Ex Parte Pruitt

• Decision Date: 02 February 2006
• Docket Number: No. 03-04-00360-CR.,03-04-00360-CR.
• Citation: 187 S.W.3d 635
• Parties: Ex parte Alfredo PRUITT.
• Court: Texas Court of Appeals

187 S.W.3d 635

Ex parte Alfredo PRUITT.

No. 03-04-00360-CR.

Court of Appeals of Texas, Austin.

February 2, 2006.

Rehearing Overruled February 28, 2006.

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David K. Sergi, Sergi & Associates, P.L.L.C., San Marcos, for appellant.

F.C. Schneider, Whitney S. Wiedeman, Melinda O'Neil, Crim. Dist. Attys., Lockhart, for appellee.

Before Chief Justice LAW, Justices PATTERSON and PURYEAR.

OPINION

W. KENNETH LAW, Chief Justice.

In this pretrial habeas corpus proceeding, Alfredo Pruitt seeks to prevent prosecution under a pending indictment on double jeopardy grounds, specifically prior acquittal. The district court denied relief. We will affirm the court's order in part and reverse it in part.¹

Pruitt was indicted in Caldwell County cause number 2001-065 in April 2001. Count one of the indictment alleged that he committed the offense of sexual assault of a child by penetrating the complainant's female sexual organ with his penis on or about August 15, 2000, when the complainant was under the age of seventeen. See Tex. Pen.Code Ann. § 22.011(a)(2)(A) (West Supp.2005). Count two alleged that he committed the offense of aggravated sexual assault of a child by penetrating the complainant's female sexual organ with his penis on or about June 15, 1997, when the complainant was under the age of fourteen. See id. § 22.021(a)(1)(B)(I), (2)(B). Pruitt was tried on this indictment, and the jury returned verdicts of not guilty on both counts.

Pruitt was indicted in the present cause, Caldwell County cause number 2003-104, in May 2003. Count one, paragraph one and count two, paragraph one of the new indictment allege that Pruitt committed the offense of sexual assault of a child by causing the complainant's sexual organ to contact his sexual organ on or about June 15 (count one) and July 15 (count two), 1999, when the complainant was under the age of seventeen. See id. § 22.011(a)(2)(C). Count one, paragraph two and count two, paragraph two allege that on or about the same dates, Pruitt committed the offense of sexual assault of a child by penetrating the complainant's female sexual organ with his penis. See id. § 22.011(a)(2)(A).

Pruitt argues that he was placed in jeopardy for and acquitted of the sexual assaults alleged in the present indictment at his trial in cause number 2001-065. The State responds that prosecution on the new indictment will not constitute double jeopardy because the offenses alleged are different from those alleged in the prior cause. Because the issues raised concern the application of the law to undisputed facts, we review the trial court's decision de novo. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

The Fifth Amendment double jeopardy clause protects against a second prosecution for the same offense after a conviction or an acquittal, and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). It is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The constitution and laws of Texas also protect against double jeopardy, but Pruitt does not contend that this protection exceeds that provided by federal law. See Tex. Const. art. I, § 14; Tex.Code Crim. Proc. Ann. art. 1.10 (West 2005).

For double jeopardy purposes, the same offense means the identical criminal act, not the same offense by name. Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex.Crim.App.1998) (quoting Luna v. State, 493 S.W.2d 854, 855 (Tex.Crim.App. 1973)). Thus, a conviction or acquittal on an earlier indictment does not bar prosecution for an offense that could have been prosecuted under its language but was not. Id. at 861. On the other hand, if evidence of more than one offense was offered at the earlier trial and a conviction under the indictment could have been had for any one of them, and neither the State nor the trial court elects, a subsequent prosecution for any of the offenses proved is barred by former jeopardy. Id. at 860 (quoting Walker v. State, 473 S.W.2d 499, 500 (Tex. Crim.App.1971)). Thus, in order to determine if double jeopardy bars Pruitt's prosecution on the new indictment, we must look to the evidence adduced at the trial in cause number 2001-065.

The complainant, Pruitt's stepdaughter, was born on July 7, 1984. She testified that Pruitt first had sexual intercourse with her in 1998, after she completed the eighth grade but before her fourteenth birthday. She said that the incident began with Pruitt asking to see her breasts. He had been causing her to expose her breasts for about a year, and the complainant said she "was in the habit of doing it after so long." On this occasion, however, Pruitt "asked me if I wanted to go further." The complainant testified, "I didn't say yes and I didn't say no either." Pruitt then placed the complainant on a bed, removed her clothes, put on a condom, and penetrated her vagina with his penis. The complainant testified that Pruitt continued to have sexual intercourse with her "at least once a month" for over two years. Most of these acts took place in the bathroom of the family residence. Pruitt would direct her to remove her pants and bend forward, then penetrate her vagina with his penis from behind. The last act of intercourse occurred in late August or early September 2000, and she made her first outcry to her mother a month later.

The complainant's testimony at the first trial encompassed every act of genital penetration committed by Pruitt from the first act in the spring of 1998 to the last in the summer of 2000. This includes the June and July 1999 acts of genital penetration alleged in count one, paragraph two and count two, paragraph two of the current indictment. Because these acts would have supported his conviction under count one of the original indictment, Pruitt argues that prosecution on these paragraphs is barred by his acquittal at the first trial. The State responds that jeopardy does not apply to these offenses because there was an election at the first trial and only Pruitt's first and last acts of intercourse with the complainant were submitted to the jury. The State's argument is not borne out by the record.

The State relies on the prosecutor's jury argument at the first trial, during which he drew the jury's attention to the fact that the first act of intercourse described by the complainant occurred before her fourteenth birthday and thus supported a conviction for aggravated sexual assault of a child, and that the last act of intercourse described by the complainant occurred before her seventeenth birthday and thus supported a conviction for sexual assault of a child. But even if jury argument can be an adequate substitute for a formal election, the prosecutor did not tell the jurors that they were to consider only those two alleged acts in determining Pruitt's guilt, and neither did the trial court. To the contrary, the court's charge instructed the jurors that "the State is not required to prove the exact date alleged in the indictment, but may prove the offense, if any, to have been committed at any time prior to the presentment of the indictment, so long as said indictment is presented within ten years from the 18th birthday of the victim of the offense." Thus, the record supports Pruitt's contention that at his first trial, he was placed in jeopardy for every act of genital penetration he allegedly committed against the complainant prior to the return of the indictment in cause number 2001-065. See Ex parte Nagle, 48 S.W.3d 213, 217-18 (Tex.App.-San Antonio 2000, no pet.). This includes the offenses alleged in count one, paragraph two and count two, paragraph two of the current indictment. Prosecution for the offenses alleged in these paragraphs would therefore constitute double jeopardy.

We now turn to the offenses alleged in count one, paragraph one and count two, paragraph one of the new indictment. In Vick v. State, 991 S.W.2d 830, 833 (Tex.Crim.App.1999), the court of criminal appeals held that each subsection of penal code section 22.021(a)(1)(B) describes conduct constituting a separate statutory offense. By analogy to Vick, we conclude that sexual assault by genital-to-genital contact as defined in penal code section 22.011(a)(2)(C) is a separate statutory offense from...