Being prosecuted twice for the same crime violates one of our most fundamental constitutional protections. When prosecutors attempt to retry you after an acquittal or conviction, double jeopardy laws serve as your shield against government overreach. At the Law Offices of Richard C. McConathy, we aggressively defend clients against unconstitutional prosecutions throughout Dallas County and North Texas.
With over 35 years of experience, our criminal defense team understands how to identify double jeopardy violations and fight for your constitutional rights in both state and federal courts.
Contact our Dallas criminal defense attorneys to protect your constitutional rights.
Understanding Double Jeopardy Protection in Texas
The Double Jeopardy Clause protects defendants through both the U.S. Constitution (Fifth Amendment) and Texas Constitution (Article I, Section 14). According to the Texas Court of Criminal Appeals, this protection ensures that no person shall:
- Be tried more than once for the same offense after acquittal
- Face prosecution again for the same crime after conviction
- Receive multiple punishments for the same offense under identical statutes
The protection prevents the government from using its vast resources to repeatedly prosecute citizens until achieving a desired outcome.
When Double Jeopardy “Attaches” in Texas Courts
Double jeopardy protections only apply once “jeopardy” has formally attached during legal proceedings:
| Court Type | When Jeopardy Attaches |
|---|---|
| Jury Trial | When the jury is empaneled and sworn |
| Bench Trial | When both sides announce ready and defendant pleads to the charging instrument* |
| Guilty Plea | When the court accepts the plea |
*Note: Texas follows a different standard than federal courts for bench trials. While federal courts generally require the first witness to be sworn, Texas courts have held that “jeopardy attaches when both sides have announced ready and the defendant has pled to the charging instrument” in bench trials.
Before jeopardy attaches, prosecutors may dismiss and refile charges for procedural reasons, insufficient evidence, or case preparation issues.
🛡️ How Double Jeopardy Protects You
Acquittal Protection
If a judge or jury finds you not guilty, the state cannot retry you for that same offense — even if:
- New evidence emerges later
- Witnesses change their testimony
- Prosecutors believe they made tactical errors
Conviction Finality
Once convicted and sentenced, the government cannot bring identical charges again, providing finality to resolved cases.
Multiple Punishment Bar
Texas law prevents prosecutors from punishing you multiple times for the same criminal conduct under the same statute.
Complex Double Jeopardy Scenarios in Texas
Dual Sovereignty Doctrine
Texas state courts and federal courts operate as separate “sovereigns” under constitutional law. This means defendants can potentially face prosecution in both systems for the same conduct if it violates separate state and federal laws.
Same Elements Test (Blockburger Test)
Texas courts use the “same elements test” from Blockburger v. United States to determine whether two offenses are legally identical. The test asks: “whether each [statutory] provision requires proof of a fact which the other does not.”
Different Offenses Allowed: If each charge requires proof of an element the other does not, separate prosecutions may proceed.
Same Offense Prohibited: If both charges contain identical legal elements, double jeopardy prevents retrial.
Mistrials and Manifest Necessity
Certain situations allow retrial without violating double jeopardy:
- Hung jury unable to reach unanimous verdict
- Judicial emergency requiring case interruption
- Defendant misconduct forcing mistrial
- Defense-requested mistrial for strategic reasons
However, prosecutors cannot deliberately cause mistrials to gain tactical advantages.
Double Jeopardy in Specific Case Types
DWI and Related Charges
Texas prosecutors sometimes attempt to charge DWI alongside related offenses from the same incident:
Proper Separate Charges: DWI and unlawful carrying of weapon (different elements) Double Jeopardy Violation: DWI and public intoxication for same incident (overlapping elements)
Assault and Enhanced Penalties
When assault charges involve multiple victims or time periods, prosecutors must prove each constitutes a separate offense rather than multiple punishments for identical conduct.
Federal vs. State Drug Cases
Drug possession charges frequently trigger both state and federal jurisdiction. Cases require careful analysis of whether conduct violates separate sovereign laws, timing of prosecutions, and plea agreements affecting future charges.
Challenging Double Jeopardy Violations
Our experienced defense attorneys challenge improper prosecutions through:
Motion to Dismiss – We file pretrial motions challenging charges that violate double jeopardy protections, seeking case dismissal before trial begins.
Constitutional Challenges – We raise constitutional violations in state and federal appellate courts when trial courts fail to recognize double jeopardy protections.
Plea Agreement Analysis – We review prior plea agreements to determine whether new charges violate negotiated resolutions.
Case History Review – We examine your complete case history to identify when jeopardy attached and whether prosecutors are attempting improper retrials.
Recent Texas Court Decisions and Legal Developments
Ex parte Lewis (2007)
The Texas Court of Criminal Appeals addressed manifest necessity standards, holding that “retrial is barred under the state constitution if the official ‘either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial'” when prosecutorial misconduct causes a mistrial.
State v. Torres (1991)
This landmark case established that for bench trials in Texas, “jeopardy attaches when both sides have announced ready and the defendant has pled to the charging instrument” rather than waiting for the first witness to be sworn as in federal courts.
Why Choose McConathy Law for Double Jeopardy Defense
When facing potential double jeopardy violations, you need attorneys who understand both constitutional law and practical trial experience:
Proven Track Record
- 35+ years of criminal defense experience
- 1,000+ cases dismissed across North Texas
- Federal and state court representation
- Deep knowledge of Dallas County courts and procedures
Comprehensive Approach
We examine every aspect of your case history:
- Prior arrest records and dispositions
- Plea agreement terms and conditions
- Court transcripts and procedural orders
- Federal and state charging decisions
Strategic Defense
Our team develops targeted strategies based on:
- Constitutional law expertise in double jeopardy doctrine
- Local court knowledge of prosecutor practices
- Trial experience in complex criminal cases
- Appellate experience challenging constitutional violations
Contact Our Dallas Double Jeopardy Defense Team
Don’t let prosecutors violate your constitutional rights through improper charges or retrials. We fight government overreach with the same intensity as if we were facing the charges ourselves.
Call the Law Offices of Richard C. McConathy at (972) 528-0116 for immediate legal consultation. We serve clients throughout Dallas, Irving, Carrollton, Richardson, and surrounding North Texas communities.
Our experienced criminal defense attorneys will review your case history, identify potential double jeopardy violations, and fight to protect your fundamental constitutional rights.
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Frequently Asked Questions About Double Jeopardy
Can I be charged with the same crime twice in Texas?
Generally no. Once you’ve been acquitted or convicted, Texas and federal double jeopardy protections prevent retrial for the same offense. However, exceptions exist for mistrials, appeals, and dual sovereignty cases.
What’s the difference between state and federal double jeopardy protection? Both Texas and federal governments can prosecute you for the same conduct if it violates separate laws. This “dual sovereignty” doctrine means beating state charges doesn’t automatically prevent federal prosecution.
When do double jeopardy protections start?
In jury trials, protection begins when the jury is sworn in. In bench trials, Texas law provides protection when both sides announce ready and you plead to the charges.
Can prosecutors retry me after a hung jury?
Yes. A hung jury typically results in a mistrial, which allows prosecutors to retry the case with a new jury. Double jeopardy doesn’t prevent retrial after most mistrials.
What if I’m charged with DWI and public intoxication from the same incident?
This could violate double jeopardy if both charges have overlapping elements. Texas courts use the Blockburger test to determine if charges are legally the “same offense.”
How can a lawyer help with double jeopardy violations?
An experienced attorney can file motions to dismiss improper charges, challenge constitutional violations, and review your case history to identify when jeopardy attached and whether new charges are prohibited.