Vick v. State

In Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999), Vick had previously been tried and acquitted of aggravated sexual assault, based on an indictment which alleged that he "caused the penetration of the female sexual organ of the child victim, by defendant's sexual organ." He was then indicted for aggravated sexual assault, based upon the same transaction as the prior indictment, but it was alleged that appellee "causedd the female sexual organ of the child victim to contact the mouth of appellee." Id. at 831. The trial court granted Vick's pretrial motion to dismiss the indictment, based on double jeopardy grounds, on the theory that the second indictment charged the same offense for which appellee had already been tried and acquitted. The Court of Criminal Appeals held that Texas Penal Code section 22.021 is a conduct-oriented offense in which the legislature criminalized very specific conduct of several different types. Id. at 832. Each separately described act of that statute constitutes a separate statutory offense. Id. at 833. The allegation that the defendant caused the child's sexual organ to contact his mouth was a separate and distinct statutory offense from the alleged penetration of the child's sexual organ by the defendant's sexual organ. Id. Therefore, double jeopardy did not foreclose the second prosecution. Id. at 834. The Texas Court of Criminal Appeals held that double jeopardy protections do not preclude prosecution for aggravated sexual assault of a child by causing the child's sexual organ to contact the defendant's mouth and, separately, prosecution for aggravated sexual assault of a child by penetrating the child's sexual organ with the defendant's sexual organ during the same criminal transaction. The Vick court explained that when a statute prohibits disjunctively separate acts of sexually assaultive conduct, "this specificity reflects the legislature's intent to separately and distinctly criminalize any act which constitutes the proscribed conduct. An offense is complete when a person commits any one of the proscribed acts." Consequently, the Vick court concluded that the legislature intended that each separately described act "constituted a separate and distinct statutory offense." The Vick court held that the Blockburger test does not apply. It is only necessary that the State plead the separate manners of committing the offense in separate counts rather than pleading alternative manners and means in separate paragraphs. (Id. at 834.) The Court held that there was no double-jeopardy violation for multiple prosecutions for aggravated sexual assault "based on the same transaction, but different manners of committing the offense." (holding that "two indictments alleged violations of separate and distinct statutory aggravated sexual assault offenses" and were separate offenses that could be separately prosecuted). The Court in Vick explained: "The penetration offense alleged in the first indictment clearly required a separate and distinct act (involving appellee's sexual organ with the child's female sexual organ) from the act alleged in the second indictment (which involved appellee's mouth with the child's sexual organ). . . . That conduct alleged in the second indictment constituted a separate and distinct statutory offense from the alleged penetration of the child's sexual organ by appellee's sexual organ, despite the fact both are violations of a single statute." Id. at 833. The inquiry for double jeopardy purposes ends once it is determined that two separate and distinct statutory violations are alleged that involve separate and distinct acts. Id. In sum, in Vick v. State, the defendant was tried and acquitted of aggravated sexual assault under an indictment alleging that he penetrated a child's sexual organ with his sexual organ. Id. at 831. He was then reindicted for aggravated sexual assault based on the same transaction, but this time it was alleged that he caused the child's sexual organ to contact his mouth. Id. The trial court granted Vick's motion to dismiss the new indictment on the ground that he had been previously tried and acquitted of the same offense. Id. The court of appeals affirmed the dismissal, but the court of criminal appeals reversed. Id. at 834. The court held that each subsection of section 22.021(a)(1)(B) describes conduct constituting a separate statutory offense. Id. at 833. Because the two indictments alleged two different statutory offenses based on two different acts, albeit committed during the same criminal transaction, the acquittal on the first indictment did not bar prosecution on the second. Id.