                                         In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-19-00132-CR
                               __________________


                 EX PARTE THOMAS MICHAEL GARBETT

__________________________________________________________________

               On Appeal from the 252nd District Court
                       Jefferson County, Texas
                      Trial Cause No. 18-30163
__________________________________________________________________

                          MEMORANDUM OPINION

      Thomas Michael Garbett appeals from the trial court’s denial of his

application for writ of habeas corpus, in which he asserted that double jeopardy and

collateral estoppel bar his prosecution as to five counts, four of which involve

alleged aggravated sexual assault of a child and one of which pertains to alleged

indecency with a child. We affirm the trial court’s judgment denying Garbett’s

application for writ of habeas corpus.




                                           1
                                   BACKGROUND

      In his habeas application, Garbett stated that he had been charged in an eight-

count indictment, and that after a full trial, the jury found him not guilty as to counts

one, three, and eight, but was unable to reach a verdict on counts two, four, five, six,

and seven. The eight-count indictment alleged that Garbett (1) penetrated the

victim’s sexual organ by inserting his finger; (2) penetrated the victim’s sexual organ

by inserting his tongue; (3) penetrated the victim’s sexual organ by inserting his

sexual organ; (4) penetrated the victim’s mouth by inserting his sexual organ; (5)

penetrated the victim’s anus by inserting his finger; (6) engaged in sexual contact

with the victim by having the victim touch his genitals; (7) caused the victim’s anus

to contact his mouth, and (8) caused the penetration of the victim’s anus by inserting

his sexual organ. The indictment alleged that each count occurred “on or about”

August 25, 2013.

      According to Garbett, the current case and the first trial involve the same

victim, the same date, and the same allegations. Garbett asserted that retrying him

on counts two, four, five, six, and seven is barred by double jeopardy and collateral

estoppel because “at least two core ultimate issues of fact have already been decided

in this case.” Garbett maintained that the victim could not identify him, and that

records from her outcry and counseling sessions “indicated multiple denials that she

                                           2
was molested or that she even knew [Garbett].” Additionally, Garbett argued that

the only physical corroboration of the victim’s claims was a small bruise on the

outside of her vagina, and he asserts that said bruise would only support counts one

and three, for which he was acquitted. According to Garbett’s application, “[i]f the

jury did not believe corroborated testimony on the acquitted [c]ounts, surely it could

not have believed testimony on the uncorroborated [c]ounts[,]” and he maintained

that “the ultimate issue of fact permeating this entire prosecution is that the jury

simply did not believe the victim’s story.”

      The trial court conducted a brief hearing on Garbett’s application, at which it

admitted the testimony from the initial trial into evidence. The trial judge signed an

order denying Garbett’s application for writ of habeas corpus, and Garbett appealed.

                               GARBETT’S ISSUES

      In his first appellate issue, Garbett contends that double jeopardy bars retrying

him on counts two, four, five, six, and seven, and in his second issue, Garbett

contends that retrying him on those counts is barred by collateral estoppel.

Specifically, Garbett argues that the acts in each count allegedly “occurred on the

exact same date against the same child by appellant[,]” and the evidence adduced

“consisted of blanket and general allegations of sexual abuse occurring over a period

of time on multiple occasions by one perpetrator.” According to Garbett, the

                                          3
evidence and testimony regarding the allegations “were interrelated and inextricably

intertwined[,] and he maintains that a rational jury could not have found him not

guilty of some of the counts but failed to make a finding regarding the remaining

counts. Garbett asserts that because he was acquitted of three counts, “he had in

effect been tried on all of the blanket allegations.” In his brief, Garbett asserts that

the only issues were whether the victim was abused in the “continual manners”

described in the counts and whether he was the perpetrator. According to Garbett,

by acquitting him on the “interrelated” counts that pertain to the same date and the

same person, the jury “in effect found that the State failed to prove the substance of

the indictment regarding all counts.” Garbett contends that the State did not attempt

to separate the charges of “continuing sexual abuse[.]”

      We review the trial court’s denial of an application for writ of habeas corpus

under an abuse of discretion standard. Ex parte Klem, 269 S.W.3d 711, 718 (Tex.

App.—Beaumont 2008, pet. ref’d). We consider the entire record and review the

facts in the light most favorable to the trial court’s ruling. Id. We afford almost total

deference to the trial court’s determination of historical facts supported by the

record, especially findings that are based on an evaluation of credibility and

demeanor. Id. We afford the same deference to the trial court’s rulings on application

of law to fact questions when resolution of those questions turns on an evaluation of

                                           4
credibility and demeanor. Id. We review the trial court’s determination de novo when

resolution turns upon application of legal standards. Id.; see also Ex parte Aguilar,

501 S.W.3d 176, 178 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

      Double jeopardy prohibits twice placing a person in “legal jeopardy” when he

is put to trial before a court of competent jurisdiction. State v. Nash, 817 S.W.2d

837, 840 (Tex. App.—Amarillo 1991, writ ref’d); see also U.S. Const. amend. V;

Tex. Const. art. I, § 14. A trial court’s declaration of mistrial following a hung jury

does not terminate the original jeopardy to which a defendant was subjected.

Richardson v. U.S., 468 U.S. 317, 326 (1984); Ex parte McAfee, 761 S.W.2d 771,

772 (Tex. Crim. App. 1988). “‘[A]n accused must suffer jeopardy before he can

suffer double jeopardy[.]’” Ex parte McAfee, 761 S.W.2d at 772 (quoting Serfass v.

U.S., 420 U.S. 377, 393 (1975)). The State, “like the defendant, is entitled to

resolution of the case by verdict from the jury, and jeopardy does not terminate when

the jury is discharged because it is unable to agree.” Richardson, 468 U.S. at 326.

The Double Jeopardy clause does not mean that each time a defendant is put to trial

before a competent tribunal, he is entitled to go free if that trial does not end in a

final judgment. Ex parte McAfee, 761 S.W.2d at 772-73. In the absence of a final

judgment, the defendant remains under the initial jeopardy, and a retrial for the same

offense therefore does not constitute double jeopardy. Id. at 773.

                                          5
      Collateral estoppel means that when an issue of ultimate fact has been

determined by a valid final judgment, the same issue cannot again be litigated

between the parties in the future. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim.

App. 2007). Collateral estoppel deals with specific factual determinations, not legal

claims or legal conclusions. Guajardo v. State, 109 S.W.3d 456, 460 (Tex. Crim.

App. 2003).

      It is well settled that the “on or about” language of an indictment does not

bind the State, but instead “allows the State to prove a date other than the one alleged

in the indictment as long as the date is anterior to the presentment of the indictment

and within the statutory limitation period.” Sledge v. State, 953 S.W.2d 253, 255-

256 (Tex. Crim. App. 1997). When an indictment alleges that a relevant event

occurred “on or about” a particular date, “the accused is put on notice to prepare for

proof that the event happened at any time within the statutory period of limitations.”

Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988). Various acts of

sexual misconduct do not comprise a single offense under Texas law. Vernon v.

State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992). “Rather, those who commit

multiple discrete assaults against the same victim[] are liable for separate

prosecution and punishment for every instance of such criminal misconduct.” Id.



                                           6
Such offenses against the same victim do not constitute merely a single continuing

offense. Id.

      We conclude that the trial court’s declaration of a mistrial as to counts two,

four, five, six, and seven after the jury was unable to reach a verdict as to those

counts did not terminate the original jeopardy to which Garbett had been subjected.

See Richardson, 468 U.S. at 326; Ex parte McAfee, 761 S.W.2d at 772. We also

conclude that Garbett’s various alleged acts of sexual misconduct against the victim

do not comprise a single offense, and Garbett is liable for separate prosecution and

punishment for each alleged instance. See Vernon, 841 S.W.2d at 410; see also

Sledge, 953 S.W.2d at 255-256; Thomas, 753 S.W.2d at 693. We further conclude

that Garbett has not shown that the jury made a specific factual determination as to

counts two, four, five, six, and seven. See Stevens, 235 S.W.3d at 740; Guajardo,

109 S.W.3d at 460. For all these reasons, we overrule issues one and two and affirm

the trial court’s judgment.

      AFFIRMED.
                                             ______________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice

Submitted on August 29, 2019
Opinion Delivered October 30, 2019
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.
                                       7
