Recently, a question came in from one of our Sergeants regarding collateral estoppel/double jeopardy. He wanted to know if he should instruct his Troopers to not cite a driver arrestedf DWI or involved in a fatality accident with a fine-only traffic offense such as failure to control speed or speeding if the Trooper also intends to file a complaint for a more serious offense. I'm curious--what do you as prosecutors tell your officers?

Janette Ansolabehere
Texas Department of Public Safety

There should no longer be any fear of charging lesser crimes arising out of the same criminal transaction. This policy may have had some merit during the life of Grady v. Corbin, but Nielsen has been declared dead in Texas. Mallett, 65 S.W.3d at 68. I would think the types of things you are talking about pretty clearly fall within Woodward, 469 U.S. 105 and Hunter as separate offenses subject to multiple punishments.

We encourage our officers not to file a bunch of misdemeanors if there is a felony charge. We ask them to identify the misdemeanor offenses and hold off filing them, except for DWI and domestic violence.

There can be litigation that conflicts with the felony charge, even if it doesn't necessarily result in collateral estoppel. For example, if we are prosecuting a manslaughter, it can be damaging to have lost the included reckless conduct in the course of a Class C misdemeanor trial in JP court. In addition, that trial provided discovery that should come through the felony case.

Of course, when the felony case is concluded, we try to include a disposition for those misdemeanors. We can include them under section 12.45, Penal Code, or recommend that those charges be filed after disposition of the felony. All in all, makes for a cleaner prosecution.

To follow up on what Martin said above, as long as the offenses are separate offenses, and are not lesser-included offenses of the more serious offense, there should be no problem. Under Grady, there would probably have been a problem, but that misguided opinion should be behind us now.

I agree with John that not filing every possible charge has much merit in almost every instance, and the lesser charges can be handled when the greater charge is disposed of.

During my years as a representative for the "citizen wrongfully accused" (before I returned to once again to stand on the wall protecting our society against the barbarians now thundering at the gate), I was always excited to discover a misdemeanor charged when my client was also charged with a felony arising out of the same transaction. I did everything I could to push the misdemeanor to a trial as quickly as possible. Neither I nor my client cared if we won the misdemeanor (although we tried), but we did love the opportunity to depose the officers and the witnesses. In a jurisdiction where the felony prosecution office didn't have misdemeanor jurisdiction I would often encounter an inexperienced prosecutor who didn't realize it might be compromising the felony prosecution.

Don't file misdemeanors until the felony is over. You have a two year statute of limitations. Use it.

Our office has long had a policy of not filing misdemeanor charges (except DWI) when the elements of any felony-level law violation are present. It works well practically because then we don't have to worry about some or all of our felony facts being litigated in misdemeanor court, which can work as a partial or sometimes complete estoppel. Stephen is right; file the felony. If things go south you have two years to file the misdemeanor.