Ex Parte Granger

850 S.W.2d 513, 1993 Tex. Crim. App. LEXIS 38, 1993 WL 28834

• Court: Court of Criminal Appeals of Texas
• Decided: February 10, 1993
• Docket: 1109-91
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

On January 3, 1978, Steve Anderson and his wife were murdered in Sugarland. In October of that year, appellant Feryl John Granger was tried and convicted of capital murder for the killing of Steve Anderson. Although the jury charge at the trial included instructions on both murder for remuneration (a capital offense under Texas Penal Code § 19.03(a)(3)) and the lesser included offense of “ordinary” murder (a non-capital offense under Texas Penal Code § 19.02(a)(1)), the jury chose to find appellant guilty of murder for remuneration. On direct appeal, this Court reversed the capital murder conviction on the ground the evidence was, under state statutory law, insufficient to prove the capital element of remuneration. Granger v. State, 605 S.W.2d 602 (Tex.Cr.App.1980).¹ We concluded our opinion, inappropriately, with the purely advisory comment that “[ajppellant may ... be retried for the lesser included offense of murder.” Id. at 605.

Appellant was later indicted, tried, and convicted of “ordinary” murder based on the same criminal transaction. That conviction, too, was overturned, because of trial error unrelated to the sufficiency of the evidence. Granger v. State, 653 S.W.2d 868 (Tex.App.—Corpus Christi 1983), aff’d, 683 S.W.2d 387 (Tex.Cr.App.1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985). In its opinion reversing appellant’s second conviction, the Thirteenth Court of Appeals² specifically rejected his argument that his retrial for murder had been barred by our federal and state constitutional guarantees against being placed in jeopardy twice for the same offense. See U.S. Const. amend. 5; Tex. Const, art. 1, § 14. The court of appeals, citing this Court’s advisory statement in its 1980 Granger opinion, explained that “the Court of Criminal Appeals has already indicated that appellant could be retried for the lesser included offense of murder.” Granger v. State, 653 S.W.2d at 877.

Before appellant could be tried again for murder, he filed an application for writ of habeas corpus in district court, arguing that any further prosecution for murder was barred by our federal and state constitutional and statutory double jeopardy guarantees.³ See Tex.Code Crim.Proc. art. 1.10. The district court denied the requested relief, and the First Court of Appeals affirmed in two unpublished opinions, one on original submission and one on rehearing. In both opinions, the First Court, citing our 1980 Granger opinion, again rejected appellant’s double jeopardy claim on the ground “[t]he decision of the Court of Criminal Appeals is final and conclusive and constitutes the law of the case.” Ex parte Granger, No. 01-89-01140-CR (Tex.App.—Houston [1st Dist.] 1990) (opin. on orig. sub. at 3), 1990 WL 76660.

We granted appellant’s petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(2), to consider whether the double jeopardy clause of the Fifth Amendment⁴ bars a prosecution for murder when (1) the accused was previously convicted of capital murder based on the same criminal transaction, (2) the conviction for capital murder was reversed on appeal due to the insufficiency of the evidence to prove the capital element, and (3) the jury charge at the capital murder trial included instructions on both capital murder and the lesser included offense of murder. Compare State v. Engelking, 817 S.W.2d 64, 67 (Tex.Cr.App.1991); Stephens v. State, 806 S.W.2d 812, 814 n. 4 (Tex.Cr.App.1990), cert. denied, — U.S. -, 112 S.Ct. 350, 116 L.Ed.2d 289 (1991).⁵ We conclude that a further prosecution for the lesser included offense of murder is not barred.

In his brief to this Court, appellant argues, as he did below, that “[t]he State is barred [by the double jeopardy clause of the Fifth Amendment] from prosecuting [him] again for murder after [his] capital murder [conviction was] reversed for insufficiency of the evidence on the [capital] element.”⁶ Appellant cites Stephens v. State, 806 S.W.2d 812, in support of his claim. The State counterargues that the federal double jeopardy clause is not implicated here because a greater offense and a lesser included offense are not the “same” offense for double jeopardy purposes.

I

At the outset, we must address the court of appeals’ holding that appellant’s double jeopardy claim is barred by the law of the case doctrine. We have previously recognized that “[ujnder the doctrine of ‘the law of the case,’ where determinations as to questions of law have already been made on a prior appeal to a court of last resort, those determinations will be held to govern the case throughout all its subsequent stages, including a retrial and a subsequent appeal.” Granviel v. State, 723 S.W.2d 141, 147 (Tex.Cr.App.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987). The doctrine is required by neither constitution nor statute, however; it is merely a court-made prudential doctrine designed to promote judicial consistency and efficiency. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986). As such, it should be disregarded when compelling circumstances require a redetermination of the point of law decided on the prior appeal. As our sister court explained a century ago, “[t]he question as to whether [a] court will reconsider, upon a second appeal, what [was] formerly decided in the same case, must always be addressed to the discretion of the court, and determined according to the particular circumstances of that case.” Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066, 1067 (1896).

We believe that compelling reasons do exist for a redetermination of appellant’s double jeopardy claim and that the court of appeals abused its discretion in holding otherwise. First, our statement in appellant’s original appeal in 1980 that he could be retried for the lesser included offense of murder was, as we stated before, purely advisory. Second, our decision in Stephens v. State, 806 S.W.2d 812, cast considerable doubt on the correctness of our earlier advisory comment.⁷ Under these circumstances, we conclude that it was incorrect, although understandable, for the court of appeals to rely upon the law of the case doctrine.

II

Having concluded that the law of the case doctrine does not bar appellant’s double jeopardy claim, we address next the State’s contention that the double jeopardy clause is not implicated in this cause. We note first that, read literally, the double jeopardy clause’s prohibition against any person being “twice put in jeopardy of life or limb” for “the same offence” would seem to apply only to criminal prosecutions involving the possibility of capital or corporal punishment. Notwithstanding that constitutional language, the United States Supreme Court held long ago that the guarantee applies to all “crimes,” regardless of the form of punishment imposed. Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873).

The Supreme Court also long ago created a test for determining whether conduct that violates two distinct statutory provisions constitutes the “same” offense for double jeopardy purposes:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). If application of the Blockburger test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the two offenses are the “same” for double jeopardy purposes. Grady v. Corbin, 495 U.S. 508, 515, 110 S.Ct. 2084, 2090, 109 L.Ed.2d 548 (1990); Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977).⁸

Texas Penal Code § 19.03(a)(3) defines the elements of capital murder for remuneration as: (1) a person (2) intentionally or knowingly (3) causes (4) the death of an individual (5) for remuneration or the promise of remuneration. Texas Penal Code § 19.02(a)(1), in turn, defines the elements of murder as: (1) a person (2) intentionally or knowingly (3) causes (4) the death of an individual. Since the lesser offense of murder requires no proof beyond that which is required for the greater offense of capital murder, the two offenses are necessarily the “same” offense for the purposes of double jeopardy. Stephens v. State, 806 S.W.2d at 815. Thus, contrary to the State’s assertion, the double jeopardy clause is implicated here.

Ill

We consider next the protection afforded by the double jeopardy clause and whether that protection would be infringed by a retrial of appellant for the offense of murder.

“When we interpret broadly-phrased constitutional provisions such as [the double jeopardy clause], we seek to effectuate the general principles suggested by the language of the text.” Proctor v. State, 841 S.W.2d 1, 3 (Tex.Cr.App.1992). We do so on the reasonable supposition that those who adopted such broadly-phrased provisions intended for the principles suggested therein to remain vital over time.

Without doubt, the key principle suggested by the language of the double jeopardy clause is that the State may not use the prosecution power as an instrument of oppression. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977). In Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), the Court explained the purpose of the clause thusly:

The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Despite the seemingly absolute language of the double jeopardy clause, the Supreme Court’s decisions have consistently recognized that the finality guaranteed by the clause is not always absolute, “but instead must accommodate the societal interest in prosecuting and convicting those who violate the law.... [A]bsent governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect, the compelling public interest in punishing crimes can outweigh the interest of the defendant in having his culpability conclusively resolved in one proceeding.” Garrett v. United States, 471 U.S. 773, 796, 105 S.Ct. 2407, 2420, 85 L.Ed.2d 764 (1985) (O’Connor, J., concurring) (citations and some punctuation omitted). See Tibbs v. Florida, 457 U.S. 31, 40, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652 (1982).

In accordance with this view of the double jeopardy clause, the Supreme Court has held that if a jury reaches a verdict of acquittal or the trial judge grants a judgment of acquittal before the jury’s verdict,⁹ the clause acts as an absolute bar to further prosecution for the same offense even if it appears the acquittal was based on an egregiously erroneous foundation. Sanabria v. United States, 437 U.S. 54, 75, 98 S.Ct. 2170, 2184, 57 L.Ed.2d 43 (1978); Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962). This rule plainly furthers the goal of preventing oppressive prosecutorial tactics, for if the State were allowed to reprosecute freely following an acquittal, it would have the power to convict innocent defendants by wearing them down in repeated litigation or by trying them again and again until it found a jury willing to convict. United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2193, 57 L.Ed.2d 65 (1978). Unbridled power to reprosecute would also allow the State to “gain an unfair advantage from what it learns in the earlier prosecutions about the strengths of the defense case and the weaknesses of its own.” Proctor v. State, 841 S.W.2d at 3. Finally, allowing retrial following an acquittal might thwart the decision of a jury to acquit even though it believed the defendant guilty. United States v. DiFrancesco, 449 U.S. 117, 130 n. 11, 101 S.Ct. 426, 433 n. 11, 66 L.Ed.2d 328 (1980). See generally W. LaFave & J. Israel, Criminal Procedure §§ 25.1(b) & 25.3(b) (2nd ed. 1992) (discussing various rationales behind rule barring retrial after acquittal).

On the other hand, the Supreme Court has also held that reprosecution for the same offense is not barred after conviction where the defendant has managed through appeal or some other procedure to have his conviction set aside because of reversible error. Ball v. United States, 163 U.S. 662, 672, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). The rationale for this rule was most convincingly stated in United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964):

While different theories have been advanced to support the permissibility of retrial [following the setting aside of a conviction], of greater importance than the conceptual abstractions employed to explain the ... principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pre-trial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest.

The Ball rule has been held inapplicable, however, where the appellate reversal was based on the insufficiency of the evidence at trial to sustain a guilty verdict. Burks v. United States, 437 U.S. 1, 14-15, 98 S.Ct. 2141, 2148-49, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). In holding a remand for a new trial in such circumstances inconsistent with the double jeopardy prohibition, a unanimous Supreme Court emphasized that if the trial court had done what it should have done, “a judgment of acquittal would have been entered [at the close of the evidence] and, of course, [the defendant] could not be retried for the same offense.” Burks v. United States, 437 U.S. at 10-11, 98 S.Ct. at 2147. As the Court later explained:

Burks was based on the view that an appellate court’s reversal for insufficiency of the evidence is in effect a determination that the government’s case against the defendant was so lacking that the trial court should have entered a judgment of acquittal, rather than submitting the case to the jury. Because the Double Jeopardy Clause affords the defendant who obtains a judgment of acquittal at the trial level absolute immunity from further prosecution for the same offense, it ought to do the same for the defendant who obtains an appellate determination that the trial court should have entered a judgment of acquittal. The fact that the determination of entitlement to a judgment of acquittal is made by the appellate court rather than the trial court should not, we thought, affect its double jeopardy consequences; to hold otherwise would create a purely arbitrary distinction between defendants based on the hierarchical level at which the determination is made.

Lockhart v. Nelson, 488 U.S. 33, 38-40, 109 S.Ct. 285, 290, 102 L.Ed.2d 265 (1988) (emphasis in original; citations and some punctuation omitted).

So, should this Court interpret the Supreme Court’s holding in Burks to bar a retrial of appellant in the instant case? We believe the answer must necessarily be “no.” An examination of the facts in Burks reveals that it was a very different kind of case. There, the United States Court of Appeals for the Sixth Circuit had held the evidence insufficient to support the jury’s determination that the defendant was sane at the time of the crime, and had remanded the cause for a determination of whether a verdict of acquittal or a new trial should be ordered. Absent a showing of sanity, the defendant could not have been convicted of the crime charged or of any other crime arising from the same criminal transaction. Stated differently, if the trial court had ruled correctly in the first instance that the evidence was insufficient, it necessarily would have entered a directed verdict of acquittal. The Supreme Court, by reversing and providing for an acquittal (instead of remanding for a new trial), put the defendant in the position he would have been in absent the trial court’s erroneous failure to enter a directed verdict of acquittal.

Our reversal in 1980 of appellant’s original capital murder conviction, in contrast, did not constitute a decision that the State failed to prove the lesser included offense of murder. Because the evidence was insufficient only as to the capital element of the greater offense, it is clear both that, had the trial judge acted properly, only the lesser offense of murder would have gone to the jury and it would have resulted in a conviction. We know that it would have resulted in a conviction because the jury’s actual verdict showed that it found the existence of every element of the lesser included offense. Since appellant has never been acquitted of murder, the rationales (see above) supporting the rule barring retrial following acquittal simply are not applicable to his reprosecution for murder.

This cause does not present a situation involving oppressive prosecutorial tactics of the sort prohibited by the double jeopardy clause. The State is not being given a second chance to prove an offense which it failed to prove at an earlier trial. Rather, appellant is merely being put in the approximate position he would have been in absent the trial court’s error in submitting the capital offense charge to the jury. Granting double jeopardy relief to appellant because of that error would be an unwarranted windfall rather than a necessary protection from governmental oppression. Accord, Beverly v. Jones, 854 F.2d 412 (11th Cir.1988) (denying double jeopardy relief on essentially identical facts), cert. denied, 490 U.S. 1082, 109 S.Ct. 2104, 104 L.Ed.2d 665 (1989); Ex parte Beverly, 497 So.2d 519 (Ala.1986) (same).

The dissent argues that appellant should not have to face the ordeal of retrial because the State overreached in pursuing conviction for capital murder at his original trial. Assuming arguendo that the State erred,¹⁰ the fact remains that the double jeopardy clause does not bar retrial simply because of error on the part of the prosecution. United States v. Tateo, 377 U.S. at 466, 84 S.Ct. at 1589. Moreover, in a very real sense, the State is required to pay for its earlier “mistake.” It now must expend part of its limited resources to retry appellant as well as risk the possibility he will be acquitted.

IV

Appellant’s reliance upon Stephens v. State, 806 S.W.2d 812, is misplaced. In Stephens, the defendant was originally tried for aggravated rape. The jury at the aggravated rape trial was not instructed on the lesser included offense of “ordinary” rape. Although the defendant was convicted, his conviction was overturned on appeal because of the insufficiency of the evidence to prove the aggravating element. He was later indicted for “ordinary” rape based on the same criminal episode, but before he could be tried he filed an application for writ of habeas corpus in the trial court, claiming the rape prosecution was barred by the double jeopardy clause. The trial court denied relief, but the Fifth Court of Appeals agreed with the defendant that retrial was barred. We affirmed the judgment of the court of appeals, but we were careful to point out repeatedly in our opinion that at the original trial, the State had chosen not to request an instruction on the lesser included offense of rape. In other words, the State had, at the first trial, failed to pursue the lesser included offense charge after jeopardy had attached to it and was, therefore, forever barred from prosecuting it again.

As the court correctly explained in Ex parte Beverly, 497 So.2d at 525, when faced with essentially identical facts:

Once the jury [at the first trial] was impaneled and sworn and the indictment [alleging the greater offense] was read, jeopardy attached on [the] lesser [included] offense. Thereafter, the [defendant] was entitled to have his case tried to completion before that jury unless there was a “manifest necessity” for terminating the trial proceedings.

[However,] the jury ... was not instructed on [the lesser offense]. It appears that the state simply chose not to pursue a conviction for that offense, although the [defendant] was in jeopardy as to that offense. Had it so elected, the state could have requested the additional instruction [on the lesser offense]. Therefore, with respect to the [lesser] offense ..., the trial was abandoned or aborted by the state without manifest necessity.

(Citations omitted.)

Although it is not clear from the record of appellant’s first trial that the State actually requested an instruction on the lesser included offense of murder, it is clear that such an instruction was given and that the State made no objection to it.

For the foregoing reasons, we hold that the court of appeals did not err in affirming the trial court’s denial of habeas corpus relief. The judgment of the court of appeals is AFFIRMED.

1 . More specifically, we held the evidence insufficient to corroborate the accomplice witness testimony regarding the element of remuneration. See Tex.Code Crim.Proc. art. 38.14; Fortenberry v. State, 579 S.W.2d 482, 486 (Tex.Cr.App.1979); but see Holladay v. State, 709 S.W.2d 194, 199 (Tex.Cr.App.1986) (overruling Fortenberry); Farris v. State, 819 S.W.2d 490, 506-507 (Tex.Cr.App.1990) (discussing Holladay and Fortenberry), cert. denied, — U.S. -, 112 S.Ct. 1278, 117 L.Ed.2d 504 (1992).

2 . Appellant’s initial retrial took place in Victoria County, apparently on a change of venue.

3 . The filing of a pretrial application for writ of habeas corpus is, of course, the most appropriate method for asserting a double jeopardy claim. Abney v. United States, 431 U.S. 651, 660-661, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977); Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex.Cr.App.1986).

4 . The double jeopardy clause of the Fifth Amendment to the United States Constitution provides: "[Njor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” This guarantee was made applicable to the states by the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

5 . In Engelking and Stephens, we held that when a defendant has obtained a reversal of his conviction for a greater offense solely because of insufficient evidence to prove the aggravating element, the Fifth Amendment’s double jeopardy clause bars a subsequent prosecution for the lesser included offense. In both of those cases, however, the trial court had neither instructed the jury on the lesser included offense nor erroneously refused the State's request for such an instruction.

6 .Appellant also contends in his brief, as he did below and in his petition, that a further prosecution is barred by the guarantees against double jeopardy contained in Texas Constitution article 1, § 14, and Texas Code of Criminal Procedure article 1.10. However, because appellant proffers no argument or authority as to the protection provided by these state provisions or how that protection differs meaningfully from that provided by the Fifth Amendment, we consider his claims based on these state provisions inadequately briefed and not properly presented for our consideration. Narvaiz v. State, 840 S.W.2d 415, 432 (Tex.Cr.App.1992); Morehead v. State, 807 S.W.2d 577, 579 n. 1 (Tex.Cr.App.1991); McCambridge v. State, 712 S.W.2d 499, 501-502 n. 9 (Tex.Cr.App.1986); Tex.R.App.Proc. 74(f) and 203(c). Thus, we do not reach the question of whether these state double jeopardy provisions would bar the retrial of appellant for murder.

7 . See footnote five.

8 . It should be noted that the Blockburger test is not the only test for determining which offenses are the “same” for double jeopardy purposes. See Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990); Ex parte Ramos, 806 S.W.2d 845 (Tex.Cr.App.1991).

9 . The Supreme Court has long treated as parallel the directed acquittal entered by the trial judge and the jury verdict of not guilty. See generally W. LaFave & J. Israel, Criminal Procedure § 25.3(c) (2nd ed. 1992).

10 . See footnote one.