Background
Peterson was tried in 2023 for indecency with a child by contact and indecency with a child by exposure. The complainant testified about multiple incidents of sexual conduct occurring over several years. After a juror approached and attempted to speak with the complainant, the trial court excused the juror and declared a mistrial before submitting the charges to the jury.
Two days later, a grand jury indicted Peterson for continuous sexual abuse of a young child, alleging that during a period of at least 30 days he committed an aggravated sexual assault and an act of indecency by contact. Peterson sought pretrial habeas relief, arguing that the mistrial occurred without his consent or manifest necessity and that double jeopardy therefore barred the new charge. The trial court agreed and dismissed all three indictments, but the State pursued its appeal only as to the continuous-sexual-abuse charge.
The Court’s Holding
The First Court of Appeals reversed the order granting habeas relief and dismissing the continuous-sexual-abuse indictment. Applying the cognate-pleadings approach, the court concluded that the indecency-by-contact charge tried earlier—touching the complainant’s breast—was not the same offense as continuous sexual abuse because Texas law expressly excludes breast touching from the forms of indecency by contact that may serve as predicate acts for continuous sexual abuse.
The earlier indecency-by-exposure charge also was not the same offense as the newly alleged continuous sexual abuse. Indecency by exposure is not itself a statutory predicate for continuous sexual abuse, and the new indictment did not allege a manner of committing aggravated sexual assault that necessarily required Peterson to expose his genitals. Because Peterson did not establish that the offenses were legally the same, double jeopardy did not bar prosecution of the continuous-sexual-abuse indictment. The court remanded the case for further proceedings.
Key Takeaways
- Whether offenses are the same for double-jeopardy purposes turns first on their statutory elements as modified by the charging instruments, not merely on overlapping trial evidence.
- Indecency with a child by touching the child’s breast cannot serve as a predicate act for continuous sexual abuse under the applicable Texas statute.
- Indecency by exposure was not a lesser-included offense of the aggravated-sexual-assault predicate as pleaded because the continuous-abuse indictment did not allege a manner and means necessarily involving exposure.
Why It Matters
The decision illustrates the importance of indictment language in successive-prosecution challenges. Even when a later charge arises from testimony presented during a mistried prosecution, double jeopardy does not automatically apply; the defendant must establish both legal and factual sameness.
For prosecutors and defense counsel handling child-sex-offense cases, the opinion also emphasizes that the statutory limitations on predicate offenses—and the particular manner and means pleaded—can determine whether a later continuous-sexual-abuse prosecution survives a double-jeopardy challenge.