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EX PARTE AMADOR

Court of Criminal Appeals of Texas.

Dec 8, 2010

Judgment

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MEMORANDUM AND ORDER

DAVID NOCE, Magistrate Judge

This action is before the court on the motion of defendants Howmedica Osteonics Corp. and Stryker Corporation to dismiss. (Doc. 2.) All of the parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 16.) Oral arguments were heard on September 20, 2010.

I. BACKGROUND

On June 7, 2010, plaintiffs Pamela and David Warren commenced this action against defendant Howmedica Osteonics Corp. (Howmedica) in the Circuit Court of St. Louis County. (Doc. 1-1 at 4.) Howmedica Osteonics Corp. and Stryker Corporation removed the action to this court under 28 U.S.C. § 1441, on the bases of federal question, diversity, and supplemental jurisdiction. (Doc. 1 at ¶¶ 10-12.)

In the Missouri circuit court plaintiffs sued only defendant Howmedica Osteonics Corp., which was alleged to be doing business as or was formerly known as Stryker, Stryker Corporation, and/or Stryker Orthopaedics. (Doc. 1-1.) The removal petition was filed by Howmedica and Stryker Corporation. (Doc. 1.) Until clarified by the parties and ordered otherwise by the court, both Howmedica Osteonics Corp. and Stryker Corporation will be shown as the named defendants. Both are referred to in this Memorandum and Order jointly either as "Howmedica" or in the singular as "defendant".

Plaintiffs allege the following facts in their complaint:

Surgeries and Malfunction

On July 13, 2004, Pamela Warren underwent a right hip arthroplasty at Des Peres Hospital. (Doc. 1-1 at ¶ 7.) As part of the procedure, a Stryker Trident Ceramic Acetabular System ("Trident System") was implanted in her body. (Id. at ¶¶ 6-7.) The Trident System is an artificial hip replacement device that includes a metal Trident PSL Acetabular Shell ("PSL Shell"), an alumina ceramic insert, and a ceramic femoral head. (Id. at ¶ 7.) The PSL Shell was manufactured, packaged, labeled, marketed, and sold by defendant. (Id. at ¶¶ 6.)

On January 18, 2005, Pamela Warren underwent a left hip arthroplasty at Des Peres Hospital, and a second Trident System, including a PSL Shell, was implanted in her body. (Id. at ¶ 8.)

On July 24, 2007, the PSL Shell in Pamela Warren's right hip malfunctioned, such that "the ceramic lining of the PSL Shell prosthesis fractured, with migration of several of the fragments inferiorly." (Doc. 1-1 at ¶ 9.) As a result, the PSL Shell caused Pamela Warren bodily injuries and made clicking and squeaking sounds. (Id. at ¶ 10.)

Pamela Warren underwent additional surgery to repair the malfunctioning PSL Shell in her right hip. (Doc. 1 at ¶ 12.)

FDA Regulations and Reporting

On February 3, 2003, defendant received approval from the Food and Drug Administration ("FDA") to sell its Trident System in the United States. (Id. at ¶ 15.) As reported through FDA modification submissions, on May 25, 2004, defendant increased the wall thickness of Trident "T" Acetabular Shells. (Id. at ¶ 16.) On March 14, 2006, defendant changed the manufacturing process for ceramic femoral heads and inserts. (Id.) On July 7, 2006, defendant implemented two geometrical modifications to the Trident Constrained Acetabular Insert. (Doc. 1-1 at ¶ 16.)

Recalls

On March 13, 2006, after an inspection by the FDA, defendants recalled a batch of Trident PSL HA Solid Black Acetabular Shells

(United States FDA Recall Z-1261-2007). (Id. at ¶ 18.) The stated reason for the recall was that defendant discovered dimensional anomalies caused by a machine operator's failure to inspect product dimensional features prior to release. (Id.) These defects caused the PSL Shells to be out of tolerance. (Id.)

On August 30, 2007, defendant recalled another batch of Trident PSL HA Solid Black Acetabular Shells (United States FDA Recall Z-0073-2006). (Id. at ¶ 19.) The stated reason for the recall was that defendant found that "specific lots of Trident PSL Acetabular shells may have [had] dimensional discrepanc[ies]. The deviation regarding the difference in wall thickness [would] increase the gap between the shell and liner on one side and [would] decrease the gap between shell and liner on the opposing side, resulting in interference." (Id.)

On January 22, 2007, defendant recalled a batch of Trident PSL and Hemispherical Cups that were manufactured from January, 2000 through December, 2007 in defendant's facilities in Cork, Ireland. (Doc. 1-1 at ¶ 20.) The recall stemmed from an investigation into the existence of "manufacturing residuals" within the defective Trident devices. (Id.)

The FDA classified defendant's recalls and other corrective actions as Class II recalls under federal regulations. (Id. at ¶ 21.)

In their state court petition, plaintiffs do not provide additional information regarding Class II recalls or these specific recalls.

On March 15, 2007, the FDA issued a warning letter to defendant regarding defendant's facilities in Cork, Ireland. (Id. at ¶ 28.) The FDA inspected defendant's Cork, Ireland facilities, and discovered that defendant's Trident Acetabular hip replacement systems were "adulterated" as defined in 21 U.S.C. § 351(h). (Id.)

Plaintiffs allege that defendant's Trident Acetabular hip replacement systems were "adulterated" because "the methods used in, or the facilities or controls used for, the manufacture, packing, storage, or installation of the device, were not in conformity with the Current Good Manufacturing Practice [] requirements of the Quality Systems [] regulation found at 21 C.F.R. § 820." (Doc. 1 at ¶ 28.)

With both the March 15, 2007 and November 28, 2007 warning letters, plaintiffs restate in full the violations listed by the FDA. (Doc. 1 at ¶¶ 29(a)-(k), 31(a)-(s).)

On November 28, 2007, the FDA issued a warning letter to defendant regarding defendant's facilities in Mahwah, New Jersey. (Id. at ¶ 30.) The FDA inspected these facilities between June 1, 2007 and July 12, 2007, and discovered that defendant's Trident PSL Acetabular Shells were adulterated. (Doc. 1-1 at ¶ 30.)

Plaintiffs' Claims

Plaintiffs allege that defendant failed to comply with: the Medical Device Reporting procedures set forth in 21 C.F.R. § 803; the failure and quality assurance procedures set forth in 21 C.F.R. § 820; and the recall and notification procedures set forth in 21 C.F.R. § 806. (Id. at ¶ 32.) Plaintiffs also allege that defendant failed to develop practices and procedures to assure compliance with: federal requirements for reporting adverse events, in accordance with 21 U.S.C. § 360; federal requirements for device modifications, instructions for use, and pre-market approval condition, in accordance with 21 C.F.R. § 814; and its duty to maintain Medical Device Reporting procedures, implementing device removals and corrections, and establishing quality systems, in accordance with 21 C.F.R. §§ 803, 806, and 820. (Id. at ¶ 33.)

Plaintiffs also allege that defendant failed to: timely report adverse events; conduct failure investigations and analysis; timely report any and all information concerning product failures and corrections; inform the FDA of adverse effects or device failures which would require a labeling, manufacturing, or device modification; and conduct necessary design validation. (Id. at ¶ 35.)

Regarding the specific device at issue, plaintiffs allege that it was defective and unreasonably dangerous. (Id. at ¶ 37.) Plaintiffs allege that defendant's manufacturing process for the device and its components did not satisfy the FDA's Pre-Market Approval standards, resulting in unreasonably dangerous manufacturing defects, and that defendant failed to warn of those unreasonable risks. (Id.) Plaintiffs further allege that defendant was negligent and careless in the manufacturing process. (Doc. 1-1 at ¶ 38.)

According to plaintiffs, as a result of these failures, deficiencies, and negligence, Pamela Warren's right hip implant failed and fractured, necessitating revision surgery, and that the remaining device clicks, squeaks, grinds, and functions poorly. (Id. at ¶ 39.)

In Count I, plaintiffs assert a strict product liability claim against defendant, as defendant was the manufacturer, distributer, and seller of Pamela Warren's defective hip device. (Id. at ¶¶ 41-50.) In Count II, plaintiffs assert a negligence claim against defendant as designer, manufacturer, distributor, and seller of Pamela Warren's defective hip device. (Id. at ¶¶ 51-60.) In Count III, plaintiffs assert a breach of express warranty of fitness for a particular purpose claim. (Id. at ¶¶ 61-69.) In Count IV, plaintiffs seek punitive damages. (Id. at ¶¶ 70-73.) In Count V, David Warren seeks damages for loss of consortium. (Doc. 1-1 at ¶¶ 74-77.)

II. MOTION TO DISMISS

Defendant moves to dismiss plaintiffs' complaint. Fed.R.Civ.P. 12(b)(6); (Doc. 2.) Defendant argues that: plaintiffs' claims are expressly preempted; plaintiffs' express warranty claim does not allege a violation of federal law; plaintiffs' claims are impliedly preempted; plaintiffs' complaint fails to state plausible claims; and David Warren's loss of consortium claim fails for lack of a valid underlying claim. (Doc. 3.)

Plaintiffs respond that their claims may proceed through a "narrow gap" under which their state law claims escape express and implied preemption, and that their complaint sufficiently alleges breaches of federal law and regulations. (Doc. 10.)

In reply, defendant reasserts its arguments of express and implied preemption and lack of sufficiency of the pleadings. (Doc. 14.)

III. MOTION TO DISMISS STANDARD

A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the complaint. See Carton v. General Motor Acceptance Corp., 611 F.3d 451, 454 (8th Cir 2010); Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001). To survive a motion to dismiss, the complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). To meet the plausibility standard, the complaint must contain "more than labels and conclusions." Id. at 555. Rather, the complaint must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

The Federal Rules of Civil Procedure demand only that a complaint present a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). And in this regard, the court must be mindful of Federal Rule of Civil Procedure 84 and its requirement that the attached Forms 10 to 21 be considered as examples of the "simplicity and brevity that [Rule 8] contemplate[s]." Fed.R.Civ.P. 84. See Hamilton v. Palm, 621 F.3d 816, 818 (8th Cir. 2010). That said, the allegations must still be enough to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.

A complaint must be liberally construed in the light most favorable to the plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). Moreover, a court must accept the facts alleged as true, even if doubtful. Twombly, 550 U.S. at 555. Thus, a well-pleaded complaint may proceed even if it appears that recovery is very remote or unlikely. Id.; Young, 244 F.3d at 627.

IV. DISCUSSION

In the Medical Device Amendments of 1976 ("MDA") to the Federal Food, Drug, and Cosmetic Act ("FDCA"), "Congress authorized the Food and Drug Administration to regulate the safety and effectiveness of medical devices." In re Medtronic Sprint Fidelis Leads Products Liability Litigation, No. 08-1905, 2010 WL 4026802, at *1 (8th Cir. Oct. 15, 2010). The MDA employed a new regulatory scheme, under which devices were classified based on their levels of risk. Riegel v. Medtronic, Inc., 552 U.S. 312, 316 (2008). A Class III device receives the most oversight because it "presents a potentially unreasonable risk of injuring patients or [] is used to sustain life." In re Medtronic, 2010 WL 4026802, at *1.

A new Class III device must go through a rigorous FDA Pre-Market Approval ("PMA") process to nsure its safety and efficacy before it can be marketed and sold to the public. Id. Once the device passes the PMA process, "the manufacturer may not change its design, manufacturing process, labeling, or other attributes that would affect safety or effectiveness without filing a PMA Supplement." Id.

A. Express and Implied Preemption

Congress also included an express preemption provision in the MDA:

Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement —

(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and

(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.

21 U.S.C. § 360k(a). Under the Supreme Court's holding in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), state law is preempted by § 360k(a) if (1) "the Federal Government has established requirements applicable to [the device]," and (2) the plaintiff's claims are based on state law requirements relating to the safety and effectiveness of the device that are "different from, or in addition to" federal requirements. Riegel, 552 U.S. at 321-22 (internal quotations omitted).

The parties do not dispute that the Trident System is a Class III device. As a Class III device, the Trident System was subject to rigorous pre-market approval, which the Riegel court held sufficient to satisfy the first prong of the preemption analysis.Id. at 322-23; In re Medtronic, 2010 WL 4026802, at *2. Therefore, plaintiffs' state law claims are preempted to the extent that the alleged state duties add to, rather than parallel, federal requirements. Riegel, 552 U.S. at 330.

The MDA also provides for implied preemption of state law claims in that it "provides that all actions to enforce FDA requirements `shall be by and in the name of the United States.'" In re Medtronic, 2010 WL 4026802, at *2 (quoting 21 U.S.C. § 337(a)). As the Eighth Circuit explained in In re Medtronic, the Supreme Court held inBuckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 349 n. 4 (2001), that § 337(a) bars suits by private litigants "for noncompliance with the medical device provisions." In re Medtronic, 2010 WL 4026802, at *2 (quoting Buckman, 531 U.S. 341 n. 4). Thus, as the Eighth Circuit explained,

Riegel and Buckman create a narrow gap through which a plaintiff's state-law claim must fit if it is to escape express or implied preemption. The plaintiff must be suing for conduct that violates the FDCA (or else his claim is expressly preempted by § 360k(a)), but the plaintiff must not be suing because the conduct violates the FDCA (such a claim would be impliedly preempted under Buckman).

In re Medtronic, 2010 WL 4026802, at *2 (quoting Riley v. Cordis Corp., 625 F. Supp. 2d 769, 777 (D. Minn. 2009).

In In re Medtronic, the Eighth Circuit found the plaintiffs' claims expressly and impliedly preempted. The court found that the plaintiffs' claims were expressly preempted because "the FDA did not prohibit Medtronic from continuing to sell the unmodified lead, [and thus] a state requirement to that effect would be `different from or in addition to' the federal requirement and preempted under § 360k." As for implied preemption, the court held that the plaintiffs' claims alleging "that Medtronic failed to provide the FDA with sufficient information and did not timely file adverse event reports, as required by federal regulations . . . [were] simply an attempt by private parties to enforce the MDA, claims foreclosed by § 337(a) as construed inBuckman." In re Medtronic, 2010 WL 4026802, at *3.

Unlike the plaintiffs in In re Medtronic, plaintiffs raise state law claims that are premised on defendant's alleged failure to comply with federal regulations. Thus, plaintiffs' claims are more similar to those in Hofts v. Howmedica Osteonics Corp., 597 F. Supp. 2d 830, 832-33 (S.D. Ind. 2009). In Hofts, the plaintiff brought claims for, inter alia, defective manufacturing, negligent manufacturing, and breach of express warranty. Id. at 833. The plaintiff alleged that the defendant "failed in its obligation to meet the FDA's requirements, not that [the defendant] failed to exceed those requirements or to meet different requirements." Id. at 836 (emphasis added). Put another way, because a jury verdict could enforce the allegedly violated federal requirements, which gave rise to state law tort claims, the state law duties were parallel to the federal requirements.Id. at 836-37. Therefore, the plaintiff's claims were not preempted under Riegel.

Defendant argues that under Ilarraza v. Medtronic, Inc., 677 F. Supp. 2d 582, 588 (E.D.N.Y. Dec. 28, 2009), plaintiffs' claims are not sufficiently based on violations of federal regulations to survive preemption. In Ilarraza, the court held that the plaintiff's state law claims were preempted, despite the appearance of seemingly parallel claims. Id. at 588. Although the plaintiff alleged violations of CGMPs, the court found no parallel claim because Current Good Manufacturing Practices ("CGMP"s) only provide "general objectives [that] medical device manufacturers must seek to achieve." Id. The court reasoned that, because the CGMPs were "intentionally vague and open-ended," allowing the CGMPs to serve as the basis for a claim would subject manufacturers to multiple safety requirements (not set by federal law). Id. Also, given the nature of CGMPs, the plaintiff's general allegations of violations of CGMPs did not satisfy the pleading standard set forth in Twombly. Id. at 589.

Plaintiffs have concretely premised their state law claims on violations of federal regulations. Plaintiffs' state law claims do not impose any additional duties on defendant; plaintiffs' claims stem solely from defendant's alleged violation of federal regulations. Therefore, plaintiffs' claims are not preempted.Hofts, 597 F. Supp. 2d at 836-37. Cf. Bausch v. Stryker Corp., No. 08 C 4248, 2008 WL 5157940, at *4 (dismissing the plaintiff's claims because the plaintiff failed to premise his claim "in any way" to alleged FDA regulation violations).

B. Sufficiency of the Pleadings and Additional Discovery

Defendant argues that plaintiffs failed to plead "concrete allegations" that the Trident System at issue did not comply with the federal pleading requirements, as articulated by the Eighth Circuit in In re Medtronic, 2010 WL 4026802, at *3.

The Hofts court noted that the district court in In re Medtronic held that those plaintiffs failed to plead their manufacturing claims with sufficient specificity. As the Hofts court explained, the In re Medtronic district court found that those plaintiffs' tort claims "were premised on alleged violations of the FDA's CGMPs and Quality System Regulations ("QSR"s)," and that the CGMPs and QSRs "were generic, generally applicable requirements . . . [that] lacked any specific requirement applicable to the device at issue." As such, those "plaintiffs' manufacturing defect claims would impose requirements different from or in addition to those under federal law." Hofts, 597 F. Supp. 2d at 837 (discussing In re Medtronic, Inc. Sprint Fidelis Leads Products Liability Litigation, 592 F. Supp. 2d, 1147, 1158 (D. Minn. 2009)).

The Hofts plaintiff, like plaintiffs here, "brought claims premised on Howmedica's alleged failure to manufacture the Trident in accordance with the PMA issued by the FDA." Hofts, 597 F. Supp. 2d at 838. Thus, plaintiffs' claims survive dismissal.

As for additional discovery, the Hofts court discussed the application of strict pleading requirements in this scenario:

This court respectfully suggests that this is an unusually stringent application of Twombly and Rule 8 of the Federal Rules of Civil Procedure at the motion to dismiss stage. Manufacturing defect claims are not subject, for example, to the "particularity" pleading requirement of Rule 9. By way of comparison, in Lohr , the Supreme Court reversed dismissal of similar claims, even though "the precise contours of their theory of recovery have not yet been defined," because it was claims that the plaintiffs['] allegations "may include claims that Medtronic has, to the extent that they exist, violated FDA regulations."

Hofts, 597 F. Supp. 2d at 838. The court further noted that "[w]ith discovery, [the plaintiff] may or may not be able to prove those claims, but his claims are premised on requirements that are parallel to the federal requirements." Id.

Therefore, plaintiffs are entitled to proceed with their suit and obtain information through discovery. Hofts, 597 F. Supp. 2d at 838. See also In re Medtronic, 2010 WL 4026802, at *9 (Melloy, J., concurring in part and dissenting in part) (adopting the reasoning of Hofts regarding additional discovery "because its pragmatic approach does not turn Twombly into an insurmountable hurdle for plaintiffs"); Phillips, 2010 WL 2270683, at *7 (holding that the plaintiff's state law claims "contain[ed] sufficient factual matter, accepted as true, to state a plausible claim for relief"). Cf. In re Medtronic, 592 F. Supp. 2d 1159 n. 14 (noting that plaintiffs' counsel stated that no additional discovery was needed).

V. CONCLUSION

For the reasons set forth above,

IT IS HEREBY ORDERED that the motion of defendants to dismiss (Doc. 2) is denied.

Signed on December 8, 2010.

Briceno v. State, 580 S.W.2d 842 (Tex.Crim. App. 1979) ("[T]he offense of indecent exposure . . . is a lesser included offense of indecency with a child"). This Court explained:

The elements of these two offenses are identical except that indecency with a child requires the defendant to know that a child is present, where indecent exposure requires that the defendant is reckless as to the presence of another person. Proof of this higher degree of culpability, knowing, is proof of the lower culpable mental state, reckless. Proof that a child is present necessarily would be proof of the presence of a person. Thus, indecency with a child requires, in addition to proving all the elements of indecent exposure, a showing of the higher culpable mental state and that the person is a child.

Id. at 844 (citation omitted).

Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim.App. 2006) (stating that a multiple punishments double jeopardy claim can arise in two contexts: (1) "the lesser-included offense context, in which the same conduct is punished twice, once for the basic conduct, and a second time for that same conduct plus more," and (2) "punishing the same criminal act twice under two distinct statutes when the legislature intended the conduct to be punished only once"); see also Brown v. Ohio, 432 U.S. 161, 168-69, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ("Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.").

Both indecent exposure and indecency with a child by exposure are "circumstances of conduct" offenses. The gravamen of each offense is exposing one's privates, with the intent to arouse or gratify anyone's sexual desire, under certain, specific circumstances: (1) recklessness about whether another person, who will be offended or alarmed, is present-indecent exposure; or (2) knowing that a child is present-indecency with a child. The person to whom the defendant exposes himself is not an element of the offense. Indeed, in both indecent exposure and indecency with a child, it is immaterial that no one — adult or child — actually saw the defendant's privates. The offense is based on the defendant's actions and mental state, not the other person's comprehension.

Wallace v. State, 550 S.W.2d 89, 91 (Tex. Crim.App. 1977); State v. York, 31 S.W.3d 798, 802 (Tex.App.Dallas 2000, pet ref'd) (stating that "the names of the persons to whom [defendant] allegedly exposed himself are facts which are merely evidentiary in nature, and the State was not required to include them in the informations to give [defendant] notice of the charged offenses.").

Metts v. State, 22 S.W.3d 544, 547 (Tex. App.-Fort Worth 2000, pet. ref'd) (indecent exposure statute does not require that any person actually see defendant's genitals); Uribe v. State, 7 S.W.3d 294, 297 (Tex.App.-Austin 1999, pet. ref'd) (upholding conviction for indecency with a child by exposure although child did not see defendant's genitals).

These are not result-oriented crimes and do not depend upon anyone — adult or child — suffering any harm through seeing a defendant's private parts. Indeed, with the offense of indecency with a child by exposure, the child only needs to be "present" during the offense. He or she or all twenty of them may be asleep, blind, reading a book, looking at the clouds in the sky, or whatever. The crime has been committed once the defendant exposes himself with the intent to arouse or gratify anyone's sexual desire while any child or any number of children happen to be "present."

Thus, if the defendant opens the door at the back of the first grade classroom and vigorously "wags his weenie" while all twenty-seven of the children are looking intently at Miss Manners at the front of the class who is reading a story about proper etiquette, the defendant has committed the offense of indecency with a child by exposure (as well as the offense of indecent exposure; the State may obtain a conviction for either one). But he has committed one offense with one act, and it matters not whether no child saw him, five children saw him, or all twenty-seven saw him. He did it in their presence and that is the situation that the Legislature wanted to avoid and to deter by prohibiting the act of exposing oneself with an intent of sexual gratification in the presence of any child.

Miss Manners would, of course, be offended or alarmed by this act, and, we assume, that she actually saw or at least knew what the defendant was up to.

For these reasons, I agree that this defendant may be convicted of only one offense of indecency — either indecent exposure or indecency with a child by exposure — with his one, single act of "wagging his weenie." I join the majority opinion.

KELLER, P.J., filed a dissenting opinion in which KEASLER, and HERVEY, JJ., joined.

Appellant allegedly exposed himself in a public park while two children and at least one adult were present. He has been convicted of indecent exposure. The issue in this case is whether double jeopardy principles bar a subsequent prosecution for two counts of indecency with a child by exposure. I would hold that two counts of indecency with a child by exposure can be based upon a single exposure if there are two child victims. I would also hold that an indecent-exposure charge can be based upon the same exposure that gave rise to indecency-with-a-child counts so long as the defendant was reckless with respect to the presence of at least one person other than the child victims. That is what happened in this case. I would, therefore, affirm the judgment of the court of appeals.

A. General Double Jeopardy Principles

Addressing appellant's complaint requires an understanding of the two ways in which offenses can be the same or different under Double Jeopardy law when two statutes are involved: (1) by elements, and (2) by units. For a Double Jeopardy violation to occur, the offenses at issue must be the "same" in both respects.

Ex parte Hawkins, 6 S.W.3d 554, 557 n. 8 (Tex.Crim.App. 1999) (discussing legal elements versus units of prosecution).

Id. (quoting Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807, 1817-18 (1997) ("an offense must not only be the same in law — it must also be the same in fact")).

An "elements" inquiry is limited to the law and the charging instrument. In determining whether offenses are the same under such an inquiry, we begin with the Blockburger test: "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." If the offenses have the same elements under Blockburger, then they cannot be the subject of successive prosecutions. If the offenses have different elements under Blockburger, the offenses are presumed to be different, but that presumption can be rebutted if other factors reveal that the Legislature nevertheless intended the offenses to be treated as the same. The Ervin analysis is part of the "elements" aspect of Double Jeopardy law. The allowable unit of prosecution prescribed for the offenses in question is a relevant consideration in the abstract under an Ervin analysis, to determine whether, under the law and the charging instrument, the offenses are considered to be the same elementally.

Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim.App. 2008); Hall v. State, 225 S.W.3d 524, 532-33 (Tex.Crim.App. 2007).

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

State v. Perez, 947 S.W.2d 268, 270 n. 3 (Tex.Crim.App. 1997) (citing finality concern present in successive-prosecution context). If the offenses are the subject of a single prosecution, then the Blockburger test merely creates a presumption that the legislature did not intend multiple punishments that can be rebutted by a clear legislative expression of intent to the contrary. Id. (citing Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)); Littrell v. State, 271 S.W.3d 273, 276 (Tex.Crim.App. 2008); Hunter, 459 U.S. at 366, 103 S.Ct. 673 ("With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended."). But see State v. Flenoy, 968 S.W.2d 141, 143-45 (Mo. 1998) (applying Hunter in a successive-prosecution case, in part relying upon Justice Scalia's statement in United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) that, "It is embarrassing to assert that the single term `same offence' (the words of the Fifth Amendment at issue here) has two different meanings — that what is the same offense is yet not the same offense.").

Gonzales v. State, 304 S.W.3d 838, 845-46 (Tex.Crim.App. 2010) ("The traditional indicium of . . . legislative intent is the so-called `same elements' test of Blockburger," but "even if a straightforward application of the Blockburger test would suggest that two offenses are not the `same' for double jeopardy purposes," the offenses are nevertheless considered the same, "if other indicia manifest a legislative intent that an accused not be punished for both offenses") (citing Ex parte Ervin v. State, 991 S.W.2d 804 (Tex.Crim.App. 1999)); See also Ervin, 991 S.W.2d at 804 ("[T]he Blockburger test cannot authorize two punishments where the legislature clearly intended only one.");

See Bigon, 252 S.W.3d at 372 (under an Ervin analysis, looking at charging instrument allegations to determine the underlying felony in felony murder prosecution); see also Hall, 225 S.W.3d at 533 n. 39 (recognizing that Hunter involved a cognate pleadings analysis); Ervin, 991 S.W.2d at 807 (recognizing "the inverse conclusion" from Hunter).

Bigon, 252 S.W.3d at 371-72.

But a "units" (or "allowable unit of prosecution") inquiry is itself a separate inquiry, designed to determine whether a single legally-proscribed offense has been committed more than once. A units inquiry can also be divided into two parts: (1) what the unit is, and (2) whether the requisite number of units has been shown. A units inquiry can involve 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. Evidence at trial can be considered in determining whether the requisite number of units has been shown. A units inquiry might more commonly arise when a single statute is involved and a court is trying to discern how to divide conduct (e.g., a sexual assault with multiple manners and means) into units. Parsing a single statute "is unlike a situation involving different statutes, which, by itself, is some indication of legislative intent to authorize multiple prosecutions simply because the offenses are separately defined in different statutes." So, while a determination that the elements are different under the Blockburger test sets up a presumption in a multiple-statute elements inquiry, no such presumption is created in a single-statute units inquiry. Nevertheless, if offenses under different statutes are the "same" elementally, a units analysis would be appropriate if, for example, the pleadings or the evidence indicates that there are different victims. Of course, if it is unclear how an elements question should be resolved, and if it is clear that different units of prosecution were involved, then a court could choose simply to address the units issue.

See Sanabria v. United States, 437 U.S. 54, 69-70, 69 n. 24, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Saenz v. State, 166 S.W.3d 270, 272-74 (Tex.Crim.App. 2005).

See e.g. Vick v. State, 991 S.W.2d 830, 832-34 (Tex.Crim.App. 1999) (penetration of anus and sexual organ different units in aggravated sexual assault); Hawkins, 6 S.W.3d at 556 (different victims are different units in a robbery); Ex parte Cavazos, 203 S.W.3d 333, 335-37 (Tex.Crim.App. 2006) (entry is the allowable unit in a burglary).

Blockburger, 284 U.S. at 303, 52 S.Ct. 180 (second drug sale was a separate offense because it "was not the result of the original impulse, but of a fresh one"); Ex parte Goodbread, 967 S.W.2d 859, 860-61 (Tex.Crim.App. 1998) (can have multiple prosecutions for different incidents of the same type of sexual assault).

Blockburger, 284 U.S. at 303, 52 S.Ct. 180; Goodbread, 967 S.W.2d at 860 ("For Double Jeopardy purposes, the same offense means the identical criminal act, not the same offense by name. . . . when one cannot determine from the State's pleadings whether the offenses prosecuted are the same, the court must look to the proof offered at trial.") (Citing and quoting favorably from Luna v. State, 493 S.W.2d 854 (Tex.Crim.App. 1973)); id. at 861 (We look to evidence at trial to determine what instances of conduct conforming to the indictment are jeopardy-barred.); see also Quintano v. People, 105 P.3d 585, 592, 595 (Colo. 2005) ("[W]hile we do not adopt any specific list of factors to determine whether the defendant's acts constitute factually distinct offenses, we look to all the evidence introduced at trial to determine whether the evidence on which the jury relied for conviction was sufficient to support distinct and separate offenses.").

See Bigon, 252 S.W.3d at 371-72 ("Usually, analysis of an allowable unit of prosecution involves a situation in which two offenses from the same statutory section are charged.").

See Vick, 991 S.W.2d at 833 (examining the language of the sexual assault statute to determine whether the legislature intended to "separately and distinctly criminalize any act which constitutes the proscribed conduct"); see also id. at 833 n. 1 (noting that application of Blockburger would yield the same result).

Id. at 832.

See Vineyard v. State, 958 S.W.2d 834, 836 n. 5 (Tex.Crim.App. 1998) ("We also note this Court has stated the Blockburger test is not `precisely applicable' to cases like this where a defendant's conduct violates one statutory provision more than once.").

See Hawkins, 6 S.W.3d at 557 n. 8.

B. Units of Prosecution

In this case, I think it is helpful to determine first the allowable units of prosecution for the offenses of indecent exposure and indecency with a child by exposure.

1. Unit of Prosecution Principles

An inquiry into a particular statute's allowable unit of prosecution is purely one of statutory construction. In construing a statute, we look first to its literal text. When examining the literal text, "we read words and phrases in context and construe them according to the rules of grammar and usage." If the statutory language is ambiguous, or leads to absurd results that the Legislature could not possibly have intended, then we may consult extra-textual sources of information. In this process, we consider any prior judicial construction of the statute. Absent an explicit statement that "the allowable unit of prosecution shall be such-and-such," the best indicator of legislative intent with respect to the unit of prosecution seems to be the focus or "gravamen" of the offense.

Jones v. State, 323 S.W.3d 885, 888 (Tex. Crim.App. 2010). This is true even in the successive prosecution context. Sanabria, 437 U.S. at 69-70, 98 S.Ct. 2170 ("But once Congress has defined a statutory offense by its prescription of the `allowable unit of prosecution,' [citations omitted], that prescription determines the scope of protection afforded by a prior conviction or acquittal. Whether a particular course of conduct involves one or more distinct `offenses' under the statute depends on this congressional choice"); Hawkins, 6 S.W.3d at 556-57 (quoting and discussing Sanabria), 561 (overruling the "holding of Crosby, that the Double Jeopardy Clause is violated by multiple prosecutions for robbery when multiple assaults are committed in the course of only one theft").

Jones, 323 S.W.3d at 888; Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991).

Jones, 323 S.W.3d at 888.

Id.

Id. at 889.

2. Indecent Exposure

The offense of indecent exposure provides:

A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.

In Wallace v. State, we held that "to whom the exposure is directed is not an essential element of the offense of indecent exposure." We found it to be the "better practice" to plead "where applicable," that the accused exposed himself "to a specified person or persons," but the failure to so allege did not render a charging instrument "fundamentally defective." This holding, made at a time when the failure to name a complaining witness was considered a fundamental defect, leads to the inescapable conclusion that the offense of indecent exposure has no "complaining witness" or victim that would define a unit of prosecution for the offense.

Wallace v. State, 550 S.W.2d 89, 91 (Tex. Crim.App. 1977).

Id.

See Ex parte Lewis, 544 S.W.2d 430, 431 (Tex.Crim.App. 1976); see also Fisher v. State, 887 S.W.2d 49, 55 n. 8 (Tex.Crim.App. 1994) (citing Lewis for the proposition that the absence of the victim's name rendered a charging instrument fundamentally defective prior to the 1985 constitutional amendment).

The holding in Wallace is consistent with the language of the statute. The presence of another is a circumstance surrounding the conduct of exposure. The indecent exposure statute requires a finding that the defendant was "reckless" with respect to this circumstance. Under the Penal Code, a person is "reckless" with respect to circumstances surrounding his conduct "when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist." The definition of "reckless" does not itself say that the circumstances actually exist. The wording of the indecent exposure statute — that a defendant be "reckless about whether another is present" — indicates that the circumstance of another's presence does not have to exist. Had the statute said that the defendant was "reckless about the presence of another," one could more readily maintain that the statute required both the presence of another and the defendant's recklessness as to that presence.

TEX. PENAL CODE § 6.03(c) (definition of "recklessly").

In addition, the use of "another" in connection with the phrase "about whether" suggests a possible rather than actual individual. "Another" means "a person other than the actor." Literally incorporating this definition results in the statute reading that the defendant "is reckless about whether a person other than the actor is present."

Id., § 1.07(5).

So, if a defendant walked onto a public street and exposed himself, consciously disregarding a substantial and unjustifiable risk that another was present, but fortuitously, no other person happened to be present, the defendant would nevertheless be guilty of the crime of indecent exposure. Conversely, if the defendant exposed himself in a stadium full of people, he would still be guilty of only one offense of indecent exposure because the offense does not depend on the existence of a victim of the crime.

Wallace suggested it would be the "better practice" to include the name of someone who was present and offended, as was done in the case before us. Including the name of such an individual would help give the defendant notice of the particular crime in question, and as will be seen below, might also distinguish the offense of indecent exposure from indecency with a child. Here, the State alleged a particular adult as the offended individual in the indecent exposure prosecution — an individual different from the victims in the indecency-with-a-child allegations. But in an appropriate case a charging instrument could allege that a defendant was reckless as to the presence of an "unknown" person (or perhaps an "unknown adult.").

3. Indecency with a Child by Exposure

The wording of the provision proscribing indecency with a child by exposure is quite different. The relevant portion of that statute provides:

A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person . . . with intent to arouse or gratify the sexual desire of any person . . . exposes the person's anus or any part of the person's genitals, knowing the child is present.

The phrases "with a child" and "knowing the child is present" clearly spell out the statute's requirement that a child actually be present. Moreover, the statute specifies that the defendant be aware of the presence of " the child," not "a child" or "any child." This focus indicates that a particular child victim is contemplated, in turn indicating that the child victim defines the unit of prosecution.

This conclusion is consistent with the wording of the other provisions in the indecency-with-a-child statute. The statute sets out the following methods of committing indecency with a child, including the exposure offense already quoted above:

A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or

(2) with intent to arouse or gratify the sexual desire of any person:

(A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or

(B) causes the child to expose the child's anus or any part of the child's genitals.

The "sexual contact" offense found in § 21.11(a)(1) clearly contemplates that a particular child is the victim of sexual contact, and the other method of committing indecency with a child by exposure, found in § 21.11(a)(2)(B), contemplates that the defendant causes a particular child to be exposed. Sandwiched between these two provisions, and sharing some of the language of each, is the indecency-with-a-child-by-exposure offense at issue in the present case. It would be anomalous to find that the statute prescribes different units of prosecution for the different methods of committing indecency with a child, when the different methods are so tightly woven together in the language of the statute. Further, if the Legislature had wanted to prescribe the same unit of prosecution for indecency with a child by exposure as it had for indecent exposure, it could have simply added a subsection to the indecent exposure statute to increase the penalty if the actor knew that a child was present. Consequently, I would hold that the unit of prosecution for indecency with a child by exposure is each child, each exposure — meaning the State can seek two convictions for a single exposure when there are two child victims.

I characterize the unit of prosecution as "each child, each exposure" because separate exposures would also be separate offenses. If a defendant exposed himself to two children on Monday, and then exposed himself to those two children again on Tuesday, he would have committed four offenses.

Judge Cochran contends that the unit of prosecution for indecency with a child by exposure is simply each exposure. In support of this contention, she cites Wallace and three court of appeals opinions: State v. York, 31 S.W.3d 798 (Tex.App.Dallas 2000, pet. ref'd); Metts v. State, 22 S.W.3d 544 (Tex.App.-Fort Worth 2000, pet. ref'd); and Uribe v. State, 7 S.W.3d 294 (Tex.App.-Austin 1999, pet. ref'd). Wallace is about indecent exposure, not indecency with a child by exposure, and therefore does not support her claim. As explained above, there are very real differences between the two offenses that dictate measuring the unit of prosecution differently. York and Metts are also indecent-exposure cases, and thus do not support her claim ( Metts does rely upon indecency-with-a-child decisions (including Uribe), See Metts, 22 S.W.3d at 547, and to that extent, my comments below apply).
Uribe held that a defendant can be guilty of indecency with a child, if he exposes himself while the child is present, even if the child does not actually see the defendant's genitals. Uribe, 7 S.W.3d at 297. Even if that holding is correct, it does not mean that the unit of prosecution for indecency with a child by exposure is simply each exposure. Whether or not the child has to see the defendant's genitals, the child must still be present, and it is the focus on the child's actual presence that defines the unit of prosecution for the offense of indecency with a child. Indecent exposure, by contrast, does not require the actual presence of any individual. Uribe had no occasion to address whether a single exposure could result in multiple convictions based upon the presence of multiple children because the conviction at issue in that case was based upon only one child victim. Uribe, 7 S.W.3d at 295-96.
Moreover, Uribe is simply a court of appeals decision — it is not binding on us and should not trump an analysis of the language of the indecency-with-a-child statute. As explained above, an analysis of the statute clearly shows that the indecency-with-a-child-by-exposure offense is victim-centered. Judge Cochran makes no attempt whatsoever to analyze the language of the statute.

4. Different Measuring Sticks

We are faced, then, with the fact that the two statutory offenses at issue — indecent exposure and indecency with a child — measure the allowable unit of prosecution differently. For indecent exposure, the allowable unit of prosecution is each exposure. For indecency with a child, the allowable unit is each child, each exposure. A double jeopardy analysis would be simpler if the allowable unit of prosecution for the two statutory offenses were the same. If the allowable unit of prosecution under both statutes were each exposure, then a single exposure would be a single unit and the only remaining question would be whether the offenses are the same under an elements analysis. Conversely, if the allowable unit of prosecution under both statutes were each victim, then three victims (one adult, two children) would mean three units of prosecution, and there would be no need to conduct an elements analysis.

At least two courts of appeals have concluded that the unit of prosecution for indecent exposure and indecency with a child by exposure is the same, but with opposite results. In Yanes v. State, the Third Court of Appeals held that the unit of prosecution for both offenses was each exposure. S.W.3d 708, 710-12 (Tex.App.-Austin 2004). In Baggett v. State, the First Court of Appeals concluded that the unit of prosecution for both offenses was the victim. 860 S.W.2d 207, 209 (Tex.App.-Houston [1st Dist.] 1993).

Instead, the statutes prescribe allowable units of prosecution that sometimes coincide perfectly, sometimes coincide imperfectly, or sometimes merely overlap. An example of the first situation would be a defendant who exposes himself to one child in the privacy of his own home without being reckless about any other person being present. The one unit of prosecution for indecency with a child in that case would coincide perfectly with the one unit of prosecution for indecent exposure. On the other hand, if a defendant exposed himself to two children in the privacy of his own home, with no recklessness as to the presence of any other person, the units of prosecution would coincide, but they would do so in an imperfect manner. The one unit of prosecution for the indecent exposure would encompass two children (even though only one of the children would be necessary to establish the indecent exposure) who could generate two units of prosecution for indecency with a child. The present case presents the third type of situation, in which the units merely overlap: exposure to two children and recklessness as to the presence of at least one other person (e.g. an adult). In that situation, the indecent-exposure offense encompasses (at least) three persons, only two of whom can serve as the basis for indecency-with-a-child offenses, with neither of those two actually being needed for the indecent-exposure offense.

C. Elements 1. Comparison of the Offenses

A comparison of the statutes reveals the following elements:

_________________________________________________________________________________________________ Indecency with a Child by Exposure Indecent Exposure _________________________________________________________________________________________________ exposes anus or genitals exposes anus or genitals _________________________________________________________________________________________________ with intent to arouse or gratify sexual desire with intent to arouse or gratify sexual desire _________________________________________________________________________________________________ with a child (under 17 and not spouse) _________________________________________________________________________________________________ knowing: reckless: _________________________________________________________________________________________________ a. the child is present a. about whether another is present _________________________________________________________________________________________________ b. who will be offended or alarmed _________________________________________________________________________________________________ Indecency with a child by exposure requires proof of at least three elements not required for indecent exposure: (1) that a person other than the defendant actually be present, (2) that this other person be a child, and (3) that the defendant have the culpable mental state of knowledge with respect to the presence of this other person. Indecent exposure requires proof of one element not required for indecency with a child by exposure: that the defendant have a culpable mental state with respect to the presence of a person "who will be offended or alarmed" by the defendant's exposure. The extra element for indecent exposure is purely one of mental culpability: there is no requirement that a person who is offended or alarmed actually be present. Nevertheless, it is a difference, similar to the difference between the elements of recklessness and intoxication, which we found in Ervin to be different under a strict application of the Blockburger test.

See Ervin, 991 S.W.2d at 806 (intoxication manslaughter and manslaughter not the "same" under a "strict application" of Blockburger).

2. Briceno

In Briceno v. State, this Court held that indecent exposure was a lesser-included offense of indecency with a child by exposure for the purpose of determining whether a defendant was entitled to a lesser-included-offense jury instruction. The Court held that the elements of the two offenses were "identical, except that indecency with a child requires the defendant to know that a child is present, where indecent exposure requires that the defendant is reckless as to the presence of an-other person." Consequently, the Court found that indecent exposure was a lesser-included offense of indecency with a child under Article 37.09(1) on the basis of its fewer elements. However, the Court failed to address the indecent exposure statute's requirement that the defendant's recklessness extend not merely to the presence of another person, but to the presence of another person "who will be offended or alarmed."

580 S.W.2d 842 (Tex.Crim.App. 1979).

Id. at 844 (emphasis in original).

Id.; see also TEX. CODE CRIM. PROC. art. 37.09(1) ("An offense is a lesser included offense if . . . it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.").

In Evans v. State, we held that indecency with a child by sexual contact was a lesser-included offense of aggravated sexual assault of a child even though the indecency offense contained what might appear to be an extra element — intent to arouse or gratify sexual desire. Relying upon my concurrence in Ochoa v. State, the Court found that "intent to arouse or gratify sexual desire" was not an extra element because it was already part of the definition of "sexual contact," and sexual contact was a form of touching subsumed within the "penetration" required to prove aggravated sexual assault. But, unlike the statutory language in Evans, the phrase "who will be offended or alarmed" is part of the main text of the indecent exposure offense, not part of a definition.

299 S.W.3d 138 (Tex.Crim.App. 2009).

982 S.W.2d 904, 909-11 (Tex.Crim.App. 1998) (Keller, J., concurring).

Evans, 299 S.W.3d at 141-43.

3. Less Serious Culpable Mental State

That does not mean that the Briceno court was necessarily wrong in its conclusion that the defendant in that case was entitled to a jury instruction on the offense of indecent exposure. Article 37.09(1) essentially prescribes Blockburger's "same elements" test, but article 37.09 includes other methods for determining whether an offense is considered lesser-included, one of which is applicable here. Article 37.09(3) provides that an offense is lesser-included if "it differs from the offense charged only in the respect that a less serious culpable mental state suffices to establish its commission." As explained above, the "extra" element of indecent exposure — "who will be offended or alarmed" — is part of the culpable mental state; a person who is offended or alarmed need not actually be present.

TEX. CODE CRIM. PROC. art. 37.09(3).

The next question is whether recklessness as to "who will be offended or alarmed" is a "less serious" culpable mental state than the indecency-with-a-child offense's culpable mental state of "knowing the child is present." Both statutes require more than having a culpable mental state with respect to the presence of "a person." The "person" in the indecent exposure statute can be possible rather than actual, and this possible person must be someone "who will be offended or alarmed." For indecency with a child, the "person" must be an actual person who is a child.

The indecency-with-a-child-by-exposure defendant does not have to be aware that the person is a child. Roof v. State, 665 S.W.2d 490, 491-92 (Tex.Crim.App. 1984) (concluding that the reference "in Briceno that the defendant must know a child is present is dictum.").

The maxim that children "do not have the legal ability to consent in most situations," suggests in this context that a child cannot consent to an exposure, which in turn suggests that the characteristic of "will be offended or alarmed" is imputed to the child. Moreover, a defendant who knows a child is present might not be reckless about whether that child would be offended or alarmed because the defendant knows the child is not in fact offended or alarmed. But it is hard to imagine a situation in which a defendant would have the intent to arouse or gratify sexual desire, and be reckless about a child's presence, but not be reckless about whether the child would be offended or alarmed. Further, the government has a compelling interest in protecting the well-being of children, who are among the more innocent and vulnerable members of society. It can at least be rationally argued that, all other things being equal, a culpable mental state with respect to an actual person who is a child is "more serious" than a culpable mental state with respect to the presence of a possible person who will be offended or alarmed. Given these considerations, and given a prior holding in Briceno that should not be overruled lightly, I would reaffirm that the offense of indecent exposure is included within the offense of indecency with a child by exposure for the purpose of obtaining a lesser-included offense jury instruction — though I would do so on the basis of Article 37.09(3) rather than Article 37.09(1).

Alameda v. State, 235 S.W.3d 218, 223 (Tex.Crim.App. 2007).

See Evans, 299 S.W.3d at 142 ("[W]e cannot imagine how it would be even theoretically possible to commit this particular form of penetration [causing the victim's sexual organ to contact and penetrate the defendant's mouth] without an intent to arouse or gratify one's sexual desire.").

See Black v. State, 26 S.W.3d 895, 897-98 (Tex.Crim.App. 2000).

But this holding with respect to lesser-included-offense jury instructions, while highly relevant to a Double Jeopardy elements analysis, is not dispositive of the Double Jeopardy claim before us. Here, we are concerned not only with the elements of the statutory offenses, but also with units of prosecution. Even in the jury instruction context, an offense that is lesser-included by its elements may not be submitted if it comprises a different unit of prosecution than the offense charged. Or, as explained in Article 37.09(3), the less serious culpable mental state must be the only way in which the lesser offense differs from the greater offense. If the lesser offense also differs because the culpable mental state encompasses more people, then it does not satisfy Article 37.09(3).

Judge Cochran ignores the "unit of prosecution" aspect of the case when she sets up her "Q.E.D." statement. She claims first that we have held that "indecent exposure is a lesser-included offense of indecency with a child by exposure." But our holding (in Briceno) was based solely on the elements of the two statutory offenses, without accounting for potential unit of prosecution issues that might be posed by multiple victims. Judge Cochran next contends that "double jeopardy principles prohibit multiple punishments for both a greater and a lesser-included offense stemming from the same criminal act." That is a false statement if one looks only to the elements of the offenses, without considering the legislatively prescribed unit of prosecution. For example, if a defendant rams his car into another car that contains an adult and a child under age six, and by doing so intentionally kills the two occupants of that other car, the defendant has committed a capital murder of the child and a murder (at least) of the adult. Murder is, by its elements, a lesser-included offense of capital murder, and the defendant in that situation has engaged in only one act, but that defendant has nevertheless committed two offenses. Judge Cochran's citation of Langs v. State, 183 S.W.3d 680 (Tex.Crim.App. 2006) is unavailing if one looks at the full context of the statements she quotes from Langs. The two double-jeopardy situations addressed by Langs are as follows:

(1) the lesser-included offense context, in which the same conduct is punished twice; once for the basic conduct, and a second time for that same conduct plus more (for example, attempted assault of Y and assault of Y; assault of X and aggravated assault of X);

and (2) punishing the same criminal act twice under two distinct statutes when the legislature intended the conduct to be punished only once (for example, causing a single death by committing both intoxication manslaughter and involuntary manslaughter).

Langs, 183 S.W.3d at 685 (emphasis added). In both situations, Langs provided an example that explicitly assumed that the crime in question had only one victim. But the case before us deals with the situation in which there are multiple victims.

Campbell v. State, 149 S.W.3d 149, 155 (Tex.Crim.App. 2004) (smaller, but different drug stash) (In determining whether an offense must be submitted as lesser-included, "one must consider statutory elements and surrounding facts and circumstances to see if there are two distinct criminal acts.") (emphasis in original).

4. Elastic Nature of the Unit of Prosecution

The complicating factor here is that the unit of prosecution in an indecent exposure offense is essentially elastic: A person could be reckless as to multiple persons but need only be reckless as to one person to be guilty of indecent exposure. The elastic nature of the indecent exposure offense makes the procedural posture of the case important. To receive a lesser-included-offense jury instruction on indecent exposure, a defendant charged with indecency with a child could rely upon the fact that indecent exposure can be based solely upon the child victim alleged in connection with the charged offense. But in a double jeopardy context, the State arguably could rely upon the fact that indecent exposure need not be based upon the child victim in the indecency-with-a-child count.

5. Ervin analysis

In Ervin, we set forth a nonexclusive list of factors to consider in determining whether offenses that are different under the Blockburger test should nevertheless be considered the same: (1) whether the provisions are contained in the same statutory section, (2) whether the offenses are phrased in the alternative, named similarly, or have common punishment ranges, (3) whether the offenses have a common focus or gravamen, (4) whether the common focus, if any, indicates a single instance of conduct, (5) whether the elements could be considered the same under an imputed theory of liability (liberalized Blockburger standard), and (6) whether the legislative history sheds any light on the matter. Employing an Ervin analysis in Bigon, we held that felony murder, intoxication manslaughter, and manslaughter (all involving the same victim) were the "same" for Double Jeopardy purposes. We noted in Bigon that intoxication manslaughter used to appear in the same chapter as all of the homicide offenses and was framed as an alternative way to commit manslaughter. We explained that we had previously suggested in Ervin that the move to Chapter 49 was largely for housekeeping purposes. We also observed that intoxication manslaughter retained "manslaughter" in its title and was still considered a homicide offense. We further explained that intoxication manslaughter and murder both had the same focus on the death of an individual, the offenses were both result-oriented, the allowable unit of prosecution — one offense per victim — was the same, and that where the underlying felony for felony murder was a DWI, "it is hard to fathom that the legislature intended for one drunk-driving accident to result in multiple homicide convictions for each victim."

Ervin, 991 S.W.2d at 814.

252 S.W.3d at 368-72.

Id. at 371.

Id.; see also Ervin, 991 S.W.2d. at 816.

Bigon, 252 S.W.3d at 371.

Driving While Intoxicated.

Id. at 371-72.

Indecent exposure and indecency with a child by exposure are not in the same statutory section, although they do appear in the same chapter. Indecent exposure has a lower punishment range than indecency with a child by exposure that would be consistent with the former being a lesser-included offense of the latter. The titles of the statutes contain forms of the same word — "indecent" and "indecency" — though the word is a noun in one title and an adjective in the other. These titles are not quite as closely worded as "manslaughter" and "intoxication manslaughter." There is some commonality in the focus of the indecent exposure and indecency-with-a-child offenses but there is a striking difference as well. Both offenses are "nature of conduct" offenses that involve the same actus reus: exposure. But while both offenses focus on "exposure," the indecency-with-a-child provision also focuses on a victim. The allowable units of prosecution for the offenses are different, with the allowable unit for indecent exposure being each exposure, and the allowable unit for indecency with a child by exposure being each child, each exposure. The offenses can be considered the same under a liberalized Blockburger analysis if the "who will be offended or alarmed" element of indecent exposure is imputed to the "child" element of indecency with a child by exposure. And indecent exposure is a lesser-included offense of indecency with a child by exposure under Article 37.09, but only to the extent that the defendant's culpable mental state embraces the same person as the recipient of the exposure.

See TEX. PENAL CODE §§ 21.08(b) (Class B misdemeanor), 21.11(d) (third degree felony).

An analysis under the Ervin factors suggests that the offenses of indecent exposure and indecency with a child by exposure should be treated as the same only to the extent that the defendant's culpable mental state relates to the same person as the recipient of the exposure. To the extent that a defendant's culpable mental state relates to different persons as the recipients of the exposure, the offenses should be treated as different.

D. Conclusion

In the case before us, appellant allegedly exposed himself in a public park, where an adult and two children were present. Because appellant exposed himself in public, there were conceivably any number of persons to whom he could have been reckless in exposing himself, but there were (apparently) only two children that appellant could have knowingly exposed himself to. Under these circumstances, appellant's maximum criminal exposure was for three offenses: two indecency with a child offenses for the two children, and one indecent exposure offense because appellant was reckless with respect to the presence of at least one other person besides the children.

The court of appeals held that the successive prosecutions for indecency with a child were not barred by the Double Jeopardy Clause. I agree, and I would affirm the judgment of the court of appeals. I respectfully dissent.