                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00119-CR

                           EX PARTE PATRICIA RUSH



                           From the 19th District Court
                            McLennan County, Texas
                          Trial Court No. 2011-1857-C1A


                          MEMORANDUM OPINION


      A grand jury indicted Patricia Rush on five counts of aggravated sexual assault

of a child, five counts of improper educator-student relationship by deviate sexual

intercourse, four counts of indecency with a child, and four counts of improper

educator-student relationship by sexual contact. A jury acquitted Rush on ten of the

counts but was unable to reach a verdict on the remaining eight counts. The trial court

declared a mistrial on those eight counts.

      Because the State sought to retry Rush, she filed a pretrial application for writ of

habeas corpus alleging that further prosecution on the remaining eight counts is barred

by double jeopardy. After a hearing on the application, the trial court denied the

application. Rush appeals, raising two issues.
       A pretrial writ of habeas corpus is a proper vehicle to raise double jeopardy. See

Ex parte Watkins, 73 S.W.3d 264, 273 (Tex. Crim. App. 2002); Ex parte Graves, 271 S.W.3d

801, 804 (Tex. App.—Waco 2008, pet. ref’d).         Among other protections, the Fifth

Amendment’s Double Jeopardy Clause protects against a second prosecution for the

same offense after acquittal. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072,

2076, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794,

109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); Graves, 271 S.W.3d at 804.

              For double jeopardy purposes, the same offense means the identical
       criminal act, not the same offense by name. Ex parte Goodbread, 967 S.W.2d
       859, 860 (Tex. Crim. App. 1998) (quoting Luna v. State, 493 S.W.2d 854, 855
       (Tex. Crim. App. 1973)). Thus, a conviction or acquittal on an earlier
       indictment does not bar prosecution for an offense that could have been
       prosecuted under its language but was not. Id. at 861. On the other hand,
       if evidence of more than one offense was offered at the earlier trial and a
       conviction under the indictment could have been had for any one of them,
       and neither the State nor the trial court elects, a subsequent prosecution
       for any of the offenses proved is barred by former jeopardy. Id. at 860
       (quoting Walker v. State, 473 S.W.2d 499, 500 (Tex. Crim. App. 1971)).

Ex parte Pruitt, 187 S.W.3d 635, 638 (Tex. App.—Austin 2006), aff’d, 233 S.W.3d 338 (Tex.

Crim. App. 2007).

       The burden is on the applicant to prove his allegations by a
       preponderance of the evidence. Ex parte Chandler, 182 S.W.3d 350, 353 n.2
       (Tex. Crim. App. 2005). The applicant also has the burden to bring before
       the court a record sufficient to prove his allegations. Id. In a habeas
       proceeding, the trial court may take judicial notice of earlier proceedings
       before the same judge and involving the same parties. Ex parte Turner, 612
       S.W.2d 611, 612 (Tex. Crim. App. 1981). Appellate review of the court’s
       ruling is not limited to the evidence adduced at the habeas hearing, but
       may include the record as it existed before the trial court at the time of the
       hearing. State v. Ybarra, 942 S.W.2d 35, 36-37 (Tex. App.—Corpus Christi
       1996), pet. dism’d, 977 S.W.2d 594 (1998).

Ex parte Coleman, 350 S.W.3d 155, 160 (Tex. App.—San Antonio 2011, no pet.).

Ex parte Rush                                                                           Page 2
       In the habeas hearing, the trial court admitted the relevant evidence from the

first trial. We review a trial court’s decision to grant or deny habeas relief by viewing

the evidence in the light most favorable to the trial court’s ruling. Ex parte Peterson, 117

S.W.3d 804, 818 (Tex. Crim. App. 2003), overruled on other grounds by Ex parte Lewis, 219

S.W.3d 335 (Tex. Crim. App. 2007).

       We afford “’almost total deference to a trial court’s determination of the
       historical facts that the record supports especially when the trial court’s
       fact findings are based on an evaluation of credibility and demeanor.’” Id.
       (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). In
       such instances, we utilize an abuse of discretion standard. Id. We afford
       the same amount of deference to the trial court’s ruling on “application of
       law to fact questions,” if the resolution of those ultimate questions turns
       on an evaluation of credibility and demeanor. Id. However, if the
       resolution of those ultimate questions turns on an application of legal
       standards absent any credibility issue, we review the determination de
       novo. Id.

State v. Webb, 244 S.W.3d 543, 547 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

       The five counts that alleged aggravated sexual assault (counts 1, 3, 5, 7, and 9)

contain virtually identical allegations, namely that Rush did “intentionally or

knowingly cause the sexual organ of J.P., a child who was then and there younger than

14 years of age, and not the spouse of the Defendant, to contact the mouth of the said

Defendant.” The five counts varied as to the dates of the alleged offenses, alleging that

they occurred “on or about” March 1, 2007, March 5, 2007, March 7, 2007, March 10,

2007, and March 15, 2007, respectively.

       The five counts alleging improper educator-student relationship by deviate

sexual intercourse (counts 2, 4, 6, 8, and 10) likewise contain virtually identical


Ex parte Rush                                                                         Page 3
allegations, namely, that Rush did, while “an employee of a public primary school, to-

wit: Hallsburg Independent School District, intentionally or knowingly engage in

deviate sexual intercourse with J.P., a person who was enrolled in the said Hallsburg

Independent School District, by then and there placing her mouth in contact with the

genitals of J.P. The dates alleged in these counts corresponded to the dates alleged in

the five counts alleging aggravated sexual assault.

       In the first trial, the jury did not reach a unanimous verdict on counts 1 through

4. The jury acquitted Rush on counts 5 through 10 and 13, 14, 17, and 18, which were:

three counts of aggravated sexual assault (counts 5, 7, and 9) and the corresponding

three counts of improper educator-student relationship by deviate sexual intercourse

(counts 6, 8, and 10), two counts of indecency with a child (counts 13 and 17), and two

counts of improper educator-student relationship by sexual contact (counts 14 and 18).

During the hearing on Rush’s application, the State abandoned counts 11 and 12, and in

its brief in this appeal, the State further abandoned counts 15 and 16. Thus, the only

remaining counts at issue are counts 1 through 4.

       Counts 1 and 2 allege aggravated sexual assault and improper educator-student

relationship by deviate sexual intercourse, respectively, and are based on the same

conduct alleged to have occurred on or about March 1, 2007. Counts 3 and 4 allege

aggravated sexual assault and improper educator-student relationship by deviate

sexual intercourse, respectively, and are based on the same conduct alleged to have

occurred on or about March 5, 2007.




Ex parte Rush                                                                      Page 4
       In her first issue, Rush asserts that a second trial on counts 1 through 4 is barred

by double jeopardy because the jury heard evidence of more offenses than were alleged

in the indictment and the State failed to elect which offenses it would rely on for

conviction.     The State disputes Rush’s assertion that there was evidence of more

offenses than were alleged in the indictment and claims that it was therefore

unnecessary to make an election.

       Election is unnecessary when the State’s evidence does not present more offenses

than counts in the indictment. See Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim.

App. 2007); see also Goodbread, 967 S.W.2d at 860 (“’If evidence of more than one offense

is admitted and a conviction for either could be had under the indictment, and neither

the State nor the court elects, a plea of former conviction is good upon a prosecution

based upon one of said offenses, it being uncertain for which one the conviction was

had.’”) (quoting Walker, 473 S.W.2d at 500); Hulsey v. State, 211 S.W.3d 853, 855 (Tex.

App.—Waco 2006, no pet.) (“The general rule is when ‘one act of intercourse is alleged

in the indictment and more than one act of intercourse is shown by the evidence in a

sexual assault trial, the State must elect the act upon which it would rely for

conviction.’”) (quoting O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988)); cf.

Ex parte Pruitt, 233 S.W.3d 338 (Tex. Crim. App. 2007).

       In the first trial, J.P. testified that Rush performed oral sex on him five times. He

said that the first time occurred in February or early March of 2007 and happened in her

kitchen. The second time occurred shortly after (within days of) the first time and



Ex parte Rush                                                                         Page 5
happened in Rush’s truck in the school gym parking lot. The next (third) time occurred

in March 2007 at Rush’s swimming pool.

        J.P. testified to two more occasions when Rush performed oral sex on him in

March of 2007: when she called him to come over to her house to help her upright an

all-terrain vehicle (ATV) and Rush performed oral sex on him while he was seated on

the ATV in Rush’s shop, and when they were again in the shop looking for a gas can.

J.P. was unsure of the chronological order of those two occasions.

        These five incidents of oral sex correspond with both the five counts of

aggravated sexual assault and the five counts of improper educator-student

relationship by deviate sexual intercourse. Rush asserts that there was testimony of

other acts of oral sex extraneous to these five incidents (and that the State therefore

should have made an election) by pointing to J.P.’s testimony on cross-examination.

The State disagrees with Rush’s assertion that J.P. testified to acts other than the five

incidents.

        On direct examination, J.P. testified that there were five incidents of oral sex and,

as set out above, detailed each incident. In cross-examination of J.P., defense counsel

brought out J.P.’s inconsistent and evolving revelations to law enforcement of Rush’s

sexual activity with him. J.P. admitted that he first told law enforcement that there was

only one incident of oral sex and that he later told them that it happened “many

times.”1 We agree with the State that this reference to “many times” does not prove


1Rush also cites to J.P.’s cross-examination where he admitted telling law enforcement that it “happened
a bunch of times,” but in the context of that questioning, it is clear that J.P. was talking about incidents of
sexual contact (the conduct that was the basis for counts 11 through 18), not incidents of oral sex.

Ex parte Rush                                                                                           Page 6
more offenses than counts in the indictment but was rather a recapitulation of the five

incidents; “many” is not inconsistent with the five incidents that J.P. described in his

direct examination.

       In conclusion, we agree with the State that the jury did not hear evidence of more

offenses than were alleged in the indictment, and the State thus did not have to elect

which offenses it would rely on for conviction. In this respect, double jeopardy does

not bar retrial on counts 1 through 4, and the trial court did not abuse its discretion in

denying Rush’s application on this ground. Issue one is overruled.

       Rush’s second issue asserts in the alternative that a second trial is barred by

double jeopardy because it cannot be determined with any certainty which offenses

Rush was acquitted of and which offenses the jury could not reach a verdict on. The

State disputes Rush’s assertion, arguing that, based on the indictment, J.P.’s testimony,

and the jury charge and verdict forms, it is plain that the jury hung on the first two

incidents of oral sex. We agree with the State.

       The indictment lists the five counts of aggravated sexual assault of a child and

corresponding five counts of improper educator-student relationship by deviate sexual

intercourse in ascending chronological order: On or about March 1, 2007, March 5,

2007, March 7, 2007, March 10, 2007, and March 15, 2007, respectively.          The jury

instructions and the verdict forms set out the counts in that same order. J.P.’s testimony

about the five incidents of oral sex—the conduct that is the subject of these ten counts—

was likewise presented sequentially, as detailed above. Because the ten counts were set

out in sequential order, and because the evidence substantially conformed to that order,

Ex parte Rush                                                                       Page 7
there was a clear link between the five incidents of oral sex and the five counts of

aggravated sexual assault of a child and corresponding five counts of improper

educator-student relationship by deviate sexual intercourse.

       Counts 1 and 2, alleging aggravated sexual assault of a child and improper

educator-student relationship by deviate sexual intercourse on or about March 1, 2007,

factually link with J.P.’s description of the first incident of oral sex, which he said

happened in February or early March of 2007 in Rush’s kitchen. Counts 3 and 4,

alleging the same two offenses on or about March 5, 2007, factually link with J.P.’s

description of the second incident of oral sex, which he said happened in Rush’s truck

just “days” after the first time. It is these four counts that the jury hung on. Counts 5

through 10, on which the jury acquitted Rush, link to the other three alleged incidents of

oral sex.

       Rush points to two testimonial statements by J.P. in her suggestion that the

record is muddled. First, at the end of J.P.’s direct examination, he said that he was not

sure that he was “remembering all the details in all the right order.” We do not agree

that this general and vague statement prevented the trial court, which had the ability to

observe J.P.’s credibility and demeanor at trial, from meaningfully differentiating

between the counts on which the jury hung and on which they acquitted Rush when the

trial court ruled on Rush’s request for habeas relief. The same holds for J.P.’s testimony

on cross-examination where, after repeating that the first incident of oral sex occurred

in Rush’s kitchen, he stated about when the second incident of oral sex occurred: “I

want to say in her truck. I don’t exactly remember the order. I remember what

Ex parte Rush                                                                       Page 8
happened to me, but I don’t remember what order they came in.” The trial court was in

the best position to evaluate J.P.’s testimony in ruling on Rush’s request for habeas

relief, and we cannot say that the trial court abused its discretion.   Issue two is

overruled.

       Having overruled Rush’s two issues, we affirm the trial court’s order denying

Rush’s application for writ of habeas corpus.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 23, 2012
Do not publish
[CR25]




Ex parte Rush                                                                  Page 9
