State v. Alvarado, Zoila

• Court: Court of Appeals of Texas
• Decided: May 6, 1999
• Docket: 13-97-00918-CR
• Status: Published

Opinion

judge-ly\ratty\r97916.dp1

NUMBERS 13-97-916-CR AND 13-97-918-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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THE STATE OF TEXAS, Appellant,

v.

ZOILA ALVARADO, Appellee.

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On appeal from the 24th District Court of Refugio County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Yañez and Chavez

Opinion by Justice Yañez

These cases come before us on the State's appeal from the granting of a writ of habeas corpus on double jeopardy grounds. We reverse.

Appellee, Zoila Alvarado, was indicted for possession of marijuana and cocaine and for having failed to pay the taxes due on these substances. The state comptroller presented the appellee a bill for $127,938 in back drug taxes, plus $25,582.60 as a penalty pursuant to Chapter 159 of the Texas Tax Code. Appellee made payments totaling $700 as partial payment. Appellee argues that partial payment and acceptance by the comptroller constitutes "entering into a payment plan" for payment of the remaining tax.

Ex parte Ward, 964 S.W.2d 617 (Tex. Crim. App. 1998), is dispositive. InWard, the court held that the automatic imposition of the tax, receipt of notice of the tax assessment, imposition of a lien based on the tax liability, and partial payment of the tax, absent an arrangement to pay the remainder, are all insufficient to constitute "punishment" for jeopardy purposes. Id. at 628-32.

In the instant cases, the trial court erred in concluding that the assessment of the taxes and the partial payment of those taxes amounts to punishment such that double jeopardy bars the subsequent prosecution of the appellee. Nor is there any evidence in the record that the appellee made arrangements with the comptroller to pay the balance of the tax liability. The State's point of error is sustained.

We REVERSE the district court's granting of habeas corpus relief and REMAND these cases to the trial court for further proceedings.

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LINDA REYNA YAÑEZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 6^th day of May, 1999.