Michael Wayne BLEDSOE, Appellant, v. The STATE of Texas, Appellee.
No. 55048
Court of Criminal Appeals of Texas, Panel No. 3.
Feb. 14, 1979
Rehearing En Banc Denied March 28, 1979.
578 S.W.2d 123
DOUGLAS, ROBERTS and DALLY, JJ.
Thomas L. Cox, Jr., Dallas, for appellant. Henry M. Wade, Dist. Atty., William M. Lamb, William C. Dowdy, III (“Trey“) and Sam G. Longoria, Asst. Dist. Attys., Dallas, for the State.
The logic of the majority quickly falls apart when other situations are considered. For example, had appellants been acquitted at the void proceeding, would the majority hold that double jeopardy prevented a subsequent trial upon a valid indictment? Its logic in this case indicates that double jeopardy would bar such a prosecution. Thus, we would be left with the curious result that a void proceeding is void with respect to a conviction but not an acquittal. A good rule of law works both ways. A void proceeding must be just that—void; for legal purposes, it never happened. The majority makes it void sometimes and not-so-void at other times.
The majority revеrses and remands this case because “the appellants have been convicted of the more serious offense of murder.” Even assuming there was error in the case, the disposition is not proper.
In determining the proper relief, it is appropriate to determine the exact injury of which complaint is made. Here, appellants complain of both prosecutorial and judicial vindictiveness. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Both Blackledge and Pearce are bottomed on the theory that a defendant should neither be dеterred from, nor penalized for, appealing a conviction. Thus, after successfully attacking a conviction, the State may not prosecute on a more serious charge nor may a judge impose a more severe sentence. However, Pearce and Blackledge did not impose an absolute bar to increased punishment. When a jury, uninformed of the prior proceedings, assesses a greater punishment or the increased punishment is based on identifiable, objective facts which occur after the original sentencing, the due process clause is not offended. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); North Carolina v. Pearce, supra.
The injury, then, is a vindictive indictment and sentence which would serve to deter the defendant. The vindictive nature of the punishment could be cured by a remand for punishment. Bouie v. State, 565 S.W.2d 543 (Tex.Cr.App.1978). Hоwever, the majority rejects the remand for punishment because “murder” is more severe than “injury to a child.” The legal consequences of both convictions are the same.
If the causes must be remanded, they should be sent back for the proper assessment of punishment not to exceed twenty years.
ROBERTS, Judge.
This is an appeal from a conviction for attempted burglary of a vehicle.
After careful consideration, we sustain appellant‘s contention that the evidence is insufficient to support his conviction, and accordingly, pursuant to the dictates of Burks v. United States1 and Greene v. Massey2, wе order that the judgment of conviction be set aside and reformed to show an acquittal.
Viewing the evidence in the light most favorable to the verdict, Fernandez v. State, 564 S.W.2d 771 (Tex.Cr.App.1978), the record reflects that on July 10, 1976, at approximately 9:45 a. m., Dallas Police Officer Fred Sibley received a radio message that an automobile was being burglarized on the parking lot of a nearby doctor‘s office. Immediately responding to the call, Sibley arrived on the scene and observed appellant near the passenger side door of a 1973 Ford L.T.D. automobile. Sibley then observed appellant duck between the cars as if he were trying to conceal himself.
A search of the immediate area revealed a screwdriver and clothes hangеr lying on the ground approximately three feet away
“Q Then when you say he appeared to be unlocking the door then you‘re just guessing that, you have nothing—other than he was standing with his back, that‘s аll you observed, is that correct?
“A Yes, sir, with his hands in front of him.
“Q His hands were in front? You couldn‘t see his hands.
“A Right, where I couldn‘t see his hands.”
It was further established that a close inspection of the complainant‘s car revealed no scratches or pry marks which would indicate that entry had been attempted; also, there was no evidеnce of flight by the appellant.
“(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”
The intended offense in the present case is that of burglary of a vehicle,
“(a) A person commits an offense if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft.
“(b) For purposes of this section, ‘enter’ means to intrude:
“(1) any part of the body; or
“(2) any physical object connected with the body. . . .”
Thus, criminal attempt responsibility attaches when оne commits an “act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” (Emphasis supplied.)
After reviewing аnd considering all of the evidence in the present case, including the incriminating circumstances surrounding appellant‘s arrest, we are unable to conclude that the appellant committed an “act,” as that word is defined by
We find that the State‘s reliance on Hines v. State, 458 S.W.2d 666 (Tex.Cr.App.1970) (Opinion on the State‘s Motion for Rehearing) is misplaced in light of the facts of the present case. In Hines, the defendant was observed at the back door of the complaining witness‘s house with one hand on the screen door handle through which he was peering. Also, the evidence showed that the defendant gained access to the premises by going through a fence gate. In the present case, however, there is no evidence that appellant touched the complain-
We conclude that the evidence, when viewed in the light most favorable to the verdict, shows, at very best, that at the moment of his arrest appellant was preparing to commit the offense of burglary of a vehicle, but that his conduct had nоt yet reached a point where it could be said to amount to more than mere preparation. The evidence to support appellant‘s conviction was therefore insufficient.
The judgment of conviction is set aside and reformed to show an acquittal.
DOUGLAS, Judge, dissenting.
The evidence in this case is sufficient to support the conviction for attempted burglary. At approximately 9:45 in the morning an Officer Sibley received a message that an automobile was being burglarized on a рarking lot near a doctor‘s office. In a very short time, Officer Sibley arrived at the scene and saw the appellant standing next to a Ford automobile. The officer approached appellant from behind. Appellant duckеd between the cars in an apparent attempt to conceal himself when he saw the officer. Within two or three feet from the appellant the officer found a clothes hanger and a screwdriver. The car had a tapе player and police scanner inside that could be seen from the outside. As the officer approached it appeared to him that appellant might have been unlocking the door; he then whirled and ducked down, kneeling to thе ground between two cars.
Appellant testified that he was tying his shoe but the officer testified that he was not. Appellant told the officer that he was coming from the doctor‘s office but when he testified he said that he was coming from a store. He testified that the previous year he had been convicted for misdemeanor theft and that he had been convicted of burglary of a motor vehicle and had been placed on probation. Appellant also testified that he hаd one foot on the car.
The majority opinion says that there was no flight in the present case. Apparently appellant thought attempted flight would be useless in view of the proximity of the officer who walked upon appellant from his back side. The facts in this case are somewhat like those in Hines v. State, 458 S.W.2d 666 (Tex.Cr.App.1970), where the conviction was for attempted burglary. In that case, Hines was seen at the back door of a house with his hand on the door handle and one hand on the wall of the hоuse looking through the screen door into the house. When the owner came up the appellant jumped off and ran. On the night in question, one passing the house could have seen a ladies’ purse on the couch in the room. The door from which Hines fled opened to the room where the purse was located. In that case we found the evidence sufficient to support the conviction. There were no tools found on or near the defendant in that case. In the present case there were tools found within two or three feet. Appellant gave an explanation to the officer that he had been to the doctor‘s office but when he testified he testified that he was coming from a store. His testimony also showed that he knew how to use a hanger to enter a motor vehicle. The evidence is sufficient to support the conviction for attempted burglary. It shows more than mere preparation. He had gone to the automobile, hе had the tools there. By his own testimony he had one foot on the car and it appeared to the officer that he was trying to unlock the car.
The judgment should be affirmed.