State v. Savage

933 S.W.2d 497, 1996 Tex. Crim. App. LEXIS 221, 1996 WL 638227

• Court: Court of Criminal Appeals of Texas
• Decided: November 6, 1996
• Docket: 866-95
• Status: Published

Opinions

OPINION ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

A jury convicted the appellee, John Savage, of Driving While Intoxicated (DWG) pursuant to Tex. Pen.Code Ann. § 49.04 (Vernon 1995). State v. Savage, 905 S.W.2d 268, 269 (Tex.App.-San Antonio 1994, pet. granted). At the trial court’s bequest, however, the appellee moved for, and was granted, a judgment non obstante veredicto (JNOV). Id. The State appealed the trial court’s decision contending that a JNOV “is, in effect, an arrest of judgment” from which the State may appeal under Tex.Code Crim. Proc. Ann. art. 44.01(a)(2) (Vernon Supp.1994). Id. The Fourth Court of Appeals held that although a JNOV is not the functional equivalent of an arrest of judgment, it may be equated with an order granting a new trial; an order which the State may appeal under Tex.Code Crim. Proc. Ann. art. 44.01(a)(3) (Vernon Supp.1994). Id. In a subsequent hearing on the merits of the State’s appeal, moreover, the Court of Appeals held that there was sufficient evidence to support the jury’s verdict of guilt and reversed the trial court’s JNOV ruling. State v. Savage, 905 S.W.2d 272, 274-75 (Tex.App.-San Antonio 1995, pet. granted).

We granted discretionary review to assess the validity of the actions taken by the courts below.¹ To evaluate the legitimacy of the prior proceedings, we must consider, first of all, whether the trial court had authority to grant a JNOV in a criminal case.² After a careful evaluation of relevant statutory provisions and case law, we conclude that the trial court had no such authority.

Rule 301 of the Texas Code of Civil Procedure does allow trial courts to “render judgment non obstante veredicto if a directed verdict would have been proper.” Tex.R. Civ. P. 301. The Texas Code of Criminal Procedure, however, supplies trial judges with no such general power of abrogation in criminal cases. Article 42 of the Code of Criminal Procedure, in fact, dictates that the judgment of the court must reflect either “the verdict or verdicts of the jury” in a jury trial or the “finding or findings of the court” in a bench trial. Tex.Code Crim. Proc. Ann. art. 42.01, § 1(7) (Vernon 1995). Therefore, the trial court does not have the authority to grant a different judgment — a judgment non obstante veredicto — than that rendered by the jury. Indeed, this Court has held that in criminal trials the court “may not receive a verdict ... and enter another and different judgment from that called for by the verdict.” Combes v. State, 162 Tex.Crim. 482, 286 S.W.2d 949, 950 (1956); see also Bigley v. State, 865 S.W.2d 26, 31 (Tex.Cr.A.pp.1993) (Clinton, J., dissenting) (stating that trial judges are without authority to grant JNOV judgments). Accordingly, we hold that the trial court’s grant of a JNOV in this case was improper.

Nevertheless, trial courts do maintain the authority to order new trials for eviden-tiary insufficiency in criminal cases; a power which is the functional equivalent of granting a JNOV in a civil case. Therefore, when a jury returns a guilty verdict and the trial court grants the defendant’s motion for new trial based upon insufficiency of the evidence under Texas Rule of Appellate Procedure 30(b)(9), double jeopardy prevents the trial court from entering any other judgment than an acquittal. Tex.R.App. P. 30(b)(9); Moore v. State, 749 S.W.2d 54, 58 (Tex.Cr.App.1988); see also Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978) (holding that the jeopardy clause bars retrial when the prosecution failed to supply sufficient evidence to merit conviction). Therefore, a trial court’s JNOV ruling after a jury determination of criminal guilt accomplishes exactly the same effect as granting the defendant a new trial for insufficient evidence — a functional acquittal.

As the Fourth Court of Appeals points out, moreover, we have held that when an order is the functional equivalent of granting a motion for new trial, the reviewing court can look past the label assigned to the order by the trial court and treat the order as a motion for new trial. State v. Evans, 843 S.W.2d 576, 577 (Tex.Cr.App.1992). Article 44.01(a)(3) of the Texas Code of Criminal Procedure expressly allows the State to appeal any trial court’s grant of a new trial. Tex.Code Crim. Proc. Ann. art. 44.01(a)(3) (Vernon 1995); cf. Stacy v. State, 819 S.W.2d 860, 861 (Tex.Cr.App.1991) (allowing the State to appeal a trial court’s grant of new trial based on insufficient evidence). Under our holding in Evans, therefore, the State had the right to appeal the trial court’s JNOV ruling as the functional equivalent of an order granting a new trial for insufficient evidence.

Importantly, our holding in no way runs afoul of double jeopardy principles.³ Double jeopardy “protects against successive prosecutions for the ‘same offense’ following acquittal_” State v. Houth, 845 S.W.2d 853, 856 (Tex.Cr.App.1992). This means that a verdict of acquittal may not be reviewed “regardless of how egregiously wrong the verdict may be.” State v. Moreno, 807 S.W.2d 327, 332 n. 6 (Tex.Cr.App.1991).

As the Court of Appeals noted, the United States Supreme Court has upheld the appeal-ability of post-verdict judgments. See United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975) (holding that double jeopardy does not bar the prosecution’s appeal of a trial court’s ruling which overturns a jury’s guilty verdict). The trial court’s JNOV ruling in the case at hand constituted a post-verdict ruling as a matter of law, not an actual verdict of acquittal. State v. Savage, 905 S.W.2d 268, 271 (Tex.App.-San Antonio 1994, pet. granted); see also State v. Daniels, 761 S.W.2d 42, 45 (Tex.App.-Austin 1988, pet. refused). Therefore, appellate review of a trial court’s post-verdict JNOV ruling represents a constitutionally permissible evaluation of legal sufficiency, not a prohibited successive prosecution for the same offense. Id. In short, double jeopardy was not offended.

Texas Rule of Appellate Procedure 80(b) expressly allows our appellate courts to render the judgment the court below should have rendered — in this ease, a judgment of conviction upon the jury’s verdict. Tex.R.App. P. 80(b). Accordingly, the Fourth Court of Appeals was authorized to overrule the trial court’s legal conclusion as to the sufficiency of the evidence and reinstate the jury’s verdict. The judgment of the Court of Appeals is affirmed.

OVERSTREET, J., dissents.

1 . The appellee's petition for discretionary review was actually granted on the following three grounds:

(1) Is a judgment non obstante veredicto a directed verdict?

(2) Did the Court of Appeals apply Article 44.01(a)(3) unconstitutionally under Article I, Section 14 of the Texas Constitution by ruling that the State had a right to appeal a trial court’s order which dismissed the case for insufficient evidence?

(3) Did the Court of Appeals apply Article 44.01(a)(3) unconstitutionally under the Fifth and Fourteenth Amendments to the United States Constitution by ruling that the state had a right to appeal a trial court’s order which dismissed the case for insufficient evidence?

2 . The appellee’s first ground for review essentially asks whether a JNOV order represents a verdict of not guilty. To answer this question, we must explore the limits of trial courts' post-verdict authority in criminal cases.

3 . In effect, the appellee’s second and third grounds for review merely question whether State or Federal jeopardy principles were violated by allowing the State to appeal the trial court’s JNOV order under Article 44.01(a)(3) of the Code of Criminal Procedure.