Vick v. State
991 S.W.2d 830
Tex. Crim. App.
1999
Check Treatment

*1 830

no appellee assertion to a right trial,

speedy any prejudice

wаs “minimal.” We decide govern did violate to a right

speedy Doggett, trial. See 505 U.S. at

655-57, 2692-93, S.Ct. 112 at 120 L.Ed.2d 531-32; Barker, 533-37,

at 407 U.S. at 92 2193-95, 119-20;

S.Ct. at 33 L.Ed.2d at 47-49,

Dickey, 398 U.S. at 90 S.Ct. at

1574-75, (Brennan, J., 26 at 38 L.Ed.2d And,

concurring). expressly disap

prove Melendez the extent it is inconsis

tent opinion. with this

Having decided all issues fairly present-

ed in the petitions discretionary review to an intelligent resolution claim,12

of appellee’s speedy trial we re- judgment

verse the of Ap-

peals and remand the case to trial

court with instructions reinstate the in-

dictment.

MEYERS, JOHNSON, JJ„ PRICE and

concur in the result. VICK, Appellant,

James Lee

The STATE of Texas.

No. 367-98.

Court of Criminal of Texas. 24, 1999.

Feb. Sullivan, 335, 2193, 12. See 532-33, Cuyler 446 U.S. 33 92 S.Ct. (1980); (Barker 1715 fn. L.Ed.2d are "related” L.Ed.2d at 118 factors Terrazas, together Vance v. 100 S.Ct. "must be considered Barker, relevant”). (1980); may be 544 fn. L.Ed.2d other circumstances *2 assault aggravated

indicted for transaction, differ- but on the same based the offense committing ent manners ap- granted trial court were alleged. pellee’s ‍‌​‌​​​​​‌​​‌​‌‌‌‌​‌‌​​​‌‌​​‌‌​‌​‌‌​‌‌‌‌​‌​​‌​‌‌‌‍motion to dismiss that he had argument on appellee’s based already acquitted tried and been same offense. trial Aрpeals upheld

The Court jeopardy court’s that double decision State v. prosecution. barred the second Vick, 07-97-0155-CR, No. 1998 WL 9, January (Tex.App. Amarillo, delivered — 1998). pe the State’s granted This Court discretionary tition review to address that decision. acquitted of

Appellee ag- was tried and gravated based on an indict- sexual assault 25, alleging that on or about June 1994, he of the “cause[d] victim], female sexual child [the by organ.” Appellee defendant’s sexual aggravated was then indicted for upon assault transaction as based same indictment, alleged, it previous but was (1) alia, con- appellee inter that “cause[d] [the tact the female sexual by organ,” child [appellee’s] victim] (2) the female “caused[d] mouth child to contact the [the victim] granted court [appellee].” The trial Holder, Lubbock, Floyd D. for appel- motion to dismiss the appellee’s pre-trial lant. jeopardy on indictment based double the second indictment grounds because Horn, Jeffrey L. First Van Asst. State’s charged appel- same offense for which Austin, Paul, Atty., Matthew for the State. acquitted.

lee had been tried and OPINION I. OF COURT APPEALS’ KELLER, J., the opinion delivered DETERMINATION McCORMICK, P.J., Court which Appeals began The Court of its discus WOMACK, PRICE, HOLLAND, by stating Amendment sion Fifth KEASLER, JJ., joined. and Arti United States Constitution § in this is whether cle the Texas Constitution de question jeopardy under con- scribe double terms jeopardy protection double the United States same “offense” rather than the same stitutions of Texas and rejected “transaction.” The court reliance applies prevent prosecutions States, Blockburger of the same v. United 284 U.S. based on violations (1932) criminal transac- 76 L.Ed. during statute acquitted applicable test determine whether Apрellee tion. was tried prosecuted was twice for the sexual assault. He then was According same offense. to the Court of curring); Iglehart 837 S.W.2d Appeals, Blockburger was be inapplicable (Tex.Crim.App.1992). prelimi “This the instant nary cause case concerned one statu determination is because, offense, tory and the test is although this Court is bound decisions used to evaluate whether the same act or from United States Supreme Court in *3 transaction a of constitutes violation two interpreting scope the of the Double Jeop Instead, statutory provisions. distinct ardy clause of the United States Constitu Appeals tion, of relied its own decision determination what constitutes case, State, joinder in Sperling a v. largely 924 an ‘offense’ is a matter of state 722 (Tex.App. pet. S.W.2d Iglehart, law.” 837 S.W.2d at 127. This — Amarillo 'd). ref Based on Sperling, the court cоn Court also Legislature noted “[t]he that aggravated cluded sexual assault to power has establish and define offense, one few, which contains several statu crimes if any, [and] limitations are tory alternative ways committing imposed by Double Jeopardy Clause Vick, op. offense. at 5. slip The court on the legislative power to define of determined that (in these alternative ‍‌​‌​​​​​‌​​‌​‌‌‌‌​‌‌​​​‌‌​​‌‌​‌​‌‌​‌‌‌‌​‌​​‌​‌‌‌‍methods Iglehart, fenses.” S.W.2d merely offenses but are ternal quotation citations and marks omit ted). different methods of commission one offense, which may be in one in Article 22.021 the Penаl Code as and dictment the State need not be elect case, in applicable provides: this Appeals tween methods. Id. Court of (a) A person commits an offense: disagreed opposite result reached (1) if person: (Tex. in v. David 808 S.W.2d 239 (B) intentionally knowingly: or App. Dallas, nо pet.). — (i) penetration causes the anus The State’s Petition for Discretionary organ or female by any of a child challenges

Review the Court Appeals’ means; determination as it relates to the second (ii) the penetration causes of the count of the subsequеnt indictment. We by mouth of a organ child the sexual find that the Court of erred its actor; rationale and conclusion as to that count. (iii) organ causes the sexual of a child II. mouth, ANALYSIS anus, to contact or penetrate the person, or sexual of another organ in- subjected Whеther appellee actor; cluding the [emphasis or added] multiple to prosecutions under Texas Pe (iv) § nal requires Code statutory 22.021 a causes the anus of a child to con- mouth, Legisla anus, determine whether the tact the organ or sexual prosecutions. ture intended multiple actor; person, This another including the involving unlike situation different statutes, which, itself, by is some indication of legislative intent to authorize (2) if:

prosecutions simply because the offenses (B) the is younger victim than 14 are separately defined in stat different age. years case, utes. In thе instant we must first discern legislative in order intent to ascer Article 22.021 is a conduct-oriented offense tain appellee’s alleged whether vi conduct in which the legislature very criminalized olates two statutory distinct provisions specific conduct of several different types. Stаte, Also, within Vineyard one statute. See expressly impliedly statute 834, 837, “or,” 840 (Tex.Crim.App. by S.W.2d the sections which separates 1998); any pro- Watson S.W.2d 63-67 some indication that ( J., con Tex.Crim.App.1995)(Clinton, provisions scribed conduct constitutes an distinct act clearly required compelling A more demonstra- offense. organ with the appellee’s sexual (involving in the legislative intent is reflected tion organ) from the act female sexual sec- child’s prohibited the four specific conduct (which (i) alleged in the second indictment case. applicable tions this Section mouth with child’s involved of a male or female penetration prohibits this the second organ). or the sexual of a female child’s anus alleged that caused focus is on child. The his mouth. contact child’s sexual genital area. Somewhat related is child’s That conduct constituted (ii), prohibits penetration of section which the alleged offense from distinct by the child’s mouth the defendant’s of the child’s sexual (i) (ii) section and section organ. Both *4 fact organ, despite sexual the child, penetration of the one focus- concern of a statute. See single both аre violations area, on the and the other on ing genital (Tex. 769 874 Cochran S.W.2d (iii) contrast, In and the mouth. sections 1994, no App. pet.); [1st Dist.] (iv) and contact of an- penetration address — Houston David, 289. S.W.2d at 808 fashion, by in other a sexual the sexual or of the child. The statute anus that the two in Our determinаtion many sexually assaul- types criminalizes alleged separate dictments violations Yet, a conduct with child. each sec- tive and distinct separate entails different and usually tion that those of alleged assault offenses and various, prohibited acts to the con- commit distinct acts separate fenses involved legisla- reflects specificity duct. This inquiry jeopardy pur ends the for double separately distinctly ture’s intent Blockburger test serves as poses. The any act criminalize which constitutes the only prosecutions in multi jeopardy bar conduct. An proscribed offense is com- or arising from “the same act ple offenses any when a commits one plete person certain circumstances. transaction” under sum, proscribed acts. In Sec. 22.021 is And; that 52 S.Ct. 180. statute; it a conduct-oriented uses con- simply test a tool with which еvaluate is junctive distinguish separate “or” to Legislature whether the intended conduct; different and its various sections Hunter, 459 punishments. Missouri define in specifically ways sexual conduct 366-368, U.S. S.Ct. usually require that different and distinct (1983). Here, we have al L.Ed.2d 535 acts to commit. These considerations leаd ready Legislature in determined that the Legislature us to conclude that the intend- acts, separate even punish tended to that separately ed each described conduct close though might tempo such acts be in separate statutory constitutes a offense. is, Legislature, proximity; ral that statute, has language through the instant ease different con as ‍‌​‌​​​​​‌​​‌​‌‌‌‌​‌‌​​​‌‌​​‌‌​‌​‌‌​‌‌‌‌​‌​​‌​‌‌‌‍aggravated sexual charged separate rejected grouping was in duct indictments of Because the by “transaction.” separate Appellee offenses. was initial saults acts, wе issue involve charged of the child’s fenses at ly those need determine whether offenses organ by female (i). considered the “same” under pertinent part of would be under section The precondition alleged appellee Blockburger test because the second indictment (that the of test two employing child’s with his for contacted the conduct) (iii). abs involve the same section fenses mouth under in first alleged ent.1 offense Blockburger, Blockburger, apply U.S. 52 S.Ct. Were the result Dixon, 688, 113 Blockburger test See States v. would be the same. The United (1993)(reaffirm- requires prоof of 125 L.Ed.2d 556 whether each offense an test). re- ing Blockburger each offense When fact which the other does not. additional Appeals’ Court of Appellee erroneous can be separately prosecuted joinder Therefore, principles

relianсe deserves for the two offenses. law, Under acquittal mention. current the State first does charge not pre- indictment, may, in allege one prosecution charge. alternative vent the second legal Accordingly, judgments theories for one offense. the trial Hathorn v. court and reversed S.W.2d 101 (Tex.Crim.App. 1992). done, as to the count second may If this is the State ob and the to the trial remanded only tain one conviction based on that in court.2 dictment. The charge sep State also indictments,

arate offenses in However, as in instant case. MEYERS, J., concurring filеd opinion join State can also offenses MANSFIELD, JOHNSON, in which indictment, as long as the offenses arise joined. JJ. out of the same criminal episode, as de fined Chapter MEYERS, J., 3 of the concurring Penal Code. delivered this 21.24, Article joined by Texas Code of Criminal MANFIELD and opinion, Pro JOHNSON, cedure. In the сharge context like J.J. *5 assault, aggravated may sexual which en why explain applica- I write to further compass separate and different assaults States, Blockburger tion of a v. United transaction,

within the same as in the in (1932), 76 L.Ed. 306 case, stant an indictment containing alter analysis necessary Once is nоt here.1 we native legal theories present some legislature have determined the intended question toas it charges separate whether to and distinct provide separate for several merely offenses or legal alternative theo statutory within 21.021 and offenses аrticle ries. Article requires 21.24 allegation we are with an not confronted offenses, counts for which should by the supported that these offenses are ‍‌​‌​​​​​‌​​‌​‌‌‌‌​‌‌​​​‌‌​​‌‌​‌​‌‌​‌‌‌‌​‌​​‌​‌‌‌‍be one method of delineating separate of act,” “same need no further conduct fenses legal from alternative theories. Be analysis, these despite fact that acts all cause one transaction of occurred within “same transaction.” assault can result in the commission of offenses, separate statutory the Court of Supreme Court in said Appeals erred in reasoning its and rеliance analysis its “where the applied should on Sperling in this case. same act or transaction constitutes a viola

quires proof of an element that the other argument does jeopar suasive could be made not, multiple prosecution is not barred. In dy would bar count indeed the first because requires this case each proof of an subject that count conduct involved element the other not. does The first indict- prosecution to earlier and contains an required prove to State identity Blockburger. An elements under organ by appel- the child’s female sexual allegation "penetration” of the sexual or (basically genital geni- lee’s sexual to gan allegation overlap "contact” an act); tal required second indictment geni because prove appellee State to сaused the female necessarily tals includes contact. Cf. Cun (mouth to contact mouth to (Tex.Crim. ningham v. 726 S.W.2d 151 act). genital genital genital pen- Proof of to App.1987); Day v. S.W.2d 302 proof genital etration is distinct from issue, however, (Tex.Crim.App.1976). That requires mouth contact each proof because not before us. an element the other not. does not, majority explains is not petition, challenge The State did in its rulings at issue in- regarding lower courts' "because offenses the first (contact precon- count of volve acts” and because "the with the de (that orgаn), employing dition for the test the two fendant's we do not dis conduct) rulings relating turb their that count. Had offenses involve the same absent.” issue, required per Majority we been opinion address the at 833. statutory provisions.2 tion of two distinct appears to fall blush this case

At first involving the purview

within its —as constituting] a vio trаnsaction “same ... statutory two provisions.”

lation of distinct actually in here

But our consideration comprised vio

volves one transaction statutory provisions.

lation of two distinct from the “same significantly

This differs subject scenario to Blockbur-

transaction” type of Blockburger envisions the

ger. which amounts the whole

“transaction” words, than one offense. other to more (the taken as a whole en

the transaction action) acts or

tire series of course violations. multiple statutory

amounts to contrast,

By the transaction in this case acts,

comprised separate and distinct which violate distinct

each of

provisions.3 comments, these I concur.

With *6 YOUNG,

Muhammad Lutharius

Appellant, STATE Texas.

No. 112-98. Texas,

Court Criminal

En Banc.

April course, any of the alleged that Of if it were applicable rule that where the same 2. The actually violation of were or transactiоn constitutes a the transaction act acts within distinct) statutory provisions, (were the test two distinct separate and applied ‍‌​‌​​​​​‌​​‌​‌‌‌‌​‌‌​​​‌‌​​‌‌​‌​‌‌​‌‌‌‌​‌​​‌​‌‌‌‍whether there to determine alleged viola- being support were utilized one, only is whether each two offenses or statutory provisions, a two distinct tions of fact which provisions requires proof of a be in order would not. the other does those acts. Blockburger, 52 S.Ct. 180.