If a person commits indecency with a child by exposure, and there were three children present during the act, can he be convicted for three offenses? In other words, is the allowable unit of prosecution the identity of the child or the act itself?
The 13th District Court of Appeals (Corpus Christie), as it explained in its unpublished opinion in Harris v. State, No. 13-08-537-CR (April 15, 2010), believes that an offense is committed for every child that is present at the time of the exposure – three children equals three counts. Hence, double jeopardy does not bar multiple prosecutions for the same act.
Appellant (Harris) challenged this holding to the Texas Court of Criminal Appeals, contending that the offense of indecency by exposure is a “non-victim-based crime for which double jeopardy bars multiple prosecutions.” The CCA agreed, holding that
the offense of indecency with a child by exposure is complete once the defendant unlawfully exposes himself in the required circumstances…[T]he child does not even have to be aware of the exposure…The offense is based on the defendant’s actions and mental state, not the other person’s comprehension.
Reversing the court of appeals, the CCA explained, “the act of exposure is the gravamen of the indecent exposure.” Appellant’s conviction for three offenses violated double jeopardy. “Appellant committed only one offense under Section 21.11(a)(2)(A) when he exposed himself to three children at the same time.”
See Judge Hervey’s majority opinion in Harris v. State.
Presiding Judge Keller Dissented. She “would hold that each victim of indecency with a child is a separate unit of prosecution.”