Vick v. State
Vick v. State
Concurring Opinion
delivered this concurring opinion, joined by MANFIELD and JOHNSON, J.J.
I write to further explain why application of a Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), analysis is not necessary here.
The Supreme Court in Blockburger said its analysis should be applied “where the same act or transaction constitutes a viola
With these comments, I concur.
. The majority explains such analysis is not necessary "because the offenses at issue involve separate acts” and because "the precondition for employing the test (that the two offenses involve the same conduct) is absent.” Majority opinion at 833.
. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provisions requires proof of a fact which the other does not.
Blockburger, 284 U.S. at 304, 52 S.Ct. 180.
. Of course, if it were alleged that any of the acts within the transaction were actually the same (were not separate and distinct) and were being utilized to support alleged violations of two distinct statutory provisions, a Blockburger analysis would be in order as to those acts.
Opinion of the Court
OPINION
delivered the opinion of the Court
The question in this case is whether double jeopardy protection under the constitutions of Texas and the United States applies to prevent multiple prosecutions based on alleged violations of the same statute during the same criminal transaction. Appellee was tried and acquitted of aggravated sexual assault. He was then indicted for aggravated sexual assault based on the same transaction, but different manners of committing the offense were alleged. The trial court granted ap-pellee’s motion to dismiss the indictment based on appellee’s argument that he had already been tried and acquitted of the same offense.
The Court of Appeals upheld the trial court’s decision that double jeopardy barred the second prosecution. State v. Vick, No. 07-97-0155-CR, 1998 WL 5771 (Tex.App.—Amarillo, delivered January 9, 1998). This Court granted the State’s petition for discretionary review to address that decision.
Appellee was tried and acquitted of aggravated sexual assault based on an indictment alleging that on or about June 25, 1994, he “cause[d] the penetration of the female sexual organ of [the child victim], by defendant’s sexual organ.” Appellee was then indicted for aggravated sexual assault based upon the same transaction as the previous indictment, but it was alleged, inter alia, that appellee (1) “cause[d] contact of the female sexual organ of [the child victim] by [appellee’s] sexual organ,” and (2) “caused[d] the female sexual organ of [the child victim] to contact the mouth of [appellee].” The trial court granted appellee’s pre-trial motion to dismiss the indictment based on double jeopardy grounds because the second indictment charged the same offense for which appel-lee had been tried and acquitted.
I. COURT OF APPEALS’ DETERMINATION
The Court of Appeals began its discussion by stating that the Fifth Amendment to the United States Constitution and Article 1, § 14, of the Texas Constitution describe double jeopardy in terms of the same “offense” rather than the same “transaction.” The court rejected reliance on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) as the applicable test to determine whether appellee was prosecuted twice for the
The State’s Petition for Discretionary Review challenges the Court of Appeals’ determination as it relates to the second count of the subsequent indictment. We find that the Court of Appeals erred in its rationale and conclusion as to that count.
II. ANALYSIS
Whether appellee may be subjected to multiple prosecutions under Texas Penal Code § 22.021 requires a statutory analysis to determine whether the Legislature intended multiple prosecutions. This is unlike a situation involving different statutes, which, by itself, is some indication of legislative intent to authorize multiple prosecutions simply because the offenses are separately defined in different statutes. In the instant case, we must first discern legislative intent in order to ascertain whether appellee’s alleged conduct violates two distinct statutory provisions within one statute. See Vineyard v. State, 958 S.W.2d 834, 837, 840 (Tex.Crim.App. 1998); Watson v. State, 900 S.W.2d 60, 63-67 (Tex.Crim.App. 1995)(Clinton, J., concurring); Iglehart v. State, 837 S.W.2d 122, 127 (Tex.Crim.App. 1992). “This preliminary determination is necessary because, although this Court is bound by decisions from the United States Supreme Court in interpreting the scope of the Double Jeopardy clause of the United States Constitution, the determination of what constitutes an ‘offense’ is largely a matter of state law.” Iglehart, 837 S.W.2d at 127. This Court also noted that “[t]he Legislature has the power to establish and define crimes [and] few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses.” Iglehart, 837 S.W.2d at 127 (internal citations and quotation marks omitted).
Article 22.021 of the Penal Code as applicable in this case, provides:
(a) A person commits an offense:
(1) if the person:
(B) intentionally or knowingly:
(i) causes the penetration of the anus or female sexual organ of a child by any means;
(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or [emphasis added]
(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; and
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(2) if:
(B) the victim is younger than 14 years of age.
Article 22.021 is a conduct-oriented offense in which the legislature criminalized very specific conduct of several different types. Also, the statute expressly and impliedly separates the sections by “or,” which is some indication that any one of the proscribed conduct provisions constitutes an
In the instant ease different conduct was charged in separate indictments as separate offenses. Appellee was initially charged with penetration of the child’s female sexual organ by his sexual organ under section (i). The pertinent part of the second indictment alleged that appellee contacted the child’s sexual organ with his mouth under section (iii). The penetration offense alleged in the first indictment clearly required a separate and distinct act (involving appellee’s sexual organ with the child’s female sexual organ) from the act alleged in the second indictment (which involved appellee’s mouth with the child’s sexual organ). In this case the second indictment alleged that appellee caused the child’s sexual organ to contact his mouth. That conduct constituted a separate and distinct statutory offense from the alleged penetration of the child’s sexual organ by appellee’s sexual organ, despite the fact both are violations of a single statute. See Cochran v. State, 874 S.W.2d 769 (Tex.App.—Houston [1st Dist.] 1994, no pet.); David, 808 S.W.2d at 289.
Our determination that the two indictments alleged violations of separate and distinct statutory aggravated sexual assault offenses and that those alleged offenses involved separate and distinct acts ends the inquiry for double jeopardy purposes. The Blockburger test serves as a jeopardy bar only in prosecutions of multiple offenses arising from “the same act or transaction” under certain circumstances. 284 U.S. at 804, 52 S.Ct. 180. And; that test is simply a tool with which to evaluate whether the Legislature intended multiple punishments. Missouri v. Hunter, 459 U.S. 359, 366-368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Here, we have already determined that the Legislature intended to punish separate acts, even though such acts might be in close temporal proximity; that is, the Legislature, through the language of the statute, has rejected grouping aggravated sexual assaults by “transaction.” Because the offenses at issue involve separate acts, we need not determine whether those offenses would be considered the “same” under the Blockburger test because the precondition for employing the test (that the two offenses involve the same conduct) is absent.
Appellee can be separately prosecuted for the two alleged offenses. Therefore, acquittal of the first charge does not prevent prosecution for the second charge. Accordingly, the judgments of the trial court and Court of Appeals are reversed as to the second count of the indictment and the case is remanded to the trial court.
. Were we to apply Blockburger, the result would be the same. The Blockburger test is whether each offense requires proof of an additional fact which the other does not. Blockburger, 284 U.S. at 304, 52 S.Ct. 180. See United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)(reaffirm-ing Blockburger test). When each offense re
. The State did not, in its petition, challenge the lower courts' rulings regarding the first count of the indictment (contact with the defendant's sexual organ), and we do not disturb their rulings relating to that count. Had we been required to address the issue, a persuasive argument could be made that jeopardy would indeed bar the first count because that count involved the same conduct subject to the earlier prosecution and contains an identity of elements under Blockburger. An allegation of "penetration” of the sexual organ overlap an allegation of "contact” of the sexual organ because penetration of the genitals necessarily includes contact. Cf. Cunningham v. State, 726 S.W.2d 151 (Tex.Crim.App. 1987); Day v. State, 532 S.W.2d 302 (Tex.Crim.App. 1976). That issue, however, is not before us.
Reference
- Full Case Name
- James Lee VICK, Appellant, v. the STATE of Texas
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