The State of Texas v. Tom Peterson

majority opinion

Opinion issued July 14, 2026

In The

Court of Appeals

For The

First District of Texas

NO. 01-24-00630-CR

NO. 01-24-00633-CR

THE STATE OF TEXAS, Appellant

TOM PETERSON, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Case Nos. 1824051, 1871092

OPINION

In 2023, the trial court held a jury trial on a charge of indecency with a child

by contact and a charge of indecency with a child by exposure against appellee Tom

Peterson. Prior to reading the charge to the jury, the trial court declared a mistrial due to an instance of juror misconduct. A grand jury then indicted Peterson for the

offense of continuous sexual abuse of a young child. Peterson filed three pretrial

applications for writ of habeas corpus seeking dismissal of all three charges—the

two indecency with a child charges and the new continuous sexual abuse charge—

based on double jeopardy. The trial court granted the application and dismissed all

three charges.

On appeal, the State challenges the trial court’s ruling granting habeas relief

and dismissing the continuous sexual abuse indictment.1 The State argues that the

mistrial on the two indecency charges does not have double jeopardy implications

and bar the continuous sexual abuse charge because the charges are distinct, and the

The trial court assigned new cause numbers to each writ application. Due to

confusion over which writ cause number corresponded to which indictment, the

State initially appealed all three of the trial court’s orders granting habeas relief,

including the orders dismissing the two indecency with a child charges. Four

appellate cause numbers were generated: 01-24-00630-CR, 01-24-00631-CR, 01-24-00632-CR, and 01-24-00633-CR. The appeals from the indecency charges were

assigned appellate cause numbers 01-24-00631-CR and 01-24-00632-CR. The State

later determined that it did not wish to pursue an appellate challenge to the

dismissals of the two indecency charges, and it moved to dismiss both of those

appeals. A panel of this Court granted the State’s motion and dismissed appellate

cause numbers 01-24-00631-CR and 01-24-00632-CR. State v. Peterson, No. 01-24-00631-CR, 2024 WL 5160637, at *1 (Tex. App.—Houston [1st Dist.] Dec. 19,

2024, no pet.) (mem. op., not designated for publication) (per curiam).

Appellate cause numbers 01-24-00630-CR and 01-24-00633-CR remained pending

and are the subject of this opinion. Appellate cause number 01-24-00630-CR

corresponds to trial court cause number 1824051, the continuous sexual abuse

indictment. Appellate cause number 01-24-00633-CR corresponds to trial court

cause number 1871092, the writ application relating to the continuous sexual abuse

indictment.

indecency charges are incapable of being predicates for the continuous sexual abuse

charge.

We reverse and remand.

Background

In 2021, a grand jury indicted Peterson for two indecency with a child

offenses. The first indictment charged Peterson with the offense of indecency with

a child by contact, alleging that Peterson “engage[d] in sexual contact with C.M., [a]

person younger than seventeen years of age, by touching the Breast of C.M., with

the intent to arouse and gratify the sexual desire of the Defendant.” The second

indictment charged Peterson with the offense of indecency with a child by exposure,

alleging that Peterson “with the intent to arouse and gratify the sexual desire of the

Defendant, expose[d] the Defendant’s genitals, knowing that C.M., a child younger

than seventeen years of age was present.”

The trial court held a jury trial on these two charges in June 2023. The child

complainant, who was fourteen at the time of trial, testified to multiple instances of

inappropriate sexual conduct by Peterson, including conduct that falls within the

scope of indecency with a child by contact and indecency with a child by exposure,

as well as more egregious conduct that falls within the scope of aggravated sexual

assault of a child, an offense with which Peterson was not charged. The complainant

testified that Peterson’s conduct began when she was six or seven years old, and the

last instance occurred in March 2020, when she was ten.2 After the complainant’s

testimony, both the State and Peterson rested.

When trial resumed the following morning, the trial court heard evidence

concerning an interaction a juror had with the complainant after she finished her

testimony. As the complainant and a witness advocate were waiting to use the

elevator, a juror approached the complainant, put her hands on the complainant’s

shoulder, and tried to speak to her.

Defense counsel moved to excuse the juror, which the trial court granted. But

the court then expressed concern that the jury had been “tainted” and discussions

among the jurors had occurred concerning witness performance. The trial court then

questioned the juror on the record before the entire jury, excused the juror, and

declared a mistrial.3 After a recess, the State announced an intention to file an

additional charge against Peterson.

Two days later, a grand jury indicted Peterson for the offense of continuous

sexual abuse of a young child. The indictment alleged that Peterson

on or about September 30, 2015 and continuing through September 30,

2019, did then and there unlawfully, during a period of time of thirty or

more days in duration, commit at least two acts of sexual abuse against

During the medical exam that the complainant received at the Children’s

Assessment Center, she reported that the abuse began when she was three years old. 3

In the written orders granting a mistrial, the trial court did not check a box stating,

“[t]he court finds that manifest necessity requires this trial to be terminated and the

jury discharged.”

a child younger than fourteen years of age, including an act constituting

the offense of Aggravated Sexual Assault of a Child, committed against

C.M. on or about September 30, 2015, and an act constituting the

offense of Indecency with Child by Contact, committed against C.M.

on or about September 30, 2019, and the Defendant was at least

seventeen years of age at the time of the commission of each of those

acts.

The State did not specifically allege the actions that constituted the offenses of

aggravated sexual assault or indecency with a child.

Peterson filed an application for writ of habeas corpus and moved to dismiss

the continuous sexual abuse charge based on double jeopardy. He argued that the

trial court declared a mistrial on the two indecency charges without his consent and

without manifest necessity. Because both indecency offenses are lesser-included

offenses of continuous sexual abuse, and the continuous sexual abuse charge is

“undoubtedly based on testimony adduced during the mistried prosecution” of the

indecency charges, the continuous sexual abuse charge is the “same” offense as the

indecency charges, and the double jeopardy clause bars prosecution of all three

offenses.

The State opposed dismissal of the indictments, arguing that Peterson

impliedly consented to the mistrial by not objecting and that the continuous sexual

abuse charge is not the “same” offense as the indecency offenses because it was not

based on the same elements alleged in the indecency indictments. The State

acknowledged that the double jeopardy protection prohibited it from using the two

indecency charges as predicates for the continuous sexual abuse offense, but it

argued that it was not doing so: instead, it alleged different offenses as the predicates

for the continuous sexual abuse charge. Under the continuous sexual abuse statute,

indecency with a child by contact could be a predicate offense, but not if it was based

on touching the child’s breast. Additionally, the predicate offenses that the State

alleged did not require the State to prove that Peterson exposed his genitals to the

complainant, as the indecency with a child by exposure indictment required. The

indecency offenses and the continuous sexual abuse offense were therefore separate

offenses for double jeopardy purposes.

Following a hearing, the trial court granted habeas relief to Peterson and

dismissed all three pending indictments.4 This appeal by the State followed. See TEX.

CODE CRIM. PROC. art. 44.01(a)(1), (4) (allowing State to appeal order that dismisses

indictment or sustains claim of former jeopardy).

The trial court made findings of fact and conclusions of law. Among other things,

the court concluded that both indecency offenses can be lesser-included offenses of

aggravated sexual assault of a child, one of the predicate offenses alleged in the

continuous indictment. Solely considering the three indictments at issue, “the

allegations in the new indictment [for continuous sexual abuse] either are, or may

be, the identical alleged conduct that is jeopardy barred in” the indecency offenses.

Double Jeopardy

In its sole issue, the State argues that the trial court abused its discretion by

granting Peterson’s application for pretrial writ of habeas corpus because double

jeopardy does not bar the continuous sexual abuse indictment.

A. Standard of Review

A pretrial writ of habeas corpus, followed by an interlocutory appeal, is an

extraordinary remedy. Ex parte Ingram, 533 S.W.3d 887, 891 (Tex. Crim. App.

2017). Generally, pretrial habeas “is not available when the question presented, even

if resolved in the defendant’s favor, would not result in immediate release.” Id. at

892. Nor is it available “when the resolution of a claim may be aided by the

development of a record at trial.” Id. (quotation omitted). Double jeopardy, however,

is a “recognized exception” to these general rules because “the constitutional right

at issue includes a right to avoid trial.” Id.

We generally review a trial court’s ruling on a habeas claim for an abuse of

discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We must

review the evidence in the light most favorable to the trial court’s ruling. Ex parte

Gomez, 624 S.W.3d 573, 576 (Tex. Crim. App. 2021). When resolution of a double

jeopardy issue “requires application of the law to facts not involving credibility and

demeanor determinations, we review the issue de novo.” Sledge v. State, 666 S.W.3d

592, 599 (Tex. Crim. App. 2023).

B. Governing Law on Double Jeopardy and Related Concepts

The Fifth Amendment protects against double jeopardy, providing that no

person shall “be subject for the same offence to be twice put in jeopardy of life or

limb.” U.S. CONST. amend. V; see also Oregon v. Kennedy, 456 U.S. 667, 671 (1982)

(“The Double Jeopardy Clause of the Fifth Amendment protects a criminal

defendant from repeated prosecutions for the same offense.”). The double jeopardy

clause protects a defendant in three ways: (1) it protects against a second prosecution

for the same offense following an acquittal; (2) it protects against a second

prosecution for the same offense following a conviction; and (3) it protects against

multiple punishments for the same offense. Ramos v. State, 636 S.W.3d 646, 651

(Tex. Crim. App. 2021).

Jeopardy attaches when a jury is impaneled and sworn. Ex parte Fierro, 79

S.W.3d 54, 56 (Tex. Crim. App. 2002); Brown v. State, 907 S.W.2d 835, 839 (Tex.

Crim. App. 1995). Generally, if the defendant has been placed in jeopardy and the

jury is discharged without reaching a verdict, double jeopardy bars a retrial for the

same offense. Ex parte Garrels, 559 S.W.3d 517, 522 (Tex. Crim. App. 2018). There

are two exceptions to this general rule: (1) if the defendant consents to the mistrial,

or (2) the mistrial is based on some “manifest necessity.” Id. In those two instances,

double jeopardy does not bar a retrial. Id.

In a double jeopardy inquiry, we must determine whether the offenses

involved are the “same.” When distinct statutory provisions are at issue, we

determine “legal sameness” by applying the Blockburger same-elements test to

determine whether each provision requires proof of a fact which the other does not.

Ex parte Castillo, 469 S.W.3d 165, 168 (Tex. Crim. App. 2015) (quotation omitted);

see Blockburger v. United States, 284 U.S. 299, 304 (1932). Under that test, lesserincluded offenses5 are legally the same as the greater offense and are subsumed by

the elements of the greater offense unless the potential lesser-included offense

requires proof of a fact that is not required to establish the greater offense. Ex parte

Castillo, 469 S.W.3d at 168; Brown v. Ohio, 432 U.S. 161, 169 (1977) (“Whatever

the sequence may be, the Fifth Amendment forbids successive prosecution and

cumulative punishment for a greater and lesser included offense.”).

Code of Criminal Procedure article 37.09 defines when an offense is a lesserincluded offense:

(1) it is established by proof of the same or less than all the facts

required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less

serious injury or risk of injury to the same person, property, or

public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less

culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an

otherwise included offense.

TEX. CODE CRIM. PROC. art. 37.09.

To determine if an offense is a lesser-included offense of another, we compare

the “elements of the greater offense as pled to the statutory elements of the potential

lesser-included offense in the abstract.” Ex parte Castillo, 469 S.W.3d at 169; Bigon

v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008) (“[W]hen resolving whether

two crimes are the same for double-jeopardy purposes, we focus on the elements

alleged in the charging instrument.”). An offense is a lesser-included offense if the

indictment for greater offense “alleges all of the elements of the lesser-included

offense” or “alleges elements plus facts (including descriptive averments, such as

non-statutory manner and means, that are alleged for purposes of providing notice)

from which all of the elements of the lesser-included offense may be deduced.” Ex

parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g) (per

curiam).

The elements of the lesser-included offense need not be pleaded in the

indictment “if they can be deduced from facts alleged in the indictment.” State v.

Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013). Courts examine the elements

of the lesser offense to determine whether the elements are “functionally the same

or less than those required to prove the charged offense.” Id. (quotation omitted).

Whether an offense is a lesser-included offense is a legal question that does not

depend on evidence offered at trial. Ex parte Castillo, 469 S.W.3d at 169; see Bien

v. State, 550 S.W.3d 180, 184 (Tex. Crim. App. 2018) (“In Texas, we look to the

pleadings to inform the Blockburger test.”).

If the offenses are legally the same, we then must determine whether the

offenses are factually the same. Ex parte Castillo, 469 S.W.3d at 169. This inquiry

involves determining the allowable unit of prosecution and reviewing the trial record

to establish how many units have been shown. Id.; Ex parte Benson, 459 S.W.3d 67,

73 (Tex. Crim. App. 2015) (stating that “units analysis” involves “determining such

things as whether there were two murder victims, whether a victim who was

assaulted on Monday was assaulted again on Tuesday, or whether multiple kinds of

sex acts were committed against a victim”). The allowable unit of prosecution turns

on statutory construction and requires ascertaining the gravamen of the offense. Ex

parte Castillo, 469 S.W.3d at 169.

If, after reviewing the record, we determine that the offenses are based on the

same unit of prosecution, the offenses are factually the same for successive

prosecution purposes. Id. The defendant must prove both legal sameness and factual

sameness. Id.

A separate but related concept concerns jury unanimity. “Texas law requires

that a jury reach a unanimous verdict about the specific crime that the defendant

committed,” meaning that the jury “must agree upon a single and discrete incident

that would constitute the commission of the offense alleged.” Cosio v. State, 353

S.W.3d 766, 771 (Tex. Crim. App. 2011) (quotation omitted). “When the State

charges different criminal acts, regardless of whether those acts constitute violations

of the same or different statutory provisions, the jury must be instructed that it cannot

return a guilty verdict unless it unanimously agrees upon the commission of any one

of these criminal acts.” Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).

Several variations of jury unanimity problems exist, including “when the State

charges one offense and presents evidence that the defendant committed the charged

offense on multiple but separate occasions.” Cosio, 353 S.W.3d at 772. Because each

occasion “individually establishes a different offense or unit of prosecution,” the

jury charge must instruct the jury “that its verdict must be unanimous as to a single

offense or unit of prosecution among those presented.” Id. A non-unanimity concern

may also arise “when the State charges one offense and presents evidence of an

offense, committed at a different time, that violated a different provision of the same

criminal statute.” Id. In this situation, the charge must “instruct the jury that it has to

be unanimous about which statutory provision, among those available based on the

facts, the defendant violated.” Id.

Ordinarily, the Rules of Evidence prohibit the use of extraneous offense

evidence to prove the defendant’s character in order to show that on a particular

occasion the defendant acted in accordance with the character. TEX. R. EVID.

404(b)(1). However, the Texas Legislature has relaxed this prohibition in the

prosecution for certain offenses, including both indecency with a child and

continuous sexual abuse of a child. During these prosecutions, notwithstanding

Rules of Evidence 404 and 405, “evidence of other crimes, wrongs, or acts

committed by the defendant against the victim of the alleged offense” is admissible

“for its bearing on relevant matters,” including the state of mind of the defendant

and the victim, as well as the previous and subsequent relationship between the

defendant and the victim. TEX. CODE CRIM. PROC. art. 38.37, § 1(a)–(b); Harris v.

State, 475 S.W.3d 395, 402 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d)

(stating that article 38.37 “recognizes that evidence of this type is, by definition,

propensity or character evidence and that it is admissible notwithstanding those

characteristics” and noting that legislative history “reflects that it was enacted to give

prosecutors additional resources to prosecute sex crimes committed against

children” (quotation omitted)).

When the State alleges one particular act of a sexual offense in the indictment

and the trial evidence shows more than one incident of that same act, “the State must

elect the act upon which it would rely for conviction.” Owings v. State, 541 S.W.3d

144, 150 (Tex. Crim. App. 2017) (quotation omitted). The trial court errs if it fails

“to have the State elect at the close of its evidence when properly requested by the

defense.” Phillips v. State, 193 S.W.3d 904, 909 (Tex. Crim. App. 2006).

Four purposes underlie the election requirement:

• to protect the accused from the introduction of extraneous offenses;

• to minimize the risk that the jury might choose to convict, not because

one or more crimes were proved beyond a reasonable doubt, but

because all of them together convinced the jury the defendant was

guilty;

• to ensure unanimous verdicts; that is, all of the jurors agreeing that one

specific incident, which constituted the offense charged in the

indictment, occurred; and

• to give the defendant notice of the particular offense the State intends

to rely upon for prosecution and afford the defendant an opportunity to

defend.

Owings, 541 S.W.3d at 150.

Whether to request that the State elect the particular incident that it is relying

upon for a conviction is a “purely strategic” choice by the defendant. Cosio, 353

S.W.3d at 775. If the defendant chooses not to elect, the State “is jeopardy-barred

from prosecuting on any of the offenses that were in evidence.” Id.; Ex parte Pruitt,

233 S.W.3d 338, 345 (Tex. Crim. App. 2007) (“A decision in this case that the State

failed to make an election at the prior trial to seek a conviction only for the first

incident of penetration in the summer of 1998 and the last incident of penetration in

August or September of 2000 would mean that the remaining incidents of

penetration testified to by the complainant at appellant’s prior trial are jeopardybarred.”). This is so because absent an election, “it will be impossible to determine

which particular incident of criminal conduct that the jury was unanimous about.”

Cosio, 353 S.W.3d at 776; see also Ex parte Goodbread, 967 S.W.2d 859, 861 (Tex.

Crim. App. 1998) (“When an indictment permits the State to obtain only one

conviction, a defendant is not placed in jeopardy for more than one criminal act

unless the State offers multiple instances of conduct in support of the indictment.”);

Rankin v. State, 953 S.W.2d 740, 743 (Tex. Crim. App. 1996) (Meyers, J.,

concurring) (stating that when evidence proves two or more instances of misconduct

but no election is made, “we also consider a subsequent prosecution for any such

instance of misconduct to be jeopardy barred because it is impossible to determine

which offense the jury actually found the defendant to be guilty of”).

By contrast, an election of a particular offense excludes the other offenses

from the jeopardy bar such that the State may seek prosecution of those offenses at

a later date. Cosio, 353 S.W.3d at 775–76; see also Ex parte Goodbread, 967 S.W.2d

at 861 (“Every instance of sexual assault is a separate crime and may be prosecuted

in separate trials.”).

C. Whether Double Jeopardy Bars the Continuous Sexual Abuse of a Child

Indictment

We begin by comparing the elements of continuous sexual abuse of a child as

alleged in the indictment with the elements of indecency with a child by contact and

indecency with a child by exposure. The continuous sexual abuse indictment alleged

that Peterson