Proctor v. State

841 S.W.2d 1, 1992 Tex. Crim. App. LEXIS 218, 1992 WL 252755

• Court: Court of Criminal Appeals of Texas
• Decided: November 25, 1992
• Docket: 477-91, 478-91
• Status: Published

Opinions

OPINION ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellants, Aaron Dwayne Proctor and Jonathan L. Lemell, were tried jointly before a Harris County jury in April 1988 and found guilty of aggravated robbery, as defined in § 29.03 of the Texas Penal Code. On appeal, appellants contended, inter alia, that their convictions were barred by the double jeopardy clauses of the Texas and United States constitutions. The Eleventh Court of Appeals agreed with that contention and reversed. Proctor v. State, 806 S.W.2d 252 (Tex.App. — Eastland 1990); Lemell v. State, No. 11-88-150-CR (Tex. App. — Eastland 1990) (unpublished). We granted the State’s petitions for discretionary review, pursuant to Rule 200(c)(2) of the Texas Rules of Appellate Procedure, to determine whether the court of appeals’ holding was correct. We will reverse.

I

In April 1982, appellants were charged in separate but identical Harris County indictments with the capital murder of Wing K. Lew (paragraph one of each indictment); the murder of Wing K. Lew by intentionally causing his death (paragraph two); the murder of Wing K. Lew by intending to cause serious bodily injury to him (paragraph three); aggravated robbery by threatening or placing Yit Oi Lew (Wing K. Lew’s wife) in fear of imminent bodily injury or death (paragraph four); and aggravated robbery by causing serious bodily injury to Wing K. Lew (paragraph five). The two causes were consolidated for trial.

At a November 8, 1982, pretrial hearing, at which appeared defense counsel for both appellants, the following transpired:

PROSECUTOR: Your Honor, at this time the State is going to move to abandon all paragraphs in the indictments except the fourth one, which alleges aggravated robbery and is the paragraph that alleges during the course of robbery that Mrs. Lew was placed in fear of imminent bodily injury and death.

THE COURT: You are abandoning paragraphs one, two, three, and five.

PROSECUTOR: In conjunction, the State would file this oral motion to prohibit the attorneys from either side trying to voir dire the jury or discuss with them what they would do in an aggravated robbery in which there is a killing. Since it is no longer raised by the indictment, then we would be getting into the facts of the case, would be the State’s position.

THE COURT: Mr. O’Brien [Defense Counsel], what is your position?

MR. O’BRIEN: Your Honor, I don’t have my copy of the indictment.

THE COURT: What he has done is abandon all paragraphs in the indictment except the paragraph alleging aggravated robbery. He has then filed an oral motion in limine prohibiting, if the Court grants it, from any defendant mentioning the fact there was a killing during the process of the robbery since it is no longer alleged in the indictment.

* # * * * *

THE COURT: Your motion to abandon paragraphs one, two, three, and five will be granted. That is as to each defendant, is that correct?

PROSECUTOR: Yes, sir.

THE COURT: They will each be tried on paragraph four of each indictment, that alleging the offense of aggravated robbery. And your motion in limine will be granted.

In addition, the docket sheets in both causes contain entries dated November 8, 1982, which recite the following:

The Defendant appeared in person with counsel.... Both sides announced ready for trial. A jury panel of 50 was summoned and arrived at 1:45. On motion of the State, and with permission of the court, 1, 2, 3, & 5 paragraphs of the indictment is [sic] abandoned and dismissed.

The jury was impaneled and sworn on November 12, 1982. In keeping with the prosecutor’s abandonment of indictment paragraphs one, two, three, and five, the only offense later submitted to the jury in the trial court’s charge was the offense alleged in the fourth paragraph of each indictment, i.e., aggravated robbery by threatening or placing Yit Oi Lew in fear of imminent bodily injury or death. The jury found appellants guilty of that offense. Subsequently, the Fourteenth Court of Appeals, in unpublished opinions, reversed both convictions because of trial error.

In January 1988, appellants were rein-dicted on three counts in separate, but again identical, indictments. Each of these indictments included a count charging aggravated robbery by causing serious bodily injury to Wing K. Lew, the same charge previously alleged against appellants in the fifth paragraph of each of the 1982 indictments. In November 1988, appellants were again jointly tried, and this time only the count alleging aggravated robbery by causing serious bodily injury to Wing K. Lew was submitted to the jury. Again, the jury found appellants guilty.

At a hearing held a few days after the 1988 trial, the prosecutor of the 1982 trial confirmed under oath what the record of the 1982 trial already showed, i.e., that before the 1982 trial he abandoned the first, second, third, and fifth paragraphs of each of the 1982 indictments. The prosecutor testified further that he had intended those paragraphs to “remain active” for the purposes of a possible future prosecution.

Despite the record of the 1982 trial and the prosecutor’s testimony in 1988, the Eleventh Court of Appeals reversed appellants’ 1988 convictions on the basis of the double jeopardy clauses of the Texas and United States constitutions. The court explained in its identical opinions in both causes:

Appellant[s] in the instant case [were] convicted of aggravated robbery by causing serious bodily injury to Wing K. Lew_ This count was abandoned after jeopardy attached in the 1982 trial. The abandonment was tantamount to an acquittal of that offense. Appellants] cannot, in a subsequent trial, be prosecuted on the abandoned count. Proctor v. State, 806 S.W.2d at 252, and Lemell v. State, slip op. at 5-6. It is from these holdings that the State sought discretionary review.

II

Article I, § 14, of the Texas Constitution provides that “[n]o person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.” Similarly, the double jeopardy clause of the Fifth Amendment, 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), provides that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.”

When we interpret broadly-phrased constitutional provisions such as these, we seek to effectuate the general principles suggested by the language of the text. One of the principles suggested by the language of the double jeopardy clauses is that the Government, with all its resources, must not be allowed to make repeated attempts to convict an individual for an offense. Thus, the double jeopardy clauses reflect a concern that if the Government may repeatedly reprosecute, it will have the power to harass our citizens as well as 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.

In line with this understanding of the double jeopardy clauses, we have repeatedly recognized that any criminal charge that is abandoned or dismissed on the prosecution’s motion after jeopardy “attaches,” i.e., after an individual is placed in jeopardy of life or liberty, may not be retried. Garza v. State, 658 S.W.2d 152, 154-155 (Tex.Cr.App.1982); McElwee v. State, 589 S.W.2d 455, 460 (Tex.Cr.App. 1979); Ex parte Seelies, 511 S.W.2d 300, 301 (Tex.Cr.App.1974); compare Ex parte McAfee, 761 S.W.2d 771 (Tex.Cr.App.1988). If a charge is still pending at the moment jeopardy attaches, a defendant is entitled to expect the State to proceed to trial on that charge or lose the opportunity forever. On the other hand, if a charge is affirmatively abandoned or dismissed with the trial court’s permission before jeopardy attaches, then the Government is free to press that charge at a later time. Ex parte Preston, 833 S.W.2d 515 (Tex.Cr.App.1992); Patterson v. State, 581 S.W.2d 696, 697 (Tex.Cr.App.1979); Ochoa v. State, 492 S.W.2d 576, 577 (Tex.Cr.App.1973).

As for the question when jeopardy “attaches” in a jury trial, that, too, has long been settled. For the purposes of both our state and federal double jeopardy clauses, jeopardy attaches in a jury trial when the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); State v. Torres, 805 S.W.2d 418, 420 (Tex.Cr.App.1991); Garza v. State, 658 S.W.2d at 155.

Ill

The question before us is, then, whether the charge of which appellants were found guilty at the 1988 trial—aggravated robbery by causing serious bodily injury to Wing K. Lew—was affirmatively abandoned or dismissed with the permission of the court before the jury was impaneled and sworn at the 1982 trial. The record, as previously discussed, plainly shows that the answer to that question is yes, and we so hold. The charge pressed at the 1988 trial was adequately abandoned before jeopardy attached at the 1982 trial and was, therefore, properly preserved for future prosecution.

Our holding today is not a novel one. For example, in Patterson v. State, 581 S.W.2d 696, we faced a similar situation and resolved it the same way. There, the defendant, James Patterson

was [originally] charged in a two-count indictment with the offenses of possession of marihuana and possession of a firearm by a felon. Before a jury was impaneled and sworn the State elected to proceed on the count for possession of marihuana; the [defendant] was convicted of that offense. The [defendant] was reindicted for the offense of possession of a firearm by a felon and brought to trial [a second time]. [His] plea of jeopardy in the latter proceeding was overruled by the trial court.

Patterson, 581 S.W.2d at 697 (footnote omitted; emphasis added). We affirmed the overruling of Patterson’s double jeopardy plea at his second trial, because at his first trial the State had abandoned the firearm charge before jeopardy had attached. Furthermore, the record of Patterson’s first trial showed that the abandonment of the firearm count was done in open court with defense counsel present. See Ex parte Preston, 833 S.W.2d at 518.

Our holding in these causes today stands in contradistinction to our holding in Ex parte Preston, 833 S.W.2d 515, decided earlier this Term. In Preston, the defendant was originally charged in a single indictment with three counts of aggravated robbery. Only the second count, however, was submitted to the jury. The defendant was subsequently reindicted and convicted in a second trial, over his plea of double jeopardy, for the offenses alleged in the first and third counts of the original indictment. We reversed the convictions resulting from the second trial, holding them barred by the federal double jeopardy clause, because there was nothing in the record showing that the charges in question had been affirmatively abandoned or dismissed¹ with the permission of the court

before jeopardy had attached at the first trial. Thus, the facts of Preston were distinctly different from those in the causes before us today.

The judgments of the court of appeals are REVERSED and the causes REMANDED to that court for consideration of appellants’ remaining points of error.

CLINTON, J., adhering to procedural requisites set out in his concurring opinion in Preston v. State, 833 S.W.2d at 525, joins only the judgment of the Court.

BAIRD, J., not participating.

1 . We observe that, in large part, the difficulty experienced in this area of the law has been caused by assumptions that the use of particular terms of art ("abandon," "dismiss,” "sever," "waive,” etc.) is critical to the disposition of a jeopardy question. We have contributed, perhaps, to the perpetuation of this confusion by failing to address it. We wish now to make it clear that it is of no moment that the State uses one term rather than another. It is also of no moment whether the State informally and verbally "abandons” a prosecution as opposed to formally pursuing a written "dismissal” pursuant to Article 32.02 of the Texas Code of Criminal Procedure. What is essential is that the State, on the record with the permission of the trial judge, abandon, dismiss, sever, or take some other affirmative action before jeopardy attaches to preserve the charge for future prosecution. The lexicon used by the trial prosecutor is unimportant to the ultimate disposition of the jeopardy claim at hand.