Ex parte Amador, PD-1072-09.

• Decision Date: 08 December 2010
• Docket Number: No. PD-1072-09.,PD-1072-09.
• Citation: 326 S.W.3d 202
• Parties: Ex parte Manuel AMADOR, Appellant.
• Court: Texas Court of Criminal Appeals

326 S.W.3d 202

Ex parte Manuel AMADOR, Appellant.

No. PD-1072-09.

Court of Criminal Appeals of Texas.

Oct. 13, 2010.

Rehearing Denied Dec. 8, 2010.

Ruben P. Morales, El Paso, for Appellant.

Lily Stroud, Asst. D.A., El Paso, Jeffrey L. Van Horn, State's Attorney, Austin, for State.

HOLCOMB, J., delivered the opinion of the Court, in which MEYERS, PRICE, JOHNSON and COCHRAN, JJ., joined.

OPINION

The question presented in this case is whether double jeopardy prohibits the State from obtaining a conviction for an offense when the defendant has previously been convicted of a lesser-included offense of that offense. We hold that it does. We must also determine the continuing validity of our holding in Briceno v. State, 580 S.W.2d 842 (Tex.Crim.App.1979), that the offense of indecent exposure ¹ is a lesser-included offense of the offense of indecency with a child by exposure.² Id. at 844. We reaffirm that holding.

Background

On September 25, 2006, appellant Manuel Amador was charged with the misdemeanor offense of indecent exposure.³ The record shows the following facts. On September 22, 2006, Gabriela Acosta and a woman named Baez went to Houston Park in El Paso, Texas. They were accompanied by Baez's daughter, and Acosta's son and daughter. As the ladies approached the playground portion of the park, they saw appellant standing near a tree, about fifty to sixty feet away from them. They noticed that appellant's penis was out from the zipper of his pants, and that he was rubbing it. They immediately took the children away from the playground area in order to prevent them from seeing what appellant was doing. Acosta called the police. By the time they arrived, appellant had put his penis back into his pants and was sitting on a nearby bench where the police found and detained him. Appellant pled guilty, waived a jury trial, and was sentenced to 120 days confinement in the El Paso County Jail.

A few months later, on April 12, 2007, appellant was indicted for two counts of the third-degree felony offense of indecency with a child by exposure. ⁴ Appellant filed an application for a pretrial writ of habeas corpus, arguing that indecent exposure is a lesser-included offense of indecency with a child by exposure, and that double jeopardy therefore barred his prosecution for the indecency-with-a-child charges because those charges were based on the same act on which his 2006 conviction for indecent exposure was based. The trial court conducted a hearing and signed a written order denying relief on appellant's writ application.

Appellant appealed the trial court's denial of relief on his writ application. His sole issue on appeal was that indecent exposure is a lesser-included offense of indecency with a child by exposure, and that the Double Jeopardy Clause of the United States Constitution barred his current prosecution for indecency with a child by exposure because that prosecution was based on the same act on which his 2006 prosecution and conviction for indecent exposure was based. The court of appeals disagreed, and affirmed the trial court's judgment. Ex parte Amador, No. 08-07-00331-CR, 2009 WL 1175117, 2009 Tex.App. LEXIS 2953 (Tex.App.-El Paso, April 30, 2009) (not designated for publication). We granted review solely to consider whether "the Double Jeopardy Clause of the United States Constitution bars a subsequent prosecution for the offense of indecency with a child after a plea to the lesser-included offense of indecent exposure."

I. Double Jeopardy: General Principles

The Double Jeopardy Clause of the Fifth Amendment, applicable to all states through the Fourteenth Amendment, protects an accused against (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. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Evans v. State, 299 S.W.3d 138, 140-41 (Tex.Crim.App.2009). The present case involves a second prosecution for the same offense after conviction. In this context, "the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense." 432 U.S. at 169, 97 S.Ct. 2221. The "sequence" of such prosecution— i.e., whether the greater or the lesser offense is prosecuted first—is irrelevant. Id. The State may seek a multiple-count indictment against a defendant based on violations of different statutes arising from a single act; but, in the absence of a clear legislative intent to the contrary, the defendant may be convicted and sentenced for only one offense under such an indictment. Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985).

II. Application to the Present Case

Appellant argues that the court of appeals "erred in holding that Petitioner's conviction for the lesser included offense of indecent exposure did not bar subsequent prosecution for indecency with a child" because "[t]his Court has specifically held [in Briceno ] that indecent exposure is a lesser included offense of indecency with a child." App. PDR at 2. "Consequently," appellant argues, his "conviction for indecent exposure arising out of the same set of circumstances bars his prosecution for indecency with a child under the Double Jeopardy Clause of the United States Constitution." Id.

In reviewing this claim on appeal, the court of appeals acknowledged our holding in Briceno that indecent exposure was a lesser-included offense of indecency with a child by exposure. 2009 WL 1175117 at *3-4, 2009 Tex.App. LEXIS at *8. But it concluded that Briceno was inapplicable to the present case because it did not "involv[e] a double jeopardy issue involving two separate charges." Id.

In Briceno, appellant was convicted of indecency with a child by exposure. His sole contention on direct appeal was that "the trial court erred in failing to instruct the jury on the lesser included offense of indecent exposure." 580 S.W.2d at 843. Thus, the court of appeals is correct that Briceno did not involve a double jeopardy issue. But that does not reducethe effect of our express holding in that case that "the offense of indecent exposure ... is a lesser included offense of indecency with a child" by exposure. 580 S.W.2d at 844. The Supreme Court has clearly stated that "the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense." Brown, 432 U.S. at 169, 97 S.Ct. 2221. Thus, it is the state's classification that one offense is the lesser-included offense of another, and not the context in which such classification is made, that is relevant to the double-jeopardy analysis in a given case. The court of appeals therefore erred in failing to apply Briceno to the present case only because double jeopardy was not an issue in Briceno itself.⁵

The State admits that the "[g]reater-inclusive and lesser-included offenses are the 'same offense' for double-jeopardy purposes." State's Br. at 6. It also admits that Briceno is the established precedent in Texas for the proposition that indecent exposure is a lesser-included offense of indecency with a child by exposure. Id. at 8. It "agrees with Briceno that the elements of both offenses [indecent exposure and indecency with a child by exposure] are identical except for the circumstances in which the exposure occurs." ⁶ Id. at 9. It argues, however, that " Briceno omitted from its analysis an element of indecent exposure—that the person to whom the exposure is directed be a person who would be offended or alarmed by the exposure." Id. According to the State,

contrary to the holding in Briceno, the offense of indecent exposure requires more than just proof that the defendant is reckless as to the presence of another person ... [It] requires proof that the defendant was reckless as to the presence of a person who will be offended or alarmed by his (the defendant's) act, a fact that is not needed to prove indecency with a child by exposure, which requires only the presence of a child. Proof that a child is present is not necessarilyproof of the presence of a person who will be offended or alarmed by the defendant's exposure.

Id. at 10 (emphasis in original) (citations omitted). Based on this reasoning, the State asks us to overrule Briceno or distinguish it from the present case. Id. at 9.

We disagree. Ironically, the State itself argued a few years ago that "indecency with a child by exposure is merely an aggravated version of indecent exposure." See Yanes v. State, 149 S.W.3d 708, 711 (Tex.App.-Austin 2004, pet. ref'd). The State was correct in that instance. Indecency with a child by exposure is simply an aggravated version of indecent exposure inasmuch as, while the offense of indecent exposure requires the presence of a person who "will be offended or alarmed" by the defendant's act, see Tex. Pen.Code § 21.08, the offense of indecency with a child by exposure, by not having any such requirement, holds the defendant culpable even if the person (the child) towards whom the exposure is directed is not "offended or alarmed" by the defendant's act. See Tex. Pen.Code § 21.11. The law in effect presumes that all children are or should be "offended or alarmed" by such exposure. Thus, there is no need to require the State to show that a given child was in fact "offended or alarmed" by a defendant's act of exposure.⁷

Finally, we address some of the arguments raised by the dissent. The dissent "would hold that two counts of indecency with a child by exposure can be based upon a single exposure if there are two child victims." Dis. Op. at 210. But that is not the issue before us today. Neither party has raised this argument at any stage in this case—in the courts below or before this Court—and we granted review solely to consider the continuing validity of our holding in Briceno that indecent exposure is a lesser-included offense of indecency with a child by exposure. See...