Something John Bradley mentioned with respect to double jeopardy implications in his “Jessica’s Law” presentation at this year’s Annual Update came to mind when our police department recently asked our office about charging defendants in graffiti cases. While John’s hypothetical involved venue, multiple counties, and more than one victim, the issue he raised--should one offense have been subsumed into another continuing course of conduct offense--occurred to us during our discussions. In order to maximize the consequences for such for committing graffiti offenses, a couple of ideas were proposed.
First, under Tex. Penal Code § 28.08(c), the police would like to aggregate the pecuniary loss resulting from an individual’s involvement in several graffiti offenses, no matter how separated those incidents are in time or place. For example, if an individual is implicated in a $500 graffiti incident for painting a fence in one area of town in January, another $500 incident for painting a church in another area of town in April, and a third $500 incident for painting a water tower in yet another area of town in October, the police would like to charge him with a state jail felony for causing an aggregated pecuniary loss of $1,500 pursuant to one scheme or continuing course of conduct. Our prosecutors are divided on the question of whether three incidents of a different nature over ten months in three different areas of town constitute one scheme or continuing course of conduct just because they were all graffiti crimes committed by the same individual. What do you think? If they are, and are charged as such, and the defendant is convicted, what are the double jeopardy consequences if the defendant is later implicated in a similar offense--maybe even one where the loss is $20,000—in July of the same year? Would it matter if the fourth incident occurred in November instead of July?
Second, a question has been raised regarding whether it is proper like to carve out a number of blocks of graffiti continuing course of conduct offenses from a longer string of them. For example, if one defendant is implicated in a string of graffiti incidents from January through December where the damages total less than $20,000, would it be proper to divide that continuing course of conduct into, say, twelve monthly blocks of multiple incidents, each with damages totaling $1,500 or more but less than $20,000, in order to try to get twelve SJF convictions, and if tried separately, to try to get stacked sentences? This seems to have been found permissible in theft continuing course of conduct cases, see, e.g., Moncada v. State, 960 S.W.2d 734, 740-42 (Tex. App. – El Paso 1997, pet. ref’d), but, again, our prosecutors are divided over the question of whether this is proper. What do you think?

The Legislature expanded the double jeopardy coverage in a CSA case by expressly providing that the State could not prosecute separate incidents of sexual abuse after choosing to prosecute under CSA. Absent such a specific provision, I doubt that double jeopardy would be a problem. That protection likely only applies to cases against the same victim or victims in the same county over the particular time period specified in the indictment.