double jeopardy clause in Texas

2026Although a multiple-punishments double-jeopardy claim is among the claims generally requiring a defendant to object at or before the time that the charge is submitted to the jury to preserve error, see Gonzalez v. State, 8 S.W.3d 640 , 642-43 (Tex. Crim. App. 2000), the Court of Criminal Appeals has held that double-jeopardy 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

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)).

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. App. 2014); see Langs v. State, 183 S.W.3d 680, 682 (Tex. Crim. App. 2006) (“[T]he face of the trial court record must clearly show a double

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).

2026Specifically, he argues that “if this Court finds the evidence sufficient to convict [him] of 11 penetrating [Grace]’s sexual organ with his finger [count two], it cannot uphold both that conviction and the conviction for Indecency with a Child by Contact [count three]” because “[t]he allegations against [him], and the evidence adduced at trial, charged him with those two separate offenses for the same conduct: touching [Grace]’s genitals with his hand.” A. Double Jeopardy and Sexual Offenses Nevilles did not raise his double-jeopardy complaint in the trial court, but a double-jeopardy claim m

2026Specifically, he argues that “if this Court finds the evidence sufficient to convict [him] of 11 penetrating [Grace]’s sexual organ with his finger [count two], it cannot uphold both that conviction and the conviction for Indecency with a Child by Contact [count three]” because “[t]he allegations against [him], and the evidence adduced at trial, charged him with those two separate offenses for the same conduct: touching [Grace]’s genitals with his hand.” A. Double Jeopardy and Sexual Offenses Nevilles did not raise his double-jeopardy complaint in the trial court, but a double-jeopardy claim m

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.

2026Although a multiple-punishments double-jeopardy claim is among the claims generally requiring a defendant to object at or before the time that the charge is submitted to the jury to preserve error, see Gonzalez v. State, 8 S.W.3d 640 , 642-43 (Tex. Crim. App. 2000), the Court of Criminal Appeals has held that double-jeopardy 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

2026A double jeopardy complaint may only be raised for the first time on appeal if “(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 interest.” Garfias v. State, 424 S.W.3d 54, 57-58 (Tex. Crim. App. 2014).

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.

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 .

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.

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

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 .

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 .

2005The 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 A same offense. @ See Illinois v. Vitale , 447 U.S. 410, 415 (1980); Iglehart v. State , 837 S.W.2d 122, 126-27 (Tex. Crim. App. 1992).

2004If we determine that defendant’s conduct comprises but a single offense, “our inquiry is ended, as a successive prosecution for the same offense after [defendant’s] earlier conviction would be a prima facie violation of the double jeopardy clause.” Iglehart, 837 S.W.2d at 127 .

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.

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).

2005The 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 A same offense. @ See Illinois v. Vitale , 447 U.S. 410, 415 (1980); 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).

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

2007See Oregon v. Kennedy , 456 U.S. 667, 679 , 102 S. Ct. 2083, 2091 , 72 L. Ed. 2d 416 (1982); Bauder v. State , 921 S.W.2d 696, 699 (Tex. Crim. App. 1996), overruled by Ex parte Lewis , NO.

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

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) ).

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

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 ).

2024See Aekins, 447 S.W.3d at 279 (stating that a Double Jeopardy violation occurs if a defendant is convicted or punished for two offenses that are the same in both law and in fact); see also Denton, 399 S.W.3d at 545 ; Gonzalez, 8 S.W.3d at 643 .

2024See Aekins, 447 S.W.3d at 279 (stating that a Double Jeopardy violation occurs if a defendant is convicted or punished for two offenses that are the same in both law and in fact); see also Denton, 399 S.W.3d at 545 ; Gonzalez, 8 S.W.3d at 643 .

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,

2017See Ex parte Peterson , 117 S.W.3d 804 , 818 (Tex. Crim. App. 2003), overruled on other grounds by Ex parte Lewis , 219 S.W.3d 335 (Tex. Crim. App. 2007) ; State v. Torres , 805 S.W.2d 418 , 421 (Tex. Crim. App. 1991) ; Anderson v. State , 635 S.W.2d 722 , 725 (Tex. Crim. App. 1982) ; Wockenfuss v. State , 521 S.W.2d 630 , 631 (Tex. Crim. App. 1975) ; Ex parte Tomlinson , 886 S.W.2d 544 , 547 (Tex. App.-Austin 1994, no pet.) ; see also Lewis v. State , No. 01-14-00557-CR, 2016 WL 316366 , at *5 (Tex. App.-Houston [1st Dist.] Jan. 26, 2016, pet. ref'd) (mem. op., not designated for publication)

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].”).

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).