Ex Parte Aaron Lee GEORGE
No. 578-94
Court of Criminal Appeals of Texas, En Banc.
Nov. 29, 1995.
Discretionary Review Denied Jan. 10, 1996.
913 S.W.2d 523
Life is full of choices which in retrospect are regrettable. The law, however, does not recognize this truth as grounds for reversal of a criminal conviction. To the contrary, the basic principle underlying our criminal justice system is that each citizen is free to make choices, even if the choice is clearly a mistake. See Hubbard v. State, 739 S.W.2d 341, 345 (Tex.Crim.App.1987) (upholding appellant‘s right to self-representation, albeit questioning the wisdom of forgoing counsel‘s expertise in prosecuting an appeal). Neither the trial court nor appellant‘s attorney was free to override appellant‘s choice, and we have no authority to review appellant‘s choice; a defendant‘s knowing and free choices are owed absolute deference. His twelfth point of error is overruled.
In point of error thirteen, appellant argues that the trial court erred in overruling his objection to the State‘s reference during its closing argument at punishmеnt to appellant‘s failure to produce witnesses to testify on appellant‘s behalf. Appellant does not specify to which part of the State‘s argument he objects, but we surmise that he objects to the following remarks:
[The defense] said if there were information about this defendant‘s criminal past you know I would have brought it. And, you know, certainly I am the only one with any burden of proof here, and they are in no way responsible to bring any evidence, but the other side of that coin is if there was a parade of character witnesses to say what a fine man this is, you know you would have heard those, too.
Appellant‘s complaint is meritless. It is within the bounds of permissible jury argument for the State to comment on an appellant‘s failure to call competent and material witnesses. Albiar v. State, 739 S.W.2d 360 (Tex.Crim.App.1987). Appellant concedes that under Albiar, the State‘s argument was proper, but he neverthеless, “recommends” that we overrule Albiar. We decline to overrule precedent without a compelling reason. Point of error thirteen is overruled.
The judgment of the trial court is affirmed.
CLINTON, J., concurs in the result.
BAIRD, J., concurs with note:
BAIRD, J., concurs. I concur in the disposition of the fifth point of error for the reasons stated in Green v. State, 912 S.W.2d 189 (Tex.Cr.App.1995) (Baird and Overstreet, JJ, concurring). I concur in the disposition of points of error seven and eight for reasons stated in Dinkins v. State, 894 S.W.2d 330, 341 (Tex.Cr.App.1995). I concur in the disposition of point of error nine for the reаsons stated in Smith v. State, 898 S.W.2d 838, 855 (Tex.Cr.App.1995) (Baird, J., concurring). I concur in the disposition of point of error eleven for the reasons stated in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984). I join the remainder of the opinion.
J. Harvey Hudson, Asst. Dist. Atty., Houston, and Robert A. Huttash, State‘s Atty., Austin, for the State.
MEYERS, Judge.
When the State charged appellant by information with criminally negligent homicide, he filed a pretrial application for writ of habeas corpus, claiming that the prosecution was jeopardy barred by an unusual incident which occurred a few weeks earlier. At that time, appellant had entered a plea of not guilty to another information, also charging him with criminally negligent homicide, and had signed an instrument waiving his right to a jury trial. But the prosecuting attorney would not consent to the waiver, as is his right under Texas statutory law.
Shortly afterwards, however, the State filed a new information charging appellant with the same offense. That information is the subject of the instant proceeding. Appellant argues that the earlier judgment, reciting he was found not guilty, proves that he was acquitted of the charged offense and cannоt, therefore, be tried for it again. The habeas court denied relief, but the First Court of Appeals reversed, holding the prosecution to be jeopardy barred on account of appellant‘s prior acquittal. Ex parte George, 874 S.W.2d 916 (Tex.App.-Houston [1st] 1994). We granted the State‘s petition for discretionary review to elaborate the conditions under which a person is acquitted for purposes of Texas statutory prohibitions against retrial aftеr an acquittal.
This case is not really about double jeopardy, state or federal. It is really about a Texas statute, which provides in part that “[a]n acquittal of the defendant exempts him from a second trial or a second prosecution for the same offense, however irregular the proceedings may have been[.]”
In most situations, this distinction would not be important. Some aspects of double jeopardy law are virtually coextensive with the law of prior acquittal. But the modern development of constitutional jurisprudenсe makes the resolution of jeopardy questions to depend, in most contexts, upon a doctrine known as the attachment of jeopardy. Thus, before it can be said that an accused has been put in jeopardy a second time, in violation of the Texas or United States Constitution, it must appear that he was actually put in jeopardy before. In the instant cause, however, it is reasonably clear thаt appellant was never put in jeopardy for the offense of which he was purportedly acquitted, since no jury was ever empaneled or sworn, no evidence was offered or received, and no plea was entered by appellant after the announcement of ready by both sides. In short, jeopardy did not attach to appellant in this case, either for purposes of the United States Cоnstitution or for purposes of the Texas Constitution. Serfass v. United States, 420 U.S. 377 (1975); Crist v. Bretz, 437 U.S. 28 (1978); State v. Torres, 805 S.W.2d 418, 420-21 (Tex.Crim.App.1991).
It is no wonder, therefore, that the Court of Appeals did not pause long on the question of jeopardy attachment. Indeed, its entire discussion of the subject appears in a terse comment on the fourth page of its opinion. “Nothing occurred during this proceeding that compels us to hold that jeopardy did not
If this were just a case of double jeopardy, therefore, the fact that appellant was never at risk of a conviction would be sufficient for the conclusion that a successive prosecution is not barred. But, as is manifest from the Court of Appeals‘s opinion, the issue here is more a question of whether the appellant was “acquitted” or found “not guilty” than of whether he was in “jeopardy” before. And this presents a somewhat more puzzling problem.
From reading its opiniоn in this case, it seems to us that the Court of Appeals simply assumed appellant was acquitted because the trial judge said so. It then reckoned that, because the trial court had jurisdiction of the case, any other error or defect associated with the acquittal must have been merely an “irregular[ity]” within the meaning of
In the first place, jurisdiction, at least in the narrow sense, is something possessed by courts, not by judges. The judge is merely an officer of the court, like the lawyers, the bailiff and the court reporter. He is not the court itself. Accordingly, if we consider the question presented as a matter of the judge‘s authority, not of the court‘s jurisdiction, it is apparent that the judge in this case did not have authority to acquit the appellant. This is true not only because he had no discretion to serve as factfinder in the case, but because factfinders have no discretion to reach a verdict of any kind outside the context of a trial. See, e.g.,
In the second place, entry of a judgment of acquittal is itself a ministerial duty, not a matter of discretion. After all, the trial judge is required by law to enter judgment on the verdict.
In an ordinary case, we would indulge a presumption of regularity in support of the judgment, finding that its recitation of acquittal is sufficient to establish an аcquittal in fact. E.g., Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App.1992). But the record in this case reflects all events necessary to determine whether appellant was actually acquitted with sufficient clarity that no presumption of regularity is necessary. Ex parte Lyles, 891 S.W.2d 960, 961 (Tex.Crim.App.1995). And it is a given in the instant cause that events leading to the judgment were anything but regular. The question
As far as we have been able to determine, there is no Texas statute expressly defining the word “acquittal.” But the context in which it appears throughout the Code of Criminal Procedure creates a powerful inference that it means a finding of fact that the accused is not guilty of the criminal offense with which he is charged. See, e.g.,
The trouble in the instant cause is that nothing like an acquittal ever happened. However much the judgment may show that appellant was aсquitted, the evidence of what actually occurred shows that he was not, because there was no finding of fact made by any entity authorized by law to do so. It is as if the bailiff had announced that he found the appellant not guilty and the judge had entered such finding in the judgment. We think it clear that the bailiff‘s announcement would not be an acquittal in contemplation of law because he is not authorized by law to pass upon the сulpability of the accused. So also, in the instant cause, the trial judge was not authorized to pass upon the culpability of appellant. Accordingly, his finding that appellant was not guilty has no more legal effect than such a finding by any other unauthorized person or entity would have. In short, it does not amount to an acquittal within the meaning of our law.*
The rest is plain deduction. If appellant was neither put in jeopardy fоr nor ever actually acquitted of the charged offense, then the prosecution pending against him for that offense is not barred by the Double Jeopardy Clause of the Texas or United States Constitution, and it is not barred by
DISSENTING OPINION ON STATE‘S PETITION FOR DISCRETIONARY REVIEW
CLINTON, Judge, dissenting.
Appellant was charged by information with having committed the offense of criminally negligent homicide. He filed a pre-trial application for habeas corpus contending that a previous acquittal of this offense barred further prosecution. The trial court denied relief, but the court of appeals reversed, ordering that appellant be discharged. Ex parte George, 874 S.W.2d 916 (Tex.App.-Houston [1st] 1994). The State‘s petition was granted to determine whether a judgment of acquittal entered after the trial court improperly denies the State the right to a jury trial bars further prosecution of the same offense.
Stipulated facts show that an information alleging the same offense was called for trial and appellant entered a plea of not guilty,1
The court of appeals held that the trial court possessed jurisdiction over the cause and had entered a judgment of acquittal. Thereforе, a retrial was barred even though the trial court acted in violation of
“No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.”2
Similarly,
“An acquittal of the defendant exеmpts him from a second trial or a second prosecution for the same offense, however irregular the proceedings may have been; but if the defendant shall have been acquitted upon trial in a court having no jurisdiction of the offense, he may be prosecuted again in a court having jurisdiction.”
The issue presented in this cause, therefore, is whether a trial court has jurisdiction to proceed to trial without a jury after the State refuses to agree to waive a jury.
The judgment of acquittal relied upon by appellant in this cause was entered in County Criminal Court at Law No. 1 of Harris County. A county court has original jurisdiction of all misdemeanors of which original jurisdiction is not given to the justice court.
It is true that the State is entitled to a writ of mandamus to require a trial court to empanel a jury if the State does not consent to waive a jury and no judgment has yet been entered in the cause. State ex rel. Curry v. Carr, 847 S.W.2d 561, 562 (Tex.Civ.App.1992); State ex rel. Turner v. McDonald, 676 S.W.2d 371 (Tex.Cr.App.1984). However, we have also held that the State‘s consent to waiver of the jury is not jurisdictional. State ex rel. Bryan v. McDonald, 681 S.W.2d 65, 67 (Tex.Cr.App.1984). Once the trial court has entered a judgment and lost jurisdiction to grant a new trial, it cannot bе ordered to set aside that judgment. Id.
The State argues that even though the court had jurisdiction over the case the trial judge had no discretion to act as factfinder, that no jeopardy attached, and that the State had no opportunity to seek a writ of mandamus because the trial court would not grant a continuance. However, these arguments do not address the plain language of
Without expressly acknowledging it, what the Court really does today is to overrule a unanimous opinion of the Court that has been on the books for more than ten years, viz: State ex rel. Bryan v. McDonald, supra. But the State does not even cite this opinion, much less advocate its demise. Instead of summarily overruling it, the Court should be relying on Bryan to affirm the judgment of the court of appeals in this cause. Because the Court does not, I dissent.
BAIRD, OVERSTREET and MALONEY, JJ., join.