THE STATE OF TEXAS v. TIMOTHY ALBERT VARDEMAN (2011)

OPINION

Opinion By Justice FitzGerald

The State of Texas appeals the trial court's April 16, 2010 Order Granting Application for Writ of Habeas Corpus (the “Order”) in this case.   The State originally charged appellee Timothy Albert Vardeman with three counts of aggravated sexual assault of a child and two counts of indecency with a child.   In 2006, a jury acquitted appellee of all three aggravated sexual assault counts and one indecency count.   It found him guilty of Count IV, the remaining indecency count, which charged that he:

intentionally and knowingly, with the intent to arouse and gratify the sexual desire of said defendant, engage[d] in sexual contact by touching part of the genitals of [the complainant], a child younger than seventeen (17) years of age and not the spouse of the defendant, by means of defendant's hand.

On appeal, this Court reversed appellee's conviction based on the trial court's failure to give a requested instruction and remanded the case for further proceedings.  Vardeman v. State, No. 05–06–01253–CR, 2008 WL 256765, at *6 (Tex.App.—Dallas January 31, 2008, pet. ref'd) (not designated for publication).

On remand, appellee filed his Application for Writ of Habeas Corpus, arguing that retrying him on Count IV would violate principles of double jeopardy and collateral estoppel.¹  Appellee argued that Count IV amounted to the “same offense” as Count III of the indictment, which charged that appellee:

intentionally and knowingly cause[d] the penetration of the female sexual organ of [the complainant], a child then younger than fourteen (14) years of age and not the spouse of the defendant, by means of defendant's finger.

He contended that, having been acquitted of the greater offense, he could not now be tried for the lesser-included offense because it relied on the same alleged act by appellee.   The State argued that double jeopardy did not bar the retrial.   The trial court granted appellee's application and, in the Order, gave its reasoning:

The Court finds that this issue is controlled by Evans v. State, 299 S.W.3d 138 (Tex.Crim.App.2009) and Ochoa v. State, 982 S.W.2d 904 (Tex.Crim.App.1998).   Because the indictment alleges that all of the alleged conduct occurred on the same date and because [appellee] was acquitted of all of the alleged aggravated sexual assault counts, the Double Jeopardy Clause bars the State from re-trying the Defendant on the indecency [with] a child charge in Count IV of the Indictment.

The State appeals, briefing a single issue:  whether the trial court erroneously applied principles prohibiting multiple sentences for the same conduct when it found that double jeopardy barred prosecution on remand.

In reviewing a 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.   See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App.2006).   However, the facts are not contested for purposes of our review here;  the only issue is application of the law of double jeopardy to those facts.   Accordingly, our review is de novo.   See Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App.1999).

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.  Evans v. State, 299 S.W.3d 138, 140–41 (Tex.Crim.App.2009) (citing Brown v. Ohio, 432 U.S. 161, 165 (1977)).   In the Order, the trial court specifically concludes its ruling is controlled by Evans and Ochoa v. State, 982 S.W.2d 904 (Tex.Crim.App.1998).   However, both of those cases address double jeopardy claims based upon multiple punishments for the same offense.   See Evans, 299 S.W.3d at 141 (“The present case involves multiple punishments resulting from a single prosecution.”);  Ochoa, 982 S.W.2d at 908 (addressing proper remedy when jury convicts and sentences defendant for multiple violations for same conduct).   These cases would govern if appellee had been convicted of the penetration assault charged in Count III and the State wished to try and convict him for the lesser-included offense of indecency by touching charged in Count IV. But appellee was acquitted on Count III. There cannot be multiple convictions, and hence multiple punishments, if he is tried and convicted again of indecency under Count IV. Evans and Ochoa do not govern here because this is not a multiple-punishments case.

Instead, on remand and on appeal, appellee has consistently contended that retrial was barred because it would amount to a second prosecution for the same offense after acquittal.   Although the jury found appellee guilty of Count IV, he contends he was effectively acquitted of that offense by virtue of his acquittal of the penetration assault charged in Count III. He argues the proof required to prove him guilty of indecency is the same proof that was offered—unsuccessfully—to convict him in the first trial of the Count III penetration assault charge.   But it is possible for a defendant to be guilty only of a lesser-included offense, as the jury in appellee's first trial found.   That jury believed that appellee had touched, but not penetrated, the complainant's sexual organ.   In other words, the jury considered two different criminal offenses and concluded appellee had committed one, but not the other.   The jury's finding of no penetration is final and will not be relitigated.   But that finding does not, standing alone, bar a retrial on the lesser-included offense of indecency by touching.

When a conviction is reversed on appeal, the ability of the State to prosecute a second time is determined by the reason for the reversal.   If the conviction was reversed because it was not supported by sufficient evidence, then the defendant may not be prosecuted a second time.   See Burks v. United States, 437 U.S. 1, 11 (1978) (“The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.”).   However, if the conviction is reversed for trial error, the reversal does not establish the State has failed to prove its case, and the reversal does not imply anything with respect to the defendant's guilt or innocence.  Id. at 15.   Thus, the State's right to retrial in the latter situation is well-established.  Id. at 14.   An error in instructing the jury is trial error for purposes of double jeopardy analysis.   See Franklin v. State, 693 S.W.2d 420, 432 (Tex.Crim.App.1985) (“[D]ouble jeopardy does not attach when a case is reversed because of trial error, such as improper jury instructions, as opposed to a reversal based upon evidentiary insufficiency.” (emphasis added)).

Appellee's conviction was reversed by this Court because of an error in instructing the jury, i.e., for trial error.  Vardeman, 2008 WL 256765, at *6. We made no inquiry into the sufficiency of the evidence supporting his conviction for Count IV, indecency with a child.   Accordingly, the Double Jeopardy Clause does not bar a second prosecution of that count.   We sustain the State's single issue, and we reverse the trial court's Order.   We remand this cause for further proceedings consistent with this opinion.

FOOTNOTES

FN1. The Order makes no ruling on appellee's collateral estoppel theory.   Accordingly, that issue is not before us..  FN1. The Order makes no ruling on appellee's collateral estoppel theory.   Accordingly, that issue is not before us.

KERRY P. FITZGERALD JUSTICE