, cus, single being instance of be consistent with the former a less- any, if indicates conduct, er-included of the latter.56 The whether the elements could imputed under an titles of the statutes contain forms of the considered the same (liberalized liability Bloclcburger “indecency”— same word—“indecent” and theory of standard), legislative in one though whether the word is noun title and any light adjective on the matter.49 an in the other. These titles are history sheds analysis in Bigon, quite closely “manslaugh- an Ervin we as worded as Employing murder, felony manslaughter.” intoxication man- ter” and “intoxication held that (all manslaughter involving commonality There is some the focus of slaughter, victim) exposure indecency-with- the same were the “same” for Dou- the indecent in Bi- there Jeopardy purposes.50 striking ble We noted a-child offenses but manslaughter difference Both “na- gon that intoxication used as well. offenses are chapter all of the ture of appear in the same conduct” offenses that involve the framed as an same exposure. homicide offenses and was actus reus: But while way manslaughter.51 “exposure,” alternative to commit both offenses focus on the in- previously sug- deceney-with-a-child provision that we had also focuses explained We gested Chapter prose- in Ervin that the move to on a victim. The allowable units of different, largely housekeeping pur- 49 was cution for the offenses are poses.52 We also observed intoxi- the allowable unit for indecent manslaughter “manslaugh- being cation retained each and the allowable ter” in its title and was still considered a unit for child, explained being further each

homicide offense.53 We each The of- manslaughter that intoxication and murder fenses can be considered the same under a both the same focus on the death of an if Blockburger analysis had liberalized individual, the offenses were both will result- “who be offended or alarmed” element oriented, prosecu- the allowable unit of imputed per tion—one offense victim—was the “child” element of same, underlying by exposure. and that where the felo- And is a DWI,54 ny felony indecency murder was “it is lesser-included offense of with a 87.09, legislature hard that the to fathom intend- child under Article but drunk-driving only ed for one accident to result to the extent defendant’s in multiple culpable homicide convictions for each mental state embraces the same person recipient victim.”55 as the of the exposure. analysis Indecent with a An sug- under the Ervin factors are not in the same gests expo- that the offenses of indecent Ervin, Driving 49. at 814. 54. While Intoxicated.

50. 252 S.W.3d at 368-72. 55. Id. at 371-12.

51. Id. at 371. 21.08(b) (Class §§ 56. See Tex. Penal Code B Id.; Ervin, 52. see also 991 S.W.2d. at 816. misdemeanor), 21.11(d) (third degree felony). Bigon, 53. at expo-

sure RENDON, parte Applicant. Ex Frankie as the sure should be treated same culpable the extent the defendant’s No. AP-76352. mental state relates to same Appeals Court Criminal of Texas. the ex- recipient of the To mental culpable tent that a defendant’s Nov. persons to different as the state relates recipients the offenses different.

should be treated as

D. Conclusion us, appellant alleged-

In the case before

ly exposed public park, himself in a where present. two children were adult and appellant exposed pub-

Because himself

lic, conceivably any there were number of

persons to whom he could have been reck- himself, in exposing

less but there were

(apparently) only appel- two children that knowingly exposed

lant could have himself circumstances, appel-

to. Under these

lant’s maximum criminal was for

three two indecency offenses: children, in-

offenses for the two and one

decent offense because appellant

was reckless one other person least besides the

children. appeals

The court of held that the suc- prosecutions

cessive Jeop-

child were not barred the Double

ardy agree, I and I affirm Clause. would judgment appeals. of the court of I

respectfully dissent.

Case Details

Case Name: Ex Parte Amador

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 13, 2010

Citation: 326 S.W.3d 202

Docket Number: PD-1072-09

Court Abbreviation: Tex. Crim. App.