Double jeopardy: ­Unraveling a Gordian knot

A motley few are frustrated, flummoxed, or even flabbergasted when faced with a double jeopardy issue. To some, such an issue is nothing less than a Gordian knot of criminal law. Were we suspended in legend, such a problem would best be dealt with by cleaving it with Alexander the Great’s sword. Indeed, even in our world, such action may be preferred by those facing recurring double jeopardy issues.
    Alas, working in the courtroom, we are not free to swing a sword and enjoy the expedient solution it brought to the enduring problem of unraveling a perplexing knot. Instead, our approach is more akin to that of a sailor toiling with a marlinspike to carefully pick through the coils of a tarred knot so as to release the interwoven cord and follow it to its slippery end. Generally though, even if some intellectual dexterity is required in reaching a result, most double jeopardy problems can be satisfactorily untangled without too much labor or injury.1 This article attempts to makes some sense of these ropey issues.2

Genesis and scope of ­double jeopardy ­protection
In the United States, the Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The clause serves to protect individuals from 1) repeated prosecutions for the same offense after acquittal or conviction and 2) multiple punishments for the same offense.3 The clause is enforceable against the states through the 14th Amendment.4 Texas also has its own double jeopardy provision, which is largely interpreted in lock-step with the federal provision.5 Nevertheless, double jeopardy provisions existed for hundreds of years before the creation of the North American variants grafted from the English common law and even prior to four of King Henry II’s knights slaughtering Thomas Becket within the walls of Canterbury Cathedral in 1170, taking root at least by Greek and Roman times.6
    As befitting such a highly prized traditional protection—and a select few other claims—a double jeopardy claim can be raised for the first time after conviction.7 So just because the defense failed to preserve the issue at trial doesn’t necessarily prevent an appellate court from addressing one on the merits post-conviction. But to do so, the appellate court must find that the undisputed facts show both that 1) a violation is clearly apparent on the face of the record, and 2) enforcement of the usual rules of procedural default would serve no legitimate interest.8 Courts occasionally reach such claims.9
Successive prosecutions
“One bite of the apple” is the general rule: Once a person has been acquitted or convicted of a specific crime, he cannot be tried a second time for that offense. A significant but rarely encountered exception to the ban on repeated prosecutions for the same offense exists for different sovereigns, e.g., state A and state B or state and federal systems.10 The federal government and some states, however, have imposed restrictions on seeking further prosecutions on the same facts where one conviction has already been pursued by another jurisdiction.
    Where a person faces re-prosecution after acquittal or conviction, the critical issue is whether the same offense is involved. Of course, Blockburger and its “same elements” analysis govern. The test is “whether each [statutory] provision requires proof of a fact which the other does not.”11 If both statutory provisions require proof of an element that the other provision does not, the two offenses are not the same. But, if only one offense requires proof of a fact that the other does not—i.e., the elements of a lesser-included offense are wholly subsumed within the greater offense—a conviction for both the greater offense and its lesser-included offense will usually violate double jeopardy.12
    Lesser-included offenses are determined employing the “cognate pleadings” test.13 Under this test, the elements and the facts alleged in the charging instrument are used to find any lesser-included offenses. This means that the elements of the lesser offense do not have to be pleaded in the greater offense if they can be deduced from the facts alleged.14 So an offense is a lesser-included offense of another offense if the charging instrument of the greater offense “either: 1) alleges all of the elements of lesser included offense, or 2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all the elements of the lesser-included offense may be deduced.”15 For example:
•    No violation when Offense 1 has elements A, B, C, and D and Offense 2 has elements A, B, C, and E.
•    Violation when Offense 1 has elements A, B, C, and D and Offense 2 has elements A, B, and C.

A twist to the one-bite rule?
Over a century ago, the Supreme Court of the United States ruled that where a person is convicted of an offense but later a greater offense results from the same underlying act, double jeopardy will not prevent conviction of the greater offense. In Diaz, the defendant was convicted of assault and battery. A month later, the victim died from the injuries sustained. The defendant was charged and convicted of homicide. The High Court held that “the plea of former jeopardy disclosed no obstacle to the prosecution for homicide.”16 Does this case survive the Blockburger test? It hasn’t been expressly overruled and at least a brace of similar factual scenarios have come up in Texas over the last couple of years. You may want to keep Diaz handy.
    The bar against multiple punishments for the same offense prevents an end-run around the prohibition against repeated prosecutions after acquittal or conviction. When multiple offenses are prosecuted at a single trial, the Double Jeopardy Clause “prevents the sentencing court from prescribing greater punishment than the legislature intends.”17 Claims of multiple punishments may be valid if 1) an offense is the lesser-included offense of another or 2) if the same criminal act is punished under two distinct statutes when the legislature intended the conduct to be punished under either statute but not both.18 The Court of Criminal Appeals illustrated the former with attempted assault of Y and assault of Y or assault of X and aggravated assault of X and the latter with causing a single death by committing both intoxication man-slaughter and manslaughter.19
    The protections against successive prosecutions and multiple punishments are “not invariably coextensive.”20 While the difference is not apparent under a lesser-included analysis, it becomes transparent under the dual-statutes, dual-punishment analysis. If, under two statutes, the legislature specifically authorizes cumulative punishments imposed during a single prosecution for two violations—even if the two violations constitute the same offense under Blockburger—the protections against double jeopardy are not violated.21
    In determining whether legislative intent permits multiple punishments, the Court of Criminal Appeals has listed non-exclusive considerations, including whether the offenses:
•    have provisions contained within the same statutory section,
•    are phrased in the alternative,
•    are named similarly,
•    have common punishment ranges,
•    have a common focus (i.e., similar gravamen),
•    have a common focus indicating a single instance of conduct,
•    have elements that differ but can be considered the same under Blockburger (utilizing imputed elements), and
•    reveal a legislative history containing an articulation of an intent to treat them similarly or differently for double jeopardy purposes.22

Multiple violations of single statute
When there are multiple violations of the same statute, the Blockburger test does not apply.23 Instead, the legislative intent in creating the offenses must be considered. The legislature defines statutory offenses by prescription of “the allowable unit of prosecution” and an allowable unit of prosecution is a “distinguishable discrete act that is a separate violation of the statute.” So when there are multiple violations of the same statute, the allowable unit of prosecution must be ascertained by reviewing the statute’s literal text. Words and phrases are read in context and are construed according to the rules of grammar. It is presumed that every word in a statute has been used for a purpose, and each word, phrase, clause, and sentence should be given effect if reasonably possible. Only if the statutory language is ambiguous or leads to absurd results are extra-textual resources consult-ed.24
    If the statute lacks an express indication of the unit of prosecution, the gravamen of the offense is gleaned. Several factors can assist with determining the gravamen of an offense, including the rules of grammar, use of the singular person, and identifying the offense element that requires a completed act. Employing these factors, the Court of Criminal Appeals has determined that the unit of prosecution for indecency with a child by exposure is not the number of children involved but the exposure.25

When a defendant is subjected to multiple punishments, the remedy is to affirm the most serious offense and vacate the other convictions.26 Sometimes, the offenses may provide similar consequences or, even, the greater punishment attaches to the lesser crime. Fortunately, the most serious offense can be the more heinous conviction or the offense carrying the more severe punishment.
    Where a prosecution results in a defense-requested mistrial goaded by the actions of the prosecution, retrial may be forbidden. In Ex parte Lewis, the Court of Criminal Appeals ruled that retrial after a defense-requested mistrial is jeopardy-barred only when the prosecutorial “conduct giving rise to the successful motion for a mistrial was intended to provoke [or goad] the defendant into moving for a mistrial.”27 The purpose of the rule is to prevent the State from seeking a better opportunity to obtain a conviction on retrial. The court has euthanized the extension under Bauder for reckless prosecutorial conduct, but in Ex parte Masonheimer, the State had failed to disclose Brady material both at trial and on retrial. The court held itself “constrained to decide that the extensive portions of the record set out in this opinion support a finding that [Masonheimer’s] mistrial motions were necessitated primarily by the State’s ‘intentional’ failure to disclose exculpatory evidence that was available prior to [Masonheimer’s] first trial with the specific intent to avoid the possibility of an acquittal.”28
    Ex parte Masonheimer is an extension of Ex parte Lewis. As the dissent observed, Masonheimer involved a prosecutor who intended to “win at any price” before a first jury, not one who intended to “get rid of this jury” so that he would have a better chance to win before a second one.29 An anomaly or aberration driven by the particular facts of the case, we may hope, but it remains out there.
    Just like knots, double jeopardy issues can be easy to unravel, but some are more are difficult. For the more tangled problems, we may still dream of the stroke of a sword to cut through the interlacing threads, but the marlinspike teasing out the ropes better preserves the integrity of the law and is a tad more subtle—even more lawyerly. Just avoid a bloody finger.


1 The small marlinspikes available on some penknives must have caused many a painful and even bloody jab to fingers. The things seem designed for nothing better than slipping from the work at hand to deeply penetrate the softest, most sensitive areas of skin. Swords may be safer!
2 I tender this article with some trepidation. I have attempted to map out the basic tests but the caselaw is not always consistent or clear—the less so at the intermediate court level. There is no substitute for your own research.
3 North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Ex parte Chaddock, 369 S.W.3d 880 (Tex. Crim. App. 2012).
4 Benton v. Maryland, 395 U.S. 784, 793 (1969).
5 Tex. Const., Art. 1, §14. Even in the context of mistrials, the Court of Criminal Appeals has ostensibly reverted to a parallel construction of the two provisions. See Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007), overruling Bauder v. State, 921 S.W2d 696 (Tex. Crim. App. 1996); but see Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007) (three judges dissenting) (fudging the sharp boundary delineated in Oregon v. Kennedy, 456 U.S. 667 (1982)).
6 David S. Rudstein, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy, 14 Wm. & Mary Bill of Rts. J. 193 (2005), Maybe something of the sort existed in a more primitive form at the time of Alexander the Great too.
7 This claim, however, has more restrictive relief than other claims that may be raised for the first time on appeal such as jurisdiction, sufficiency of the evidence, and jury charge issues.
8 Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App 2000) (any violation not clearly apparent on the face of the record because more than one manner and means presented); Langs v. State, 183 S.W.3d 680 (Tex. Crim. App. 2006).
9 See, e.g., Teeter v. State, No. PD-1169-09, 2010 Tex. Crim. App. LEXIS 1206 (Tex. Crim. App. Sept. 22, 2010) (holding that convictions on the same facts for capital murder and the lesser-included offense of aggravated assault violated double jeopardy). Of course, double jeopardy claims may also be redressed in habeas proceedings. See, e.g., Ex parte Chaddock, 369 S.W.3d at 880.
10 See Heath v. Alabama, 474 U.S. 82, 88 (1985). Similarly, with tribal and federal courts. See, e.g., United States v. Wheeler, 453 U.S. 313 (1978).
11 Blockburger v. United States, 284 U.S. 299 (1932). Not Blockbuster as it has been called in all seriousness—but possibly inadvertently—on more than one occasion in open court. The Blockburger test was reaffirmed in United States v. Dixon, 509 U.S. 688 (1993), overruling Grady v. Corbin, 495 U.S. 505 (1990).
12 See Brown v. Ohio, 432 U.S. 299, 304 (1977); Ex parte Chaddock, 369 S.W.3d at 883.
13 See, e.g., Ex parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009) (op. on reh’g) (failing to yield while turning is not a lesser-included offense of intoxication assault).
14 Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007) (explaining and rejecting “strict statutory” and “cognate evidence” tests).
15 Ex parte Watson, 306 S.W.3d at 273.
16 Diaz v. United States, 223 U.S. 442 (1911).
17 Missouri v. Hunter, 459 U.S. 359, 366 (1983).
18 Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008).
19 Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006).
20 Ex parte Chaddock, 369 S.W.3d at 883.
21 Missouri v. Hunter, 459 U.S. 359 (1983); Compare Ex parte Chaddock, 369 S.W.3d. at 883 (forbidden multiple prosecutions obtaining multiple punishments) with Garza v. State, 213 S.W.3d 338 (Tex. Crim. App. 2007) (permitted single prosecution obtaining multiple punishments).
22 Ex parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999) (convictions for manslaughter and intoxication manslaughter for same offense offend the Double Jeopardy Clause.).
23 Harris v. State, 359 S.W.3d 625, 629 n.4 (Tex. Crim. App. 2011).
24 Id. at 629-30 (deciding that the act of exposure in an indecency with a child by exposure—a circumstances of conduct—offense constitutes a single unit of prosecution despite the number of victims per incident).
25 Id.
26 Ex parte Cavazos, 203 S.W.3d 303, 337 (Tex. Crim. App.2006); Landers v. State, 957 S.W.2d 558, 559 (Tex. Crim. App. 1997).
27 Ex parte Lewis, 223 S.W.3d 372 (Tex. Crim. App. 2006).
28 Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007).
29 Id. at 514-15 (Cochran, J., dissenting).