Hubbard v. State

753 S.W.2d 496, 1988 Tex. App. LEXIS 1843, 1988 WL 79856

• Court: Court of Appeals of Texas
• Decided: June 29, 1988
• Docket: No. 09-87-238 CR
• Status: Published

Opinions

OPINION

BURGESS, Justice.

This is an appeal from the denial of a writ of habeas corpus. Appellant was indicted for burglary of a habitation alleged to have occurred on April 2, 1987. In the same instrument, appellant was also charged with burglary of a motor vehicle on or about April 6, 1987. Included in the indictment was an enhancement count. The case was called for trial on October 19, 1987. A jury was selected, swomed and placed in the jury box. Prior to any further proceedings, appellant’s counsel made an oral motion to compel the state to elect between the counts in the indictment and in support of the motion referred the trial court to Ex parte Siller, 686 S.W.2d 617 (Tex.Crim.App.1985) and Drake v. State, 686 S.W.2d 935 (Tex.Crim.App.1985). The following, in pertinent part, occurred:

[DEFENSE COUNSEL]: The defense moves the Court to compel the State to elect between the counts on the incident indictment and to tell the Court which of those counts the State elects to move forward on under the teaching of ex parte Siller, 686 SW 2nd [sic] 617,....

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THE COURT: Your response, Counsel? [PROSECUTOR]: Your Honor, just briefly in response, both of these offenses, burglary of a habitation and burglary of a motor vehicle are included in Chapter 30 of Title 7 which are offenses against property.

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THE COURT: Were they allegedly committed on the same day? [PROSECUTOR]: No, sir. The first offense was four days before the second one.

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[PROSECUTOR]: In response, Your Honor, first of all, the State would urge to the Court that the motion filed by the defendant is untimely in that the jury has already been informed in the voir dire process of the existence of two offenses. ...

To force the State to elect at this time to proceed only on one offense is going to cause an extreme amount of confusion and disadvantage to the State because we have already informed the jury of the existence of the two offenses. That’s the first point.

Second point is that these are specifically Title 7 offenses in Section 30.02 of the Penal Code. It talks about a defendant may be prosecuted in a similar criminal action for all offenses arising out of the single criminal episode.

Criminal episode is defined as repeated commission of the same or similar offense. Burglary of a habitation and burglary of a motor vehicle are both in Title 7. In fact, burglary of a habitation is 30.02; burglary of a vehicle is 30.04.

The other point I would like to make is that the case in Siller that counsel has referred the Court to was an aggravated rape and indecency with a child. They were specifically not Title 7 offenses.... [T]here was no specific reference to a joiner [sic] of those kinds of offenses in the Penal Code, whereas we are proceeding here on property crimes that are specifically covered.

Also, if there is to be an election, the only appropriate election or instruction would be in the jury charge at the conclusion of the evidence where the jury would be charged either onto a finding of guilty or not guilty on the burglary of a habitation or the burglary of a motor vehicle. That would be the time to make such an instruction if it was proper in the first place. Counsel’s attempts here to limit the prosecution to only discussing one offense is without merit in that they’re both connected as having occurred during the same criminal episode even though they are four days apart.

THE COURT: Counsel, ... I went up there and read both cases, Siller and Drake, okay? And Fortune is pending in the Court now. So if this causes you to, you think, any undue, the State any undue justice or hamstrings you, well, I will dismiss this jury and we will come back another day.

[PROSECUTOR]: If I understand the Court, let me—

THE COURT: In other words, I think you need to — I read Siller and Drake and I think that you know that that is the law. I don’t see the distinction between Title 7 and the sexual offenses that were alleged in Siller.

[PROSECUTOR]: Okay. Would it be proper then, Judge, to proceed with the evidence and then at the time of the jury charge, to charge the jury only on one offense?

THE COURT: I don’t think so. I don’t think that would be proper.

... I think the law was pretty plain in Siller. You have ... one indictment and you have two different offenses and then you have got an enhancement paragraph. And so my ruling would be that you need to either go with the burglary of a habitation and then enhancement and/or the, or the burglary of a vehicle and then enhancement. And if you feel like because you have said something to this jury panel, you know, I will let them go.

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... I think you do have to elect and if you feel like that because you have said something to the jury and that you think that this jury panel and you think this motion is untimely, well, you know, he has not been indicted. I mean, no indictment has been, you know, you haven’t read the indictment yet. He hasn’t entered his plea yet, so there is no jeopardy that attaches.

So I think now is the time to quit if ... you feel like you’re unduly burdened with—

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And I have a hard time with that being the same criminal episode or same transaction.

[PROSECUTOR]: In that case then, Judge, I would request that this jury be dismissed and we come back at a later date because I think they have, I have talked to them. My credibility is disturbed with them, I think, if we proceed on something less than what I have talked about.

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[DEFENSE COUNSEL]: I object to any mistrial, Your Honor. We have got a jury and we are ready to proceed.

THE COURT: Well, your first motion is granted and now the State’s motion is granted and I will dismiss the jury and we will proceed again on another day.

Improper termination of an earlier trial raises a double jeopardy bar to subsequent prosecutions. See Torres v. State, 614 S.W.2d 436 (Tex.Crim.App. [Panel Op.] 1981). The claim may be raised either by special pleas or, as in this case, by habeas corpus. Ex parte Robinson, 641 S.W.2d 552, 553-54 (Tex.Crim.App. [Panel Op.] 1982). In this case, the trial court was mistaken in thinking that jeopardy did not attach until the indictment was read and the defendant had entered his plea. Jeopardy attaches when the jury is empaneled and sworn to try the case. Torres 614 S.W.2d at 441. A termination of a criminal trial after jeopardy attaches and without defendant’s request or consent can only be proper when required by “manifest necessity.” Chvojka v. State, 582 S.W.2d 828, 830 (Tex.Crim.App. [Panel Op.] 1979). The record reflects no finding of manifest necessity by the trial court, nor do we find any.

The state argues appellant’s motion to elect was untimely and improper and thus is the same as having “an indictment dismissed at the defendant’s request in circumstances functionally equivalent to a mistrial.” This is an exception recognized by the U.S. Supreme Court in Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). We disagree. In the first place, the procedure utilized by appellant was correct. See Fortune v. State, 745 S.W.2d 364 (Tex.Crim.App.1988). Second, the mistrial, while admittedly offered by the court, was nevertheless granted on the motion of the state. Last, appellant objected to the granting of the mistrial.

As stated in Torres, 614 S.W.2d at 441, “Once jeopardy attaches ... the defendant possesses a valued right to have his guilt or innocence determined before the first trier of fact.” The trial court erred in overruling the writ of habeas corpus. The writ is granted and the state is barred from prosecuting appellant on either of the offenses contained in the indictment.¹

WRIT GRANTED.

1 . Ordinarily, the cause would be ordered dismissed and the appellant discharged. In this case, however, the state advised this court that the original indictment had been dismissed and that appellant had been reindicted in two separate indictments. Technically, appellant should have filed an amended application for writ of habeas corpus attacking die two new indictments. The state, in its brief, urged this court, in the interest of judicial economy, to render this opinion addressing the issue.