X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:In April 2001, authorities charged Alfredo Pruitt in a two-count indictment with sexual assault and aggravated sexual assault of the complainant, Pruitt’s stepdaughter. Count No. 1 of the indictment alleged that Pruitt penetrated the complainant’s sexual organ with his penis on or about Aug. 15, 2000, when she was younger than 17 years of age. Count No. 2 of this indictment alleged that Pruitt penetrated the complainant’s sexual organ with his penis on or about June 15, 1997, when she was younger than 14 years of age. Pruitt’s case was tried before a jury in April 2002. Pruitt testified and denied having any sexual contact with the complainant. The complainant, who was born on July 7, 1984, testified that Pruitt first penetrated her sexual organ with his penis sometime after her eighth-grade school year and before her 14th birthday in summer 1998. She testified that Pruitt last penetrated her sexual organ with his penis in August or September of 2000 when she was 16 years old. The complainant also testified that Pruitt penetrated her sexual organ with his penis at least once a month between the first incident of penetration in summer 1998 and the last incident of penetration in August or September of 2000. The state made no formal election of which incidents of penetration it would rely upon for conviction. The state’s jury arguments focused on the first incident of penetration in summer 1998 and the last incident of penetration in August or September of 2000. The state also argued that the complainant’s “testimony, standing alone, if you believe it beyond a reasonable doubt, is enough to sustain the allegations of Count 1 and Count 2.” The defense’s closing jury arguments did not respond to just the first incident of penetration in summer 1998 and the last incident of penetration in August or September of 2000; instead, it addressed all of the alleged conduct. The jury was instructed to convict Pruitt of count No. 1 if it found, among other things, that Pruitt committed the offense on or about Aug. 15, 2000. The jury was instructed to convict Pruitt of count No. 2 if it found, among other things, that Pruitt committed the offense “on or about” June 15, 1997. The trial court also instructed the jury that the state was “not required to prove the exact date alleged in the indictment, but may prove the offense, if any, to have been committed at any time prior to the presentment of the indictment, so long as said indictment is presented within ten years from the 18th birthday of the victim of the offense.” The jury acquitted Pruitt of both counts. In May 2003, authorities charged Pruitt in the present case in a two-count indictment with sexual assault of the same complainant when she was younger than 17 years of age. Count No. 1 alleged that Pruitt committed the offense “on or about” June 15, 1999. Count No. 2 alleged that Pruitt committed the offense “on or about” July 15, 1999. Paragraph one of each count alleged that Pruitt committed the offense by causing the complainant’s sexual organ to contact his sexual organ. Paragraph two of each count alleged that Pruitt committed the offense by penetrating the complainant’s sexual organ with his penis. Pruitt filed a pretrial writ of habeas corpus claiming that this prosecution was jeopardy-barred because of the prior acquittal. The trial court conducted two hearings on this pretrial writ. Pruitt argued at the first hearing that “the dates that [the complainant] testified to were within the time period that he was at risk in the first trial” because of the “on or about” language in the jury charge. The trial court denied relief, and Pruitt appealed. On direct appeal, the 3rd Court of Appeals rejected the state’s argument that it made an election at the previous trial to seek a conviction only for the first incident of penetration in summer 1998 and the last incident of penetration in August or September of 2000. Therefore, the 3rd Court concluded that the record supported Pruitt’s contention “that at his first trial, he was placed in jeopardy for every act of genital penetration he allegedly committed against the complainant prior to the return of the indictment” in that case, which includes the “offenses alleged” in paragraph two (genital penetration) of each count of the current indictment. Turning to the “offenses alleged” in paragraph one (genital-to-genital contact) of each count of the current indictment, the 3rd Court decided that the state may, consistent with the double-jeopardy clause, prosecute Pruitt for sexual assault of the complainant by genital-to-genital contact under these paragraphs “provided, however, that the contact proved must be distinct from, and not an incident of, any act of genital penetration committed by [Pruitt] against the complainant prior to the return of the indictment” in the prior case. The CCA granted review of the two grounds presented in the state’s petition for discretionary review. Those grounds stated: 1. “What constitutes a proper election of offenses based on the court’s charge and jury argument in light of [Article 38.37]?” and 2. “Does an acquittal for charges of genital penetration necessarily preclude a charge for genital-to-genital contact [incident to the alleged act of penetration]?” HOLDING:The CCA affirmed the judgment of the 3rd Court. According to the CCA, the case presented a scenario where the state claimed to have made an election in the first trial in the absence of a request by the defendant. The state sought to “avoid the bite of [CCA] case law” that a failure to make an election in the first trial meant that every instance of penetration presented at this trial was jeopardy-barred. Though portions of the record of the prior trial indicated that the state focused on the first and last incidents of penetration and that, if forced to elect, it probably would have picked those two incidents, the CCA found that the record nevertheless reflected that the jury was still authorized to convict Pruitt based on the other incidents of penetration. It is impossible to determine with any certainty, the court stated, which specific incidents of penetration the jury actually acquitted Pruitt of in the prior trial. If the state did make an election at the prior trial, it did not do so with the required specificity, the court stated. If, as in this case, a reviewing court finds itself in the position of having to guess whether the state made an election, then it should decide that there was no election. The court decided that there was no effective election at Pruitt’s previous trial. Therefore, the CCA held that the 3rd Court correctly decided that the incidents of penetration alleged in paragraph two of each count of the current indictment were jeopardy-barred. As to the genital-to-genital contact offenses alleged in paragraph one of each count of the current indictment, the CCA held that the 3rd Court was correct to decide that double-jeopardy principles did not prohibit the state from prosecuting the genital-to-genital contact offenses alleged in paragraph one of each count of the current indictment “provided, however, that the contact proved must be distinct from, and not an incident of, any act of genital penetration committed by [Pruitt] against the complainant prior to the return of the indictment” in the prior trial. OPINION:Hervey, J., delivered the opinion of the unanimous court.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.