*1 cannot of a motor vehicle use unauthorized vehicle, a operation mere rest on the indecency cannot with a child
conviction mere act of consensual
rest on the
intercourse. illegal
Operating per is a vehicle not se intercourse. consensual sexual
neither element age of the child “the crucial wrongful
separating legal innocence from Video, X-Citement
conduct.” gravamen of Because the at 469. indecency is the a child
the offense of must
age complainant, the defendant age to suffer knowledge of that in order liability.
criminal GOODBREAD,
Ex Alvin Sr. Walter
No. 1466-95. Texas, of Criminal
En banc.
March
individual,
punish
friends that
and convine-
such
she
Clearly,
designed
ingly
acts 17.
law
*2
an-
language of
initial indictment. We
the
question “no.”
swer that
Jeopardy purposes,
For
“[t]he
Double
same offense means the identical criminal
act,
offense
name.” Luna v.
same
(Tex.Crim.App.1973).
Moran, Houston,
appellant.
Tom
for
Luna,
that,
In
we held
one cannot
when
Roper,
Atty.,
Keli
pleadings
Pool
Asst. Dist.
Hous-
determine from the State’s
wheth
ton,
Paul,
Austin,
same,
Atty.,
prosecuted
Matthew
State’s
for
er the offenses
are the
proof
State.
court must look to the
offered at trial.
prosecutions
Id.
for
at 855. Luna involved
Id. The
in that
sale of heroin.
defendant
ON
OPINION
APPELLANTS PETITION
two
of
ease made
sales
heroin three
FOR DISCRETIONARY REVIEW
apart
the same individual. Id. He
months
to
KELLER,
for
was tried
one
sales
convicted.
Judge,
opinion
delivered the
of
McCORMICK,
prosecuted
The
later
him for the other
Court,
State
Presiding
in which
sale,
attempted
PRICE,
WOMACK,
plead
and the
Judge,
to
HOLLAND
prior
as a
bar to the
Judges, joined.
conviction
rejected
prosecution.
Id.
that
second
We
presents
The
at bar
a
case
double
despite the
that
second
contention
fact
issue. The State filed an initial indictment
offense could have been
under
committed certain
the first indictment:
acts of unlawful sexual conduct “on or about”
first
The fact that the indictment
precedent,
June
our
“on or
Under
a
support
case would
conviction for
about” means within the statute of limitations
case,
present
of heroin in the
sale
because
and before the return of
indictment. See
(Tex.Crim.
of limitations
both were within
statute
Sledge v.
to look to the
at trial to determine what
barred,
jeopardy
jeopar-
then to what has
is
OVERSTREET, J., dissents.
dy
proof
“attached”
is offered? After
before
J.,
MANSFIELD,
concurs in the result.
all,
jury
in a
we know
attaches
jury
empaneled
the moment
MEYERS,
concurring.
Judge,
Bretz,
E.g.,
sworn.
437 U.S.
Crist
(1978);
legal
prevailing
principle
L.Ed.2d
Ortiz v.
be remem-
(Tex.Crim.App.1996).
Jeop-
bered
cоntext is that the Double
majority
ardy
prohibit
suggesting
Is the
does not
Clause does not
generally
obtaining
be
cause the
failed to elect before
2. An "election” would
some action
jury’s
prosecution.
that excludes or limits the
consideration of
dismissal
example, by instructing
jury
offense: for
disregard
by limiting
pur-
the evidence or
reason,
analysis
Judge
For this
Baird’s
fails.
pose for
the evidence is offered.
things, jeopardy
Under his view of
would ulti-
mately
prosecution
bar
for a
re-
defendant’s
victim,
against
only
peated
but
the sаme
3. The State contends that
offense in
like offenses
occurring
statutory period.
complainant's testimony
during
all
the same
barred. But the of-
outcry testimony
surely wrong.
is also
be-
This is
fense
barred
indictments,
not,
Certainly
affirming
new
I
attach until
is offered?
concur
judgment
Appeals.5
enlightened
of the Court of
regard.
we
in this
but
view,
my
likely
In
most
attaches
BAIRD, Judge, concurring
dissenting.
to the indictment
all that can
known
case,
applicant seeks to
In this
point
for certain from its face at the
at which
indictments,
charge
all of
him with
jury
empaneled
in-
and sworn. For
assault,
dis-
stance,
jeopardy attaches
to the elements
jeopardy grounds.
agree
missed on
While
pled in
and factual matters
by digital pen-
sexual assaults
date,
any specific
not to
since the
State is
barred,
etration are not
I do believe
alleged.
not bound to
the date
See
sexual assaults
intercourse
(Tex.
*4
Sledge v.
I
jeopardy
oral
barred.
sex are
Crim.App.1997).
jeopardy
As
proceeds,
in
part
in
dissent
to the
concur
and
specifically
attaches
tо those offenses
more
judgment of the Court.
fit
the indictment
that otherwise
proof
Jeopardy may
is offered.2
I. The Facts
(or un-attached) by
further
narrowed
27, 1995,
January
appellant was indict-
On
particular
of a
offense on
State’s election
two-paragraph
ed
for the
in a
rely
it
which will
conviction.3
aggravated
assault in
offense of
sexual
Cause
I
explanation
While
be rea-
believe
paragraph
No.
The
685297.
first
may
I
logical,
sonable
be overlook-
fear
or
act of
“on
unlawful
sexual
intеrcourse
ing
problem.4
á
If
tidier resolution of this
paragraph
1991.” The second
about June
however,
one,
majority
there is
does not
of oral sex “on or
an unlawful act
point to it.
1,1991.”1
about June
for trial.
agreeing jeopardy
in
No. 685297 was then called
Otherwise
attached
Cause
complainant
The
that sometime
case to the two instances of con-
testified
instant
1991, appellant
acts
previous
committed the
duct offered
the State at
paragraph
in each
of the indictment.
and in the absenсe of evidence that
However,
was dismissed on the
those instances will be
under the
cause
dismisses, waives,
might
portion of
precisely
jeopardy
or abandons
2.
It
be more
stated
State
sense,
attaches,
already
jeopardy
after
had
attached
a broad
but
relitigating
allegations).
specific
later
those
incident to which it attached becomes
barred from
upon
more clear
trial.
may
suggested
jeopardy
previously
4.
I have
words,
In other
"un-attaches” to
3.
certainly,
concеivably,
anything
attach to
but not
those offenses which would otherwise fall within
indictment,
terms
but I now
within the
designated
terms
overly
view
Proctor
conclude this
is
(Meyers,
broad. See
as
It
attached to the offense
extraneous.
remains
Lemell,
J.,
concurring)(sug-
at 3-4
and
gesting
as the one
which it will
the State "elects”
alleging
about”
that indictment
"on or
jeopardy may
seek a conviction. The notion
places
jeopardy for
such
defendant in
novel.
“un-
attach and un-attach
The
statutory
applicable
period).
offеnse within
however,
should,
attaching”
remain
except
largely
defendant
within the control of the
new
5. The Court of
held
thirteen
extraordinary
circumstances.
Brown
Cf.
barred “because
indictments
(Tex.Crim.App.1995)(jeop-
they
and not
each refer
a
occurrence
ardy
retrial when
essen
does not bar
subject
of the dis-
to the occurrence made
requesting
tially
mistrial
when
waives it
premature.
It
conclusion is
missed trial.” This
reason,
necessity).
For this
it
there manifest
of the thir-
cannot be ascertained from
faces
right
be a
to be
would
that election should
seem
specific occurrences
new indictments what
teen
words,
only by In other
asserted
defendant.
reason, appellant
to.
fails
are referred
For this
elect,
forced
and thus un-
the State can be
majority
does not
a
bar. The
(to
only upon objection
jeopardy,
evidence
attach
Appeals' opinion,
other
mention
(for election)
extraneous)
request
as
and/or
say
judgment
its
is “affirmed.”
than
State,
review was review (Tex.Cr. State, Hill 544 v. S.W.2d 413 of that decision. (“[t]he App.1976) is not bound II. Indictments date on or about which offense is may a been committed and conviction is: question The first be answered What com be had offense was charged when an indict- is a defendant with any prior at time return of mitted alleges was committed ment 4 period limi is within particular Appellant “on or about” a date? State, tation.”); Ellis Tex.Crim. alleges contends when an indictment (1958) (“[t]he general that an offense was committed “on about” rule is that state is bound date, charged a certain a defendant is allegation of ‘on or in an indictment as about’ and all offenses described offense, the date commission present- to the indictment which anterior may rely upоn any period date within the that indictment and within statu- limitation.”). tory period agree. of limitations. long- recently, Most we reaffirmed this It is that an accused be tried fundamental State, standing Sledge rule charged for the which he is offense with (Tex.Cr.App.1997), where held that we being generally. not for a criminal Owens v. alleges when an indictment that an offense (Tex.Cr.App.1992). date, a “on or about” certain committed this, “[a]n Because rely upon State can offense[,]” charge more than one Leal v. specifically alleged. date other than the one (Tex.Cr.App.1989), Id., pg. only requirements Again, allege single, and the State must present- are that the date anterior specific O’Neal v. transaction. *6 statutory the ment of within the 769, (Tex.Cr.App.1988). Howev S.W.2d 771 period, limitation that the offense relied er, long the in that rule this State has been description otherwise the of the meets allege, need not nor does the an indictment Id., at offense contained in the indictment. prove, the State need to that offense pp. 256-257. See, specifiс committed on a date. Tex.Code 21.02(6) (Vernon 1989). Additionally, Proc. Ann. art. recent decision Crim. another Rather, alleged proved only clearly question. this also answers the date or has (Tex.Cr. State, the In v. 740 presentment to be anterior to of the Rankin 953 S.W.2d App.1996), period charged within of limita the indictment and the defendant See, State, 486, possession v. At the State tions. Lemell 915 S.W.2d cocaine. (“the co that a rock of crack (Tex.Cr.App.1995) 489 State need not introduced evidence pleading long in found of the prove the date the so caine was in the back seat police transported the that the car in which Rankin was as at shows offense applicable being and his pe occurred within the limitations after arrested. Both Rankin riod.”) Scoggan in while had (emphasis original); v. wife then testified that Rankin State, day, (Tex.Cr.App. possessed crack earlier the n. 3 cocaine S.W.2d 1990) (“[t]he possess any he at the time he was State is not bound the date did not conviction, Following may prove police car. the indictmеnt and before, on, jury could appealed, arguing offense or after Rankin an was committed possession to guilty not him of the alleged, long proved date so as the date find [the] admitted because it was an extra presentment is a date anterior to of the he Id., pg. at disa- the crime’s occurrence is not neous offense. 741. We indictment and question encompasses single as appellant’s Whether a indictment serve 4. This first and grounds charging involving second for review: instrument for trials charge allegations statutory spe- discrete viola- an must two 1. Whether indictment cific act or omission which constitutes tions. is criminal offense or whether it sufficient alleges simply if it elements an of- fense in the abstract. holding greed, possession prior present- to which offenses which occurred to the of the indictment within limita- not an of- ment Rankin admitted was extraneous period, tions is therefore charging fense because it was “shown placed any Id., all Hence, papers.” pg. at Rankin was period. committed within that time offеnses subject being any convicted act agree. al- omission which constituted the offense Thus, an leged charging papers.” “in the Both the United States the Texas any will a conviction for protect an accused Constitutions from a sec general description act which falls within its prosecution the same after ond offense, regardless of the date See, acquittal or conviction. Const. committed.
“on or about” it was V; I, 14; § Tex. amend. Const. art. North Pearce, 711, 717-19, Carolina 395 U.S. by Sledge, Rankin This case contrоlled Preston, (1969); parte Ex long preceded and the line of cases which (Tex.Cr.App.1992). 833 S.W.2d These them. because protections designed prohibit by the about” in an indict- bound “on or date State, resources, power all its from ment, any covers and all of- repeatedly attempting convict an individu fenses described in the indictment which are State, al for an offense. Proctor v. alleged to have been committed before (Tex.Cr.App.1992). This is so of the indictment and the limi- return within because we do wish the State period. statutory period limi- tations citizens, power harass nor do we wish tations for the offense of gain any advantage repeated State to See, 10 years. assault Crim. Tex.Code this, attempts prosecution. Id. Because 12.01(2)(D) 12.03(d) Proc. Ann. art. art. long in this recognized has been State that it (Vernon Thus, Supp.1997). when an indict- charge criminal dismissed ment, case, alleges such as one in this may not after attaches be retried. “on or about” date for commission (Tex. Sanchez assault, of aggravated also, Proctor v. Cr.App.1992). See statutory period encompasses of limitations Preston, 517; supra; Ex 833 S.W.2d at year period prior presentment the ten to the Garza v. 154-155 of the indictment. State, 589 (Tex.Cr.App.1982);McElwee v. *7 in No. Appellant’s indictment Cause Scelles, 455, 460 (Tex.Cr.App.1979);Ex 27, 1995; presented January 685297 was on 300, (Tex.Cr.App.1974). period alleged thus the of limitations for the in In this case the indictment Cause year pri- encompassed period offense the ten of in- alleged an unlawful act sexual 27, Therefore, January or to in Cause an act of oral sex “on tercourse and unlawful any charged was appellant No. 685297 1, previous 1991.” Under about aggravated of sexual and all of offenses therefore, discussion, charged the indictment assault described indictment which alleged any all of appellant with any period. year time within that 10 occurred in the indictment which described offenses January 25, any time occurred between Jeopardy III. Double returned) (the was the indictment date (10 25,1985 years question January The second is: What is defen- date returned). Therefore, placed jeopardy in of when an indict- when dant is indictment appellant for attempted convict alleges that an offense was committed the State assault, ap- aggravated sexual Appellant date?5 offense of or about” a certain “on any of- placed jeopardy in for charges pellant that because contends assault committed alleged aggravated sexual any all fense of a defendant jeopardy placed all in for encompassеs appellant’s that defendant is question third This charged by ground be the indict- for review: offenses could Whether, ment. court when the trial allows original.) (Emphasis of- place a for charged by fense can be by Therefore, either sexual penetration). intercourse or oral finger (digital sex which lant’s Thus, period. occurred within that time I aggravated the offenses of sexual assault would hold is barred from further digital require penetration proof of an addi- re-litigating the of whether appellant issue tional not rеquired fact which is committed an of unlawful act sexual inter- Hence, either sexual intercourse or oral sex. course or an act of oral unlawful sex with the portions those the nine of “new” indictments complainant in period January between allege appellant aggravated which committed 27,1985, 27,1995. January by digital penetration not sexual assault See, Blockburger v. United barred.
IV. “New” Offenses States, 180, 76 L.Ed. 284 U.S. (1932). However, inquiry. this does not end the opinion, As noted in I of this nine of the allege appellant thirteen “new” indictments Conclusion V. aggravated committed the of sexual reasons, portion I For these concur by digital penetration. assault acts of These judgment of this affirms Court’s which digital penetration not were judgment of held of the Court original in Cause No. 685297. by digi- assault offenses it must be determined whether penetration tal barred permitted prosecute ap- the State will be judg- portion Court’s dissent to that digital pellant for offenses of judgment affirms the ment which penetration. alleged of- Appeals which held the Court of stеp analysis is The first in this to decide intercourse fenses assault of sexual appellant
whether should barred. and oral sex are the “same offense” if the State allowed proceed prosecution of with the acts sexual assault
by digital penetration. v. Dix- United States
on,
118 S.Ct.
2855-
509 U.S.
(1993).
inquiry
begins with the elements instruments, penal rather than the
charging Perez, provisions. State v. Appellant, HULSHOUSER, Darrel (Tex.Cr.App.1997). Examination 270-271 No. 685297 and the indictment in Cause appel- charge nine “new” indictments Texas, State. The STATE aggravated sexual lant with No. 2-97-049-CR. digital appel- penеtration reveal assault *8 charged with the “same has not been lant Texas, offense.” Fort Worth. al- The indictment in Cause Feb. the female sexual leged appellant penetrated own sexual organ complainant Discretionary Refused Review (sexual intercourse) appellant organ May organ of com- caused the female sexual appellant’s mouth plainant to contact sex).
(oral However, allega- nine “new” penetration require digital
tions of penetrated the female appel- complainant organ Nos. indictments are
6. These 688966, 688964, 689226 and