Ex parte Eugene Alvin BROXTON
No. 1394-93
Court of Criminal Appeals of Texas, En Banc.
Nov. 16, 1994.
23
We have no reason to believe that defense attorneys will ‘sandbag‘—that is, consciously default or poorly litigate their clients’ Fourth Amendment claims in state court in the hope of gaining more favorable review of these claims in Sixth Amendment federal habeas proceedings. ... [I]t is virtually inconceivable that an attorney would deliberately invite the judgment that his performance was constitutionally deficient.
Kimmelman, 477 U.S. at 382 n. 7, 106 S.Ct. at 2587 n. 7 (emphasis added). The same can be said about an attorney who fails to make a meritorious Batson objection. Thus, the majority‘s fears regarding the finality of convictions are groundless.
V.
CONCLUSION
When a defendant establishes ineffective assistance of counsel based on counsel‘s failure to protect his equal protection rights as defined by Batson, prejudice should be presumed. As the Supreme Court recognized in McCollum, “there is a distinction between exercising a peremptory challenge to discriminate against jurors on account of race and exercising a peremptory challenge to remove an individual juror who harbors racial prejudice.” McCollum, U.S. at ———, 112 S.Ct. at 2359. See also, Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723. Today, the majority blurs this important distinction and weakens our previous commitment to the ideal of fairly selected juries.
For these reasons, I respectfully dissent.
OVERSTREET, J., joins this opinion.
John B. Holmes, Jr., Dist. Atty. and Rikke Burke Graber, George Lambright & Bill Hawkins, Asst. Dist. Attys., Houston, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
CLINTON, Judge.
Appellant brings this petition for discretionary review from the appeal of the denial of his pretrial writ of habeas corpus. The question presented on appeal was whether the use of an unadjudicated extraneous offense as evidence in the punishment phase of a caрital murder trial, where the death penalty was assessed, barred the subsequent prosecution of that offense under the double jeopardy clauses of the Fifth Amendment of the United States Constitution and Article I Section 14 of the Texas Constitution. The court of appeals held that the subsequent prosecution did not violate the double jeopardy clauses of either the United States or Texas Constitutions. We granted this petition for discretionary review to examine that holding.
I.
Appellant wаs convicted of the capital murder of Sheila Dockens in Cause No. 599,218. At the punishment hearing, the State introduced evidence of several unadjudicated extraneous offenses.1 Appellant was sentenced to death. Later, the State announced that it planned to try appellant on another capital murder—one of the offenses introduced at the Dockens punishment hearing. Appellant filed an application for writ of habeas corpus alleging that the prosecution was barred under the double jeopardy clauses of the United States and Texas Constitutions. The habeas court denied appellant relief. The Fourteenth Court of Appeals affirmed. Broxton v. State, 866 S.W.2d 711 (Tex.App.—Houston [14th] 1993).
Appellant argued on appeal that double jeopardy barred his prosecution for the extraneous offenses used in the Dockens punishment hearing because he was already punished for those offenses. As the court of appeals stated, “[t]he crux of Broxton‘s complaint is that the State used the extraneous offenses as a basis for the death penalty. He received the death penalty. Therefore, double jeopardy bars a second punishment for those offenses in a subsequent trial.” Broxton, supra, at 714. The court of appeals held that there was no double jeopardy bar and referred to its opinion in Lester v. State, 824 S.W.2d 775 (Tex.App.—Houston [14th] 1992, pet. ref‘d), as being dispositive. Essentially the court of appeals hеld, as it had in Lester, that double jeopardy was not offended because (1) the sentencer should have before it all of a defendant‘s criminal activity in order to properly sentence the defendant, and (2) the mere consideration of an extraneous of-
II.
The Double Jeopardy Clause of the United States Constitution provides “[n]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
The Double Jeopardy Clause of the United States Constitution embodies three protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228, 235 (1980); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969); Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Cr.App.1991).
These double jeopardy protections apply only when the duplicative prosecutions or punishments involve the “same offense.” See United States v. Dixon, — U.S. —, —, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556, 568 (1993). The “same elements” test, or Blockburger test, is used to determine whether two offenses constitute the “same offense” for double jeopardy purposes:
“the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932); United States v. Dixon, supra, — U.S. at —, 113 S.Ct. at 2856, L.Ed.2d at 568. The first inquiry, therefore, is whether or not the “same offense” is involved. In the first trial, the offense for which appellant was prosecuted was the capital murder of Sheila Dockens. Now the State intends to proceed to prosecute at least one of the other offenses for which appellant stands indicted. See n. 1, ante. These offenses do not involve the “same act or transaction” as the capital murder of Sheila Dockens. They are different in time, place, and victim. For double jeopardy purposes, these offenses are clearly not the “same offense” as that for which appellant has been convicted already for double jeopardy purposes. See United States v. Felix, — U.S. —, —, 112 S.Ct. 1377, 1382, 118 L.Ed.2d 25, 33 (1992).
Appellant does not argue, however, that the capital murder of Sheila Dockens is in any sense the “same offense” as any of those for which he has also been indicted. Thus, he admits he has no claim under the double jeopardy protection against multiple prosecutions. See United States v. Felix, supra, — U.S. at —, 112 S.Ct. at 1383, L.Ed.2d at 34. Instead, appellant argues that by utilizing the as-yet unadjudicated offenses at the punishment phase of the prosecution for the capital murder of Sheila Dockens, the State has effectively punished him once already for those offenses, and to obtain convictions on those offenses now would violate his double jeopardy protection against multiple punishment.
In order for there to be any double jeopardy bar to this second prosecution under the double jeopardy guarantee against multiple punishment, appellant has to have already been punished once. The issue before this Court is therefore whether appellant was punishеd for the unadjudicated offenses as a result of receiving the death penalty in the Dockens capital murder trial, when those unadjudicated offenses were used as evidence in the punishment hearing. We hold that appellant was not punished, and therefore he
III.
Extraneous offenses are frequently given consideration in sentencing decisions and the double jeopardy clause is not offended. Both the United States Supreme Court and this Court have held that the use of prior convictions for enhancement purposes under a recidivist or habitual offender statute does not constitute double punishment for those prior convictions and therefore does not violate double jeopardy. McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Passmore v. State, 544 S.W.2d 399 (Tex.Cr.App.1976); Mullins v. State, 409 S.W.2d 869 (Tex.Cr.App.1966). The United States Supreme Court has held that the consideration of prior convictions in the punishment phase of a trial does not constitute double punishment for those prior convictions. Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959) (capital murder trial). While the decision in Williams was based on the due process clause, many courts have held that its reasoning applies to the double jeopardy clause as well. See United States v. Cruce, 21 F.3d 70, 75 n. 8 (C.A.5 1994); United States v. Wise, 603 F.2d 1101, 1106-07 (C.A.4 1979); United States v. Carey, 943 F.2d 44, 46-47 n. 4 (C.A.11 1991), cert. denied, Id. — U.S. —, 112 S.Ct. 1676, 118 L.Ed.2d 394 (1992); Johnson v. District Court of Oklahoma County, 653 P.2d 215 (Okl.Cr.App.1982).2 Numerous courts have held that the consideration of unadjudicated extraneous offenses
at the punishment phase in noncapital cases does not constitute punishment for those offenses and therefore the subsequent prosecution of those offenses does not violate double jeopardy. See Sekou v. Blackburn, 796 F.2d 108 (C.A.5 1986); Callins v. Collins, 998 F.2d 269, 274 (C.A.5 1993); United States v. Carey, 943 F.2d 44 (C.A.11 1991); United States v. Piteo, 726 F.2d 53, 54 (C.A.2 1984), cert. denied, Id. 467 U.S. 1206, 104 S.Ct. 2390, 81 L.Ed.2d 348 (1984); State v. Doucette, 150 Vt. 125, 549 A.2d 268, 269 (1988); Sheriff, Lander County, Nevada v. Morfin, 107 Nev. 557, 816 P.2d 453 (1991).
The Oklahoma Court of Criminal Appeals has addressed the exact issue before this Court today. Johnson v. District Court of Oklahoma County, 653 P.2d 215 (Okl.Cr.App.1982). In Johnson the court found that the unadjudicated extraneous offense evidence was used to establish the defendant‘s character and criminal propensities, in order to justify the imposition of the death penalty. The court hеld that such consideration did not constitute punishment and that the subsequent prosecution of the defendant for those offenses did not violate double jeopardy.4
Numerous Texas courts of appeal have addressed similar issues and all of these courts have held that the subsequent prosecution of an offense used as evidence in a punishment hearing does not violate double jeopardy. See Smith v. State, 842 S.W.2d 401 (Tex.App.—Fort Worth 1992, pet. ref‘d) (capital punishment hearing, jury answerеd “no” to special issue number two); Davis v. State, 839 S.W.2d 147 (Tex.App.—Beaumont 1992, no pet.) (noncapital punishment hear-
The underlying rationale for all of these decisions is that the sentencer needs to have information about the individual defendant, including his criminal background, in order to make the appropriate sentencing decision—to make the sentence fit the offender. See Sanne v. State, 609 S.W.2d 762, 773 (Tex.Cr.App.1980); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929, 941 (1976); Sekou v. Blackburn, supra, at 111; United States v. Bowdach, 561 F.2d 1160, 1175 (C.A.5 1977); United States v. Piteo, supra, at 54; Sheriff, Lander County, Nevada v. Morfin, supra, 816 P.2d аt 455. The heavier penalty, which may result because of the consideration of other criminal conduct, is not punishment for the other crimes; rather, the existence of the other crimes aggravates the commission of the latest crime and justifies the imposition of a harsher sentence for the charged offense. See McDonald v. Massachusetts, supra, 180 U.S. at 312, 21 S.Ct. at 390, 45 L.Ed. at 546-47; Sekou v. Blackburn, supra, at 112; Johnson v. District Court of Oklahoma County, supra, at 218-19.6
This reasoning is equally applicable to the consideration of unadjudicated extraneous offenses at a capital murder punishment hearing. Under
We hold that appellant was not punished for the unadjudicated extraneous offenses at the capital punishment hearing. Extraneous offenses, both adjudicated and unadjudicated, are frequently considered in sentencing. The sentencer needs to have as much information about the individual defendant as possible in order to make the appropriate sentencing decision. Such consideration does not violate the double jeopardy clause because the punishment is for the charged offense, not for the extraneous offenses.
There is no need to address appellant‘s contention that the Texas double jeopardy clause provides greater protection under these circumstances than doеs the United States double jeopardy clause. Because we find that appellant was not “punished” for the unadjudicated extraneous offenses at the Dockens capital punishment hearing, the double jeopardy protection against multiple punishment, under either constitution, is not implicated and therefore not violated.
Accordingly, we affirm the judgment of the court of appeals.
MALONEY, J., concurs in the result.
BAIRD, Judge, concurring.
Appellant has been convicted of capital murder and sentenced to death. See,
The majority grapples with appellant‘s double jeopardy claim and concludes this subsequent prosecution is not jeopardy barred because appellant was not punished at his earlier trial for the offense giving rise
In my view, a more persistent question remains: What is to be gained by this subsequent prosecution? Today, there are nearly 400 inmates on death row in Texas. Since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (decided in conjunction with Branch v. Texas), Texas has carried out more executions than any other State. There seems little doubt that our deаth row population will continue to grow and that our executions will increase in number. However, this will not occur without great costs to our already burdened criminal justice system. The average inmate serves ten years on death row prior to his execution. Jackie Koszczuk, Group blasts Texas in death penalty study, Fort Worth Star Telegram, January 14, 1993 (quoting Ron Dusek, spokesman for Texas Attorney General). There is general agreement that the average costs of a capital murder prosecution exceeds $2,000,000.00. Jim Mattox, Texas’ death penalty dilemma, Dallas Morning News, August 25, 1993. But there are additional, non-financial, costs involved.
A capital murder prosecution consumes the time of the trial judge and the prosecutors as well as the time of the clerk, bailiff, jailer and court reporter. These public servants are not able to discharge their other duties while the court is in session ruling on motions, selecting a jury and trying the case. Such prosecutions also require the testimоny of many police officers, investigators, medical examiners, criminologists and others who will spend countless hours preparing their testimony, waiting to testify and eventually testifying. Instead of protecting the streets and neighborhoods, seeking solutions for unsolved crimes, interviewing witnesses, or preparing for other trials, those various public servants bide their time at the courthouse. All of these individuals are compensated from public funds.
Unfortunately, these are not the only participants involved in suсh a trial. Hundreds of citizens will be summoned to court as potential jurors. Their time is consumed sitting around the courthouse where countless hours will be wasted while they wait to be questioned by the parties and judge. During this time, these potential jurors are away from their work and homes, losing income and valuable time with their families. From these hundreds of citizens, no less than twelve will be chosen to serve on the jury. The jurors suffer the hardship of spending weeks and perhaps months away from their families and jobs.
Apparеntly, there exists no scarceness of judicial resources in Harris County; nor can there be a shortage of prosecutors or peace officers. This subsequent capital murder prosecution of appellant will apprise the Legislature that no more courts are needed in Harris County and no additional funds will be requested for more police officers or other similar public servants.
Finally, one must ask what effect will a second death sentence have? Will one who аlready resides on death row be deterred? Will others be deterred by knowing that if they commit two capital crimes, they will be executed not once but twice? Such questions are left to be answered by others—either the elected district and county attorneys of this State who decide when to seek the death penalty, or the voters to whom those prosecutors are ultimately accountable. All the while, we spend our time, efforts and resources addressing issues raised by a man alreаdy condemned to die.
With these observations, I join the majority opinion.