COURT OF APPEALS FOR THE TWELFTH DISTRICT OF TEXAS

_________________________

CASE NO.

12-16-00154-CR 

_________________________

EX PARTE JAMES IAN HAWKES

________________________________

APPEAL FROM THE 173rd JUDICIAL DISTRICT COURT

HENDERSON COUNTY, TEXAS

________________________________

BRIEF OF DEFENDANT-APPELLANT

________________________________

ORAL ARGUMENT F. CLINTON BRODEN

REQUESTED TX Bar No. 24001495

Broden & Mickelsen

2600 State Street

Dallas, Texas 75204

(214) 720-9552

(214) 720-9594(facsimile)

clint@texascrimlaw.com

Attorney for James Ian Hawkes

ACCEPTED

12-16-00154-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

7/7/2016 3:00:51 PM

Pam Estes

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 7/7/2016 3:00:51 PM PAM ESTES Clerk
IDENTITY OF PARTIES AND COUNSEL

Plaintiff-Appellee: State of Texas

Trial Counsel: Daniel Cox

Henderson County District Attorney’s Office

109 W. Corsicana Street #103

Athens, Texas 75751

Appellate Counsel: Henderson County District Attorney’s Office

109 W. Corsicana Street #103

Athens, Texas 75751

Defendant-Appellant: James Ian Hawkes

Trial Counsel: Steven R. Green

217 N. Palestine Street, Suites B & C

Athens, Texas 75751

Appellate Counsel: F. Clinton Broden

Broden & Mickelsen

2600 State Street

Dallas, Texas 75204

2
TABLE OF CONTENTS

Page

IDENTITY OF THE PARTIES AND COUNSEL.....................................................2

TABLEOFCONTENTS.............................................................................................3

TABLEOFAUTHORITIES.......................................................................................4

STATEMENTOFTHE CASE....................................................................................5

STATEMENT REGARDING ORAL ARGUMENT.................................................6

ISSUEPRESENTED...................................................................................................7

STATEMENT OF FACTS...........................................................................................8

SUMMARYOFTHEARGUMENT..........................................................................10

ARGUMENT..............................................................................................................12

I. The Instant Prosecution is Barred by the Fifth Amendment to the United

States Constitution.............................................................................................12

II. The Instant Prosecution isBarred byPrinciples of Collateral Estoppel......15

PRAYER.....................................................................................................................17

CERTIFICATE OF SERVICE...................................................................................18

CERTIFICATE OF COMPLIANCE........................................................................19

3
TABLE OF AUTHORITIES

Page

Cases

Ashe v. Swenson, 397 U.S. 436 (1970).......................................................................12

Ex parte Robinson, 641 S.W.2d 552 (Tex. Crim. App. 1982)...................................12

Hudson v. United States, 52 U.S. 93 (1997)...............................................................13

In re Necessary, 333 S.W.3d 782 (Tex. App. - Houst. [1st Dist.] 2010)...............passim

McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010)...........................................14

Reynolds v. State, 4 S.W.3d 13 (Tex. Crim. App. 1999)...........................................15

State v. Aguilar, 947 S.W.2d 257 (Tex. Crim. App. 1997).......................................15

United States v. Dixon, 509 U.S. 688 (1993).............................................................12

United States v. Halper, 490 U.S. 435 (1989)...........................................................13

Other Authorities

United States Constitution Amendment II........................................................passim

United States Constitution Amendment IV......................................................passim

Tex.Code Crim. P. Art. 7A....................................................................................8, 15

Tex. Code Crim. P. Art. 17.292................................................................................13

Tex. Penal Code § 42.072..........................................................................................5

4
STATEMENT OF THE CASE

James Ian Hawkes was charged by indictment with three counts of stalking

Jennifer Goines in violation of Tex. Penal Code § 42.072 . CR at 1-4.

1

Mr. Hawkes filed a Verified Plea of Double Jeopardy as well as a Pretrial Writ

of Habeas Corpus to Dismiss the Indictment on Grounds of Double Jeopardy and a

pretrial motion to dismiss on Grounds of Collateral Estoppel. Id. at 20-22, 32-41. 

Relief on the double jeopardy claim and the related collateral estoppel claim was

denied at a hearing held on May 4, 2016. RR at 27. Mr. Hawkes filed a Notice of

Appeal from that denial on May 24, 2016. CR at 43-44.

1References to the Clerk’s Record (“CR”) refer to the page number. 

5
STATEMENT REGARDING ORAL ARGUMENT

Mr. Hawkes requests oral argument.

6
ISSUE PRESENTED

Whether the Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution and/or the principles of Collateral Estoppel bar the stalking

prosecution in this case.

7
STATEMENT OF FACTS

On November 5, 2014, the 173

rd District Court- the same court in which the

instant indictment is pending- held a protective order hearing in Cause Number

2014B1014.

2 The protective order case was prosecuted by the Henderson County

District Attorney’s Office. The issues the District Court was required to decide in

that hearing under Tex. Code Crim. P. Art. 7A.03, were whether the complainant in

the instant case was “the victim of sexual assault or abuse, stalking or trafficking” at

the hands of James Ian Hawkes. At the conclusion of the hearing, the District Court

found “family violence” and “sexual abuse.” Supp. I CR at 189-92; Supp. II CR at

386-89.

As a result of the Court’s findings, it entered a two-year protective order. 

Among other things, the protective order denied Mr. Hawkes contact with his son,

restricted hismovement, limited his ability to prepare for his criminal case by denying

him the right to employ an investigator and denied him rights under the Second

Amendment to the United States Constitution to possess a firearm.

Also, at the conclusion of the hearing, the Henderson County District

Attorney’s Office, apparently trying to gain an advantage in the instant proceedings,

2The transcript of that protective hearing is in the Supplement Clerk’s Record Vol I

(Supp. I CR at 5-194) and Supplemental Clerk’s Record Vol II (Supp. II CR at 197-391).

8
requested the Court “make a stalking finding” stating that it believed there were

“reasonable grounds” to believe that Mr. Hawkes “stalked” the Complainant. Supp.

I CR at 191-92; Supp. II CR at 388-89. The prosecutor explained that the requested

finding of stalking was based on Mr. Hawkes’s alleged “repeated text messages” to

the complainant. Id.

3 The Court refused the State’s request for such a finding. Id. 

As noted above, in connection with the instant criminal case Mr. Hawkes filed

a Verified Plea of Double Jeopardy as well as a Pretrial Writ of Habeas Corpus to

Dismiss the Indictment on Grounds of Double Jeopardy and a pretrial motion to

dismiss on Grounds of Collateral Estoppel. The District Court denied relief stating

that it “never heard of a civil case being used in a criminal case....” RR at 27.

3The indictment in this case contains three different counts of the offense of stalking. 

Each count contains three almost identical paragraphs. Paragraph A of each count accuses Mr.

Hawkes of engaging in a scheme to send “[repeated] text messages” to the complainant. 

Paragraph B of each count also accuses Mr. Hawkes of engaging in a scheme to send “[repeated]

text messages” to the complainant. Paragraph C of each count accuses Mr. Hawkes of engaging

in a scheme to make “repeated telephone communications” to the complainant.

9
SUMMARY OF THE ARGUMENT

In determining whether civil penalties imposed as a result of the same alleged

conduct for which a defendant is being prosecuted implicate Double Jeopardy

protections, courts look to the punitive effects of such penalties. Here, as a result of

the protective order hearing in which Mr. Hawkes was charged with the same alleged

conduct as alleged in the instant indictment, his movements were limited for a two

year period, he was prohibited from having contact with his own son, he was

prohibited from employing an investigator which might directly impact his ability to

defend himself in his criminal case, and he was prohibited from exercising his

constitutional rights under the Second Amendment to the United States Constitution. 

Consequently, in light of the punitive and long lasting effects of these sanctions

entered against Mr. Hawkes that were imposed as a result of the protective order

hearing, the Double Jeopardy clause of the United States Constitution prohibits the

instant prosecution.

With regard to the collateral estoppel component of the Double Jeopardy

Clause, at the conclusion of a full protective order hearing in which the complainant

in the instant case testified, the very same District Attorney’s office now prosecuting

Mr. Hawkes requested the District Court to “make a stalking finding” based on Mr.

Hawkes’s alleged “repeated text messages” to the complainant. The Court refused

10
the State’srequest for such a finding. The protective order hearing was a full hearing;

between the same parties; with a fact finder acting in a judicial capacity and the fact

issue (i.e. whether Mr. Hawkes stalked the complainant with “repeated text

messages”) was the same in that proceeding as it would be in the instant case. The

State voluntarily chose to ask for a ruling on this issue at the protective order hearing

and it should not now have a second bite at the apple simply because it did not like

the answer.

11
ARGUMENT

The Texas Court of Criminal Appeals established that a pretrial writ of habeas

corpusis an appropriate procedure to review an individual's claimof double jeopardy. 

Ex parte Robinson, 641 S.W.2d 552 (Tex. Crim. App. 1982). Moreover, the denial

of a pretrial writ of habeas corpus based upon a claim of double jeopardy is an

appealable order. Id. at 555.

4

I. THE INSTANT PROSECUTION IS BARRED BY THE FIFTH

AMENDMENT TO THE UNITED STATES CONSTITUTION

The Constitution of the United States, in the Fifth Amendment, declares:

“...nor shall any person be subject [for the same offense] to be twice put in jeopardy

of life or limb.” The prohibition also prohibits multiple punishments for the same

episode, or, the re-litigation of any fact that was litigated in the previous judgment. 

Ashe v. Swenson, 397 U.S. 436, 443 (1970).

The United States Supreme Court has held that, in some circumstances, the

Double JeopardyClause barssubsequent criminal prosecution of offenseswhich form

the basis of a previous order similar to the one entered in this case.5

Indeed, contrary

4Because Mr. Hawkes argues that the district court misapplied double jeopardy law in this

case, the denial of pretrial habeas corpus relief should be reviewed de novo. In re Necessary, 333

S.W.3d 782, 787 (Tex. App.–Houst. [1

st

 Dist.] 2010).

5

 United States v. Dixon, 509 U.S. 688, 700 (1993) (Double Jeopardy precluded

prosecution for assault on his wife following prosecution for criminal contempt for violating civil

protection order which prohibited assault on her). 

12
to the District Court’s understanding that it “never heard of a civil case being used in

a criminal case,” the Double Jeopardy Clause may, in fact, be implicated even when

the prior case is not itself a criminal proceeding.

1

In the case of civil penalties the

courts look to the punitive effects of such penalties to determine if they implicated

double jeopardy concerns.

2

“A statute that applies to behavior that is already a crime

is more likely to be characterized as a criminal sanction [for double jeopardy

purposes]. [Texas protective order statutes] appl[y]to behavior that is already a crime

and [they] specifically provide[s] for further criminal penalties for violating the

protective order.”3

Mr. Hawkes recognizes that the Houston Court of Appeals rejected a similar

argument in Necessary. Nevertheless, Mr. Hawkes submits that Necessary is

distinguishable and, in any event, wrongly decided. For example, Necessary dealt

with an emergency protective order under Tex. Code Crim. P. Art. 17.292, therefore,

by statute the restrictions placed on Mr. Necessary would not have remained in place

for more than 91 days. Here, in contrast, the restrictions on Mr. Hawkes movements

are for two years. Necessary, in fact, notesthat the emergency protective order in that

1

 See e.g., United States v. Halper, 490 U.S. 435, 446-448 (1989) (Double Jeopardy

Clause implicated when civil fine is punitive).

2

 Hudson v. United States, 522 U.S. 93, 98 (1997).

3

 In re Necessary, 333 S.W.3d at 790.

13
case was “limited in...time.” Id. at 791. Moreover, unlike Necessary, the protective

order in this case prohibits Mr. Hawkes from having contact with his own son and

also prohibits him from employing an investigator which might directly impact his

ability to defend himself in his criminal case. It cannot be gainsaid that losing contact

with one’s small child for up to two years may be a greater “penalty” than some

penalties imposed in criminal cases. Indeed, the court in Necessary also noted that

the emergency protective order was limited to only prohibiting contact with the

complainant in the criminal case. Id. at 791. Finally, in analyzing the disabilities

placed on a person subject to a protective order, Necessary wrongly discounted the

firearmdisability by not recognizing the fact that this disability denied Mr. Necessary

his constitutional rights under the Second Amendment to the United States

Constitution. See McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010)(Holding

that the Second Amendment right to keep and bear arms is fully applicable to the

States.).

In light of the punitive and long lasting effects of the sanctions entered against

Mr. Hawkes that were imposed as a result of the protective order hearing, Mr.

Hawkes submits that the Double Jeopardy clause of the United States Constitution

prohibits the instant prosecution.

14
II. THE INSTANT PROSECUTION IS BARRED BY PRINCIPLES OF

COLLATERAL ESTOPPEL

“[C]ollateral estoppel is a component of federal constitutional double jeopardy

jurisprudence....” Reynolds v. State, 4 S.W.3d 13, 19 (Tex. Crim. App. 1999). The

elements of collateral estoppel are: (1) there must be a full hearing; (2) between the

same parties; (3) with a fact finder acting in a judicial capacity; and (4) the fact issue

must be the same in both proceedings. See State v. Aguilar, 947 S.W.2d 257, 259-60

(Tex. Crim. App. 1997).

Mr. Hawkes submits that collateral estoppel principles prohibit the state from

relitigating the issue of whether Mr. Hawkes “stalked” the complainant. First, in

connection with the proceedings under Tex. Code Crim. P. Art. 7A, there was a full

hearing on the issue of whether there were “reasonable grounds to believe” Mr.

Hawkes had sexually assaulted or abused, stalked or trafficked Jennifer Goines.

Indeed, Ms. Goines testified fully at the protective order hearing and the Court was

presented with the alleged “[repeated] text messages.” Second, at that protective

order hearing, Ms. Goines was represented by the same prosecutorial office

prosecuting Mr. Hawkes in the instant case. Third, the district judge presiding over

the protective order hearing isthe exact same district judge presiding over the instant

case. Finally, the same issue that wasin dispute at the protective order hearing would

be one of the issues in dispute in the instant case, to wit: whether Mr. Hawkes

15
“stalked” Ms. Goines.

Indeed, if the parties elected to have a bench trial in the criminal case, it would

be completely disingenuous for the District Court, listening to essentially the same

evidence of alleged stalking, to find that the Henderson County District Attorney’s

Office proved beyond a reasonable doubt what it previously found that office could

not even establish under a “reasonable groundsto believe” standard. Likewise, even

if the parties proceeded to a jury trial, the District Court would likely be duty bound

to direct a verdict given that it would be almost impossible to conclude that a 

reasonable jury could find beyond any reasonable doubt what the DistrictCourt could

not find under the much more deferential “reasonable grounds to believe” standard.

16
PRAYER

For the foregoing reasons, thisCourtshould grant Mr. Hawkes’Writ of Habeas

Corpus and order that the indictment against Mr. Hawkes be dismissed.

Respectfully submitted,

/s/F. Clinton Broden

F. CLINTON BRODEN

TX Bar No. 24001495

Broden & Mickelsen

2600 State Street

Dallas, Texas 75204

(214) 720-9552

(214) 720-9594(facsimile)

clint@texascrimlaw.com

Attorney for James Ian Hawkes

17
CERTIFICATE OF SERVICE

I, F. Clinton Broden, do hereby certify that, on this 7

th day of July, 2016, I

caused a copy of the foregoing document to be served by first class mail, postage

prepaid, on the Henderson County District Attorney’s Office, 109 W. Corsicana

Street #103, Athens, Texas 75751.

/s/ F. Clinton Broden

F. Clinton Broden

18
CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Tex. R. App. P.9.4

because this brief contains 1,906 words, excluding the parts of the brief exempted by

the rule.

/s/ F. Clinton Broden

F. Clinton Broden

19