Opinion issued June 19, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00787-CR
———————————
EX PARTE MATTHEW LEACHMAN
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1522187
OPINION ON REHEARING
Appellant, Matthew Leachman, appeals from the trial court’s denial of his pro
se application for a pretrial writ of habeas corpus, filed under article 11.08 of the
Texas Code of Criminal Procedure.1 Leachman contends that double jeopardy bars
1
See TEX. CODE CRIM. PROC. ANN. art. 11.08 (West 2015) (“If a person is confined
after indictment on a charge of felony, he may apply to the judge of the court in
which he is indicted. . . .”).
his retrial. Leachman filed an amended motion for rehearing from our May 10, 2018
opinion. We deny the amended motion for rehearing and affirm.2
Background
A. Procedural History in State Court
In the conviction at issue under trial court cause number 786224, Leachman
was charged in 1998 by indictment of aggravated sexual assault of a child.3
Following a jury trial, in which the trial court had denied Leachman’s motion to
represent himself, he was convicted and sentenced to 40 years’ confinement in 1998.
See Leachman v. Stephens, No. 4:11-CV-212, 2015 WL 5730378, at *1 (S.D. Tex.
Sept. 30, 2015) (mem. and order, not designated for publication) (federal habeas
proceeding summarizing procedural history). After this Court affirmed the
conviction, the Court of Criminal Appeals granted Leachman’s petition for
discretionary review, vacated our decision, and remanded for consideration of claims
not at issue here. See Stephens,
2015 WL 5730378, at *1; see Leachman v. State,
2
Although we deny the amended motion for rehearing without requesting a response,
we withdraw our May 10, 2018 opinion and judgment and issue this opinion on
rehearing and a new judgment. See TEX. R. APP. P. 49.2, 49.3. Our disposition
remains unchanged. See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 33 (Tex.
App.—Houston [1st Dist.] 2004, pet. denied) (op. on rehr’g).
3
In separate proceedings, Leachman pleaded guilty to three counts of indecency with
a child, involving different children than the complainant here, under trial court
cause numbers 786223, 786226, and 720366. He was sentenced to 20 years’
confinement in each case in 1999, to be served concurrently. He did not appeal
those sentences. See Leachman v. Stephens, No. 02-13-00357-CV, 2016 WL
6648747, at *2 (Tex. App.—Fort Worth Nov. 10, 2016, pet. denied) (mem. op.)
(summarizing Leachman’s criminal litigation history).
2
No. 01-98-01255-CR, 2004 WL 744820 (Tex. App.—Houston [1st Dist.] Apr. 8,
2004) (mem. op. on reh’g, not designated for publication), vacated, No. PD-0517-
05,
2005 WL 2990698 (Tex. Crim. App. Nov. 9, 2005) (not designated for
publication). On remand, this Court again affirmed Leachman’s conviction, the
Court of Criminal Appeals refused his petition for discretionary review, and the U.S.
Supreme Court denied his petition for certiorari. See Stephens,
2015 WL 5730378,
at 1; see Leachman v. State, No. 01-98-01255-CR,
2006 WL 2381441, at *1 (Tex.
App.—Houston [1st Dist.] Aug. 17, 2006, pet. ref’d), cert. denied,
554 U.S. 932,
128 S. Ct. 2995 (2008).
Leachman filed a state application for a writ of habeas corpus challenging the
denial of his motion to represent himself. See Stephens, 2015 WL 5730378, at *1.
The state habeas court recommended denial, and the Court of Criminal Appeals
denied Leachman’s first habeas application without a written order. See Ex parte
Leachman, No. WR-36-445-04 (Tex. Crim. App. Dec. 1, 2010).
B. Procedural History in Federal Court
Leachman then filed a federal habeas corpus petition based on the denial of
his Sixth Amendment right to represent himself, which the federal district court
denied as procedurally defaulted. See Stephens, 2015 WL 5730378, at *1, *4 (citing
Faretta v. California,
422 U.S. 806, 835–36,
95 S. Ct. 2525 (1975)). The Fifth
Circuit affirmed the federal district court’s judgment on all issues, except the finding
3
that Leachman could not demonstrate cause and prejudice to excuse the procedural
default of his Faretta self-representation claim. See id.; see Leachman v. Stephens,
No. 12-20187, 581 Fed. App’x 390, 398 (5th Cir. 2014) (not designated for
publication), cert. denied, 135 S. Ct. 2315 (2015). On remand, the federal district
court conditionally granted Leachman’s federal habeas corpus petition on his
Faretta self-representation claim on September 30, 2015, and ordered his release
unless the State moved to grant him a new trial within 90 days. See Stephens,
2015
WL 5730378, at *6.
C. The State Habeas Corpus Application and Writ Hearing
On November 4, 2015, the State timely moved for a new trial under trial court
cause number 786224, which the state judge for the retrial granted on the record. On
August 17, 2016, the state court granted the State’s motions to transfer its prior
filings to new cause numbers, noting that the original indictment under trial court
cause number 786224 had been reindicted into two separate trial court cause
numbers, 1520246 (anal sodomy) and 1520247 (oral sodomy), after the grand jury
had indicted Leachman on two separate counts of aggravated sexual assault of a
child.
On August 30, 2016, Leachman filed a pro se pretrial habeas corpus
application in the trial court, which was assigned to the underlying trial court cause
number 1522187. Leachman asserted that, while the State may seek a new
4
indictment on the same offense, the superseding indictment must mirror the initial
charge. See Ex parte Legrand, 291 S.W.3d 31, 38–39 (Tex. App.—Houston [14th
Dist.] 2009, pet. ref’d) (citing United States v. Holland,
956 F.2d 990, 993 (10th Cir.
1992)). He claimed that the State was attempting to turn the single charge into two
separate charges, two convictions, and two sentences.
On September 28, 2016, the habeas judge, who did not preside over
Leachman’s original trial, held a non-evidentiary writ hearing on Leachman’s pro se
habeas application in which both sides presented argument, but no witnesses.
Leachman repeated his argument that the State was trying to take the same offense
and split it into multiple offenses, thereby violating the multiple-punishment aspect
of the double jeopardy clause. The State responded that it intended to withdraw its
motion to consolidate and would proceed to trial only on the first trial court cause
number 1520246. The prosecutor stated that he intended to file an amended motion
to cumulate sentences, seeking only to stack any sentence on the existing 20-year
sentence Leachman was still serving.
At the end of the writ hearing, the habeas court orally denied Leachman’s writ.
The habeas court noted that if the State’s “intent is to proceed on one of the two new
indictments, as opposed to both,” that “take[s] care[] of any potential issues, so I am
going to deny your writ of habeas corpus.” Later that day, the habeas court signed
a judgment denying Leachman’s pretrial habeas corpus application.
5
D. Proceedings in this Court
On September 28, 2016, Leachman timely filed a pro se notice of appeal from
the habeas court’s denial of his pretrial habeas application. See TEX. R. APP. P.
26.2(a)(1), 31.1. On October 24, 2016, in compliance with a request from the Clerk
of this Court, the trial court certified Leachman’s right of appeal of the denial of his
pretrial habeas application. See id. 25.2(a)(2), (d). In compliance with a second
request, the district clerk also filed a second supplemental clerk’s record in this Court
on October 26, 2016. This record contains the State’s amended motion to cumulate
sentences, which was filed only in the first charge 1520246, and the docket sheet for
the second charge 1520247, showing that no such motion was filed there.
This Court abated this case several times for the habeas court to hold a hearing
to determine whether the State intended to dismiss the second charge, as it appeared
to have stated at the writ hearing. This Court’s February 15, 2018 Order reinstated
this case after the district clerk filed a compliant supplemental clerk’s record. This
record included the habeas court’s findings of fact and conclusions of law and order,
signed on February 8, 2018, arising from the abatement hearing. The State clarified
that it intended to proceed to trial first on the first charge, but did not intend to
dismiss the second or other charges, pending the outcome of the first trial. The
habeas court found that the State never stated that it had intended to dismiss the
second charge at the writ hearing, and that it does not intend to dismiss the second
6
charge now. This Court’s Order also requested briefing. See TEX. R. APP. P. 31.1.
Both Leachman and the State have filed briefs, and Leachman has filed a reply.
Leachman also filed an advisory in this Court, attaching an “Advisory to the
Court and Motion to Re-Open Proceedings” that he filed in the federal habeas court.
Leachman argued that the federal court should re-open the habeas petition because
the state trial court’s grant of a new trial was void, asserting that only the Court of
Criminal Appeals may do so under art. 11.07. Leachman further claimed that he
intended to raise these issues before the Court of Criminal Appeals.4
Leachman then filed a motion for judicial notice in this Court on April 20,
2018, contending that this Court must take judicial notice of the federal habeas court
order, signed on February 8, 2018, regarding his motion to re-open proceedings.
Leachman requests that this Court take judicial notice of the federal court order for
his propositions that: (1) the federal district court did not view its earlier, conditional
order granting federal habeas relief as voiding the state conviction, and (2) the
question of whether the state trial court’s new-trial order was void was a matter for
the state courts.
4
Leachman made this same jurisdictional claim in a writ of prohibition and a writ of
mandamus, which the Court of Criminal Appeals denied without written orders. See
Ex parte Leachman, WR-36,445-07, WR-36-445-08 (Tex. Crim. App. May 17,
2017). Leachman also tried to raise these same jurisdictional issues at the abatement
hearing by filing a supplemental memorandum of law and proposed findings of fact
and conclusions of law, but the trial court found that these were beyond the scope
of this Court’s abatement order.
7
In the February 8, 2018 federal court order, the federal district court held that
the State had complied with its earlier order granting habeas relief and ordering
Leachman’s release unless the State moved to grant him a new trial within 90 days.
The federal district court also noted that it lacked jurisdiction over Leachman’s
retrial, but that Leachman “may move in state court to dismiss the indictment for
lack of jurisdiction,” and “[i]f he is again convicted, then he may challenge defects
in the proceeding through a direct appeal and, if necessary, postconviction
proceedings pertaining to that conviction.” Thus, the federal district court denied
Leachman’s motion to re-open the federal proceedings and denied his motion for
oral argument as moot.
This Court requested a response to the motion from the State, which was filed
on April 30, 2018, and carried the motion with the case. Under Rule of Evidence
202, this Court must take judicial notice of a federal court’s order if requested by a
party and if this Court is supplied with the necessary information, as Leachman did
here by attaching the order. See TEX. R. EVID. 202(b)(2). To the extent that
Leachman requests that this Court take judicial notice of the existence of this federal
court order, this Court grants his motion, but concludes that this order is not relevant
for this appeal. See MCI Sales & Service, Inc. v. Hinton, 329 S.W.3d 475, 484 n.7
(Tex. 2010); Oistad v. Baker & Hostetler, L.L.P., No. 01-05-00493-CV,
2006 WL
488594, at *6 n.7 (Tex. App.—Houston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op.)
8
(taking judicial notice of facts of documents filed in other case in this Court, but
concluding that such facts are not relevant to resolution of this appeal).5
Discussion
In his first issue, Leachman claims, for the first time in this Court, that his
double-jeopardy challenge is ripe for review. In his second issue, also for the first
time in this Court, Leachman asserts that the two pending reindictments in the trial
court violate the Double Jeopardy Clause because, as a matter of law, his prior
conviction in the original charge still exists. Finally, Leachman contends in his third
issue, in the alternative, that the two pending reindictments violate the Double
Jeopardy Clause because the State may not reprosecute an earlier conviction
multiple times.
The State responded that, to the degree that Leachman is complaining about a
future trial on the second indictment following his first trial, this double-jeopardy
claim is not ripe for review. Regarding Leachman’s second issue, the State responds
that, because his jurisdictional claims were not part of his habeas application, they
are not properly before this Court, but the trial court was bound by the judgment of
5
Leachman also filed a second motion for judicial notice in this Court on May 24,
2018, requesting that we take judicial notice of the State’s Original Answer filed on
November 14, 2016, in response to Leachman’s habeas application. Similarly, but
without requesting a response, that motion is granted to take notice of the existence
of that Answer as it is a public court pleading, but it is not relevant for this appeal
because it was filed under a different trial court cause number 786223-A for a
different conviction. See Oistad, 2006 WL 488594, at *6 n.7.
9
the federal court because state courts are bound by federal law under the Supremacy
Clause. Finally, as for Leachman’s third issue, the State responds that, because
Leachman’s prior conviction was declared void, at his request, a retrial does not
implicate Double Jeopardy protections and, thus, the trial court was correct to deny
his habeas petition.
As discussed below, we have jurisdiction only to review the state court’s order
denying Leachman’s habeas application, not the state court’s new-trial order which,
as the federal district court noted, may be challenged on direct appeal.
A. Standard of Review
“[T]here is a Fifth Amendment right not to be exposed to double jeopardy,
and . . . it must be reviewable before that exposure occurs,” which includes on
appeal. Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982).
Consequently, the Court of Criminal Appeals has held that an applicant may use a
pretrial writ of habeas corpus to assert his or her constitutional protections regarding
double jeopardy. See Ex parte Wiese,
55 S.W.3d 617, 619 (Tex. Crim. App. 2001).
Thus, we may review the trial court’s denial of Leachman’s pretrial habeas
application based on double jeopardy.
Generally, an appellate court reviews a trial court’s decision to grant or to
deny habeas corpus relief for an abuse of discretion. See Ex parte Montano, 451
S.W.3d 874, 877 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Sandifer
10
v. State, 233 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). In
reviewing the trial court’s decision to grant or to deny habeas corpus relief, we view
the evidence in the light most favorable to the trial court’s ruling. See
id. (citing Ex
parte Masonheimer,
220 S.W.3d 494, 507 (Tex. Crim. App. 2007)).
We afford almost total deference to the trial court’s determination of historical
facts supported by the record, especially when the fact findings are based upon
credibility and demeanor. Ex parte Montano, 451 S.W.3d at 877 (citing Guzman v.
State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); see also Ex parte Amezquita,
223
S.W.3d 363, 367 (Tex. Crim. App. 2006). And we afford the same deference to the
trial judge’s rulings on applications of law to fact questions if resolving those
ultimate questions turns on evaluating credibility and demeanor. Sandifer,
233
S.W.3d at 2 (citing Guzman,
955 S.W.2d at 89). If resolving those ultimate questions
turns on applying legal standards, however, we review the determination de novo.
Id. (citing Guzman,
955 S.W.2d at 89). We will uphold the habeas court’s judgment
if it is correct under any theory of law. See Ex parte Murillo,
389 S.W.3d 922, 926
(Tex. App.—Houston [14th Dist.] 2013, no pet.).
When there are no written findings explaining the factual basis for the trial
court’s ruling, we imply findings of fact that support the ruling so long as the
evidence supports those implied findings. Ex parte Montano, 451 S.W.3d at 877
(citing Meekins v. State,
340 S.W.3d 454, 460 (Tex. Crim. App. 2011)). “We
11
similarly defer to any implied findings and conclusions supported by the record.”
Ex parte Aguilera, 540 S.W.3d 239, 246 (Tex. App.—Houston [1st Dist.] 2018, no
pet.) (internal quotation marks and citation omitted). However, we review de novo
mixed questions of law and fact that do not depend on credibility and demeanor. See
id. Although the habeas court issued findings of fact and conclusions of law
regarding whether the State intended to dismiss the second charge, under trial court
cause number 1520247, that court did not issue any findings or conclusions with its
judgment denying habeas relief. See Guzman,
955 S.W.2d at 89.
B. Applicable Double Jeopardy Law
The United States and Texas Constitutions both prohibit a defendant from
twice being put in jeopardy for the same offense. U.S. CONST. amend. V; TEX.
CONST. art. I, § 14. Jeopardy attaches when a jury is impanelled and sworn. Ex
parte Montano, 451 S.W.3d at 878 (citing Ex parte Little,
887 S.W.2d 62, 64 (Tex.
Crim. App. 1994)). Once jeopardy attaches, the defendant possesses the right to
have his guilt or innocence determined by the first trier of fact.
Id. (citing Torres v.
State,
614 S.W.2d 436, 441 (Tex. Crim. App. 1981)). As a general rule, if, after
jeopardy attaches, the jury is discharged without having reached a verdict, double
jeopardy will bar retrial.
Id. (citing Brown v. State,
907 S.W.2d 835, 839 (Tex. Crim.
App. 1995)).
The double jeopardy prohibition protects against (1) a second prosecution “for
12
the ‘same offense’” after acquittal; (2) a second prosecution “for the ‘same offense’”
after conviction; and (3) “multiple punishments for the ‘same offense.’” Hisey v.
State, 207 S.W.3d 383, 385 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting
Ex parte Kopecky,
821 S.W.2d 957, 958 (Tex. Crim. App. 1992) (citations omitted)).
But “double jeopardy does not attach when a case is reversed because of trial error.”
Id. at 385 (citations omitted). “A retrial is barred on jeopardy grounds only if there
is insufficient evidence to support the conviction.” Id. (citations omitted).
Leachman does not claim that the first ground applies here. The relief he primarily
seeks is under the third ground, multiple punishments,6 but in his amended rehearing
motion, he states that he also seeks relief under the second ground, multiple
prosecutions.
“In the multiple-punishment and multiple-prosecution contexts, the double
jeopardy bar applies if the two offenses for which the defendant is punished or tried
cannot survive the ‘same elements’ or ‘Blockburger I’ test.” Williams v. State, No.
14-08-01079-CR, 2010 WL 3307456, at *2 (Tex. App.—Houston [14th Dist.] Aug.
24, 2010, pet. ref’d) (mem. op., not designated for publication) (citing Blockburger
6
“A multiple-punishments double-jeopardy violation may arise either in the context
of lesser-included offenses (when the same conduct is punished under both a greater
and a lesser-included statutory offense) or when the same criminal act is punished
under two distinct statutory provisions, but the legislature intended only one
punishment.” Aekins v. State, 447 S.W.3d 270, 274 (Tex. Crim. App. 2014).
13
v. United States, 284 U.S. 299, 304,
52 S. Ct. 180 (1932), and Watson v. State,
900
S.W.2d 60, 61–62 (Tex. Crim. App. 1995)). “The same elements” test inquires
whether each offense contains an element not contained in the other. Watson,
900
S.W.2d at 61. If the second offense contains an element not found in the first
offense, then double jeopardy protections are not violated. See
id. Consequently,
both the Court of Criminal Appeals and this Court have rejected multiple-
prosecution and multiple-punishment double-jeopardy claims involving two
different counts of the same aggravated sexual assault of a child statute involved
here. See Vick v. State,
991 S.W.2d 830, 832–33 (Tex. Crim. App. 1999); Cochran
v. State,
874 S.W.2d 769, 770, 772–73 (Tex. App.—Houston [1st Dist.] 1994, pet.
ref’d). Because the two counts alleged violations of separate and distinct statutory
aggravated sexual assault offenses and involved separate and distinct acts, the
inquiry for double jeopardy ends. See Vick,
991 S.W.2d at 833.
C. Analysis
We consider Leachman’s first and second issues together because they both
involve jurisdiction. Essentially, Leachman argues that, because he believes that the
state trial court was without jurisdiction to grant him a new trial, and that only the
Court of Criminal Appeals may do so under Article 11.07 for final felony
convictions, the denial of his double-jeopardy habeas application is ripe for review
now. While we agree that the denial of Leachman’s double-jeopardy habeas
14
application is reviewable on appeal, we disagree that we have jurisdiction to review
the trial court’s new-trial order here.
First, we have appellate jurisdiction only to review the state court’s order
denying Leachman’s pretrial habeas application under the underlying trial court
cause number 1522187. See Ex parte Robinson, 641 S.W.2d at 555. As Leachman
conceded in his brief and amended rehearing motion, and the State pointed out in its
brief, Leachman did not raise this issue of jurisdiction over the new-trial order in his
habeas application. Though he first raised this issue at the abatement hearing, it was
not addressed by the habeas court in its judgment or the abatement findings and
conclusions. Thus, we lack appellate jurisdiction to review the state court’s new-
trial order, granted under trial court cause number 786224, which may be reviewable
on direct appeal. See Ex parte Perez,
536 S.W.3d 877, 880 (Tex. App.—Houston
[1st Dist.] 2017, no pet.) (“In reviewing an order denying habeas relief, an
intermediate court of appeals only reviews issues that were properly raised in the
habeas petition and addressed by the trial court.”).
Second, “[w]hen a motion for new trial was granted at the defendant’s request,
and the basis was other than insufficient evidence, double jeopardy considerations
do not bar a new trial.” Ex parte Queen, 833 S.W.2d 207, 208 (Tex. App.—Houston
[1st Dist.] 1992, pet. granted), aff’d by
877 S.W.2d 752 (Tex. Crim. App. 1994),
cert. denied,
513 U.S. 1115 (1995). This is because, after a new trial has been
15
granted on grounds other than insufficient evidence, the “[a]ppellant has not gained
an acquittal or suffered a final conviction” and “[n]either has he been faced with
multiple punishments for the offense with which he is charged.” Id. at 208. “Thus,
appellant is not exposed to double jeopardy in the present case” because, instead,
“he is in the same position as if the first trial had not occurred.” Id. (citing Lofton v.
State, 777 S.W.2d 96, 97 (Tex. Crim. App. 1989) (by granting motion for new trial,
trial court restores case to position before earlier trial, and “initial jeopardy
continues”); see also Jackson v. State, No. 01-12-00656-CR,
2013 WL 3155935, at
*1 (Tex. App.—Houston [1st Dist.] June 20, 2013, pet. denied) (mem. op., not
designated for publication) (affirming denial of pretrial habeas application finding
that, after trial court had granted appellant’s motion for new trial based on violation
of Brady v. Maryland,
373 U.S. 83 (1963), initial jeopardy continued because new
trial was granted on grounds other than insufficient evidence) (citing Lofton,
777
S.W.2d at 97).
Here, once the trial court granted the State’s motion for new trial, to comply
with the federal habeas court’s order granting the Sixth Amendment Faretta self-
representation claim—and not based on insufficient evidence—Leachman was
returned to the pretrial phase before his first trial, and initial jeopardy continues. See
TEX. R. APP. P. 21.9(b); Lofton, 777 S.W.2d at 97. Therefore, Article 11.07 did not
apply because there was no longer a final felony conviction once the trial court
16
granted the motion for new trial. See Ex parte Queen, 833 S.W.2d at 208 (noting
that after new trial has been granted on grounds other than insufficient evidence,
“[a]ppellant has not gained an acquittal or suffered a final conviction”). Thus,
Leachman is still under “initial jeopardy” for the first charge, and has not been
exposed to double jeopardy. Lofton,
777 S.W.2d at 97.
We overrule Leachman’s first and second issues.
As for Leachman’s third issue, he essentially claims that the trial court erred
in denying pretrial habeas corpus relief because the State is seeking multiple
punishments for the same offense, which violates double jeopardy. As noted above,
after the trial court granted a new trial to comply with the federal habeas relief
granted on Leachman’s Faretta claim (not based on insufficient evidence),
Leachman is under “initial jeopardy” continuing for the first charge, not double
jeopardy. See Lofton, 777 S.W.2d at 97. “A retrial is barred on jeopardy grounds
only if there is insufficient evidence to support the conviction.” Hisey,
207 S.W.3d
at 385. Similarly, in the main case Leachman relied on in his habeas application, the
Fourteenth Court, in fact, rejected that appellant’s “mirror[ing]” double-jeopardy
argument because “a new trial was granted on reasons other than sufficiency of the
evidence,” and thus, “appellant was under ‘continuing jeopardy’ and could be retried
for the same offense.” Legrand,
291 S.W.3d at 39 (citations omitted). This Court
has followed Legrand,
291 S.W.3d at 41, after noting that a new trial was granted
17
there based on prosecutorial misconduct, by holding that double jeopardy does not
bar a retrial when the State’s misconduct in failing to disclose Brady evidence caused
the trial court to set aside the verdict. See Jackson, 2013 WL 3155935, at *2. Thus,
double jeopardy does not bar the retrial here because a new trial was granted on the
Faretta self-representation claim, not insufficient evidence.
In his amended rehearing motion, while he concedes that Legrand was the
main case that he relied upon in his habeas application, Leachman contends that he
cited Legrand to support his overall argument that his case primarily falls under the
multiple-prosecutions context for double-jeopardy claims, rather than the multiple-
punishments context. Even when reprosecution was allowed, Leachman contends
that the original trial charge matters, and the case he cited is United States v. Ewell,
383 U.S. 116 (1966). Leachman states that the Ewell Court held that “[i]f the present
indictments charge the same offense as the [§] 4705 offense for which appellees
were previously convicted, they may clearly be retried on either [§] 4705 or [§] 4704
after their convictions have been vacated on their own motions.” Ewell,
383 U.S. at
124. Leachman claims that the Ewell Court held that retrial under a different penal
statute with different elements was allowed by the Double Jeopardy Clause, after a
conviction was set aside, because the new charge “does not in any manner expand
the number of trials that may be brought against [the defendants].”
Id. at 125
(emphasis added). Thus, Leachman asserts that the Ewell Court prohibits what the
18
State is trying to do here, break the indictment from the first trial into two
indictments, because “[t]he identity of the offense(s) charged in the first trial
continues to govern the scope of what may be tried in the single retrial the State is
allowed.”
However, Leachman first raised this multiple-prosecutions argument citing
Ewell in his proposed findings of fact and conclusions of law, which were filed with
the trial court on August 14, 2017, for the abatement hearing, well after his habeas
application was denied on September 28, 2016. In its abatement findings and
conclusions, the habeas court did not address any of Leachman’s arguments,
including Ewell, because it concluded that the “additional findings of fact and
conclusions of law proposed by [Leachman] [we]re beyond the scope of the order of
the Court of Appeals[.]” As noted above, this Court does not address new arguments
that were not raised and addressed by the trial court in denying habeas relief. See
Ex parte Perez, 536 S.W.3d at 881.
In any event, Ewell does not apply here because the United States Supreme
Court’s holding and reason for reversing the dismissal of the federal narcotics
indictments was based solely on the Speedy Trial Clause, not the Double Jeopardy
Clause. See Ewell, 383 U.S. at 120 (holding that, “[w]e cannot agree that the passage
of 19 months between the original arrests and the hearings on the later indictments
itself demonstrates a violation of the Sixth Amendment’s guarantee of a speedy
19
trial.”). After making its Speedy Trial holding, the Ewell Court went on to elaborate
on why there was no Double Jeopardy Clause violation, but that was dicta because
the trial court had rejected the double-jeopardy claim. See id. at 121 (“These
policies, so carefully preserved in this Court’s interpretation of the Double Jeopardy
Clause, would be seriously undercut by the interpretation given the Speedy Trial
Clause by the court below.”), 124 (“Appellees also invoke[d] the Double Jeopardy
Clause to sustain the dismissal of the indictments, a ground which we think the trial
court correctly rejected.”). Thus, Ewell does not apply here on the merits.
And even if, assuming arguendo, we construe the two new charges as being
prosecuted at the same time, the “same elements” of the Blockburger I test are not
met here. See Blockburger, 284 U.S. at 304; see also Watson, 900 S.W.2d at 61–62.
As noted above, both the Court of Criminal Appeals and this Court have rejected
similar multiple-prosecution and multiple-punishment double-jeopardy claims
involving two different counts of the same aggravated sexual assault of a child
statute involved here, Texas Penal Code Section 22.021. See Vick, 991 S.W.2d at
832–33; Cochran,
874 S.W.2d at 770, 772–73. This is because each charge of
aggravated sexual assault of a child requires proof of an element not required under
the other charge. See Watson,
900 S.W.2d at 61. Here, the first charge, under
1520246, alleges anal sodomy whereas the second charge, under 1520247, alleges
oral sodomy. Compare TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iv) (West 2011)
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(“causes the anus of a child to contact the . . . sexual organ of another person,
including the actor”) with § 22.021(a)(1)(B)(ii) (“causes the penetration of the mouth
of a child by the sexual organ of the actor”). The CCA has held that “[e]very instance
of sexual assault is a separate crime and may be prosecuted in separate trials.” Ex
parte Goodbread, 967 S.W.2d 859, 861 (Tex. Crim. App. 1998) (affirming denial of
pretrial habeas application based on double jeopardy because prosecution on initial
indictment did not create double jeopardy bar to later prosecution upon new
indictment) (citation omitted).
Therefore, we overrule Leachman’s third issue.
Conclusion
Accordingly, we affirm the trial court’s judgment denying habeas relief.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Brown, and Caughey.
Publish. TEX. R. APP. P. 47.2(b).
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