Iglehart v. State

837 S.W.2d 122, 1992 Tex. Crim. App. LEXIS 159, 1992 WL 139305

• Court: Court of Criminal Appeals of Texas
• Decided: June 24, 1992
• Docket: 229-91
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant, Helen Louise Iglehart, was indicted for felony theft. Tex.Penal Code § 31.03. Appellant sought a writ of habeas corpus in the trial court, asserting former jeopardy for the crime alleged in the indictment. The trial court held a hearing on appellant’s claim and subsequently denied the relief sought. Appellant appealed the denial of habeas relief, and the Fort Worth Court of Appeals reversed, ordering the indictment dismissed and appellant discharged from custody. Ex Parte Iglehart, 802 S.W.2d 351 (Tex.App. — Fort Worth 1990). We granted the State’s petition for discretionary review in accordance with Tex.R.App.Pro. 200(c)(3), (4) and (6).¹ We will reverse the judgment of the court of appeals.

The essential facts of this case are undisputed. On January 8, 1990, the home of Robert LaVaye, in Flower Mound, Texas, was burglarized. The items taken included a pistol, typewriter, fox-fur coat and three pieces of stereo equipment. Robert was the record owner of the pistol and typewriter, while his daughter, Valerie LaVaye, was the record owner of the fur coat and the stereo equipment. At the time of the theft, Valerie did not reside at the residence of her father. Both Robert and Valerie filed separate complaints regarding the theft of their respective property. However, Robert then filed a claim under his homeowner’s insurance policy that requested reimbursement for all of the stolen items. Robert’s insurance company concluded that the homeowner’s policy covered all the items stolen from his residence.

On February 7, 1990, appellant was charged by information with the misdemeanor theft of Robert’s pistol and typewriter.² On February 10, 1990, appellant was indicted for the felony theft of Valerie’s fur coat and stereo equipment.³ On April 10, 1990, appellant pleaded nolo con-tendere to the misdemeanor theft charge. The trial court found her guilty and she was sentenced to forty days confinement in the Denton County Jail. On April 18,1990, appellant filed an application for writ of habeas corpus with the district court. In her application, appellant asserted the felony theft prosecution would constitute double jeopardy, as prohibited by the double jeopardy clause of the Fifth Amendment to the United States Constitution. After conducting a hearing on appellant’s application, the trial court denied her requested relief.

On appeal to the Fort Worth Court of Appeals, appellant’s sole point of error was that “the double jeopardy clause ... prevents her subsequent prosecution for items stolen from Valerie LaVaye after [she] received a misdemeanor conviction for items stolen from Robert LaVaye during the same criminal act.” Ex Parte Iglehart, 802 S.W.2d at 352-53. The court of appeals found that, under the facts of this case, only one “owner” was deprived of property. Consequently, both prosecutions comprised but one “offense.” The court of appeals’ conclusion was premised on several factors. First, the court cited § 1.07(a)(24) of the Penal Code, which defines “owner” as “a person who had title to the property, possession of the property, whether lawful or not, or a greater right to the possession of the property than the actor.” Second, the court of appeals noted that it was the position of Robert’s insurance company that all of the property stolen from his residence was considered his property for purposes of recovery under the homeowner’s policy. The court of appeals then held:

Under the facts of the instant case and under the definition of “owner” set out by § 1.07 of the Texas Penal Code, Robert LaVaye should be treated as the “owner” of all of the items taken from his home on January 8, 1990. Since only one “owner” was deprived of his property during applicant’s criminal act, only one offense was committed.

Ex Parte Iglehart, 802 S.W.2d at 353.

In reaching its conclusion, the court of appeals cited Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990), for the proposition that, “The Double Jeopardy Clause bars a subsequent prosecution, if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Ex Parte Iglehart, 802 S.W.2d at 353. The court of appeals also cited § 31.09 of the Penal Code, which provides: “When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.”

Based on the foregoing, the court of appeals found that there was only one “owner” and, therefore, one offense under § 31.03. Thus, that court held:

Prosecution under the subsequent felony indictment would require proof of an unlawful appropriation of all of the property taken with intent to deprive the owner of such property, thus proving the very conduct that constituted the offense for which applicant has already been prosecuted. Since applicant has already received a conviction for theft against Robert LaVaye, we cannot properly allow her to be prosecuted once more for this same offense.

Id.

In its brief to this Court, the State argues that the court of appeals erred in its double jeopardy analysis. First, the State avers that the court of appeals erroneously relied on the position taken by Robert La-Vaye’s insurance company that he was the “owner” of all of the property stolen from his premises. The State contends that this position was irrelevant to the court of appeals’ resolution of this case. Second, the State argues that the court of appeals opinion is in direct conflict with previous cases from this Court, holding that it is not viola-tive of the double jeopardy clause to prosecute successively a defendant for more than one crime arising out of a single course of conduct when the criminal conduct affects two different victims. Third, the State argues that the court of appeals misconstrued Grady v. Corbin, 110 S.Ct. 2084. Fourth and finally, the State asserts that the court of appeals misconstrued § 1.07(a)(24) by creating a “hierarchy of ownership”, in violation of the plain language of the statute and without any supporting authority.

In response, appellant asserts that the court of appeals correctly applied the Grady double jeopardy analysis to the facts of the instant case. Appellant argues that the cases cited by the State are distinguishable from the instant case, in that the cited cases dealt with multiple victims. Appellant contends that here there was only one victim in reality — Robert LaVaye — since he was the “owner” of all of the stolen property. Appellant further asserts that the State had the option of consolidating all the thefts into a single offense and charging appellant with that one crime, but, “[f]or whatever reason, be it mistake, miscommu-nication, or separation of duties amongst the various officials of the Denton County Attorney’s Office, the State charged two offenses from the same conduct.” As a final argument, appellant directs this Court to a line of Texas cases holding that a theft from multiple owners must be construed as only one offense, if such theft occurs at one time and at one place.

I.

We will first address the court of appeals holding that because there was only one “owner” of the stolen property, appellant committed but one offense. We find that the court of appeals was incorrect, both in its reliance on the position taken by Robert LaVaye’s insurance company and in its construction of § 1.07(a)(24) of the Penal Code.

As regards the court of appeals’ reliance on the insurance company’s position that Robert LaVaye was the “owner” of the stolen property for purposes of his homeowner’s insurance policy, the court of appeals cites no authority in its opinion for this proposition. Moreover, our own independent research has failed to uncover any statute, case or other persuasive authority capable of supporting the position taken by the court of appeals. An insurance policy, in essence, constitutes an agreement between insurer and insured, and is governed by various civil law doctrines, most of which are grounded in contract law. We do not presume to pass on the extent to which an insurer’s policy statement would be of merit in resolving an insurance contract dispute; however, we can confidently say that it has no relevance to the criminal jurisprudence of this State.

We also find that the court of appeals’ construction of § 1.07(a)(24),⁴ is flawed. When construing a statute, a court must focus on the literal text of the statute. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). When the literal text of a statute is clear, the court must give effect to the plain meaning of such text. Id. It is apparent to this Court that the text of Subsection (a)(24) plainly defines an “owner” of property as either of three things: (1) a title owner, (2) a possessor, or (3) one with a greater right to possession than the actor. The use of the disjunctive in the statute patently indicates that whenever “owner” is used in the Penal Code, it may be construed to encompass any of the statutory definitions, unless otherwise specifically provided for elsewhere. Thus, we hold that the State was correct in asserting that Valerie — as title owner of the fur coat and stereo equipment — was an “owner” of such property under Penal Code § 31.03. Having determined that there were two “owners” of stolen property in the instant case, thereby effectively negating the analytical underpinnings of the court of appeals’ holding, we turn to the substantive double jeopardy questions presented in this case.

II.

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This provision is applicable to the several States through the Fourteenth Amendment. See, e.g., Brown v. Ohio, 432 U.S. 161, 97 S.Ct. , 53 L.Ed.2d 187 (1977). It is well-settled that the double jeopardy clause embodies three essential guarantees: (1) it protects against a successive prosecution for the “same offense” after acquittal, (2) it protects against a successive prosecution for the “same offense” after conviction, and (3) it protects against multiple punishments for the “same offense.” North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 2077, 23 L.Ed.2d 656 (1969). This case implicates the latter two of these guarantees.

The first step in our double jeopardy analysis requires us to decide, as a matter of statutory interpretation, whether appellant’s conduct constituted more than one offense. This preliminary determination is necessary because, although this Court is bound by decisions from the United States Supreme Court in interpreting the scope of the double jeopardy clause of the United States Constitution, the determination of what constitutes an “offense” is largely a matter of state law: “The Legislature has the power to establish and define crimes [and ‘flew, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses.’ ” Spradling v. State, 773 S.W.2d 553 (Tex.Cr.App.1989), citing Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). If we determine as a matter of statutory construction that appellant’s conduct comprises but a single offense, our inquiry is ended, as a successive prosecution for the same offense after appellant’s earlier conviction would be a prima facie violation of the double jeopardy clause. See North Carolina v. Pearce, supra.

In construing § 31.03, we must attempt to give effect to the will of the Legislature: “[Wjhether appellant’s particular course of conduct involved one or more distinct ‘offenses’ ... depends entirely on legislative intent and not on principles of double jeopardy.” Spradling v. State, 773 S.W.2d at 556. In seeking to effectuate the intent of the Legislature, we look to the literal text of Section 31.03 of the Texas Penal Code, which provides in relevant part: A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. (Emphasis supplied). It is clear from the language used in Section 31.03 that the Legislature intended an offense to be completed under that section when a person unlawfully appropriates property with the intent to deprive the owner of said property.⁵ As discussed above, there are two “owners” in the instant case; thus, appellant has committed two distinct offenses— notwithstanding that both are violations of a single statute.⁶

III.

Having determined that appellant’s conduct comprised two statutorily defined “offenses”, and therefore was not patently violative of the double jeopardy clause, we must now decide whether the two offenses at issue are sufficiently similar to invoke the constitutional protections afforded by the double jeopardy clause. In Grady v. Corbin, 110 S.Ct. 2084, the Supreme Court made clear that the traditional Blockburger test remains the first step in the double jeopardy analysis. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under the Blockbur-ger test, where the same act or transaction violates two distinct statutory provisions (or, as here, violates one statutory provision twice), a subsequent prosecution is not barred by the double jeopardy clause if each statutory provision requires proof of a fact that the other does not. The Block-burger Test focuses on the proof necessary to establish the statutory elements of each offense, rather than the actual evidence that will be presented at trial. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980).

In Grady v. Corbin, 110 S.Ct. at 2093, the Court expanded on the Blockburger test, by adding a “same conduct” prong to its double jeopardy analysis:

Thus, a subsequent prosecution must do more than merely survive the Block-burger test. As we suggested in Vitale, the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

In our recent decision in Ex Parte Ramos, 806 S.W.2d 845, 847 (Tex.Cr.App.1991) we set forth the standard to be used in conducting the “same conduct” analysis required by Grady v. Corbin, 110 S.Ct. 2084.

[W]e must look at the underlying conduct in question to determine whether: (1) this is conduct constituting an offense (hence, “criminal conduct”); (2) the defendant has already been prosecuted for this offense; and (3) this “criminal conduct” will be used to establish an essential element of the offense charged at the subsequent prosecution. Only if the conduct meets all three parts of this test will the latter prosecution be barred by double jeopardy. In this inquiry, the focus is on the conduct itself, not how the State proves the conduct.

IV.

Applying the law, as set forth in the preceding section, to the facts of the case before us, we first hold that the felony prosecution brought in the instant case clearly does not violate jeopardy under Blockburger. The misdemeanor theft prosecution required proof that appellant appropriated a typewriter and pistol with the intent to deprive the owner, Robert LaVaye, of said property; the felony theft prosecution would require proof that appellant appropriated a fur coat and certain stereo equipment with the intent to deprive the owner, Valerie LaVaye, of said property. Each offense requires the State to prove facts not essential to the other prosecution, namely the items stolen and the ownership thereof. We agree with the State’s assertion in its brief that the theft from Valerie LaVaye could be successfully prosecuted without the need to prove that her father’s separate property was taken during the same transaction.

Second, we hold that the felony prosecution satisfies the second part of the Grady v. Corbin analysis, in that the State will not be required to prove conduct constituting an offense for which appellant has been prosecuted, in order to successfully prove up the felony prosecution. The conduct proved in the misdemeanor theft prosecution was the unlawful appropriation of certain items belonging to Robert La-Vaye. The conduct to be proven in the pending felony prosecution is the unlawful appropriation of certain other items belonging to Valerie LaVaye. Because in proving the essential elements of the felony theft offense, the State will not need to rely on proof of conduct constituting the misdemeanor theft prosecution, the felony prosecution is not violative of the double jeopardy clause, as analyzed in Grady v. Corbin, 110 S.Ct. 2084.⁷

Based on the foregoing, the judgment of the court of appeals is reversed, and the relief requested by appellant is denied. We remand this case to the trial court for action consistent with this opinion.

MALONEY, J., dissents.

1 . The State’s petition for discretionary review was granted on the following questions:

1. Does an insurance company have the authority to determine, by issuing a statement concerning its policy’s coverage for stolen property, whether a defendant has been successively prosecuted for the same offense pursuant to the double jeopardy clause?

2. Does the double jeopardy clause prohibit successive prosecutions for the theft of property X from owner A, and the theft of property Y from owner B, where the thefts occurred in the same transaction?

3. Did Grady v. Corbin "overrule" this Court’s opinions in Ex Parte Rathmell, Spradling v. State, and Phillips v. State, which teach that where a defendant’s conduct harms multiple victims, that defendant can be successively prosecuted for his offenses against each victim?

4. Does Tex. Penal Code § 1.07(a)(24)’s definition of "owner establish a hierarchy of ownership which prohibits the State from alleging ownership in the title "owner” of the property where another person is in possession of the property?

2 . The misdemeanor information read in relevant part:

[T]hat HELEN LOUISE IGLEHART, who is hereinafter styled defendant, on or about the 8th day of January, A.D., 1990, and before the making and filing of this Information, in the County of Denton of the State of Texas, did then and there intentionally appropriate, by acquiring and otherwise exercising control over property, to wit: one (1) pistol and one (1) typewriter, of the value of $200.00 or more, but less than $750.00 from the owner, Robert C; LaVaye, without the effective consent of the owner and with intent to deprive the owner of the property....

3 .The felony indictment read in relevant part:

[T]hat HELEN LOUISE IGLEHART, who is hereinafter styled defendant, on or about the . 8th day of January, A.D., 1990, and anterior to the presentment of this Indictment, in the county and state aforesaid, did then and there intentionally appropriate, by acquiring and otherwise exercising control over, property, to wit: one (1) fox coat, one (1) stereo receiver, one (1) cassette player and one (1) equalizer of the value of at least $750 but less than $20,000 from the owner, Valerie LaVaye, without the effective consent of the owner, and with intent to deprive the owner of the property....

5 . Because we find the plain language of the theft statute to be clear and unambiguous, we find the dissent’s reliance on Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), to be misplaced. There being no reasonable ambiguity, the rule of lenity embraced in Bell and the other cases cited by the dissent is inapposite to the instant case.

6 . As we stated in Ex Parte Rathmell, 717 S.W.2d 33 (Tex.Cr.App.1986), quoting Sanabria, supra: each such [offense of a single statute] constitutes a separate "allowable unit of prosecution." See also, Phillips v. State, 787 S.W.2d 391 (Tex.Cr.App.1990) (holding that the literal language of Tex. Penal Code § 22.02(a)(1) allowed for successive prosecutions for multiple aggravated assaults occurring in a single course of conduct.); Spradling v. State, 773 S.W.2d 553 (Tex.Cr.App.1991) (interpreting Tex.Rev.Civ.Stat. 6701d §§ 38 and 40 as allowing successive prosecutions where an accused failed to stop and render aid to multiple victims of a single automobile accident).

4 . Subsection (a)(24) defines owner as: "a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.”

7 . The fact that all of the stolen items were taken from the home of Robert LaVaye during a single course of criminal conduct does not alter our holding, as the Supreme Court has made clear that a mere overlap in evidence, alone, does not implicate jeopardy concerns:

This is not an "actual evidence" or “same evidence” test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct. As we have held, the presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding.

Grady v. Corbin, 110 S.Ct. at 2093; see also, United States v. Felix, — U.S. -, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992).

The dissent opines that our opinion will "allow successive prosecutions under every available choice.” We disagree with the dissent’s intimation that we have afforded the State carte blanche to engage in interminable prosecutions. Our opinion merely permits the State to successively prosecute a defendant for the discrete number of items stolen, asserting the requisite ownership in those items as permitted by law. The State is not, however, free to successively prosecute for the same conduct by merely alleging ownership in different individuals, as such prosecutions would violate the double jeopardy clause. Thus, by way of illustration, had the State prosecuted appellant for theft of the fur coat from Robert LaVaye (as possessor of the property), it could not have successively prosecuted appellant for the theft of the fur coat from Valerie LaVaye (as title owner of the property). Because this would have constituted multiple prosecutions for the same conduct under Grady v. Corbin, inter alia, it would have been jeopardy barred.