Ex Parte Goodbread

967 S.W.2d 859, 1998 Tex. Crim. App. LEXIS 46, 1998 WL 131250

• Court: Court of Criminal Appeals of Texas
• Decided: March 25, 1998
• Docket: 1466-95
• Status: Published

Opinions

OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge,

delivered the opinion of the Court,

in which McCORMICK, Presiding Judge, PRICE, HOLLAND and WOMACK, Judges, joined.

The case at bar presents a double jeopardy issue. The State filed an initial indictment that alleged that appellant committed certain acts of unlawful sexual conduct “on or about” June 1, 1991. Under our precedent, “on or about” means within the statute of limitations and before the return of the indictment. See Sledge v. State, 958 S.W.2d 253 (Tex.Crim.App.1997). At trial, the State offered the complainant’s testimony concerning conduct occurring in June of 1991.¹ Later, the State offered outcry witness testimony for an outcry occurring in April of 1991 — before the conduct to which the complainant had testified. The cause was subsequently dismissed on the State’s motion. The State then obtained thirteen new indictments, with offense dates ranging from June 10, 1990 to April 1, 1994. Some of the new indictments describe offenses supported by language in the initial indictment, i.e. the same statutory offense, the same type of conduct, and dates, within the statute of limitations. The question is whether prosecution upon the initial indictment creates a double jeopardy bar to prosecution upon the subsequent indictments merely because the subsequent indictments would support convictions for offenses that would also have been supported under the language of the initial indictment. We answer that question “no.”

For Double Jeopardy purposes, “[t]he same offense means the identical criminal act, not the same offense by name.” Luna v. State, 493 S.W.2d 854 (Tex.Crim.App.1973). In Luna, we held that, when one cannot determine from the State’s pleadings whether the offenses prosecuted are the same, the court must look to the proof offered at trial. Id. at 855. Luna involved prosecutions for sale of heroin. Id. The defendant in that ease made two separate sales of heroin three months apart to the same individual. Id. He was tried for one of the sales and convicted. The State later prosecuted him for the other sale, and the defendant attempted to plead the prior conviction as a jeopardy bar to the second prosecution. Id. We rejected that contention despite the fact that the second offense could have been prosecuted under the first indictment:

The fact that the indictment in the first case would support a conviction for the sale of heroin in the present case, because both were within the statute of limitations of three years, does not prevent the prosecution in the instant case. The controlling factor is the proof that they were different offenses. Id.

While Luna contemplated a single offense per indictment, we have also recognized the State’s ability to place a defendant in jeopardy for multiple offenses by failing to elect after presenting proof of multiple instances of conduct that conform to the indictment:

If evidence of more than one offense is admitted and a conviction for either could be had under the indictment, and neither the State nor the court elects, a plea of former conviction is good upon a prosecution based upon one of said offenses, it being uncertain for which one the conviction was had.

Walker v. State, 473 S.W.2d 499, 500 (Tex.Crim.App.1971). But, as Walker provides, Double Jeopardy bars only offenses for which proof was offered at trial.

Hence, under Luna and Walker, trial upon an indictment does not bar every offense that could be prosecuted under its language; instead, trial upon the indictment bars prosecution only for offenses for which proof was offered at trial. And even for the latter category, the State or the trial court can exclude an instance of conduct from the jeopardy bar through an election.²

When an indictment permits the State to obtain only one conviction, a defendant is not placed in jeopardy for more than one criminal act unless the State offers multiple instances of conduct in support of the indictment. Every instance of sexual assault is a separate crime and may be prosecuted in separate trials. Vernon v. State, 841 S.W.2d 407, 410 (Tex.Crim.App.1992). Hence, in this case the Double Jeopardy bar applies only to the two instances of conduct offered by the State at trial: the conduct brought out in the complainant’s testimony and the conduct brought out in the testimony of the outcry witness.³ There is no evidence in the record that the State will rely upon either of those instances of conduct in its prosecution upon the new indictments. See U.S. v. Register, 931 F.2d 308, 312 (5th Cir.1991)(burden is on the defendant to establish the commonality of the offenses).

The judgment of the Court of Appeals is affirmed.

OVERSTREET, J., dissents. MANSFIELD, J., concurs in the result.

1 . This was actually the second trial on the initial indictment. The first trial ended in a mistrial on appellant’s motion and is, therefore, of no moment in our consideration of appellant's double jeopardy claim. See Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089-90, 72 L.Ed.2d 416 (1982)(a defendant’s motion for mistrial constitutes a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact).

2 . An "election” would generally be some action that excludes or limits the jury’s consideration of an offense: for example, by instructing the jury to disregard the evidence or by limiting the purpose for which the evidence is offered.

3 . The State contends that only the offense in the complainant's testimony is barred. But the offense in the outcry testimony is also barred because the State failed to elect before obtaining a dismissal of the prosecution.