Anthоny Lamar HARVEY, Appellant, v. The STATE of Texas, Appellee.
No. 06-12-00006-CR.
Court of Appeals of Texas, Texarkana.
Submitted May 1, 2012. Decided May 2, 2012.
367 S.W.3d 513
The intent of this statute is to deter flight from arrest or detention by the threat of an additional penalty, thus discouraging forceful conflicts between the police and suspects. Alejos v. State, 555 S.W.2d 444, 449 (Tex.Crim.App.1977). It supports an important public policy—encouraging suspects to yield tо a show of authority by law enforcement. Redwine, 305 S.W.3d at 362. Proof that an officer in a vehicle is attempting to arrest or detain a person generally consists of the officer displaying authority by the use of overhead/emergency lights and siren. While use of lights and sirens is not the only method for a peace officer to assert the authority of law (pointing to a driver to pull the vehicle over, verbal commands are others), in this instance, there is no evidence or any type of display of authority by the police officer. It is undisputed that Zimmerman did not turn on his overhead lights, аctivate his siren, or make any show of authority or other indication that he was attempting to detain Duvall. It is also undisputed that Duvall was speeding at the time he met Zimmerman and that he sped up even more upon seeing him. McKinney testified that she and Duvall saw Zimmerman‘s brake lights, but did not see him turn аround. Even if this testimony is construed that Duvall saw the officer‘s brake lights, that does not supply evidence of a display of authority by the officer or that Duvall knew the officer was not only braking, but intended to turn around, pursue him, and attempt to arrest or detain him. Necessarily, since there was no action taken by the police officer to demonstrate his authority, there is no evidence that Duvall refused to yield to a display оr showing of police authority.
Even viewing the facts of this case in the light most favorable to the jury‘s verdict, we find legally insufficient evidence from which a jury could reasonably infer, beyond a reasonable doubt, that Duvall knew Zimmerman was attempting to detain him. Accordingly, we sustain Duvall‘s point оf error, reverse the judgment, and render a judgment of acquittal.
Al Davis, Asst. Dist. Atty., Marshall, for appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
OPINION
Opinion by Chief Justice MORRISS.
Anthony Lamar Harvey pled guilty twice to the same charge of aggravated robbery, both in open pleas. After the first plea—before which Harvey had been admonished that the range of punishment was five to ninety-nine years’ incarceration—the State remembered, and notified the trial court of, its notice of intent to enhance Harvey‘s sentence.1 As a result, over Harvey‘s objection, Harvey was re-admonished that the range of punishment was fifteen to ninety-nine years’ imprisonment and entеred his second plea.2
On appeal, Harvey contends that the second plea violated his constitutional protection against double jeopardy. Because Harvey‘s initial plea was never accepted by the trial court, we disagree.
The Double Jeopardy Clause of the
“Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant‘s ‘valued right to have his trial completed by a particular tribunal.‘” Arizona v. Washington, 434 U.S. 497, 503 (1978). In a jury trial, the empaneling and swearing of the jury panel is the point at which jeopardy attaches. Ex parte Fierro, 79 S.W.3d 54, 56 (Tex.Crim.App.2002) (citing Brown v. State, 907 S.W.2d 835, 839 (Tex.Crim.App.1995)); see also Ex parte Lewis, 219 S.W.3d 335, 353 (Tex.Crim.App.2007) (double jeopardy generally prevents retriаl once jury sworn). In a Texas bench trial, jeopardy attaches when the defendant pleads to the charging instrument and the trial court aсcepts the plea. Ortiz v. State, 933 S.W.2d 102, 105 (Tex.Crim.App.1996). The rationale for this constitutional principle is based in fairness:
Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unreasonable accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be conviсted.
Washington, 434 U.S. at 503-04 (referencing United States v. Jorn, 400 U.S. 470, 483 (1971) (plurality opinion)); Ex parte Hunter, 256 S.W.3d 900, 904 (Tex.App.-Texarkana 2008), pet. dism‘d as moot, 297 S.W.3d 292 (Tex.Crim.App.2009); see also Lewis, 219 S.W.3d at 353 (noting consequence of double jeopardy jurisprudence that occasionally, guilty person goes free).
In Ortiz, the Texas Court of Criminal Appeals decided when jeopardy attaches in a case involving a negotiated guilty plea. See Ortiz, 933 S.W.2d at 105. The court held that, even though the trial court had accepted the defendant‘s plea, that acceptance was conditional, not final; and jеopardy had not attached. Id. The court, instead, ruled that jeopardy attaches “when the trial court accepts the pleа bargain.” Id. at 107. The court reasoned that a defendant is “put to a trial before the trier of fact” and placed in jeopardy not at thе time of the plea, but when that plea is accepted in full, including the plea agreement. Id. at 106.
Here, following the court‘s initial admonishments аnd explanation, the following exchange took place between the trial court, Harvey, and Harvey‘s attorney:
THE COURT: What is your plea: Guilty or not guilty?
[Defendant]: Guilty.
THE COURT: All right. At this point in time, the Cоurt will note your plea of guilty. What I‘m going to do at this point is, I‘m going to recess this hearing. I‘m going to order that the Probation Department will get with you. And, Mr. Moоre, you need to follow up on that and make sure that we get that done. I don‘t know whether or not you want to be present at the interview or what and everything. So I‘ll let you guys work through that—
[Defense Counsel]: Okay.
THE COURT: —and get that done. And once we get the presentencing report done, we‘ll reset this on the Court‘s dоcket and come back in here, and we‘ll deal with the sentencing.
“There can be no double jeopardy unless the [accused] has been previously placed in jeopardy.” Scholtes v. State, 691 S.W.2d 84, 87 (Tex.App.-Houston [1st Dist.] 1985, pet. ref‘d). Even though Ortiz and its progeny are cases involving plea agreements, thе holding and reasoning are applicable here. Even in the case of an open plea, the trial court must still accept thе plea in order for jeopardy to attach. Here, the trial court merely noted Harvey‘s plea, rather than accepting it. The trial court never accepted Harvey‘s first plea and, until after the second plea, did not find Harvey guilty.3
Accordingly, we overrule Harvey‘s point of error and affirm the trial court‘s judgment.