Ex Parte Chappell
959 S.W.2d 627
Tex. Crim. App.
1998
Check Treatment

*1 uрon “[p]erverse[ness]” merited our jury penalty letting

death scheme not eligi

know when the defendant will become parole if he ble for is not sentenced to death. —Texas, U.S. -,

Brown I find rath L.Ed.2d likewise approval perverse

er this continued Court’s keeping jurors ignorant and uninformed of legal making

such a critical fact life and when pen

death as decisions to whether death

alty jurors Capital will be assessed. deserve

to be so informed so that can make an Hopefully majority

informed decision. this;

this Court will soon realize before

Supreme explicitly informs us via a Court

myriad opinions being of our reversed.

I respectfully majority’s dissent dis- holding point

cussion and of error one.

Otherwise, disposition I concur in of all points.

the other Jason Wallace CHAPPELL. Chappell, pro se. Jason Wаllace Anahuac, Bradley, Atty., Dan P. Asst. Dist.

No. 72763. Paul, Austin, Atty., Matthew State’s ‍‌‌‌​‌​‌‌​​‌​​​​​‌​‌​‌​‌‌‌​‌​‌​‌‌‌‌​‌‌​‌​​‌​‌​​‌‌‍Texas, Court Criminal State. En Banc. Jan. 1998.

OPINION MANSFIELD, Judge, delivered Court, joined by opinion the which was McCORMICK, Judge, Presiding PRICE, KELLER, HOLLAND and WOMACK, Judges. Chap- ordered Jason Wallace

We pell’s post-conviction application for writ corpus filed and set submission hаbeas he denied his whether has been determine Double Clause right, under the Fifth Amendment to the States Constitution, punish- multiple to be free of deny will ments for the same offense.1 We requested. relief App. at 1. Ann. art. 11.07.” [Proc.] filed his writ "under Tex. Code Crim. *2 628 prosecuted Relevant Facts thereafter he could not be punished again for of the cocaine or us, From the scant glean record before we pay Applicant failure to the tax. pri relied following

the applicant’s facts relevant marily upon in Dept. the decision Revenue claim: Ranch, 767, Montana v. Kurth 7, 199B, May On Cоunty the Chambers 1937, 128 114 S.Ct. L.Ed.2d 767 grand jury applicant aggravated indicted for namely 11,1997, of a controlled February Comp- On or about the Safety See Tex. Health & Code troller “dismissed” the tax assessment made 481.112(a). 26, § May On or about the against See Tex. Tax Code applicant. Comptroller Texas of Public Accounts sent § 159.206. applicant a notice of tax due in the amount of 26, 1997, February On the State filed an $11,200. Evidently, Comptroller’s it was the applicant’s answer to application, arguing applicant belief that owed the tax on account which, true, allege that he “fail[ed] tо facts if “possession, purchase, of his acquisition, im- would entitle him to ... relief.” See Ex manufacture, portation, production” Maldonado, (Tex. parte 688 S.W.2d 116 159.101(a). § cocaine. See Tex. Tax Code (in Crim.App.1985) post-conviction a collater tax, however, pay did not then the аttack, applicant allege al burden is on thereof, any portion nor has he done so which, true, prove facts if entitle him to 8, 1993, since.2 On grand jury October the relief). specifically, argued More the State applicant ‍‌‌‌​‌​‌‌​​‌​​​​​‌​‌​‌​‌‌‌​‌​‌​‌‌‌‌​‌‌​‌​​‌​‌​​‌‌‍indicted pay for failure to the tax. “any may that fine that have been as [sic] 159.201(a). § Tex. Tax See Code [against applicant] sessed was dismissed and 3,1994, February On applicant pled guilty, payments ... no were ever made.” in single proceeding, charges to the con- 27, 1997, February On the district court tained the two indictments. The district “allege[d] concluded that had court imprisonment assessed which, true, facts if [him] would entitle eighteen $1,000 years plus for fine in the relief,” deny re- recommended we aggravated delivery case, imprison- and at lief. $11,200 years ment plus for ten an fine the suspended tax case. court punish- Finally, 7, 1997, May on we orderеd placed ment in the tax ease and on applicant’s application filed and set for sub probation years.3 for ten mission, only application insofar as his 19, 1996, applicant On December filed a challenged validity of his conviction the

pro se for corpus writ of habeas aggravated delivery case. Tex.Code court, convicting district in which he 11.07, § Crim. Proc. art. 5. Because argued that both of his convictions were placed probation in on the tax “void” because were obtained in contra- may conviction is not “final” and not be vention of his state and federal constitutional parte challenged Article 11.07. Ex rights punished not to be twice for the same Payne, (Tex.Crim.App. 618 S.W.2d Const, V; offense. See U.S. amend Tex. 1981). Const, I, § specifically, appli- art. 14. More that, argued jeopardy pur- cant for double Analysis poses, “punished” possession he was Comptroller the cocaine when The Fifth assessed Amendment’s Double him, Clause, i.e., drug against against made enforceable the states when the Comptroller determined that he owed the Due Process Clause of the Fourteenth tax, 26, 1993, Amendment, May Maryland, or about and that Benton v. U.S. long jeopardy

We have that a held double claim 2. The record before us does not show whether any steps subject proper corpus has ever taken to col- is a for a writ of habeas 11.07, lect the tax. despite applicant’s under Article fail- ure, as in this to raise the issue in the trial Evans, court. See Ex 530 S.W.2d 3. The record before us does not show whether applicant appealed from these convictions. 784, 794, 2056, 2062, pos- tangible loss because 23 L.Ed.2d 707 suffered a (1969), provides: any person marijuana. “[N]or shall session subject put for the same offenсe to be twice holding grounded Our in Stennett was jeopardy Although of life limb.” that, jeopardy pur on our view limb,” only to “life or Clause mentions harm *3 poses, taking of “punishment” in the consists imprisonment it is settled that it covers and Accord, life, liberty, property. or United Ranch, monetary penalties. 511 Kurth U.S. 193, Sanchez-Escareno, v. 950 F.2d States 1, at n. 114 at n. 1. 768-771 S.Ct. 1941 It is (5th 841, Cir.1991), denied, 506 201 cert. U.S. provides also the settled that Clause three (1992). The 121 L.Ed.2d 78 separate protections for criminal defendants: drug Comptroller’s assessment of the tax against prosecution a second for the same however, against deprivеd him of applicant, acquittal, against pros- offense after a second life, liberty, property and none these. His conviction, for ecution the same offense after Comptroller’s suffered detriment from the no multiple against punishments and for the that, action. conclude in the absence We Halper, same offense. United States v. 490 life, liberty, permanent deprivation some 435, 440, 1892, 1897, U.S. 109 104 S.Ct. property the of the related to collection (1989); Stover, parte 487 L.Ed.2d 946 tax, applicant no for “punishment” suffered S.W.2d 343 see But purposes Jeopardy Double Clause. thе the also, States, v. Hudson 62 Cr.L.2019 People Litchfield, 902 P.2d (defendants “punished,” (Colo.App.1995) not protection applicant It ‍‌‌‌​‌​‌‌​​‌​​​​​‌​‌​‌​‌‌‌​‌​‌​‌‌‌‌​‌‌​‌​​‌​‌​​‌‌‍the is third jeopardy purposes, by as for double mere today. to A ques- seeks enforce threshold tax, drug had sessment of where defendants tion, therefore, whether, is at the time he paid tax, no had acted collect the state not to pled guilty charges to the in the two indict- tax, and had been final determina there no ments, already he “punished” had been for liability), grounds, tion of tax affd. on other any conduct related to the cocaine. As wе (Colo.1996). P.2d Since previously, applicant argues noted that he punishment Comptrol suffered the no from punished, jeopardy purposes, for double action, ler’s his later criminal conviction Comptroller drug when the the tax assessed expose aggravated did not the casе against him. multiple punishments.4 him to similar, distinguishable, We faced a but position Applicant’s support finds no State, claim in Stennett v. 941 S.W.2d 914 In that the Kurth Ranch. Montana (Tex.Crim.App.1996). In that the de- prosecuted were first and convict- defendants possessing marijua- fendant was indicted for of, possession to сonspiracy ed for criminal thereafter, na. Comptroller Soon the noti- possess, marijuana. The of Montana State $49,070 fied him that he in tax on owed sought, proceeding, in an administrative then “purchase, acquisition, impor- account his tax on large to collect from them a sum as tation, manufacture, production” of the marijuana they had been convicted of the marijuana. promptly The defendant mailed the possessing. defendants contested Comptroller partial the a for check $100 la- proceeding, which was assessment payment рretrial appli- of the tax filed a stayed petition when filed a bank- corpus in ter cation for writ of habeas the dis- court, that, bankruptcy declared the arguing ruptcy. trict the court Double Clause, jeopardy-barred, and a Jeopardy tax assessment partial payment barred any judgment, its subsequent punishment possession for federal district court affirmed marijuana. Ultimately, agreed, Court of we as did United States certiorari, granting only partial payment After he had made the Ninth Circuit. because and, Supreme judgment of marijuana therefore, already had Court аffirmed the tax respect portion "partial payment" of our hold recently held that of a Stennett with We Ward, Ray against ing Curtis Nos. 420- drug an therein. Ex tax assessed individual is - 421-96, -, - 1998 implicating S.W.2d Double (absent January (Tex.Crim.App., payment arrange WL 18063 delivered Clause evidence of 30-32). 1998) Comptroller), thereby overruling (slip op. at with the ment Circuit, Applicant’s years imprisonment and a fine. holding that the Montana the Ninth probated in prison suspended term was punishment, for double tax was second case. After filed this writ jeopardy purposes, of Mon- tax which State application, dismissed the sought рroceeding collect in a tana had state tax liens filed equivalent tax assessment which been “the functional had prosecution.” Kurth on account thereof. a successive criminal Ranch, 783-84, 114 S.Ct. at 1948. majority says his con- claims Supreme opinion sug- Nothing in the Court’s was barred viction assеssment, gests that Montana’s mere already “pun- jeopardy he had been because collection, marijuana opposed to actual Comptroller’s by the assessment of ished” “punishment” tax amounted to for double drug against majority him. dis- jeopardy purposes. *4 any apрlicant’s of penses with consideration applicant’s un- We need not consider claim by explaining in tax case that conviction jeopardy provision in Texas der the double placed probation in since was on I, pro- § article because he Constitution not final thаt the conviction is authority argument vides no or as to the challenged 11.07. therefore cannot be by protection provided provision. that See Majority opinion at 628. n. parte Granger, 850 S.W.2d that But it is not all that clear to me challenging applicant is the tax conviction. applicant prays The relief for which is Rather, attacking delivery to his he seems be DENIED. ground pun- he was conviction on the that by offense virtue of the ished for the same

OVERSTREET, J., concurs result. tax ease conviction.1 tax assessment and the MEYERS, Judge, concurring. is not The fact that the tax case сonviction purposes challenging that convic- final for mistakenly that majority concludes in mean that the tax case tion a writ does not cannot applicant’s conviction the tax case “pun- may not serve as evidence of conviction I addressing his claim. be cоnsidered purposes challenging a ishment” for differ- tax offense nevertheless concur because the conviction) (the delivery on ent conviction delivery are un and the offense “different” majority fails jeopardy grounds. States, Blockburger r de make this critical distinction. (1932), 76 L.Ed. 306 S.Ct. provision punishment under the tax therefor so, has no merit. applicant’s claim Even jeopardy implications has no requires delivery of cocaine The offense of delivery provision. under the (2) (1) knowingly or person proof that (4) (3) intentionally cocaine. aggravated de- delivers Aрplicant was indicted for Tex. 481.112(a). safety § livery Applicant received a notice of cocaine. Health code meaning part pos- tax due on his term “deliver” is defined from the transfer, constructively, to any actually “to or Applicant paid never session of cocaine. substance, counterfeit another a controlled tax. was then indicted of this regardless drug paraphernalia, Applicant pled guilty pay failure to the tax.. relationship.” agency there is an single proceeding. in a of whether indictments to both 481.002(8). posses- conviction, § Id. at The offense ‍‌‌‌​‌​‌‌​​‌​​​​​‌​‌​‌​‌‌‌​‌​‌​‌‌‌‌​‌‌​‌​​‌​‌​​‌‌‍delivery the court as- As to the proof unpaid requires eigh- of cocaine if tax imprisonment for sion punishment at sessed (4) (3) (2) (1) cocaine possesses a dealer In the tax years and a fine. teen paid. imposed has not been which the tax assessed аt ten on applicant’s punishment was Granted, con- delivery on the tax pro conviction. His reliance writ is the instant se articulate, appears fairly exceedingly it "punishment” as to bar the viction as so is, part, at least in clear to me that majority, addressed conviction should be by pointing challenging his conviction any challenge ap- apart distinguished and from "punishment." Never conviction as a his tax might making conviction plicant to the tax be might challenging his also mind itself. upon punishment for his tax conviction based § “A “a 159.201. dealer” is Tax code Tex.

person оf this who violation law manufactures, imports into this

state state

produces, acquires, possesses in this state” con- amounts a taxable

certain substance marihua-

sisting of a controlled substance or 159.001(3). Blockburger, §

na. Id. at Under statutory proof

supra, requires each offense does not. at least one fact which other

Delivery requires proof that the cocaine

“transferfed], constructively, actually or require

another.” tax offense does not

proof re- The tax offense transfer.

quires proof paid that no tax had been ‍‌‌‌​‌​‌‌​​‌​​​​​‌​‌​‌​‌‌‌​‌​‌​‌‌‌‌​‌‌​‌​​‌​‌​​‌‌‍Delivery require proof does not paid.2

tax not reasons,

For these I concur. *5 J.,

BAIRD, joins. Texas,

The STATE of

v.

Eloy GUZMAN and Blanca Estella

Guzman, Appellees. 427-97,

Nos. 428-97. Texas,

Court of Criminal

En Banc.

Jan. 1998. conducting- other by proof of a of the cocaine to same conclusion is reached transfer required proof "no person. The Blockburger tax case analysis indict- based the two paid” on the substance tax had been alleg- controlled delivery case ments. indictment required proof case no (1) intentionally knowingly es that nonpayment a tax. (3) Wayne (2) actual deliver[ed] transfer (4) amount of than four Dial cocaine in an less applicant pled guilty offense to both Beсause twenty-eight grams however, but not more than hundred jeop single proceeding, in a ardy alleg- tax grams. The indictment for the offense multiple punishments rather is one of issue (2) (1) acting while as a dealer es that parte Ko prosecutions. See Ex than successive (3) (4) knowingly intentionally рossess did pecky, 821 S.W.2d namely grams a mixture multiple punishments appropriate taxable it is In a cocaine, (5)on statutory provisions than compare that contained rather of materials 959-60; paid. charging id. see controlled substance had been which no instruments. (Tex. Perez, proof required trans- 947 S.W.2d case "actual also State 1997). Crim.App. required Wayne case no Dial." The tax fer to