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Opinion filed November 9, 2006
In The
Eleventh Court of Appeals
__________
No. 11-05-00413-CR
__________
DARYLE EUGENE DUMAS, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR-17,913
O P I N I O N
This is an appeal pursuant to Tex. R. App. P. 31. Daryle Eugene Dumas filed a pre-conviction application writ of habeas corpus alleging that his prosecution for sexual performance by a child in Trial Court Cause No. CR-17,913 was barred as a result of his acquittal for sexual performance by a child in Trial Court Cause No. CR-17,912. The trial court denied the application. We affirm.
Applicable Criminal Statute
Tex. Pen. Code Ann. ' 43.25 (Vernon Supp. 2006) defines the offense in relevant part as:
(b) A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.
Indictments
In Trial Court Cause No. CR-17,912, appellant was indicted for Aintentionally or knowingly authoriz[ing] a child younger than 18 years of age, namely April Smith (Pseudonym),@ to engage in sexual intercourse. In Trial Court Cause No. CR-17,913, appellant was indicted for Aintentionally or knowingly authoriz[ing] a child younger than 18 years of age, namely Collin Parks (Pseudonym),@ to engage in sexual intercourse.
Background Facts
The record reflects that, at the time of the incident, April and Collin were freshmen in high school, were both fourteen years old, and were Aboyfriend and girlfriend.@ Appellant was Collin=s stepfather. After a trial on the indictment naming April, the jury acquitted appellant. At the hearing on appellant=s application for writ of habeas corpus seeking to bar prosecution on the indictment naming Collin, the trial court took judicial notice of the proceedings involving April.
At trial, April testified that appellant had on numerous occasions driven the vehicle while she and Collin had sexual intercourse in the backseat. April stated that the first time this occurred she had told Collin that she was uncomfortable with appellant in the front seat and that Collin had responded, AIt=s okay, he won=t watch.@ Collin and April would usually lay down in the backseat to have intercourse. Appellant would take April home once he saw April and Collin sitting up in the backseat. Collin used condoms that appellant provided. April also testified that appellant had driven, parked, and exited the vehicle while she and Collin had intercourse five other times.
Collin testified that he called appellant the first time to take April and him for a ride because he Aknew [appellant] would do it.@ During the ride, Collin and April had sexual intercourse in the backseat. Collin testified that, before this time, appellant had driven them around while they would Akiss and make out and have, like, mutual masturbation.@ Collin had asked appellant for Atips,@ and appellant had told him Aways to rub and stuff like that.@ Collin stated that he did not ask his mother to drive the couple around because he Aknew she wouldn=t do it.@
When the couple had finished having intercourse the first time in the car, Collin said he asked appellant to take April home Anow.@ Later, Collin and appellant had a conversation about what had happened. Collin thanked appellant and told him Athat was cool.@ Appellant responded, ANo problem.@ Appellant also gave Collin a tip Aof how to make it easier.@
Collin testified that he had called appellant after that several times to take April and him for a ride so they could have intercourse in the backseat. Collin also stated that he went to appellant to get condoms because he knew his mother would not give them to him. At first, appellant would give Collin a box of three condoms. Later, appellant starting giving Collin boxes of twelve.
Issues on Appeal
In two issues on appeal, appellant contends that the trial court abused its discretion. Appellant argues that his prosecution on the indictment naming Collin is barred by the federal and state doctrines of double jeopardy and of collateral estoppel because he was acquitted on the indictment naming April. Appellant contends that, because the same act of sexual intercourse between Collin and April was alleged in both indictments, any alleged authorization on his part of this sexual activity constituted only one offense. We disagree.
Double Jeopardy Protection
In North Carolina v. Pearce, 395 U.S. 711, 717 (1969), the United States Supreme Court stated that the Fifth Amendment guarantee against double jeopardy protects against prosecution for the same offense after acquittal, against prosecution for the same offense after conviction, and against multiple punishment for the same offense. Texas law affords the same double jeopardy guarantee. Stephens v. State, 806 S.W.2d 812, 815 (Tex. Crim. App. 1990); Phillips v. State, 787 S.W.2d 391, 393 n.2 (Tex. Crim. App. 1990). Both federal and state double jeopardy guarantees look to the offense as opposed to the transaction and allow multiple prosecutions when there are multiple victims of violations of one statutory provision on the ground that this constitutes multiple offenses. Iglehart v. State, 837 S.W.2d 122, 127 (Tex. Crim. App. 1992); Spradling v. State, 773 S.W.2d 553, 556 (Tex. Crim. App. 1989); Ex parte Rathmell, 717 S.W.2d 33, 35 (Tex. Crim. App. 1986).
One Offense or Two?
Appellant contends that, because the sexual performance (sexual intercourse between April and Collin) was the same in each indictment, the jury=s acquittal on the indictment naming April bars his subsequent prosecution on the indictment naming Collin. The State argues that each indictment names a separate victim and, therefore, that each indictment involves a separate offense. We agree.
Section 43.25(b) defines the offense of sexual performance of a child in terms of the defendant employing, authorizing, or inducing a victim to engage in sexual activity. It is the defendant=s actions or conduct with the victim who then engages in sexual activity that constitutes the offense, not the victim=s sexual activity by itself. Therefore, appellant=s alleged authorization of April=s sexual activity is a separate offense from appellant=s alleged authorization of Collin=s sexual activity; and the doctrine of double jeopardy does not apply to the facts of this case. See Spradling, 773 S.W.2d at 556; Baggett v. State, 860 S.W.2d 207, 209 (Tex. App.CHouston [1st Dist.] 1993, no pet.).
The trial court did not abuse its discretion. The first issue is overruled.
Collateral Estoppel
The doctrine of collateral estoppel bars future litigation between the same parties of a fact issue that has been previously determined by a valid and final judgment. Ashe v. Swenson, 397 U.S. 436, 443 (1970). The concept of collateral estoppel is included in the Fifth Amendment=s double jeopardy guarantee. Id. at 445. If federal and state double jeopardy protections are not applicable, the doctrine of collateral estoppel is not applicable. Calderon v. State, 970 S.W.2d 714, 715 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).
As stated above, the protections of the double jeopardy doctrine are not available to appellant in this case; therefore, neither are the protections of the doctrine of collateral estoppel. Moreover, the issue of appellant=s alleged authorization of Collin=s sexual activity with April was never determined or even presented to the jury in the trial on appellant=s alleged authorization of April=s sexual activity with Collin.
Appellant has not established that the trial court abused its discretion. The second issue is overruled.
This Court=s Ruling
The order of the trial court is affirmed.
PER CURIAM
November 9, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.