double jeopardy clause in Texas

2024However, because double jeopardy protections are fundamental, a double jeopardy claim may be raised for the first time on appeal if: (1) “the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record” and (2) “when enforcement of the usual rules of procedural default serves no legitimate state interest.” Id. (citing Gonzalez, 8 S.W.3d at 643 (footnotes omitted)).

2024However, because double jeopardy protections are fundamental, a double jeopardy claim may be raised for the first time on appeal if: (1) “the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record” and (2) “when enforcement of the usual rules of procedural default serves no legitimate state interest.” Id. (citing Gonzalez, 8 S.W.3d at 643 (footnotes omitted)).

2024Denton, 399 S.W.3d at 545 . “[W]hen separate theories for an offense are issued to the jury disjunctively, a double jeopardy violation is not clearly apparent on the face of the record if one of the theories charged would not constitute a double jeopardy violation and there is sufficient evidence to support that valid theory.” Langs, 183 S.W.3d at 687 (citing Gonzalez, 8 S.W.3d at 641–42).

2023Because there is no Double-Jeopardy violation apparent on the face of this record, see Langs, 183 S.W.3d at 686–87; Gonzalez, 8 S.W.3d at 643 , we overrule this portion of Brown’s third issue. 3.

2024“A double-jeopardy claim is apparent on the face of the trial record if resolution of the claim does not require further proceedings for the purpose of introducing additional evidence in support of the double-jeopardy claim.” See Ex Parte Denton, 399 S.W.3d 540, 544 (Tex. Crim.

2024Denton, 399 S.W.3d at 545 . “[W]hen separate theories for an offense are issued to the jury disjunctively, a double jeopardy violation is not clearly apparent on the face of the record if one of the theories charged would not constitute a double jeopardy violation and there is sufficient evidence to support that valid theory.” Langs, 183 S.W.3d at 687 (citing Gonzalez, 8 S.W.3d at 641–42).

2024While we agree that Marshall did not raise his specific complaint with the trial court, “when the error is clearly apparent from the face of the record, a double jeopardy violation can be raised for the first time on appeal.” Alberts v. State, 302 S.W.3d 495, 500 (Tex. App.—Texarkana 2009, no pet.) (citing Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim.

2024While we agree that Marshall did not raise his specific complaint with the trial court, “when the error is clearly apparent from the face of the record, a double jeopardy violation can be raised for the first time on appeal.” Alberts v. State, 302 S.W.3d 495, 500 (Tex. App.—Texarkana 2009, no pet.) (citing Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim.

2026However, double-jeopardy claims occupy a fairly unique position in the preservation landscape; the Court of Criminal Appeals has held that such claims “may be raised for the first time on appeal when (1) the undisputed facts show the double-jeopardy violation is clearly apparent from the face of the record, and (2) enforcement of the usual rules of procedural default serves no legitimate state interest.” Garfias v. State, 424 S.W.3d 54 , 57–58 (Tex. Crim.

2025However, a double jeopardy claim may be raised for the first time on appeal when “(1) the undisputed facts show the double-jeopardy violation is 4 clearly apparent from the face of the record, and (2) enforcement of the usual rules of procedural default serves no legitimate state interest.” Garfias, 424 S.W.3d at 57–58.

2025App. 2017); see also Carter v. State, No. 10-24- 00036-CR, 2025 WL 1766137 , at *1 n.1 (Tex. App.—Waco June 26, 2025, no pet.) (mem. op., not designated for publication) (“We reject [appellant’s] double jeopardy violation sub-issue as inadequately briefed because [appellant] never made a double jeopardy claim in the trial court and spends no time in his brief discussing how we may reach his unpreserved claim.”); Peralez v. State, No. 13-06-376-CR, 2007 WL 2265111 , at *5 (Tex. App.—Corpus Christi–Edinburg 2 Barnes does not challenge the legal sufficiency of the evidence supporting each of his

2019“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.” Ex parte Leachman, 554 S.W.3d 730, 738 (Tex. App.—Houston [1st Dist.] June 19, 2018, pet. ref’d) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932), and Watson v. State, 900 S.W.2d 60 , 61–62 (Tex. Crim.

2023Brown v. Ohio, 432 U.S. 161, 165 , 97 S. Ct. 2221 , 12 Generally, to preserve the error for appellate review, a defendant must raise a double-jeopardy claim in the trial court.

2023Brown v. Ohio, 432 U.S. 161, 165 , 97 S. Ct. 2221 , 12 Generally, to preserve the error for appellate review, a defendant must raise a double-jeopardy claim in the trial court.

2020In order to prevail on a double jeopardy claim, the record must demonstrate that the offenses at issue necessarily arose from “one act which could be subject to two different interpretations.” Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim.

2014To establish a double-jeopardy claim, the evidence must show that the two offenses at issue necessarily arose from “one act which could be subject to two different interpretations.” Ochoa, 982 S.W.2d at 908 .

2019The threshold question in a double-jeopardy analysis is whether the defendant is being punished or prosecuted for the “same offense.” State v. Perez, 947 S.W.2d 268, 270 (Tex.Crim.App. 1997)(citing United States v. Dixon, 509 U.S. 688, 696 (1993)).

2012CHADDOCK DISSENTING OPINION—6 Harris was charged with and convicted of one offense (committing murder in the course of a robbery with firearms) and then, in a separate proceeding, was charged with and convicted of the lesser-included offense (robbery with firearms).21 Reading Dixon literally—as I suggest we must—Professor LaFave opined that “if . . . the Dixon decision really means that the two strands of the double jeopardy clause must be given precisely the same meaning, then the actual holding in Harris would likewise be open to circumvention by such legislative action.” 22 Ultimately, we h

2023As previously observed, Appellant’s murder conviction carries the jury finding of a culpable mens rea9 which “many, if not all, citizens would say . . . is . . . more serious.”10 See Cavazos, 203 S.W.3d at 338 ; see also Burwell v. State, No. 11-12-00351-CR, 2014 WL 6603422 , at *2 (Tex. App.—Eastland Nov. 20, 2014, pet. ref’d) (mem. op., not designated for publication) (when no fine or restitution was assessed and all three of the defendant’s convictions carried the same punishment, the parties agreed the offense listed first on the verdict form and in the indictment should be retained); Scro

2021See Cavazos, 203 S.W.3d at 337 ; see also Cucuta, 2018 WL 1026450 , at *8 (observing that the remedy for a double jeopardy violation, if any, where a 4 defendant is given multiple punishments for what is determined to be the same offense, is to set aside the less serious offense and retain the more serious one).

2013The State conceded that the offenses are the same by their elements: “If the Court were to find that the actions taken by the defendants constituted a single transaction, then the only conclusion is that a double jeopardy violation has occurred.” But the State suggested that the offenses might be different by their units. 17 See Vick, 991 S.W.2d at 833 n.1 (arriving at the same result under either the Blockburger test or an inquiry regarding how to divide the offense into separate prosecutable acts). 18 Id. at 832 . 19 See Vineyard v. State, 958 S.W.2d 834 , 836 n.5 (Tex. Crim.

2013The State conceded that the offenses are the same by their elements: “If the Court were to find that the actions taken by the defendants constituted a single transaction, then the only conclusion is that a double jeopardy violation has occurred.” But the State suggested that the offenses might be different by their units. 17 See Vick, 991 S.W.2d at 833 n.1 (arriving at the same result under either the Blockburger test or an inquiry regarding how to divide the offense into separate prosecutable acts). 18 Id. at 832 . 19 See Vineyard v. State, 958 S.W.2d 834 , 836 n.5 (Tex. Crim.

2025“Where the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the ‘manifest necessity’ standard first enunciated in Justice Story’s opinion in United States v. Perez, [ 22 U.S. 579, 580 ] (1824).” Kennedy, 456 U.S. at 672 .

2025Thus, where a defendant has moved for mistrial, the double jeopardy bar applies “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial.” Id. at 676 .

2014The Double Jeopardy Clause affords a criminal defendant a “valued right to have his trial completed by a particular tribunal.” Oregon v. Kennedy, 456 U.S. at 671 - 72, 102 S.Ct. at 2087 ; see Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App. 2007)(adopting Oregon v. Kennedy standard as the correct standard when addressing a double jeopardy claim under the Texas Constitution and overruling Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App. 1996), which had established a rule that retrial would be barred when it was shown that the prosecutor was aware of but consciously disregarded the risk that hi

2007NOTES [1] 456 U.S. 667, 679 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982). [2] 921 S.W.2d 696, 699 (Tex.Crim.App.1996). [3] We granted three grounds for review: (1) Should this Court reconsider its decision in Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App.1996)? (2) Is the mere showing that a prosecutor recklessly engaged in conduct that required the declaration of a mistrial, without showing that the prosecutor intended to induce such mistrial, sufficient to order a double jeopardy bar to reprosecution for that offense? (3) Did the Court of Appeals correctly apply the Bauder standard?

2016The Texas Court of Criminal Appeals has established that “the pretrial writ of habeas corpus is an appropriate remedy to review a double jeopardy claim.’’ Stephens v. State, 806 S.W.2d 812, 814 (Tex.Crim.App.1990); Ex Parte Robinson, 641 S.W.2d 552, 553-55 (Tex.Crim.App.1982).

2002Thus, while collateral estoppel might, in a particular case, bar relitigation of the issue of future dangerousness, it might not. [33] See Ashe v. Swenson, 397 U.S. at 447 , 90 S.Ct. 1189 ("`No doubt the prosecutor felt the state had a provable case on the first charge and, when he lost, he did what every good attorney would do-he refined his presentation in light of the turn of events at the first trial.' But this is precisely what the constitutional guarantee forbids"). [34] See Stephens v. State, 806 S.W.2d 812, 814 (Tex.Crim.App.1990) ("the pretrial writ of habeas corpus is an appropriate

2017See Stephens, 806 S.W.2d at 814 n.4 (“This opinion does not purport to answer the question whether the Double Jeopardy Clause would bar a subsequent prosecution if the jury charge had included an instruction on the lesser included offense.... ”).

2016The Texas Court of Criminal Appeals has established that “the pretrial writ of habeas corpus is an appropriate remedy to review a double jeopardy claim.’’ Stephens v. State, 806 S.W.2d 812, 814 (Tex.Crim.App.1990); Ex Parte Robinson, 641 S.W.2d 552, 553-55 (Tex.Crim.App.1982).

2019“A double-jeopardy claim is apparent on the face of the trial record if resolution of the claim does not require further proceedings for the purpose of introducing additional evidence in support of the double-jeopardy claim.” Denton, 399 S.W.3d at 544 ; accord Ex parte Knipp, 236 S.W.3d 214 , 216 n.3 (Tex. Crim.

2016Judge Richardson also accurately observed that, in Denton, this court held that a double jeopardy violation “could be remedied in a habeas proceeding .,. even though [the .applicant] failed to raise, such claim in the trial court.” Id. (citing Denton, 399 S.W.3d at 545 ).

2002The double jeopardy clause embodies three essential guarantees: (1) it protects against a successive prosecution for the “same offense” after acquittal; (2) it protects against a successive prosecution for the “same offense” after conviction; and (3) it protects against multiple punishments for the “same offense.” Illinois v. Vitale, 447 U.S. 410, 415 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980); see also Iglehart v. State, 837 S.W.2d 122, 126-27 (Tex.Crim.App.1992).

2002The double jeopardy clause embodies three essential guarantees: (1) it protects against a successive prosecution for the “same offense” after acquittal; (2) it protects against a successive prosecution for the “same offense” after conviction; and (3) it protects against multiple punishments for the “same offense.” Illinois v. Vitale, 447 U.S. 410, 415 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980); see also Iglehart v. State, 837 S.W.2d 122, 126-27 (Tex.Crim.App.1992).

2016First, the Court simply declared that “we have previously addressed such [double-jeopardy] claims via writ of habeas corpus application.” 399 S'W.3d at 544 (citing Ex parte Cavazos, 203 S.W.3d 333 (Tex.Crim.App.2006), Ex parte Hawkins, 6 S.W.3d 554 (Tex.Crim.App.1999), and Ex parte Ervin, 991 S.W.2d 804 (Tex.Crim.App.1999)), for the proposition that this Court has previously treated double jeopardy claims as cognizable in post-conviction habeas). 2 The Court then' justified the recognition of double jeopardy claims in post-conviction habéas with the conclusory statement that, “[b]e-cause of th

2016First, the Court simply declared that “we have previously addressed such [double-jeopardy] claims via writ of habeas corpus application.” 399 S'W.3d at 544 (citing Ex parte Cavazos, 203 S.W.3d 333 (Tex.Crim.App.2006), Ex parte Hawkins, 6 S.W.3d 554 (Tex.Crim.App.1999), and Ex parte Ervin, 991 S.W.2d 804 (Tex.Crim.App.1999)), for the proposition that this Court has previously treated double jeopardy claims as cognizable in post-conviction habeas). 2 The Court then' justified the recognition of double jeopardy claims in post-conviction habéas with the conclusory statement that, “[b]e-cause of th

2015The double jeopardy clause of both the Texas and Federal Constitutions protect against three abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction,and multiple punishments for the same offense.North Carolina v. Pearce, 395 U.S. 711,716-17 , 89 S.Ct. 2072,2076 , 23 L.Ed.2d 656 (1969);Phillips v. State, 787 S.W.2d 391,393 (Tex.Crim.App. 1990).The Unit- ed States and Texas Constitutions protect the accused from attempts to secure addit- ional punishment after a prior conviction and sentence.Brown v. Ohio,432 U.S. 161l 165-66,

2015The double jeopardy clause of both the Texas and Federal Constitutions protect against three abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction,and multiple punishments for the same offense.North Carolina v. Pearce, 395 U.S. 711,716-17 , 89 S.Ct. 2072,2076 , 23 L.Ed.2d 656 (1969);Phillips v. State, 787 S.W.2d 391,393 (Tex.Crim.App. 1990).The Unit- ed States and Texas Constitutions protect the accused from attempts to secure addit- ional punishment after a prior conviction and sentence.Brown v. Ohio,432 U.S. 161l 165-66,

2019The Ashe court ruled that the double jeopardy clause incorporates the doctrine of collateral estoppel. 397 U.S. at 445 .

2018Under these circumstances, the Court held that the double jeopardy clause would protect Ashe from having to " 'run the gauntlet' a second time." Id. at 446 , 90 S.Ct. 1189 (quoting Green v. United States , 355 U.S. 184 , 190, 78 S.Ct. 221 , 2 L.Ed.2d 199 (1957) ).

2015And we have been instructed that when conducting a double-jeopardy analysis “the essential elements relevant” to that analysis “are those of the charging instrument, not of the penal statute itself.” Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1994).

2010It argues that "the proper test for a double-jeopardy claim in the context of a successive prosecution is the same-elements test set forth in Blockburger [ v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932),] and expanded by this Court in Parrish [ v. State, 869 S.W.2d 352 (Tex.Crim.App.1994)], which compares the statutory elements and all of the additional non-statutory descriptive averments in both [the] charging instruments" of the greater and the lesser-included offenses.

2023In contrast, the court of criminal appeals has disallowed the use of a pretrial writ to assert “constitutional rights to a speedy trial, challenge a denial of a pretrial motion to suppress, or make a collateral estoppel claim that does not allege a double jeopardy violation.” Id. at 620 .

2016Conversely, the Court of Criminal Appeals has held that “an applicant may not use a pretrial writ to assert his or her constitutional rights to a speedy trial, challenge a denial of a pretrial motion to suppress, or make a collateral estoppel claim that does not allege a double jeopardy violation.” Id. (internal citations omitted).

2015“Peterson II” was the shorthand the Court of Criminal Appeals used for Ex parte Peterson, 117 S.W.3d 804 (Tex.Crim.App. 2003), the case Ahn argued at the hearing. 219 S.W.3d at 338, n.12 . 7 government’s ‘gross negligence’ would prevent a retrial of the defendant.”), citing Robinson v. Wade, 686 F.2d 298 , 306 & n.17 (5th Cir. 1982); United States v. Huang, 960 F.2d 1128, 1133 (2d Cir. 1992) (“Negligence, even if gross, is insufficient [to preclude retrial under the Double Jeopardy clause].”).

2006“The double jeopardy clause serves not to punish prosecutorial misconduct; it simply ensures that the defendant, not the government, gets to choose whether to go to verdict.” Id. 9: State v. Lee, 15 S.W.3d 921, 923 (Tex. Crim.