Garza v. State

658 S.W.2d 152, 1982 Tex. Crim. App. LEXIS 1155

Opinions

OPINION

TEAGUE, Judge.

THE FIRST TRIAL

Rey Garza, appellant, was tried on a two count indictment which alleged the felony offenses of aggravated assault on a peace officer and knowingly participating in a riot by assembly. By the allegations of the indictment, the aggravated assault offense occurred during the course of a felony riot in which appellant knowingly participated. Appellant pled not guilty to both counts of the indictment. At the conclusion of the case, the State elected to proceed to the jury on the aggravated assault on a peace officer count of the indictment. The State abandoned the count of the indictment that alleged felony riot. After deliberating for 29 hours and 32 minutes the jury informed the trial judge that it was unable to reach a verdict. A mistrial was declared, and the jury was ordered discharged.

THE SECOND TRIAL

The State thereafter, over objection, re-prosecuted the appellant on the same indictment. However, during the second trial, when the State made its election, it elected to proceed to the jury on the felony riot count of the indictment, which was the converse of what the State had done at the first trial, i.e., at the first trial the State had abandoned the felony riot count of the indictment and the jury was only instructed on the aggravated assault on a peace officer count of the indictment, whereas in the second trial the State abandoned the aggravated assault count and the case was submitted to the jury on the felony riot count of the indictment. The jury convicted the appellant of committing the offense of felony riot and assessed punishment at three years’ confinement in the penitentiary.

APPELLANT’S CONTENTION

Although appellant raises several contentions in his appeal, because of the result we reach, we will only discuss his contention that the trial court erred by failing to grant his “Motion to Quash Count I of the Indictment Based on Double Jeopardy”, which motion was filed prior to the commencement of the second trial. The motion related to the felony riot count of the indictment that had been abandoned by the State during the first trial.

THE STATE’S RESPONSE

The State argues the following in its well written but succinct brief: “[B]ecause Garza [the appellant] never ran the gauntlet to a conviction at the first trial, jeopardy should not attach as to either paragraph of the indictment.”

THE QUESTION

Because the State at the first trial, prior to the cause being submitted to the jury, abandoned the felony riot count of the indictment, was it thereafter precluded from retrying the appellant for allegedly committing that same offense?

THE ANSWER

Because we find that the double jeopardy provisions of the Federal and State Constitutions bar such a retrial, we answer the question in the affirmative. The appellant’s judgment of conviction for committing the riot offense will be reversed and the prosecution ordered dismissed.

THE PAST BLENDS IN WITH THE PRESENT

Although we find that this is probably a case of first impression, in conjunction with this Court’s construing the applicability of the double jeopardy clauses of the respective Constitutions to such a factual situation as at bar, nevertheless, we pause to observe that in the past this Court has held that if conviction is based upon only one count of several submitted to the jury, acquittal may result as to the counts not submitted to the jury, see Mizell v. State, 83 Tex.Cr.R. 305, 203 S.W. 49 (1918); Martin v. State, 80 Tex.Cr.R. 275, 189 S.W. 262 (1916); Millner v. State, 75 Tex.Cr.R. 22, 169 S.W. 899 (1914); Davis v. State, 61 Tex.Cr.R. 611, 136 S.W. 45 (1911), although an acquittal as to the submitted count does not necessarily result, see Hunt v. State, 123 Tex.Cr.R. 559, 59 S.W.2d 836 (1933); Blevins v. State, 148 Tex.Cr.R. 2, 184 S.W.2d 290 (1944); Aven v. State, 102 Tex.Cr.R. 478, 277 S.W. 1080 (1925), while an abandonment of a count after jeopardy has attached always bars retrial of the abandoned count. See Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978) (“No double jeopardy problems are extant with this type of submission because the jury returns either an acquittal or a verdict of guilty on one count only.”); Parish v. State, 145 Tex.Cr.R. 117, 165 S.W.2d 748 (1942); Black v. State, 143 Tex.Cr.R. 318, 158 S.W.2d 795 (1942); Gilliam v. State, 131 Tex.Cr.R. 8, 96 S.W.2d 86 (1936); Johnson v. State, 97 Tex.Cr.R. 658, 263 S.W. 924, 925 (1924); Lee v. State, 90 Tex.Cr.R. 458, 235 S.W. 1093 (1921); Deisher v. State, 89 Tex.Cr.R. 467, 233 S.W. 978 (1921); Hewitt v. State, 74 Tex.Cr.R. 46, 167 S.W. 40 (1914); Betts v. State, 60 Tex.Cr.R. 631, 133 S.W. 251 (1911); Tracy v. State, 49 Tex.Cr.R. 37, 90 S.W. 308 (1905); Parks v. State, 46 Tex.Cr.R. 100, 79 S.W. 301 (1904); Stephens v. State, 36 Tex.Cr.R. 386, 37 S.W. 425 (1896); Moore v. State, 631 S.W.2d 245 (Tex.App.Amarillo, No P.D.R.1982); Ex parte Seelies, 511 S.W.2d 300 (Tex.Cr.App.1974).

Recently, in Moore v. State, 631 S.W.2d 245 (Tex.App.-Amarillo, No P.D.R.1982), Chief Justice Reynolds of the Amarillo Court of Appeals stated the following:

It is settled that jeopardy, in the sense of the constitutional guarantee against double jeopardy, attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978); McElwee v. State, 589 S.W.2d [455] 457 (Tex.Cr.App.1979). Accordingly, when the indictment’s second count [in this cause] was dismissed after jeopardy attached when the jury was impaneled and sworn, the dismissal was tantamount to an acquittal of the charge of aggravated assault, Black v. State, 143 Tex.Cr.R. 318, 158 S.W.2d 795, 796 (1942), and, thereafter, appellant could not be prosecuted for that act. Ex parte Scelles, 511 S.W.2d 300, 301 (Tex.Cr.App.1974).

Previously, this Court, in Black v. State, supra, had stated the following:

Where a defendant has been tried on several counts and convicted under one he is thereby acquitted of the others, and may not later be tried upon the ones for which he was so acquitted Thus, where there are several counts in an indictment and only one is submitted to the jury, this amounts to an acquittal upon the abandoned counts, and the defendant may not upon a subsequent trial be prosecuted on the abandoned counts. [Emphasis Added].

Also, in Ex parte Scelles, 511 S.W.2d 300 (Tex.Cr.App.1974), this Court stated the following:

In Parish v. State, [145 Tex.Cr.R. 117], 165 S.W.2d 748 (Tex.Cr.App.1942), the court held that where the second count only of the two count indictment was submitted to the jury, failure to submit the first count had the same effect as if such count had been quashed, and ‘jeopardy’ attached on such count, since failure to submit was tantamount to a ‘dismissal’ of such count.

By adopting literally some of the language this Court has stated in the past, with what the Amarillo Court of Appeals stated in Moore v. State, supra, we find that decision very persuasive and of great assistance to us in our reaching the holding that the State was barred from reprosecut-ing the appellant for committing the offense of felony riot.

THE DOUBLE JEOPARDY CLAUSES OF THE RESPECTIVE CONSTITUTIONS

The “Interpretive Commentary” to Art. I, Sec. 14 of the Texas Constitution, the double jeopardy clause of the Texas Constitution, in Vol. I, V.A.Tex.Const., at pages 332-333, states the following: “The guaranty in this section ... is broader in scope [than autrefois acquit and autrefois convict], for not only can a person not be put on trial a second time for an offense of which he has once been acquitted or convicted, but he may not be put on trial a second time for an offense of which he has once been placed in jeopardy. Hence, jeopardy, meaning danger or hazard, can be based upon a prosecution discharged for valid causes without a verdict, while former conviction and acquittal are based upon verdicts received.”

The double jeopardy clause of the Fifth Amendment to the United States Constitution is now made binding upon the States through 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). Jeopardy attaches when a jury is empanelled and sworn. Crist v. Bretz, supra; United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1341, 51 L.Ed.2d 642 (1977); cf. United States v. Sanford, 429 U.S. 14, 97 S.Ct. 20, 50 L.Ed.2d 17 (1976); McElwee v. State, supra.

In this instance, had both counts of the indictment been submitted to the jury at the first trial, and the jury had not been able to reach a verdict, and a mistrial had been declared by the trial court on both counts, the fact that a mistrial had been declared would not have prevented a retrial on either count. A mistrial declared because the jury was unable to agree ordinarily will permit a second trial without violating the double jeopardy prohibition. Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901, reh. den. 368 U.S. 870, 82 S.Ct. 25, 7 L.Ed.2d 70 (1961); United States v. Perez, 9 Wheat 579, 6 L.Ed. 165 (1824). Thus, a second trial is not prohibited where the first trial ends in a mistrial, provided the mistrial was declared because it was manifestly or imperatively necessary in order to preserve the doing of justice. Therefore, we find it is necessary in this instance to determine whether there was any showing by the State of any manifest or imperative necessity that would have warranted the trial court not submitting the riot count of the indictment to the jury at the first trial. In this regard, we observe that the State has failed to point out in this appeal where such manifest or imperative necessity existed that would account for the trial court’s failure to submit to the jury at the first trial the riot count of the indictment. Our search of the record leads us to conclude that such necessity never existed, or if it did it is not reflected in the record.

“A defendant’s valued right to have his trial completed by a particular tribunal is within the protection of the constitutional guarantee against double jeopardy.” Crist v. Bretz, supra. See also Torres v. State, 614 S.W.2d 436 (Tex.Cr.App.1981). Only where the prosecution has shown manifest or imperative necessity may this valued right be defeated. McClendon v. State, 583 S.W.2d 777 (Tex.Cr.App.1979). In this instance, jeopardy had attached in the first trial before the State elected to abandon the felony riot count. McElwee v. State, supra. The State’s abandonment of the riot count precluded the appellant from having the same jury decide his guilt on that allegation. If the riot allegation had been submitted to the jury, the jury may very well have been able to resolve appellant’s guilt for allegedly committing that offense. But, the jury was not given that opportunity. We observe in this regard that the jury at the first trial was able to find certain co-defendants guilty and others not guilty of the offenses alleged against those persons, which offenses we find arose out of the same transaction that implicated the appellant. As noted, we are unable to find in this record any manifest or imperative necessity that would have precluded the first jury from resolving, or at least attempting to resolve, the issue of appellant’s guilt for committing the offense of felony riot. Therefore, the State’s abandonment of the riot allegation of the indictment at the first trial barred any retrial for that offense. The appellant’s trial, for allegedly committing the offense of felony riot, was null and void.

In light of what we have stated above, we disagree with the State that reprosecution is dependent upon whether or not there was a conviction at the first trial on at least one submitted count of the charging instrument. Therefore, we will not further discuss the State’s response.

OUR CONCLUSIONS

Under the circumstances and facts of this cause, when the jury was unable to agree upon a verdict at the first trial, it should have thereafter been permitted to proceed only on the aggravated assault of a peace officer allegation of the indictment. This was permitted by virtue of manifest or imperative necessity and Art. 36.33, Y.A.C. C.P. However, the State was not permitted to once again prosecute the appellant for allegedly committing the offense of felony riot. This was legally impermissible for the reasons stated. The riot count of the indictment became poisoned by the double jeopardy clauses of the Federal and State Constitutions. The mistrial order only permitted retrial of any non-poisoned allegations still pending in the indictment — in this instance the aggravated assault on a peace officer count. See and compare Patterson v. State, 581 S.W.2d 696 (Tex.Cr.App.1979); Vardas v. State, 518 S.W.2d 826 (Tex.Cr.App.1975); Ochoa v. State, 492 S.W.2d 576 (Tex.Cr.App.1973). The State should not have been permitted a second opportunity to persuade another jury to return a verdict of guilty against the appellant upon the riot count of the indictment.

The judgment of conviction is therefore reversed with instructions to the trial court to enter an order dismissing the prosecution thereunder.