Summary
The Texas Court of Appeals, Third District, affirmed the denial of Joshua Hernandez’s pretrial habeas application challenging a subsequent indictment for indecency with a child by sexual contact. The court held that the breast-touching allegation was not the same offense as the previously charged continuous sexual abuse or abandoned genital-touching count for double-jeopardy purposes. The court also concluded that Hernandez failed to establish collateral estoppel or res judicata and addressed his claim of vindictive prosecution.
Topics
Practice areas
Questions Presented
- Whether the 2024 indictment for indecency with a child by sexual contact (breast-touching) violates double jeopardy after acquittal on continuous sexual abuse of a young child
- Whether the doctrines of res judicata and collateral estoppel bar the subsequent prosecution
- Whether the prosecution is vindictive
Holdings
- The offenses are not the same offense for double jeopardy purposes because each contains elements the other does not under the Blockburger same-elements test, and indecency by breast-touching is explicitly excluded from predicate offenses for continuous sexual abuse.
- The offenses are not the same offense because they have different allowable units of prosecution—touching different body parts constitutes separate criminal offenses under Texas law.
- The State is not collaterally estopped because Hernandez failed to prove that the breast-touching allegation was necessarily decided in the prior proceeding. A rational jury could have based its not-guilty verdict on issues other than the truth of the breast-touching evidence.
- A vindictive-prosecution claim is not cognizable on pretrial habeas corpus because such claims do not render a defendant wholly free from prosecution and may be addressed through post-conviction proceedings.
Key quotations
“The breast-touching allegation was not charged in the 2021 indictment, and indecency by breast-touching is expressly excluded from the list of predicate offenses for continuous sexual abuse.”
“In short, different body parts mean different crimes.”
“Because a rational jury could have based its verdict on issues other than the truth of Hailey's breast-touching allegation, Hernandez has not met his burden of proving that the fact was necessarily decided at trial.”
“A vindictive-prosecution claim, by its very nature, is not among the claims for which pretrial habeas corpus relief lies.”
Factual background
Hernandez was charged in a 2021 two-count indictment with continuous sexual abuse of a young child and indecency with a child by sexual contact (genital-touching). Before closing arguments, the State elected to proceed on the continuous sexual abuse count and abandoned the genital-touching count. The jury heard testimony about both genital and breast touching but returned a general verdict of not guilty. Three months after acquittal, the State indicted Hernandez for indecency with a child by sexual contact based on the breast-touching allegations from the same incident.
Procedural history
A jury acquitted Hernandez of continuous sexual abuse of a young child. The State subsequently indicted him for indecency with a child by sexual contact (breast-touching). Hernandez filed a pretrial habeas application challenging the indictment on double jeopardy, res judicata/collateral estoppel, and vindictive prosecution grounds. The trial court denied the application. Hernandez appealed.