Bigley v. State

BIGLEY, Jr., Appellant, Ervin Allen Texas, Appellee.

The STATE of

No. 939-92. Texas,

Court of Criminal

En Banc.

June 1993.

Rehearing Denied Nov. Austin, Orr,

Stephen appellant. M. Penick, Atty., Charles D. Dist. and John Hawkins, Atty., Bastrop, M. Asst. Dist. Rob- Huttash, Atty., ert and Matthew State’s W. Paul, Austin, Atty., Asst. State’s State.

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW CAMPBELL, Judge. convicted methamphetamine or more of punishment, by proof

assessed enhanced conviction, prior felony ninety-nine one $250,000 years confinement and a fine. On appeal, appellant argued that the evidence prove was insufficient to that the amount of methamphetamine possessed weighed he grams. least agreed. Bigley v. 831 S.W.2d 409 1992) (opinion on rehear — Austin ing). In reliance on this Court’s decisions McGlothlin, Reeves, Engelking,1 court of held that had State prove failed to the substances with methamphetamine was mixed had which the the intent to increase the been added with product. final bulk of the held State substance, prove failed to that the controlled dilutants, including weighed adulterants Cr.App.1990); Engelking McGlothlin v. 749 S.W.2d 856 App.1988); (Tex.Cr.App.1988). Reeves v. the lesser-included grams. Bigley, reflect conviction at least 400 831 S.W.2d the was of murder because evidence murder. prove the offense of sufficient however, held, appeals of also The court invitation the State’s This Court declined ample appellant’s that there evidence of observing “this does that Court posses- guilt of the lesser-included offense of of a authority reform a conviction have the grams but than 400 sion of 28 or more less felony insuffi to be based on greater grams methamphetamine the of because felony, lesser which [a] cient evidence to proved possessed appellant 388.76 State Id., citing Stephens support.” will grams pure methamphetamine. of Since 812, 818, fn. jury had been instructed on lesser-includ- added). App.1990) (Emphasis possession grams more offense of of 28 or ed methamphetamine, appeals of the court of interpreted The fact that have by finding appellant guilty pos- of held that preclude in such manner as to Rule 80 methamphet- of grams of at least 400 session judg power to reform having Court amine, necessarily had also found ments, however, an inter not mean that does possessed grams of appellant least 28 appeals is denied the mediate court of also methamphetamine. appeals The court of Indeed, Rule judgments. reform power to Appellate lied on Texas Rule of Procedure ap specifically “[t]he states (hereinafter 80”) to “rule reform may: modify ... of peals posses- to reflect a conviction for by correcting reforming court or below more, grams of 28 than 400 sion less ” it, (Emphasis add Tex.R.App.Proc. ... grams methamphetamine. of ed). Asberry Appellant, citing conviction, reformed, of was affirmed as 1991, pet. — Dallas adjudication guilt, of but remanded for 'd), argues nature that “errors clerical ref punishment. trial as to corrected, involving reformation [but] judicial reasoning of the granted district appellant’s petition We Rule Nothing the text of discretionary not authorized.” review to determine whether however, power so limits the of the court appeals of the court had appeals to of reform reform the to reflect a conviction we refuse to limit Appellant below. for the lesser-included offense. appeals of to reform appeals’ of the courts application that the court of asserts involving judgments those situations of is in Rule 80 conflict this Court’s nature. of a clerical of mistakes construction the rule Urbano v. (Tex.Cr.App.1992). case, reformed In this the court Urbano did involve Rule to reflect While lesser included offense dispositive decision is of the issue con been convicted of the methamphet- fronting capi us in of an amount this case. Urbano was than greater and less tal murder which this Court amine than testimony sup- grams. Sam Bivone’s prove found the evidence insufficient to port the State’s case established aggravating element of remuneration. sought methamphetamine possessed to have this unadulterated The State grams. Since by appellant weighed 388.76 reform the conviction Court order, part, Appellate law and nature of the case relevant Rule of Proce- In Texas reads: require. dure 80 Judgment Rule 80. (b) ap- Types Judgment. The court may: modify peals ... reforming by correcting the court below it, ... (c) addition, Other the court of Orders. any

appeals may appropriate make other we have empowers concluded that Rule 80 Bigley, Id. 749 S.W.2d at 793-794. See judgments, the courts of to reform S.W.2d at n. 2. we find that prop- the court of acted however, Appeals, The Court of continued erly in reforming to reflect 44.24(b) and noted that art. had been re- guilty possessing was more pealed replaced by Rule 80 which con- grams methamphetamine than 28 based on grant authority tains a broader testimony.

Bivone’s 80(b) appeals. provides: courts of Id. Rule The appeals the court of is Types Judgment. appeals The court of AFFIRMED. (1) may: affirm the of the court below, (2) modify BAIRD, Judge, concurring. by it, correcting reforming court below reverse the of the court be- upon Based controlling authority from low and dismiss the case or render the Court, this Appeals correctly Court of judgment or decree that the court below held the evidence was insufficient to rendered, should have reverse the a finding appellant possessed metham judgment of the court below and remand phetamine aggregate in an weight of over proceedings.1 the case for further State, grams. Bigley v. 831 S.W.2d 1992). (Tex.App And, . —Austin that, Appeals correctly Court of held II. 80(b), Tex.R.App.P. authority it had the State, (Tex. Stephens In v. 683 S.W.2d 23 reform the to reflect a conviction App. 1984), the defendant was con — Dallas twenty-eight of more than However, aggravated rape. victed of less than 400 methamphetamine. Appeals found the evidence was However, Id. at writing separate I am insufficient to sustain the conviction or ly express my belief that the Court of acquittal. dered an judg We affirmed that Appeals judg was authorized to reform the State, Stephens ment. 717 S.W.2d 338 jury ment because the had been instructed (Tex.Cr.App.1986). The State re-indicted on the lesser offense. Stephens rape Stephens pre filed a application corpus for writ of habeas claiming prosecution that the

I. was barred Jeopardy the Double Clause. We found the noted, Appeals As the Court of in Garrett subsequent prosecution jeopardy was barred. S.W.2d 784 In finding specifically so we noted we held: had, trial, Stephens’ State first chosen not ... neither this Court nor the court of request an instruction on the lesser includ judg is authorized to reform the rape. Stephens ed offense of ment and sentence to reflect conviction for (Tex.Cr.App.1991). By 817-818 a lesser included offense under [Tex.Code failing pursue the lesser included offense 44.24(b)], Crim.Proc.Ann. art. since “refor trial, rape, jeopardy at the first had at mation of and sentence tached to that offense and the State done to cause those instruments to prosecuting Stephens forever barred finding reflect the true of the fact finder for that Id. offense. when such a is reflected in the or, trial, verdict in a pronounce Granger bench finding.” ment of the court’s Cr.App.1980), originally Milczanow the defendant was However, ski v. capital convicted of murder. App.1983). prove All that remains remand found the evidence was insufficient to acquittal. aggravating is to enter But for element of remuneration and act, essentially acquittal. Granger ministerial there is no ordered an was re-indict finality judgment, pretrial application lack of and hence ed for murder and filed a jurisdiction. apply continuing corpus contending no basis to for writ of habeas indicated, emphasis sup- plied. 1. Unless otherwise all acquittal. Jeop was barred Double to order an In other 80(b) However,

ardy original words, give Granger’s Clause. Rule does the courts of trial, been lesser to reform jeopardy of murder. We held this instruction barred offense. that of distinguished Granger’s jeopardy claim from comments, join I these With Stephens Granger’s held subse opinion. quent prosecution jeop for murder was ardy Granger barred. CLINTON, Judge, dissenting. (Tex.Cr.App.1993). disposition claimed for the Tex.R.App.Pro., Rule III. 80(b). 409, Bigley v. 831 at S.W.2d case, notes, majority instant the the 1992). 415, Today n. 2 — Austin the was instructed on the lesser offense literally, the rule as if it reads the twenty-eight of more than authority judi newly granted any were sans methamphetamine. less than 400 interpretive gloss cial on its intendment and by Consequently, the reformation the Court application. However, Appeals jeopardy is not bar-red. (c) 80(b) directly on from had there been no such instruction Rule and derive offense, 44.24(b), V.A.C.C.P., extant lesser included Court of former article , Advisory Appellate would not have been authorized to reform when the Committee on (“Guittard Committee”) 80(b). judgment Had Rules transformed under Rule there instruction, style appropriate essentially in been no such and format— article major by exception.1 for Thus descent action would have been the Court of with one Immediately prior repeal by judgment,” triggered also to this to "render so the 1981 revisors Supreme adopting pro- provisions Court and had other of rule must have in mind Procedure, mulgating Appellate the Rules of arti- relating they when to certain "orders” in- 44.24(b) provided: cle authority appropriate "enter serted orders.” "(b) The courts and Court of separate appears The now in Rule 80 as latter Appeals may judgment Criminal affirm the (c), mentioning only the court of subdivision both below, may the court or reverse and remand appeals. Thus intended either revisors trial, may for a or reverse and dismiss the appeal judgment apply con- direct case, may or reform and correct the doubtful. viction in a criminal case most order, may appropriate any or enter other as the express appeal direct this Court never On may require.” and the law nature case power render that the trial court 1981, 816, 133, 291, Leg., p. Acts 67th Ch. rendered, although after Burks v. should have (all 1, September emphasis effective here 1, 2141, States, United 437 U.S. 98 S.Ct. throughout is mine unless otherwise indicat- (1978), Massey, 437 U.S. L.Ed.2d 1 and Greene ed). 19, (1978), 2151, L.Ed.2d 15 in its 98 S.Ct. major exception” The "one alluded to did direct the the Court should and appeals may text is that the court of reverse the acquittal trial court to enter a judgment or below and "render the de Burks, by as "dictated” su insufficient cree court below should have rendered." 14, S.Ct., 2150, L.Ed.2d, 18, pra, at at at directly provision This comes from former Tex. S.Ct., L.Ed.2d, 25, 2154, Greene, supra, at at 24— R.Civ.App. "When the viz: See, e.g., Btyantv. S.W.2d reversed, decree of the court below shall be (Tex.Cr.R.1978) (upon for insuffi reversal may proceed render such evidence, that no those decisions "dictate cient rendered, have decree as court below should case”); had in see this further 81(c) provision except ..." Rule iterates this S.W.2d also Ortiz exception, necessary with an "when to re viz: (opinion reversing judgment Cr.App.1979) for in proceed below for further mand ings.” acquit to an sufficient evidence "tantamount tal”). grant- procedure ever code of criminal has No matters, ancillary appeals certain And in original ed did the revised or the article nor e.g., Court to "enter 44.37 directed this article further, 44.24(b) any authority; include such judgment, law and make such orders such any provide "or enter other latter did require case ...” 742; nature of the appropriate arti- order.” See O.C. article "appel- C.C.P.1879; provision amended direct That cle article C.C.P. ar- 44(c), so; provid- 938, C.C.P.1911; do it is now Rule late court” to ticle Article C.C.P.1925. pro- ing corpus and bail appeals in habeas drew Just as the Guittard Committee from ceedings. appellate civil rule 434 to insert former 80(b) appellate procedure rules of therefore, ing, Rule “the evidence this case (c) power continued whatever and au- insufficient to Bigley thority appeals already courts possessed possessed methamphetamine in an aggregate making cases, judgments its in civil weight and from grams,” Bigley, supra, of over 400 repealed article 44.24 also properly proper remedy turned from the court of over appellate to them power the same was to reverse below judgments to render ap- direct and remand the cause to the trial court to (other peal in capital criminal cases than enter a of the offense penalty) death previously alleged, vested in by and found the verdict of Court. See, jury. e.g., McGlothin v. (Tex.Cr.App.1988);

S.W.2d En I gelking v. (Tex.App.— 1987) J., (Levy, Houston dissenting [1st] 701), reversed and remanded alleges indictment in this cause at 216 (Tex.Cr.App.1988). pertinent part appellant possessed Contrary judgments of the Court “dic- methamphetamine “in an aggre- amount tated” Burks v. United States and Greene gate weight, including any adulterants and (“Burks-Greene”), Massey directing an ac- grams dilutants of 400 or more.” Tr. 2. quittal for insufficient evidence to charge The jury authorized the in similar conviction, ante, the verdict of see n. 1 the acquit appellant terms to convict pos- or in set effect aside and vacat- sessing methamphetamine in alternative actually returned, ed jury the verdict the and (400) grams amounts of “four hundred or finding rendered appellant its own “verdict” more, twenty-eight grams or more but less guilty offense, lesser included than grams,” twenty-eight or “less than judgment. also rendered its own grams.” jury Tr. 85. The returned a verdict Rejecting recently the most view ex finding appellant guilty of of pressed by Campbell Judge Stephens methamphetamine by an aggre- “in amount n. gate weight, including any adulterants and App.1990), reviewing courts of this State dilutants grams of four hundred or lack authority a reform of con more, charged as in the indictment.” Tr. 88. greater felony viction of a for insufficient charge The punishment recited the fact felony supportable evidence to a by lesser guilty pos- had been found of evidence, the the of based its sessing methamphetamine “in an amount of ability own to do so on “Rule which more, alleged in the first contains a grant broader to the indictment,” paragraph of the Tr. appeals.” Bigley, supra, courts of n. similarly verdict recited that same fact in like terms. Tr. 92. Furthermore, the court of believed The of the trial court declared Jones v. jury that the verdict of had been received Moss v. court, and entered in the minutes of the (Tex.Cr.App.1978) (opin reciting substantially in terms the verdict “employed rehearing) procedure ion on tracking allegations the indictment and the cause,” adopt Bigley further, jury findings guilt; supra, at n. 2. appel- “CONSIDERED and ADJUDGED” guilty lant of the described offense “as

charged in the Tr. 94. indictment.” II

B Upon jurisdiction determining impera- there was “no In this constitutional a prosecutions methamphet- which to tive is that all criminal an conclude grams” “speedy public by amine ... accused shall a trial exceeds 400 conclud- have [applicable opinion statutes] “In proper our impartial jury” unless waived make it clear that the approval of the trial cases with consent follows statutory of law and attorney representing the verdict as a matter court and the I, and is declaration procedure § Article Constitution of State. 1.13, repeatedly Texas; It has been result of trial.... Articles 1.05 and State of follow the V.A.C.C.P.; Commentary following must Special held that Nothing may thereto be added verdict. the latter. therefrom.” nor taken by guarantee right jury The trial original). (emphasis in guilt verdict or “inno- that the decisional will made charged cence” the offense “A is the written declaration according process to due and due course by judge and en- signed the trial the court citizens, by by law twelve fellow rather than showing the conviction or tered of record course, unless, judge 42.01, judge Article the defendant.” alone— jury acquit evi- for insufficient § directs should V.A.C.C.P. The flect, “A declaration e.g.: dence. ‘verdict’ written by jury of its issue submit- decision jury “7. verdict or verdicts of the 87.01, ted the case.” Article court; findings of or the general— The verdict must be V.A.C.C.P. In the event of conviction guilty guilty either offense adjudged guilty of the defendant is con- or of lesser included offense jury or the the verdict templated by charging instrument ...; finding of the trial court properly submitted 1(a) 37.07, (b); court. Article Articles acquittal that the 11. In the event of 37.08 and 37.09. discharged.” defendant be “guilty” A in the verdict of “as “enter another and A trial court submitted, or, “guilty” of indictment” where judgment from called different offense,” by ren included followed “lesser State, at verdict." v. Combes proper judgment dition of verdict grant a motion The trial court State, v. 70 constitutes “conviction.” Baker where “the verdict trial that rare instance 618, 998, (1913); Tex.Cr.R. at 1000 158 S.W. evidence,” contrary the law and Tex. is to State, 615, Snodgrass v. 67 Tex.Cr.R. 150 40.03(9) 30, formerly R.App.Pro. article (1912). 162, at 172-174 “On each ver S.W. predating 1101-1103—all cases annotated conviction, proper dict or Burks-Greene. judgment immediately.” shall be entered judge Article 37.12. V.A.C.C.P. The is with B authority judgment ob- out to render non the former court Decisions of veredicto, stante unlike the civil side. See made from the clear this Court have State, 482, 286 v. 162 Tex.Cr.R. Combes appellate beginning in a criminal case an State, 949, (1956); Hardy S.W.2d authority reform and power has to court 172, 54, 159 Tex.Cr.R. S.W.2d the law conviction as correct (1953) (no authority to receive verdict may require, when the nature of the case State, it); Cagle abide refuse to reforming same data for the court has the (1944); 140, Tex.Cr.R. 545-546 S.W.2d trial correcting as the State, 53, 42 118 Tex.Cr.R. S.W.2d Castro reversed have were would (1931). 779, 780, 781-782 1 Branch’s Annotated appeal dismissed. Ed.1956) (2nd 688, p. § 661-662. Code It Penal is axiomatic “clerical er- is not limited to on The function must conform to the verdict rors,” mistaken or erroneous but to correct which it is based. Tex.Jur.3d State, make the therein to see, material recitations supra; Harris v. e.g., Combes v. State, truth consistent with judgment speak the at 49 121 Tex.Cr.R. Gibson, in the record. (1932); and information contained parte Tex.Cr.R. data Ex (1939): 116 Tex.Cr.R. Barnes (1930), cited; S.W.2d predecessors, every and eases its code pro- of criminal germane see also provided power cases annotated to cedure former authority distinct article 44.24 judgments cited in notes to reverse express 176-178 and man- together standing proposition for the date to cause in specifically remand the courts, prescribed instance, appellate case, former proper viz: could reform either the or sentence Appeals may “The Court of Criminal both, “so them as to make conform to action, each reverse a criminal Otherwise, other and to the verdict."2 upon well the law the facts. A duty of an appellate court “to accord the cause reversed because the verdict is con- trary accused the benefit of verdict which the evidence shall be remanded for rendered jury,” and to set new trial.”3 aside an judgment. inconsistent Castro v. su- duty for insufficient evidence reverse pra, at 781. support a verdict and remand for new trial imposed thus obviously on the Court trumps “[RJeformation of and sentence its to “reform and judg- correct” a may be done to cause those instruments ment to make it to a conform verdict that is to reflect the true of the fact finder supported by the evidence. The annotated when a such finding is reflected in the verdict cases performed demonstrate that the Court ...” Milczanowski remand, duty its sometimes with ex- at 447 (Tex.Cr.App.1983). Power to reform a pressed reluctance, without discernable verdict, in accordance with the exception. short, In once it concluded the however, carry power “does not with it the was insufficient to the ver- judgment.” enter a Martin v. dict, the Court no choice but to reverse (1950). Tex.Cr.R. and remand. Ill B recognized 1978 this Court and ac- Apart knowledged “reform compelling and cor- that one effect of 44.24(b) rect” a article and Burks-Greene was to render the second sen- see, examples e.g., 2. For applying general Norman v. reformation verdict to but one possibly injustice rt. denied 446 where result to defendant ce 909, 1836, (1989) uncertainty U.S. 100 64 jury S.Ct. L.Ed.2d 261 because of whether assessed (where indictment, proof, jury charge punishment joint more than offenses); and verdict minimum for both compare all identified see controlled substances as "heroin” and v. Milczanowski State, 445, appellate may judgment (Tex.Cr.App.1983). at court reform 645 S.W.2d 447 erroneous "cocaine," stating judgment affirm the as State, reformed); 166, 44.25, C.C.P.1965; Hughes 848, thus v. 493 S.W.2d 3. See Article article (erroneous C.C.P.1925; 939, C.C.C.P.1911; (Tex.Cr.App.1973) judgment at 170 article article 939, C.C.P.1895, 869, may C.C.P.1879; be reformed to offense show of which ac article O.C. 744, actually construing cused convicted from indict article which read: ment); State, Huse v. Supreme may judg- “The Court revise the App.1964) (appellate court correct errone action, upon ment in a as well criminal the law jury ous recital of verdict in to reflect facts; but when a cause re- actually by jury). verdict rendered versed for the reason verdict is con- were, however, evidence, unusually quirky trary weight There a few same shall (as situations cases), shown a dearth of annotated all cases be a new trial.” remanded for words, appellate such as where the trial In court rendered other an not re- fatally based on a count in the form a where the evidence is insuffi- defective instrument, See, charging adjudged support e.g., two cient to offenses the verdict rendered. one, State, 303, jury guilt when the on but found and the Masters v. 165 Tex.Cr.R. 306 S.W.2d 355, "apply (duty Court was able to the verdict” to another 357 Court to reverse alleged E.g., guilt); count or offense therein. Garcia v. conviction where fail to show ac- facts State, 444, 113, 549, State, 149 S.W.2d Tex.Cr.R. at 114 cord: 138 Tex.Cr.R. Lozano State, (1941); 337, 1031, (1940); State, Jolly Tex.Cr.R. at 1032 Rozier 666, 279, (1920); State, followings (mostly S.W. at 668 Tex.Cr.R. at 281 Mitchell v. cases); 575, 475, (1894). liquor 18 S.W. 415 33 Tex.Cr.R. 28 S.W. Swartz reveals, App.1892), compare diligent but Knott v. So far 93 Tex. research Court 520, (1923) (where statutory duty Cr.R. adhered S.W. to its constitutional offenses, jury guilt on two submitted no those former articles. 44.25, indictment. There supra, unconstitutional. tence of Article Burks-Greene, however, sug- nothing n. Johnson v. (statute reach trials “dictates” do not gest that their (Tex.Cr.App.1978) unconstitutional Burks-Greene).4 the court.5 before of conflict with extent therefore, command, The same constitutional be required now of conviction and, being insufficient Indeed, set the evidence aside an situa- presented identical Moss guilt, support a “the a verdict except that the rendered tion — id,., acquittal,” punishment. origi- be reformed show guilty assessed On prior S.W.2d at or reversed order to Burks-Greene nal submission Jones, saying, “judgment closely the trial panel entered followed Court court,” Bryant supra, at 112. sustained as conviction cannot be “While this ... evidence is burglary habitation C burglary conviction for sufficient to sustain a affirming conviction Moss, building,” and in lights, re- In both Jones and those reforming to reflect con- appeals, inapposite, lied are on Moss, on a “lesser included offense.” viction different reasons. albeit somewhat at 545. Burks-Greene, howev- rehearing after On place, er, majority acknowledged

In be- the first Jones was decided Moreover, despite “prevent fore of defen- Burks-Greene. those decisions retrial 44.25, residence,” burglary mandate of Article the Court of a but none- dant purported and remanded to reform and affirm the theless reversed court, carefully eschew- as a for a of- the cause to the conviction “lesser included entry fense,” ing entering directing identifying any authority to without Ibid; compare so; acquittal. dissent- presumably, see do either it overlooked the Onion, Presiding Judge believed, state, ing opinion former failed mandate or at 546.6 applicable findings that it was not in a conviction, although

bench trial and resultant D they evi- could be sustained because the only Supreme Court concluded: dence was insufficient to Burks (see Accordingly, Leg., p. question open and did decide it footnote Acts 67th Ch. Moreover, 7).” by inserting # revised Article 44.25 against relying advisory "courts of or” in the first sentence and later on such cautioned by deleting entirely, original Garrett v. second sentence thus submission in legislative moving mandate to remand for n. passage trial. itself called an "adviso- to have the (1988). opinion” rehearing ry at 803-804 Nonetheless, advisory 5. evi- The Jones court went to find that the would be alluded to for a different opinions dence would conviction for more than or canted in other decade, that it was a "lesser e.g.: offense chose determine offense,” State, 555, 559, theory re- included Rogers at n. 3 v. 575 S.W.2d accordingly 1979); and affirmed formed the (Tex.Cr.App. appel- Harris, 791, (Tex. Propriety kind the conviction. of that of parte at 793 Ex 600 S.W.2d is, course, the late "reformation” issue before Cr.App.1980); today, State, 602, (Tex. us and after Burks-Greene there are other Granger at 605 v. 605 S.W.2d be considerations to addressed. Cr.App.1980); 923, State, at Black 637 S.W.2d 926 advisory majority trial 6. an 1982); added App. court, State, 734, viz: Flanagan at 739 675 S.W.2d 1984); (Tex.Cr.App. However, nothing these "... there State, 39, (Tex. 40 at Seidel v. prevent opinions which would [Burks-Greene] refused; 1983), App. PDR building. burglary retrial for — Dallas State, (Tex.App.— 683 S.W.2d 54 Welch v. be retried We hold PDR; 1984), building.” no burglary [1st] Houston the offense of of a (Tex. 921, Id., at 923 Presiding 692 S.W.2d Keith v. at 545. But as former 574 S.W.2d 1985), Onion, out, App. PDR refused again, [14th] Judge pointed "In its decision — Houston (Tex.Cr.App. 721 S.W.2d 294 Massey, supra, Court left this Keith v. Greene “... today hold only ‘just’ Since we remedy Double “the available” becomes Jeopardy precludes patent: Entry Clause a second trial acquittal of a reviewing once the has found the commands that “the defendant be at insufficient, legally only ‘just’ 37.12, discharged,” V.A.C.C.P, once Article remedy available for that court is the di- troubling question but also raises the rection acqidttal.” would, Jeopardy whether Double Clause indeed, prevent Id., S.Ct, retrial for a “lesser 437, included 2150-2151, L.Ed.2d, at at at See, Ohio, Greene, e.g. offense.” Brown supra, U.S, 24, U.S. see at 161, 2221, S.Ct, 2154, L.Ed.2d, 97 S.Ct. L.Ed.2d 187 at at 21.7 (whatever sequence, jeopardy double doc- opinion rehearing Months before the prosecutions trine forbids successive Moss, Supreme Court reminded the offense), greater and lesser decided after bench and of a bar truism founded prior Jones but to Moss. principle common law acquit, viz: autrefois “... particular signifi- By pretermitting entering [T]he law attaches directing en- acquittal. permit try

cance to an To second to which Moss acquittal, trial clearly and, instead, after an however mistaken remanding entitled acquittal may been, cause, pres- have majority would sought the Moss to fi- ent unacceptably high way only ‘just’ risk its remedy” nesse around “the Government, vastly superior its to achieve a “retrial” for lesser included sources, might wear down the defendant so offense—whether on or a in- the same though ‘even innocent he say again, contrary dictment it did not — ” guilty.’ dictates Burks-Greene and of our statutes. Scott, 91, 82, United States v. at U.S. E 2187, 2194, 65, S.Ct. at 57 L.Ed.2d examination, then, After closer (1978); States, neither Green v. United U.S. “employed nor (1957).8 actually pro- Jones Moss 78 S.Ct. 2 L.Ed.2d 199 “[I]t purported cedure” should make reviewing no difference that the court, “adopt” Bigley, this cause. at court, rather than the trial determined Burks, the evidence to be insufficient.” su- fact, rehearing On and after the the Moss S.Ct, pra, 2147, L.Ed.2d, at at at 9. majority said that in “we should Jones have Thus the latent reason the Moss remanded the cause for court to ordering punishment.” reversed and remanded instead of reassess 545. Of Keith, 1986); Greene, parte supra. Ex 761 S.W.2d 1988), (Tex.App. n. 1 [14th] remand — Houston Keith, parte right order Ex set aside "The constitutional of a defendant (Tex.Cr.App.1989); prosecuted following jury further to be ver- Chandler v. guilty dict of not is assumed to be 'fundamen- 1987), App. Corpus Christi and re reversed — tal' because is the most 'absolute.' [notes grounds manded on other Chandler throughout] Jeopardy omitted The Double (Tex.Cr.App.1990); 790 S.W.2d 635 finality jury acquit- accords Clause absolute parte Stephens, Ex at 210-211 even tals where the is acknowl- 1988), affirmed sub nom. — Dallas v. ,in edged good to have faith acted and even Stephens acquittals 'egre- where the are known to be — —, rt. denied 112 S.Ct. U.S. ce giously erroneous.’ constitu- 116 L.Ed.2d protection against jeopardy pro- tional double Incidentally, "advisory opinion” in Garrett v. following acquittal, a second hibits no State, supra, Stephens out turned to be correct. 'egregiously legal how matter erroneous’ the State, supra, 806 S.W.2d at 819-820. leading rulings acquittal of prohibition "... the Since constitutional might be. against jeopardy fully applicable double to '[Jjury acquittals they are ... [because] final proceedings, Mary- state criminal Benton represent findings by factual of innocence a land, U.S. [395 S.Ct. body that has to find unreviewable [(1969)] apply L.Ed.2d we are bound to 707] Thus, (and jury acquittals are final facts.' the standard announced in case at Burks to the not) they are are 'state- convictions because hand. ” of actual ments innocence.' only per If we confronted the were Note, Court, Technicality, a S.Tex.L.Rev. opinion Supreme curiam of the Florida Off " * * * (1992). case reversal would follow. at 294-295 reform,” course, meaning of related by way there no to contextual “to time was accomplish authoritatively a “should’ve.” con- “judgments,” to as here more one by strued the Court over than itself, “re- the did not Moss of years. hundred discussion authorities See to the of the form district B, ante.9 diligent Part II So far as a of of- [a reflect conviction lesser included reveals, never before did the a search nor “remand the cause for new trial fense]” punishment,” judgment” to as the court of the of as “reform and correct Court Rather, it, Bigley, as would have at 415. below a determination the court ante, agreeing with former demonstrated support the ver- was insufficient to Presiding Judge Onion that Burks-Greene indeed, by jury; a until guilt of dict ... of “prevent the retrial for the offense statutorily required then it was to reverse burglary a of of residence” which he remand the cause. See the and convicted, disguised “acquittal” it been evi- Part III B. After Burks-Greene where gratuitous required by with a Burks-Greene insufficient, the was consti- dence was (and discredited) “advisory” since about “re- ‘just’ grant only tutionally mandated to “the Moss, trial” for another offense. at 545. i.e., available,” judg- remedy direction effect, did in acquittal just ment of Moss — IY E, III D and if not word. See Part deed Today disposition of this Court affirms the ante. appeals essentially on its own skimpy reading, textual viz: appellate of an court direct-

Nothing in Rule so the text of to a ing the trial court enter to power limits of the courts of underlying necessarily nullifies the judgments reform of the court below. original judg- guilt well as verdict of to limit the refuse verdict, un- Without a ment conviction. judg- reform courts to judicial of former arti- swerving construction involving ments to mis- to situations 44.24(b) way “reform” in such a cle defined takes of a clerical nature.” “reforming” judgment as to dictate opinion, Slip at 3. of- lesser included reflect a conviction set- permissible option. The However, is not a fense parsing as well in full text of rule, in context of the meaning of “reform” limitations will be found in tled language used in Legislative judicial us that the use and "re- "... It occurs to construction of 44.24(b) correct,’ statute, form" the context of former article has more our ‘reform predecessors unique appears com- power when force than if the statute contained Dictionary pared to comments in Black's Law Legislature Evidently merely to 'correct.' (Rev.Fourth Ed.1968), viz: ‘reform,’ in addition to used the word seldom, “It is to be observed ‘reform’ ‘correct,’ larger purpose, and has for some ever, if [sic] used correction defective correct; signification. 'Reform' means pleadings, judgments, judicial or other decrees anew; ... rectify, omitted.] [citation make proceedings; being proper 'amend' term accordingly below hold that the We " * * use. corrected, so as to reformed should be on, statutory Early Texas scriveners used read, with the in connection make it correct," interchange terms "reform and if not verdict, entered, following as fol- as lows, pur ably, single function and its connote [formally guilt of- adjudging wit: pose: it be to reform in order that punish- jury,' fixing by the fense ‘as found verdict, it conform to the free correct—that jury,’ et been determined ment 'as has omis commission defects deficiencies cetera].” See, e.g., Thomas v. 31 Tex.Cr.R. sion. (The Id., argued those dissent 98 S.W. (1892); 55 S.W. 19 S.W. 901 Burks purported meant omissions (Tex.Cr.App.1900); Turner v. at 825-826 “final,” appellate juris lacked so the Court (1901); 68 S.W. 44 Tex.Cr.R. S.W. at it. and reform diction to consider 887-889). (Tcx.Cr.App. Brady S.W. views, see both 550, treatment of latter, For full 1903). statutory two As to where 126 S.W. Tex.Cr.R. judgment 344, Robinson requisites were omitted from the rehearing). (opinion on McCorquodale S.W. 54 Tex.Cr.R. (1906), rehearing rea the Court soned: former statute must remain the in simi- same

lar context successor rule of See court. OPINION ON STATE’S PETITION FOR Code, § V.T.C.A. Government 22.108 DISCRETIONARY REVIEW (rules may “abridge” not or “modify” sub- McCORMICK, Presiding Judge. rights litigant). stantive appellant Ralph convicted Wilbur Moss, child, again, Because sexually assaulting once Pawson reasoning, punishment decision “should be made with his years’ assessed at twelve con reason,” id., $10,000 Y.T.C.A., declines to at 546 finement and a fine. Penal P.J., (Onion, 22.011(a)(2)(A). dissenting), Code, woodenly ap instead Section direct On approves a reading peal, Appeals literal of a rule of court the Court of reversed con viction, directly contrary judi- not to consistent and remanded the cause a new for cial statutory language construction of like trial. Pawson v. No. 2-89-007-CR Worth, (Tex.App. used since 1858 from which the January rule de- delivered — Fort rived, 1990) but also (nonpublished). to constitutional since granted dictates We entitling appellant petition to a judgment discretionary of State’s for review to I acquittal, prosecution must dissent. in a determine whether

V.T.C.A., Code, 22.011(a)(2), Penal Section defendant must claim the victim consented as MALONEY, JJ., join. MILLER and prerequisite raising promiscuity de Code, V.T.C.A.,

fense under Penal Section 22.011(d)(1).

In Hernandez v. 1993), (Tex.Cr.App., this Court decided the effect, and, adversely issue the State consent held is irrelevant 22.011(a)(2). under Section ground we overrule the State’s Ralph PAWSON, Appellant, Wilbur review, and affirm the of the Court Appeals. Texas, Appellee. The STATE of WHITE, J., dissents with note: respectfully I dissent for the reasons set No. 367-90. dissenting opinion out Hernandez (Tex.Cr.App., S.W.2d 908 Texas, Court of Criminal 1993). En Banc. BAIRD, J., joins opinion but dissents Oct. publish. decision

MEYERS, J., participating. CLINTON, Judge, concurring. Court, join opinion I write further, emphasize pe essentially certain particular are culiarities of this case that found Hernandez v. 1988), [14th] affirmed — Houston Metcalfe, Dallas, appellant.

Don (Tex.Cr.App.1993, rehearing 22, 1993), September although denied Cobb, Atty., Jerry Former Dist. Gwin- enough. surely facts there are bizarre Jessee, Nancy da At- Burns Asst. Dist. (November 1, Denton, Huttash, 1986), tys., Atty., pertinent Robert State’s As here Austin, provides: for the State. 22.011

Case Details

Case Name: Bigley v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 16, 1993

Citation: 865 S.W.2d 26

Docket Number: 939-92

Court Abbreviation: Tex. Crim. App.