Ex Parte Chappell

959 S.W.2d 627, 1998 Tex. Crim. App. LEXIS 9, 1998 WL 18174

• Court: Court of Criminal Appeals of Texas
• Decided: January 21, 1998
• Docket: 72763
• Status: Published

Opinions

OPINION

MANSFIELD, Judge,

delivered the opinion of the Court,

which was joined by McCORMICK, Presiding Judge, and KELLER, PRICE, HOLLAND and WOMACK, Judges.

We ordered applicant Jason Wallace Chap-pell’s post-conviction application for writ of habeas corpus filed and set for submission to determine whether he has been denied his right, under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, to be free of multiple punishments for the same offense.¹ We will deny the relief requested.

The Relevant Facts

From the scant record before us, we glean the following facts relevant to applicant’s claim:

On May 7, 199B, the Chambers County grand jury indicted applicant for aggravated delivery of a controlled substance, namely cocaine. See Tex. Health & Safety Code § 481.112(a). On or about May 26, 1993, the Texas Comptroller of Public Accounts sent applicant a notice of tax due in the amount of $11,200. Evidently, it was the Comptroller’s belief that applicant owed the tax on account of his “possession, purchase, acquisition, importation, manufacture, or production” of the cocaine. See Tex. Tax Code § 159.101(a). Applicant did not then pay the tax, however, or any portion thereof, nor has he done so since.² On October 8, 1993, the grand jury indicted applicant for failure to pay the tax. See Tex. Tax Code § 159.201(a).

On February 3,1994, applicant pled guilty, in a single proceeding, to the charges contained in the two indictments. The district court assessed punishment at imprisonment for eighteen years plus a $1,000 fine in the aggravated delivery case, and at imprisonment for ten years plus an $11,200 fine in the tax case. The court suspended the punishment in the tax ease and placed applicant on probation for ten years.³ On December 19, 1996, applicant filed a pro se application for writ of habeas corpus in the convicting district court, in which he argued that both of his convictions were “void” because they were obtained in contravention of his state and federal constitutional rights not to be punished twice for the same offense. See U.S. Const, amend V; Tex. Const, art. I, § 14. More specifically, applicant argued that, for double jeopardy purposes, he was “punished” for possession of the cocaine when the Comptroller assessed the drug tax against him, i.e., when the Comptroller determined that he owed the tax, on or about May 26, 1993, and that thereafter he could not be prosecuted and punished again for delivery of the cocaine or failure to pay the tax. Applicant relied primarily upon the decision in Dept. of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994).

On or about February 11,1997, the Comptroller “dismissed” the tax assessment made against applicant. See Tex. Tax Code § 159.206.

On February 26, 1997, the State filed an answer to applicant’s application, arguing that he “fail[ed] to allege facts which, if true, would entitle him to ... relief.” See Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex.Crim.App.1985) (in a post-conviction collateral attack, burden is on applicant to allege and prove facts which, if true, entitle him to relief). More specifically, the State argued that “any fine [sic] that may have been assessed [against applicant] was dismissed and ... no payments were ever made.”

On February 27, 1997, the district court concluded that applicant had not “allege[d] facts which, if true, would entitle [him] to relief,” and recommended that we deny relief.

Finally, on May 7, 1997, we ordered applicant’s application filed and set for submission, but only insofar as his application challenged the validity of his conviction in the aggravated delivery case. See Tex.Code Crim. Proc. art. 11.07, § 5. Because applicant was placed on probation in the tax case, that conviction is not “final” and may not be challenged under Article 11.07. Ex parte Payne, 618 S.W.2d 380, 381 (Tex.Crim.App.1981).

Analysis

The Fifth Amendment’s Double Jeopardy Clause, made enforceable against the states by the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. , 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969), provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Although the Clause mentions only harm to “life or limb,” it is settled that it covers imprisonment and monetary penalties. Kurth Ranch, 511 U.S. at 768-771 n. 1, 114 S.Ct. at 1941 n. 1. It is also settled that the Clause provides three separate protections for criminal defendants: against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989); Ex parte Stover, 946 S.W.2d 343 (Tex.Crim.App.1997). But see also, Hudson v. United States, 62 Cr.L.2019 (1997).

It is the third protection that applicant seeks to enforce today. A threshold question, therefore, is whether, at the time he pled guilty to the charges in the two indictments, he had already been “punished” for any conduct related to the cocaine. As we noted previously, applicant argues that he was punished, for double jeopardy purposes, when the Comptroller assessed the drug tax against him.

We faced a similar, but distinguishable, claim in Stennett v. State, 941 S.W.2d 914 (Tex.Crim.App.1996). In that case, the defendant was indicted for possessing marijuana. Soon thereafter, the Comptroller notified him that he owed $49,070 in tax on account of his “purchase, acquisition, importation, manufacture, or production” of the marijuana. The defendant promptly mailed the Comptroller a check for $100 in partial payment of the tax and filed a pretrial application for writ of habeas corpus in the district court, arguing that, under the Double Jeopardy Clause, his partial payment barred any subsequent punishment for possession of the marijuana. Ultimately, we agreed, but only because he had made partial payment of the marijuana tax and, therefore, had already suffered a tangible loss because of his possession of the marijuana.

Our holding in Stennett was grounded on our view that, for double jeopardy purposes, “punishment” consists in the taking of life, liberty, or property. Accord, United States v. Sanchez-Escareno, 950 F.2d 193, 201 (5th Cir.1991), cert. denied, 506 U.S. 841, 113 S.Ct. 123, 121 L.Ed.2d 78 (1992). The Comptroller’s assessment of the drug tax against applicant, however, deprived him of none of these. His life, liberty, and property suffered no detriment from the Comptroller’s action. We conclude that, in the absence of some permanent deprivation of life, liberty, or property related to the collection of the tax, applicant suffered no “punishment” for the purposes of the Double Jeopardy Clause. See People v. Litchfield, 902 P.2d 921, 925 (Colo.App.1995) (defendants not “punished,” for double jeopardy purposes, by mere assessment of drug tax, where defendants had paid no tax, the state had not acted to collect tax, and there had been no final determination of tax liability), affd. on other grounds, 918 P.2d 1099 (Colo.1996). Since applicant suffered no punishment from the Comptroller’s action, his later criminal conviction in the aggravated delivery case did not expose him to multiple punishments.⁴

Applicant’s position finds no support in Kurth Ranch. In that case, the Montana defendants were first prosecuted and convicted for criminal possession of, or conspiracy to possess, marijuana. The State of Montana then sought, in an administrative proceeding, to collect from them a large sum as tax on the marijuana they had been convicted of possessing. The defendants contested the assessment in the proceeding, which was later stayed when they filed a petition in bankruptcy. The bankruptcy court declared the tax assessment to be jeopardy-barred, and a federal district court affirmed its judgment, as did the United States Court of Appeals for the Ninth Circuit. After granting certiorari, the Supreme Court affirmed the judgment of the Ninth Circuit, holding that the Montana tax was a second punishment, for double jeopardy purposes, which the State of Montana had sought to collect in a proceeding which had been “the functional equivalent of a successive criminal prosecution.” Kurth Ranch, 511 U.S. at 783-84, 114 S.Ct. at 1948. Nothing in the Supreme Court’s opinion suggests that Montana’s mere assessment, as opposed to actual collection, of the marijuana tax amounted to “punishment” for double jeopardy purposes.

We need not consider applicant’s claim under the double jeopardy provision in Texas Constitution article I, § 14, because he provides no argument or authority as to the protection provided by that provision. See Ex parte Granger, 850 S.W.2d 513, 515 n. 6 (Tex.Crim.App.1993).

The relief for which applicant prays is DENIED.

OVERSTREET, J., concurs in the result.

1 . Applicant filed his writ application "under Tex. Code Crim. [Proc.] Ann. art. 11.07.” App. at 1. We have long held that a double jeopardy claim is a proper subject for a writ of habeas corpus under Article 11.07, despite the applicant’s failure, as in this case, to raise the issue in the trial court. See Ex parte Evans, 530 S.W.2d 589, 591 (Tex.Crim.App.1975).

2 . The record before us does not show whether the Comptroller has ever taken any steps to collect the tax.

3 . The record before us does not show whether applicant appealed from these convictions.

4 . We recently held that "partial payment" of a drug tax assessed against an individual is not punishment implicating the Double Jeopardy Clause (absent evidence of a payment arrangement with the Comptroller), thereby overruling Stennett with respect to that portion of our holding therein. Ex parte Curtis Ray Ward, Nos. 420-96, 421-96, - S.W.2d -, - 1998 WL 18063 (Tex.Crim.App., delivered January 21, 1998) (slip op. at 30-32).