Ex parte Cantu (120 S.W.3d 519, 2003)

OPINION

Opinion by

Justice GARZA.

Appellant, Octabiano Cantu, Jr., challenges the trial court’s denial of relief on his petition for a writ of habeas corpus. Appellant currently stands indicted for aggravated sexual assault on a child, but he claims that in an earlier trial, he was acquitted of the offense giving rise to the indictment. In a pre-trial habeas corpus petition, appellant asked the trial court to bar the State from prosecuting him for aggravated sexual assault on the grounds that it would constitute double jeopardy. The court held a habeas hearing but ultimately denied relief. Appellant now challenges that denial of relief. After reviewing the record, we conclude that relief is improper because appellant does not face double jeopardy. We affirm the trial court’s decision.

In evaluating a challenge to a trial court’s decision on a habeas corpus petition, we view the facts in the light most favorable to the court’s ruling, and absent an abuse of discretion, we will uphold the challenged ruling. Ex parte Kubas, 83 S.W.3d 366, 368 (Tex.App.-Corpus Christi 2002, pet. ref'd). We give the trial court almost total deference with regard to findings of historical fact supported by the record, but we give de novo review to the trial court’s determination of the law as well as its application of the law to the facts. Id. at 368-69.

In October 2002, a jury tried appellant on charges of aggravated sexual assault on a child (the “greater offense”) and the lesser-included offense of indecency with a child (the “lesser included offense”). The jury deadlocked, and the trial court granted appellant’s motion for a mistrial. In his habeas petition, appellant argued that the jury implicitly acquitted him of the greater offense because its notes to the trial judge indicated that it was deadlocked on the lesser-included offense. The trial court disagreed with appellant’s “implied verdict” theory. So do we.

Appellant’s argument is based on the instructions given to the jury and three notes the jury passed to the judge during its deliberations. In relevant part, the jury instructions explained, “Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of the [greater] offense ... and next consider whether he is guilty of the lesser included offense.” Appellant argues that this language prohibited the jury from considering the lesser included offense unless it first acquitted him of the greater offense.

During its deliberations, the jury sent a note that read,