A jury acquitted Crystal Desormeaux of capital murder. A grand jury then indicted her for the offense of injury to a child. Injury to a child is a lesser-included offense to capital murder of a child (In Re L.M.).

Desormeaux filed a writ of habeas corpus in the injury-to-a-child case, alleging that the Double-Jeopardy Clause of the Fifth Amendment barred her trial for injury to a child after she was acquitted of capital murder.

A no-brainer, right? The Double-Jeopardy Clause says, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”; a person who has been tried for one offense has been effectively tried for all lesser offenses as well. Trial for a lesser after being acquitted of a greater offense violates double jeopardy.

Basic crim pro.

But no, says Texas’s 9th (Beaumont) Court of Appeals in a published opinion:

[T]he issue is ultimately one of statutory construction; if the Legislature makes clear the intent to permit the prosecution, conviction, and multiple punishment for the two offenses, double jeopardy principles are not violated when this occurs. See United States v. Woodward, 469 U.S. 105, 108-10, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985); Missouri v. Hunter, 459 U.S. 359, 366-68, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Jimenez v. State, 240 S.W.3d 384, 417-18 (Tex. App.–Austin 2007, pet. refd); Gallow v. State, 56 S.W.3d 117, 119 (Tex. App.–Houston [14th Dist.] 2001, no pet.)

Section 22.04 provides that a person who is subject to prosecution under both this section and another section of this code may be prosecuted under either or both sections. Tex. Penal Code Ann. § 22.04(h) (West 2011). In Littrell v. State, 271 S.W.3d 273, 278-79 (Tex. Crim. App. 2008), the Court of Criminal Appeals stated that section 22.04(h) makes it clear that an accused who is charged with injury to a child, elderly individual, or disabled individual may also be prosecuted (and presumably, punished) for any other penal-code violation to which his conduct may subject him.

What the Beaumont Court of Appeals is saying here is that, since the Texas Legislature said that a person could be prosecuted both for the greater and the lesser, a defendant cannot claim the protection of the Double-Jeopardy Clause to prevent successive prosecutions.

“The issue is ultimately one of statutory construction” means that the Double-Jeopardy Clause doesn’t constrain the legislature; the legislature could, by making it clear that a person can be prosecuted successively, write around the United States Constitution.

Let’s look at this first as though we’re moderately intelligent lawyers who don’t know anything about any of the cases cited. Does it make sense? Can the legislature subject someone to multiple prosecutions for the same offense by simply expressing its intent to do so?

No, of course not. The idea is laughable. The Constitution is there to protect the people not only from the executive branch, but also from the legislative branch. If one offense is a lesser-included of another, successive prosecutions for both are barred by the Constitution. The Texas Legislature can’t rewrite the U.S. Constitution. And neither can the Beaumont Court of Appeals.

Okay, so now let’s look at this as though we’re moderately intelligent lawyers who have read the five cases cited by the Beaumont Court for the proposition that a person can be acquitted of one offense and then tried for a lesser-included offense if the legislature says he can.

Missouri v. Hunter is the leading case. It’s not a successive-trial case, but a cumulative-punishment case:

Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

(My emphasis, but the opinion uses the words in paragraph after paragraph. It’s really hard to miss them.)

United States v. Woodward is likewise a cumulative-punishment (stacked sentences in one proceeding) case, but it hinged on the fact that the two offenses (making a false statement under 18 USC §1001 and failing to file a currency disclosure report under 31 USC §1058) were distinct cases, each with an element that the other did not have. There is dicta in Woodward about legislative intent (Congress didn’t express an intent to forbid cumulative punishment), but otherwise the case has nothing to do with the proposition for which the Beaumont Court of Appeals cites it.

Jimenez v. State, Gallow v. State, and Littrell v. State are also cumulative-punishment cases. The Court of Criminal Appeals wrote in Littrell:

The instant case involves the issue of multiple punishments stemming from a single prosecution. In the multiple-punishments context, two offenses may be the same if one offense stands in relation to the other as a lesser-included offense, or if the two offenses are defined under distinct statutory provisions but the Legislature has made it clear that only one punishment is intended. Sameness in this context is a matter of legislative intent.

(My emphasis.) Here the CCA drops a footnote to Ex Parte Kopecky, which cites Justice Rehnquist’s dissent in Whalen v. United States:

[T]wo charges considered the same offense so as to preclude prosecution on one charge after an acquittal or conviction on the other need not be considered the same offense so as to bar separate punishments for each charge at a single proceeding.

How the Beaumont court got it so wrong is a puzzle. That Missouri v. Hunter does not apply in the successive-prosecution context is not difficult to discover. The test of whether prosecution is permitted after acquittal is the Blockburger test: if two prosecutions arise from the same incident, and if one of the charged offenses does not contain an element not found in the other (that is, if they are the same offense or one is a lesser-included offense of the other), the second prosecution is barred.

So Ms. Desormeaux’s injury-to-a-child prosecution would not have been jeopardy-barred if it arose from a different incident than her capital-murder charge, or if injury to a child, as charged, included an element not found in capital murder of a child. And in fact when it rehears the case the Beaumont Court of Appeals might decide that the second charge was not subsumed in the first. But the court, by taking the easy—and wrong—way out, skipped this analysis entirely.

Desormeaux is a flat-out misstatement of the law that will be cited by other courts for its novel and incorrect proposition; those courts’ opinions will be cited by other courts, until, in the echo chamber of the Texas Courts of Appeals, full legislative override of the Double-Jeopardy Clause becomes the law in Texas. Better to nip this in the bud. Even if we were to assume that Ms. Desormeaux would lose on rehearing (so that the result would be the same), this would be one of those opinions that must go away.