Opinion issued June 19, 2018




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-16-00787-CR
                            ———————————
                     EX PARTE MATTHEW LEACHMAN



                    On Appeal from the 248th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1522187


                          OPINION ON REHEARING
      Appellant, Matthew Leachman, appeals from the trial court’s denial of his pro

se application for a pretrial writ of habeas corpus, filed under article 11.08 of the

Texas Code of Criminal Procedure.1 Leachman contends that double jeopardy bars



1
      See TEX. CODE CRIM. PROC. ANN. art. 11.08 (West 2015) (“If a person is confined
      after indictment on a charge of felony, he may apply to the judge of the court in
      which he is indicted. . . .”).
his retrial. Leachman filed an amended motion for rehearing from our May 10, 2018

opinion. We deny the amended motion for rehearing and affirm.2

                                    Background
A.    Procedural History in State Court
      In the conviction at issue under trial court cause number 786224, Leachman

was charged in 1998 by indictment of aggravated sexual assault of a child.3

Following a jury trial, in which the trial court had denied Leachman’s motion to

represent himself, he was convicted and sentenced to 40 years’ confinement in 1998.

See Leachman v. Stephens, No. 4:11-CV-212, 2015 WL 5730378, at *1 (S.D. Tex.

Sept. 30, 2015) (mem. and order, not designated for publication) (federal habeas

proceeding summarizing procedural history).          After this Court affirmed the

conviction, the Court of Criminal Appeals granted Leachman’s petition for

discretionary review, vacated our decision, and remanded for consideration of claims

not at issue here. See Stephens, 2015 WL 5730378, at *1; see Leachman v. State,


2
      Although we deny the amended motion for rehearing without requesting a response,
      we withdraw our May 10, 2018 opinion and judgment and issue this opinion on
      rehearing and a new judgment. See TEX. R. APP. P. 49.2, 49.3. Our disposition
      remains unchanged. See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 33 (Tex.
      App.—Houston [1st Dist.] 2004, pet. denied) (op. on rehr’g).
3
      In separate proceedings, Leachman pleaded guilty to three counts of indecency with
      a child, involving different children than the complainant here, under trial court
      cause numbers 786223, 786226, and 720366. He was sentenced to 20 years’
      confinement in each case in 1999, to be served concurrently. He did not appeal
      those sentences. See Leachman v. Stephens, No. 02-13-00357-CV, 2016 WL
      6648747, at *2 (Tex. App.—Fort Worth Nov. 10, 2016, pet. denied) (mem. op.)
      (summarizing Leachman’s criminal litigation history).
                                          2
No. 01-98-01255-CR, 2004 WL 744820 (Tex. App.—Houston [1st Dist.] Apr. 8,

2004) (mem. op. on reh’g, not designated for publication), vacated, No. PD-0517-

05, 2005 WL 2990698 (Tex. Crim. App. Nov. 9, 2005) (not designated for

publication). On remand, this Court again affirmed Leachman’s conviction, the

Court of Criminal Appeals refused his petition for discretionary review, and the U.S.

Supreme Court denied his petition for certiorari. See Stephens, 2015 WL 5730378,

at 1; see Leachman v. State, No. 01-98-01255-CR, 2006 WL 2381441, at *1 (Tex.

App.—Houston [1st Dist.] Aug. 17, 2006, pet. ref’d), cert. denied, 554 U.S. 932,

128 S. Ct. 2995 (2008).

      Leachman filed a state application for a writ of habeas corpus challenging the

denial of his motion to represent himself. See Stephens, 2015 WL 5730378, at *1.

The state habeas court recommended denial, and the Court of Criminal Appeals

denied Leachman’s first habeas application without a written order. See Ex parte

Leachman, No. WR-36-445-04 (Tex. Crim. App. Dec. 1, 2010).

B.    Procedural History in Federal Court
      Leachman then filed a federal habeas corpus petition based on the denial of

his Sixth Amendment right to represent himself, which the federal district court

denied as procedurally defaulted. See Stephens, 2015 WL 5730378, at *1, *4 (citing

Faretta v. California, 422 U.S. 806, 835–36, 95 S. Ct. 2525 (1975)). The Fifth

Circuit affirmed the federal district court’s judgment on all issues, except the finding


                                           3
that Leachman could not demonstrate cause and prejudice to excuse the procedural

default of his Faretta self-representation claim. See id.; see Leachman v. Stephens,

No. 12-20187, 581 Fed. App’x 390, 398 (5th Cir. 2014) (not designated for

publication), cert. denied, 135 S. Ct. 2315 (2015). On remand, the federal district

court conditionally granted Leachman’s federal habeas corpus petition on his

Faretta self-representation claim on September 30, 2015, and ordered his release

unless the State moved to grant him a new trial within 90 days. See Stephens, 2015

WL 5730378, at *6.

C.       The State Habeas Corpus Application and Writ Hearing
         On November 4, 2015, the State timely moved for a new trial under trial court

cause number 786224, which the state judge for the retrial granted on the record. On

August 17, 2016, the state court granted the State’s motions to transfer its prior

filings to new cause numbers, noting that the original indictment under trial court

cause number 786224 had been reindicted into two separate trial court cause

numbers, 1520246 (anal sodomy) and 1520247 (oral sodomy), after the grand jury

had indicted Leachman on two separate counts of aggravated sexual assault of a

child.

         On August 30, 2016, Leachman filed a pro se pretrial habeas corpus

application in the trial court, which was assigned to the underlying trial court cause

number 1522187.        Leachman asserted that, while the State may seek a new


                                           4
indictment on the same offense, the superseding indictment must mirror the initial

charge. See Ex parte Legrand, 291 S.W.3d 31, 38–39 (Tex. App.—Houston [14th

Dist.] 2009, pet. ref’d) (citing United States v. Holland, 956 F.2d 990, 993 (10th Cir.

1992)). He claimed that the State was attempting to turn the single charge into two

separate charges, two convictions, and two sentences.

      On September 28, 2016, the habeas judge, who did not preside over

Leachman’s original trial, held a non-evidentiary writ hearing on Leachman’s pro se

habeas application in which both sides presented argument, but no witnesses.

Leachman repeated his argument that the State was trying to take the same offense

and split it into multiple offenses, thereby violating the multiple-punishment aspect

of the double jeopardy clause. The State responded that it intended to withdraw its

motion to consolidate and would proceed to trial only on the first trial court cause

number 1520246. The prosecutor stated that he intended to file an amended motion

to cumulate sentences, seeking only to stack any sentence on the existing 20-year

sentence Leachman was still serving.

      At the end of the writ hearing, the habeas court orally denied Leachman’s writ.

The habeas court noted that if the State’s “intent is to proceed on one of the two new

indictments, as opposed to both,” that “take[s] care[] of any potential issues, so I am

going to deny your writ of habeas corpus.” Later that day, the habeas court signed

a judgment denying Leachman’s pretrial habeas corpus application.

                                          5
D.    Proceedings in this Court
      On September 28, 2016, Leachman timely filed a pro se notice of appeal from

the habeas court’s denial of his pretrial habeas application. See TEX. R. APP. P.

26.2(a)(1), 31.1. On October 24, 2016, in compliance with a request from the Clerk

of this Court, the trial court certified Leachman’s right of appeal of the denial of his

pretrial habeas application. See id. 25.2(a)(2), (d). In compliance with a second

request, the district clerk also filed a second supplemental clerk’s record in this Court

on October 26, 2016. This record contains the State’s amended motion to cumulate

sentences, which was filed only in the first charge 1520246, and the docket sheet for

the second charge 1520247, showing that no such motion was filed there.

      This Court abated this case several times for the habeas court to hold a hearing

to determine whether the State intended to dismiss the second charge, as it appeared

to have stated at the writ hearing. This Court’s February 15, 2018 Order reinstated

this case after the district clerk filed a compliant supplemental clerk’s record. This

record included the habeas court’s findings of fact and conclusions of law and order,

signed on February 8, 2018, arising from the abatement hearing. The State clarified

that it intended to proceed to trial first on the first charge, but did not intend to

dismiss the second or other charges, pending the outcome of the first trial. The

habeas court found that the State never stated that it had intended to dismiss the

second charge at the writ hearing, and that it does not intend to dismiss the second


                                           6
charge now. This Court’s Order also requested briefing. See TEX. R. APP. P. 31.1.

Both Leachman and the State have filed briefs, and Leachman has filed a reply.

      Leachman also filed an advisory in this Court, attaching an “Advisory to the

Court and Motion to Re-Open Proceedings” that he filed in the federal habeas court.

Leachman argued that the federal court should re-open the habeas petition because

the state trial court’s grant of a new trial was void, asserting that only the Court of

Criminal Appeals may do so under art. 11.07. Leachman further claimed that he

intended to raise these issues before the Court of Criminal Appeals.4

      Leachman then filed a motion for judicial notice in this Court on April 20,

2018, contending that this Court must take judicial notice of the federal habeas court

order, signed on February 8, 2018, regarding his motion to re-open proceedings.

Leachman requests that this Court take judicial notice of the federal court order for

his propositions that: (1) the federal district court did not view its earlier, conditional

order granting federal habeas relief as voiding the state conviction, and (2) the

question of whether the state trial court’s new-trial order was void was a matter for

the state courts.


4
      Leachman made this same jurisdictional claim in a writ of prohibition and a writ of
      mandamus, which the Court of Criminal Appeals denied without written orders. See
      Ex parte Leachman, WR-36,445-07, WR-36-445-08 (Tex. Crim. App. May 17,
      2017). Leachman also tried to raise these same jurisdictional issues at the abatement
      hearing by filing a supplemental memorandum of law and proposed findings of fact
      and conclusions of law, but the trial court found that these were beyond the scope
      of this Court’s abatement order.
                                            7
      In the February 8, 2018 federal court order, the federal district court held that

the State had complied with its earlier order granting habeas relief and ordering

Leachman’s release unless the State moved to grant him a new trial within 90 days.

The federal district court also noted that it lacked jurisdiction over Leachman’s

retrial, but that Leachman “may move in state court to dismiss the indictment for

lack of jurisdiction,” and “[i]f he is again convicted, then he may challenge defects

in the proceeding through a direct appeal and, if necessary, postconviction

proceedings pertaining to that conviction.” Thus, the federal district court denied

Leachman’s motion to re-open the federal proceedings and denied his motion for

oral argument as moot.

      This Court requested a response to the motion from the State, which was filed

on April 30, 2018, and carried the motion with the case. Under Rule of Evidence

202, this Court must take judicial notice of a federal court’s order if requested by a

party and if this Court is supplied with the necessary information, as Leachman did

here by attaching the order. See TEX. R. EVID. 202(b)(2). To the extent that

Leachman requests that this Court take judicial notice of the existence of this federal

court order, this Court grants his motion, but concludes that this order is not relevant

for this appeal. See MCI Sales & Service, Inc. v. Hinton, 329 S.W.3d 475, 484 n.7

(Tex. 2010); Oistad v. Baker & Hostetler, L.L.P., No. 01-05-00493-CV, 2006 WL

488594, at *6 n.7 (Tex. App.—Houston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op.)

                                           8
(taking judicial notice of facts of documents filed in other case in this Court, but

concluding that such facts are not relevant to resolution of this appeal).5

                                       Discussion
      In his first issue, Leachman claims, for the first time in this Court, that his

double-jeopardy challenge is ripe for review. In his second issue, also for the first

time in this Court, Leachman asserts that the two pending reindictments in the trial

court violate the Double Jeopardy Clause because, as a matter of law, his prior

conviction in the original charge still exists. Finally, Leachman contends in his third

issue, in the alternative, that the two pending reindictments violate the Double

Jeopardy Clause because the State may not reprosecute an earlier conviction

multiple times.

      The State responded that, to the degree that Leachman is complaining about a

future trial on the second indictment following his first trial, this double-jeopardy

claim is not ripe for review. Regarding Leachman’s second issue, the State responds

that, because his jurisdictional claims were not part of his habeas application, they

are not properly before this Court, but the trial court was bound by the judgment of



5
      Leachman also filed a second motion for judicial notice in this Court on May 24,
      2018, requesting that we take judicial notice of the State’s Original Answer filed on
      November 14, 2016, in response to Leachman’s habeas application. Similarly, but
      without requesting a response, that motion is granted to take notice of the existence
      of that Answer as it is a public court pleading, but it is not relevant for this appeal
      because it was filed under a different trial court cause number 786223-A for a
      different conviction. See Oistad, 2006 WL 488594, at *6 n.7.
                                             9
the federal court because state courts are bound by federal law under the Supremacy

Clause. Finally, as for Leachman’s third issue, the State responds that, because

Leachman’s prior conviction was declared void, at his request, a retrial does not

implicate Double Jeopardy protections and, thus, the trial court was correct to deny

his habeas petition.

      As discussed below, we have jurisdiction only to review the state court’s order

denying Leachman’s habeas application, not the state court’s new-trial order which,

as the federal district court noted, may be challenged on direct appeal.

A.    Standard of Review
      “[T]here is a Fifth Amendment right not to be exposed to double jeopardy,

and . . . it must be reviewable before that exposure occurs,” which includes on

appeal.   Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982).

Consequently, the Court of Criminal Appeals has held that an applicant may use a

pretrial writ of habeas corpus to assert his or her constitutional protections regarding

double jeopardy. See Ex parte Wiese, 55 S.W.3d 617, 619 (Tex. Crim. App. 2001).

Thus, we may review the trial court’s denial of Leachman’s pretrial habeas

application based on double jeopardy.

      Generally, an appellate court reviews a trial court’s decision to grant or to

deny habeas corpus relief for an abuse of discretion. See Ex parte Montano, 451

S.W.3d 874, 877 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Sandifer


                                          10
v. State, 233 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). In

reviewing the trial court’s decision to grant or to deny habeas corpus relief, we view

the evidence in the light most favorable to the trial court’s ruling. See id. (citing Ex

parte Masonheimer, 220 S.W.3d 494, 507 (Tex. Crim. App. 2007)).

      We afford almost total deference to the trial court’s determination of historical

facts supported by the record, especially when the fact findings are based upon

credibility and demeanor. Ex parte Montano, 451 S.W.3d at 877 (citing Guzman v.

State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); see also Ex parte Amezquita, 223

S.W.3d 363, 367 (Tex. Crim. App. 2006). And we afford the same deference to the

trial judge’s rulings on applications of law to fact questions if resolving those

ultimate questions turns on evaluating credibility and demeanor. Sandifer, 233

S.W.3d at 2 (citing Guzman, 955 S.W.2d at 89). If resolving those ultimate questions

turns on applying legal standards, however, we review the determination de novo.

Id. (citing Guzman, 955 S.W.2d at 89). We will uphold the habeas court’s judgment

if it is correct under any theory of law. See Ex parte Murillo, 389 S.W.3d 922, 926

(Tex. App.—Houston [14th Dist.] 2013, no pet.).

      When there are no written findings explaining the factual basis for the trial

court’s ruling, we imply findings of fact that support the ruling so long as the

evidence supports those implied findings. Ex parte Montano, 451 S.W.3d at 877

(citing Meekins v. State, 340 S.W.3d 454, 460 (Tex. Crim. App. 2011)). “We

                                          11
similarly defer to any implied findings and conclusions supported by the record.”

Ex parte Aguilera, 540 S.W.3d 239, 246 (Tex. App.—Houston [1st Dist.] 2018, no

pet.) (internal quotation marks and citation omitted). However, we review de novo

mixed questions of law and fact that do not depend on credibility and demeanor. See

id. Although the habeas court issued findings of fact and conclusions of law

regarding whether the State intended to dismiss the second charge, under trial court

cause number 1520247, that court did not issue any findings or conclusions with its

judgment denying habeas relief. See Guzman, 955 S.W.2d at 89.

B.    Applicable Double Jeopardy Law
      The United States and Texas Constitutions both prohibit a defendant from

twice being put in jeopardy for the same offense. U.S. CONST. amend. V; TEX.

CONST. art. I, § 14. Jeopardy attaches when a jury is impanelled and sworn. Ex

parte Montano, 451 S.W.3d at 878 (citing Ex parte Little, 887 S.W.2d 62, 64 (Tex.

Crim. App. 1994)). Once jeopardy attaches, the defendant possesses the right to

have his guilt or innocence determined by the first trier of fact. Id. (citing Torres v.

State, 614 S.W.2d 436, 441 (Tex. Crim. App. 1981)). As a general rule, if, after

jeopardy attaches, the jury is discharged without having reached a verdict, double

jeopardy will bar retrial. Id. (citing Brown v. State, 907 S.W.2d 835, 839 (Tex. Crim.

App. 1995)).

      The double jeopardy prohibition protects against (1) a second prosecution “for


                                          12
the ‘same offense’” after acquittal; (2) a second prosecution “for the ‘same offense’”

after conviction; and (3) “multiple punishments for the ‘same offense.’” Hisey v.

State, 207 S.W.3d 383, 385 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting

Ex parte Kopecky, 821 S.W.2d 957, 958 (Tex. Crim. App. 1992) (citations omitted)).

But “double jeopardy does not attach when a case is reversed because of trial error.”

Id. at 385 (citations omitted). “A retrial is barred on jeopardy grounds only if there

is insufficient evidence to support the conviction.”          Id. (citations omitted).

Leachman does not claim that the first ground applies here. The relief he primarily

seeks is under the third ground, multiple punishments,6 but in his amended rehearing

motion, he states that he also seeks relief under the second ground, multiple

prosecutions.

      “In the multiple-punishment and multiple-prosecution contexts, the double

jeopardy bar applies if the two offenses for which the defendant is punished or tried

cannot survive the ‘same elements’ or ‘Blockburger I’ test.” Williams v. State, No.

14-08-01079-CR, 2010 WL 3307456, at *2 (Tex. App.—Houston [14th Dist.] Aug.

24, 2010, pet. ref’d) (mem. op., not designated for publication) (citing Blockburger



6
      “A multiple-punishments double-jeopardy violation may arise either in the context
      of lesser-included offenses (when the same conduct is punished under both a greater
      and a lesser-included statutory offense) or when the same criminal act is punished
      under two distinct statutory provisions, but the legislature intended only one
      punishment.” Aekins v. State, 447 S.W.3d 270, 274 (Tex. Crim. App. 2014).

                                          13
v. United States, 284 U.S. 299, 304, 52 S. Ct. 180 (1932), and Watson v. State, 900

S.W.2d 60, 61–62 (Tex. Crim. App. 1995)). “The same elements” test inquires

whether each offense contains an element not contained in the other. Watson, 900

S.W.2d at 61. If the second offense contains an element not found in the first

offense, then double jeopardy protections are not violated. See id. Consequently,

both the Court of Criminal Appeals and this Court have rejected multiple-

prosecution and multiple-punishment double-jeopardy claims involving two

different counts of the same aggravated sexual assault of a child statute involved

here. See Vick v. State, 991 S.W.2d 830, 832–33 (Tex. Crim. App. 1999); Cochran

v. State, 874 S.W.2d 769, 770, 772–73 (Tex. App.—Houston [1st Dist.] 1994, pet.

ref’d). Because the two counts alleged violations of separate and distinct statutory

aggravated sexual assault offenses and involved separate and distinct acts, the

inquiry for double jeopardy ends. See Vick, 991 S.W.2d at 833.

C.    Analysis
      We consider Leachman’s first and second issues together because they both

involve jurisdiction. Essentially, Leachman argues that, because he believes that the

state trial court was without jurisdiction to grant him a new trial, and that only the

Court of Criminal Appeals may do so under Article 11.07 for final felony

convictions, the denial of his double-jeopardy habeas application is ripe for review

now. While we agree that the denial of Leachman’s double-jeopardy habeas


                                         14
application is reviewable on appeal, we disagree that we have jurisdiction to review

the trial court’s new-trial order here.

      First, we have appellate jurisdiction only to review the state court’s order

denying Leachman’s pretrial habeas application under the underlying trial court

cause number 1522187. See Ex parte Robinson, 641 S.W.2d at 555. As Leachman

conceded in his brief and amended rehearing motion, and the State pointed out in its

brief, Leachman did not raise this issue of jurisdiction over the new-trial order in his

habeas application. Though he first raised this issue at the abatement hearing, it was

not addressed by the habeas court in its judgment or the abatement findings and

conclusions. Thus, we lack appellate jurisdiction to review the state court’s new-

trial order, granted under trial court cause number 786224, which may be reviewable

on direct appeal. See Ex parte Perez, 536 S.W.3d 877, 880 (Tex. App.—Houston

[1st Dist.] 2017, no pet.) (“In reviewing an order denying habeas relief, an

intermediate court of appeals only reviews issues that were properly raised in the

habeas petition and addressed by the trial court.”).

      Second, “[w]hen a motion for new trial was granted at the defendant’s request,

and the basis was other than insufficient evidence, double jeopardy considerations

do not bar a new trial.” Ex parte Queen, 833 S.W.2d 207, 208 (Tex. App.—Houston

[1st Dist.] 1992, pet. granted), aff’d by 877 S.W.2d 752 (Tex. Crim. App. 1994),

cert. denied, 513 U.S. 1115 (1995). This is because, after a new trial has been

                                          15
granted on grounds other than insufficient evidence, the “[a]ppellant has not gained

an acquittal or suffered a final conviction” and “[n]either has he been faced with

multiple punishments for the offense with which he is charged.” Id. at 208. “Thus,

appellant is not exposed to double jeopardy in the present case” because, instead,

“he is in the same position as if the first trial had not occurred.” Id. (citing Lofton v.

State, 777 S.W.2d 96, 97 (Tex. Crim. App. 1989) (by granting motion for new trial,

trial court restores case to position before earlier trial, and “initial jeopardy

continues”); see also Jackson v. State, No. 01-12-00656-CR, 2013 WL 3155935, at

*1 (Tex. App.—Houston [1st Dist.] June 20, 2013, pet. denied) (mem. op., not

designated for publication) (affirming denial of pretrial habeas application finding

that, after trial court had granted appellant’s motion for new trial based on violation

of Brady v. Maryland, 373 U.S. 83 (1963), initial jeopardy continued because new

trial was granted on grounds other than insufficient evidence) (citing Lofton, 777

S.W.2d at 97).

      Here, once the trial court granted the State’s motion for new trial, to comply

with the federal habeas court’s order granting the Sixth Amendment Faretta self-

representation claim—and not based on insufficient evidence—Leachman was

returned to the pretrial phase before his first trial, and initial jeopardy continues. See

TEX. R. APP. P. 21.9(b); Lofton, 777 S.W.2d at 97. Therefore, Article 11.07 did not

apply because there was no longer a final felony conviction once the trial court

                                           16
granted the motion for new trial. See Ex parte Queen, 833 S.W.2d at 208 (noting

that after new trial has been granted on grounds other than insufficient evidence,

“[a]ppellant has not gained an acquittal or suffered a final conviction”). Thus,

Leachman is still under “initial jeopardy” for the first charge, and has not been

exposed to double jeopardy. Lofton, 777 S.W.2d at 97.

      We overrule Leachman’s first and second issues.

      As for Leachman’s third issue, he essentially claims that the trial court erred

in denying pretrial habeas corpus relief because the State is seeking multiple

punishments for the same offense, which violates double jeopardy. As noted above,

after the trial court granted a new trial to comply with the federal habeas relief

granted on Leachman’s Faretta claim (not based on insufficient evidence),

Leachman is under “initial jeopardy” continuing for the first charge, not double

jeopardy. See Lofton, 777 S.W.2d at 97. “A retrial is barred on jeopardy grounds

only if there is insufficient evidence to support the conviction.” Hisey, 207 S.W.3d

at 385. Similarly, in the main case Leachman relied on in his habeas application, the

Fourteenth Court, in fact, rejected that appellant’s “mirror[ing]” double-jeopardy

argument because “a new trial was granted on reasons other than sufficiency of the

evidence,” and thus, “appellant was under ‘continuing jeopardy’ and could be retried

for the same offense.” Legrand, 291 S.W.3d at 39 (citations omitted). This Court

has followed Legrand, 291 S.W.3d at 41, after noting that a new trial was granted

                                         17
there based on prosecutorial misconduct, by holding that double jeopardy does not

bar a retrial when the State’s misconduct in failing to disclose Brady evidence caused

the trial court to set aside the verdict. See Jackson, 2013 WL 3155935, at *2. Thus,

double jeopardy does not bar the retrial here because a new trial was granted on the

Faretta self-representation claim, not insufficient evidence.

      In his amended rehearing motion, while he concedes that Legrand was the

main case that he relied upon in his habeas application, Leachman contends that he

cited Legrand to support his overall argument that his case primarily falls under the

multiple-prosecutions context for double-jeopardy claims, rather than the multiple-

punishments context. Even when reprosecution was allowed, Leachman contends

that the original trial charge matters, and the case he cited is United States v. Ewell,

383 U.S. 116 (1966). Leachman states that the Ewell Court held that “[i]f the present

indictments charge the same offense as the [§] 4705 offense for which appellees

were previously convicted, they may clearly be retried on either [§] 4705 or [§] 4704

after their convictions have been vacated on their own motions.” Ewell, 383 U.S. at

124. Leachman claims that the Ewell Court held that retrial under a different penal

statute with different elements was allowed by the Double Jeopardy Clause, after a

conviction was set aside, because the new charge “does not in any manner expand

the number of trials that may be brought against [the defendants].” Id. at 125

(emphasis added). Thus, Leachman asserts that the Ewell Court prohibits what the

                                          18
State is trying to do here, break the indictment from the first trial into two

indictments, because “[t]he identity of the offense(s) charged in the first trial

continues to govern the scope of what may be tried in the single retrial the State is

allowed.”

      However, Leachman first raised this multiple-prosecutions argument citing

Ewell in his proposed findings of fact and conclusions of law, which were filed with

the trial court on August 14, 2017, for the abatement hearing, well after his habeas

application was denied on September 28, 2016. In its abatement findings and

conclusions, the habeas court did not address any of Leachman’s arguments,

including Ewell, because it concluded that the “additional findings of fact and

conclusions of law proposed by [Leachman] [we]re beyond the scope of the order of

the Court of Appeals[.]” As noted above, this Court does not address new arguments

that were not raised and addressed by the trial court in denying habeas relief. See

Ex parte Perez, 536 S.W.3d at 881.

      In any event, Ewell does not apply here because the United States Supreme

Court’s holding and reason for reversing the dismissal of the federal narcotics

indictments was based solely on the Speedy Trial Clause, not the Double Jeopardy

Clause. See Ewell, 383 U.S. at 120 (holding that, “[w]e cannot agree that the passage

of 19 months between the original arrests and the hearings on the later indictments

itself demonstrates a violation of the Sixth Amendment’s guarantee of a speedy

                                         19
trial.”). After making its Speedy Trial holding, the Ewell Court went on to elaborate

on why there was no Double Jeopardy Clause violation, but that was dicta because

the trial court had rejected the double-jeopardy claim. See id. at 121 (“These

policies, so carefully preserved in this Court’s interpretation of the Double Jeopardy

Clause, would be seriously undercut by the interpretation given the Speedy Trial

Clause by the court below.”), 124 (“Appellees also invoke[d] the Double Jeopardy

Clause to sustain the dismissal of the indictments, a ground which we think the trial

court correctly rejected.”). Thus, Ewell does not apply here on the merits.

      And even if, assuming arguendo, we construe the two new charges as being

prosecuted at the same time, the “same elements” of the Blockburger I test are not

met here. See Blockburger, 284 U.S. at 304; see also Watson, 900 S.W.2d at 61–62.

As noted above, both the Court of Criminal Appeals and this Court have rejected

similar multiple-prosecution and multiple-punishment double-jeopardy claims

involving two different counts of the same aggravated sexual assault of a child

statute involved here, Texas Penal Code Section 22.021. See Vick, 991 S.W.2d at

832–33; Cochran, 874 S.W.2d at 770, 772–73. This is because each charge of

aggravated sexual assault of a child requires proof of an element not required under

the other charge. See Watson, 900 S.W.2d at 61. Here, the first charge, under

1520246, alleges anal sodomy whereas the second charge, under 1520247, alleges

oral sodomy. Compare TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iv) (West 2011)

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(“causes the anus of a child to contact the . . . sexual organ of another person,

including the actor”) with § 22.021(a)(1)(B)(ii) (“causes the penetration of the mouth

of a child by the sexual organ of the actor”). The CCA has held that “[e]very instance

of sexual assault is a separate crime and may be prosecuted in separate trials.” Ex

parte Goodbread, 967 S.W.2d 859, 861 (Tex. Crim. App. 1998) (affirming denial of

pretrial habeas application based on double jeopardy because prosecution on initial

indictment did not create double jeopardy bar to later prosecution upon new

indictment) (citation omitted).

      Therefore, we overrule Leachman’s third issue.

                                    Conclusion
      Accordingly, we affirm the trial court’s judgment denying habeas relief.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Higley, Brown, and Caughey.

Publish. TEX. R. APP. P. 47.2(b).




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