No. 05-07-01089-CR
Opinion Filed May 20, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 380th Judicial District Court Collin County, Texas, Trial Court Cause No. 380-805775-06.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
ELIZABETH LANG-MIERS, Justice.
Christopher Burnhardt Devore appeals the trial court's order denying the relief sought in his application for writ of habeas corpus to bar successive prosecution of two counts of indecency with a child. In one issue, he asserts the trial court erred in denying him relief because double jeopardy bars retrial of the lesser-included offense when he was found not guilty of the greater offense. We affirm the trial court's order.
Background
In one indictment, alleging six counts, appellant was charged with three aggravated sexual assault of a child offenses and three indecency with a child offenses. The jury was not charged on Counts I and VI of the indictment. The jury found appellant not guilty of Count II and reached an impasse on Count III, which was submitted as a lesser-included of Count II. The jury likewise reached an impasse on Count IV. The jury found appellant not guilty of Count V. The trial judge entered judgments of acquittal on Counts II and V and set Counts III and IV for retrial. Appellant filed an application for writ of habeas corpus asserting that retrial of Counts III and IV is barred by double jeopardy. Following a hearing, the trial court denied appellant the relief he sought. Standard of Review and Applicable Law
In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling absent an abuse of discretion. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App. 2006). We afford almost total deference to the court's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003) (per curiam), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App. 2007). We afford the same amount of deference to the trial court's application of the law to the facts if the resolution of the ultimate questions turns on an evaluation of credibility and demeanor. See Ex parte Peterson, 117 S.W.3d at 819. If the resolution of the ultimate questions turns on an application of legal standards, we review the determination de novo. Id. The Double Jeopardy Clauses of the United States and Texas Constitutions provide that no person shall be twice put in jeopardy of life or liberty for the same offense. See U.S. Const. amend. V; Tex. Const. art. I, § 14. Double jeopardy protects individuals from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Ex parte Cavazos, 203 S.W.3d 333, 336 (Tex.Crim.App. 2006). Analysis
Appellant contends the provisions of the United States and Texas Constitutions prohibiting double jeopardy bar retrial of a lesser-included offense of indecency with a child by contact when the defendant was found not guilty of the greater offense of aggravated sexual assault of a child. Appellant contends the indictment expressly identifies Count III as a lesser-included offense of Count II. He further argues that because retrial of Count III should be barred, so should retrial of Count IV. The State agrees that Count III is a lesser-included offense of Count II, but argues that retrial is not barred because the jury did not reach a factual resolution of Counts III and IV. The State further argues that Count IV alleged a different offense, whether appellant touched the complainant's breast with his hand, which was not resolved by the jury when it acquitted appellant of the acts alleged regarding the complainant's genitals in Counts II and V. We agree with the State. The law is well-settled that a conviction may be obtained for a lesser-included offense of the primary charge alleged in the indictment when the jury has rejected the greater offense. See, e.g., Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App. 2007). The law is equally well-settled that an acquittal of a greater offense does not bar prosecution of an offense that was presented to the jury as a lesser-included in the same proceeding. See, e.g., Hampton v. State, 165 S.W.3d 691, 694 (Tex.Crim.App. 2005). Because the jury did not reach a verdict on the lesser-included indecency with a child offense alleged in Count III, double jeopardy does not bar its prosecution. See Richardson v. United States, 468 U.S. 317, 326 (1984). As to Count IV, appellant argues double jeopardy bars retrial because it was part of the same course of conduct or criminal episode. We disagree. Count IV alleged indecency with a child by contact of the breast, a different offense that was not subsumed within any of the greater offenses charged. See Vick v. State, 991 S.W.2d 830, 833 (Tex.Crim.App. 1999). Consequently, Count IV is not jeopardy-barred. We resolve appellant's issue against him. We affirm the trial judge's order denying appellant the relief sought by the application for writ of habeas corpus.