*1
knоwingly,
intentionally
Rehearing.
steal a Master
on Motion for
The dissent
Charge credit
belonging
card
to and from urges
alleg-
that
case
the indictment
Brenda White.”
statute,
es an offense
terms of the
V.T.
Code,
32.31(b)(4).
C.A. Penal
Section
That
An
good
indictment was held
in Prodan v.
part
provides
pertinent
that a
subsection
State,
Tex.Cr.App., 574 S.W.2d
in De-
(cid:127)
if
cember,
person
an
commits
offense
alleged
1978. It
that Prodan
.,
“did then
it has
unlawfully
knowledge
and there
with
knowingly
stolen,
steal BankAmericard credit
been
receives a credit card
[he]
O’Sullivan,
card owned by Jeanne
hereaf-
it,
it,
with
intent
to use
to sell
or
ter styled
complainant,
pos-
from the
person
transfer it
other than the
session of
complainant
with the intent
cardholder;
.
issuer
deprive
complainant
proper-
alleged
appellant
The indictment
ty.”
Express
.
American
an
receive[d]
present
In the
ease there was no motion
Credti
Card # 013-091-217-3-800A
[sic]
quash
It alleged
indictment.
Clark
it,
with intent
use
without the effec-
committed the offense of credit card abuse
tive consent of the cardholder.
by
allege
An
indictment must
all
“receiving an
Express
American
Credit
essential
charged.
elеments of the offense
Card # 013-091—217—3-800Awith intent
(Tex.Cr.
Holcomb
ficient. the indictment alleges that Clark received the credit card
which provides covered the statute. It
that it is an offense to steal or receive such
a card. The majority grants him relief and doing ignores so and refuses to follow priоr decisions. parte Ex Edith REYNOLDS.
The relief sought should denied. No. 60647. DAVIS, Joined C. Texas, W. J. Court of Appeals Criminal En Banc. Before the court en banc. June
OPINION ON STATE’S MOTION 19, 1979. Rehearing Sept. Denied FOR REHEARING PHILLIPS, Judge. adopted State has the dissent to the original submission as its brief
OPINION
ODOM, Judge. corpus habeas post-conviction This is a 11.07, Art. pursuant filed V.A.C.C.P. thirty-five year serving a
Appellant of her husband. murder sentence for the Coun- Kinney first tried She was appeal her ty and sentenced life. On evi- because the was reversed to corroborate the dence was insufficient ac- who was an testimony daughter of her Reynolds complice witness the case. State, Tex.Cr.App., 866. After 489 S.W.2d convicted in a second trial remand she was change in October 1973 after a venue thirty- County sentenced Val Verde years. appeal five that conviction On opinion. per in a curiam Petition- affirmed now her trial after the er contends second for insuffi- first conviction was reversed a violation of her cient evidence constituted protection against double constitutional recently in Burks v. Unit- held jeopardy, ed Massey, and Greene L.Ed.2d 15. request challenges petitioner’s
The State First, it is arguments. with two for relief cor- evidence to asserted that insufficient under Art. accomplice witness roborate 38.14, V.A.C.C.P., insuf- does not constitute support the conviction ficient evidence Second, the rule. under the Burks-Greene Burks-Greene argues that should not be States, supra, In Burks v. United decisions prior Court reviewed protection and area of the doublе retry a after rever- power to defendant present “the resolving appeal. sal existing in conceptual confusion state of Griffin, Huntsville, appel- for Richard L. concluded: law” this area lant. error, short, reversal “In evidentiary Rio, insuffici- Lee, distinguished from Atty., Thomas F. Del Dist. a decision to the ency, Becker, Atty. Tex- does not constitute Douglas M. Asst. Gen. has failed to as, Huttash, government Austin, Atty., effect that Robert State’s such, implies noth- Austin, As prove its case. for the State. respect guilt or innocence rule is mere “trial error” distinguished Rather, 38.17, defendant. proof.” it is a determi- “failure Art. V.A.C. C.P., petitioner’s brief nation cited filed in re- defendant convict- brief, sponse provides: State’s first ed through judicial process which is where, law, defective in “In wit- some аll cases two respect, fundamental e. *3 nesses, g., corroborating or one with circum- incorrect receipt rejection evi- of stances, required are con- dence, to authorize a instructions, incorrect or prosecu- viction, requirement if the be not ful- torial occurs, misconduct. When this the filled, jury the court shall instruct the to strong accused has a in obtaining interest acquittal, render a verdict of and are readjudication a fair guilt of his free the bound instruction.” error, from just society maintains a statute, evi- under insufficient valid insuring concern for guilty that the accomplice dence to an corroborate witness punished. are . requires acquittal. quoted a verdict of As “The same cannot be said de- when a above from Burks: fendant’s has been overturned necessarily “Since we afford absolute trial, due to proof a failure of at in which to of finality acquittal a jury’s verdict prosecution the complain cannot of it . is difficult to how conceive prejudice, for given it has been one fair society any greater retry- has interest opportunity to proof offer whatever it when, review, it is a defendant on Moreover, could assemble. an appel- such jury decided as a matter of that the law late reversal means that the Govern- could properly not have returned a ver- ment’s case was so lacking that should guilty.” dict of not have been to jury. submitted the jurisdiction, In this when is the evidence necessarily Since we afford absolute fi- aсcomplice insufficient corroborate an nality jury’s acquittal to a verdict of —no witness, jury the return properly cannot matter how erroneous its decision —it is any except verdict We there- difficult society to conceive how fore hold that the Burks-Greene does greater interest retrying defendant apply to cases in which is the evidence when, review, on is decided a matter testimony insufficient corroborate the of of law jury the not properly accomplice the witness. have guilty.” returned a verdict of We turn now to the issue of whether The State apparently contends insuffi- given Burks-Greene rule should be retro cient evidence to accomplice corroborate an Neil, spective aрplication. Robinson v. witness is in the class of “trial error” in- 505, 876, 35 29, 93 S.Ct. L.Ed.2d of proof.” stead “failure of The State also jeop Court considered whether the double concurring calls attention to of ardy doctrine announced in Waller v. Flori Rehnquist, Justice in which he took the da, 387, 1184, 90 S.Ct. L.Ed.2d U.S. emphasize “the varying 435, effect, be should practices respect to motions for new held that it should. challenges trial and sufficiency In Robinson the Court stated that of the evidence both at the trial level three-pronged of Linkletter v. test1 Walk- appeal on in the 50 different States in the 1731, er, 85 S.Ct. L.Ed.2d U.S. Union.” rigidly applied cannot double agree requirement We jeopardy issues: testimony accomplice anof witness be cor prohibition against being placed “The prаctice roborated is a in this State that readily is likewise not double varies from that many of others. It does susceptible analysis of under the Linklet- follow, however, not that error under this ter line of cases . rule, succinctly (2) prongs,
1. These three stated in extent of law enforcement reliance rule, (3) Desist v. United 89 S.Ct. U.S. on the old application of retroactive the effеct (1) justice. are on the administration authorities on the old stan- enforcement jeopar- guarantee against “The (c) the on the adminis- dy significantly proce- different from dards and effect is applica- held the Linkletter guarantees justice dural of a retroactive tration of prospective line cases have effect new standards.’ tion only. guarаntee, like the oth- While this among these factors “Foremost ers, right of the crimi- is a constitutional new constitu- served purpose to be defendant, practical nal tional rule. . all, place prevent taking at “ heavily on . we have relied . . rules prescribe procedural than rather reliance of the extent factors of a trial. govern the conduct the administration consequent burden Florida, ruling Waller Court’s [T]he [in purpose of the justice only when clearly favor ei- rule in *4 preven- directed to the squarely 435] retroactivity prospectivity.” or ther taking place at tion the trial’s of second Linkletter, purpose of the the all, under might con- though even have been and primary significance, rule scrupulous regard with a for all of new is of ducted only rights heavily two are relied on procedural prongs constitutional of added.) (Emphasis purpose 409 U.S. of rule does not clear- defendant.” when 508-09, at at retroactivity prospectivi- or ly favor either appear accord ty. Robinson does not Likewise, “squarely Burks and Greene were or none weight prong, third at least prevention of the directed second incorporated into the beyond what taking place trial’s at all.” second. The the position its brief takes
that Robinson in effect established a retro- of the Burks- purpose is the What then holdings activity jeopardy test for double clearly retro- favor rule and does Greene only prongs looks to the last two of The Burks- activity prospectivity? three We prong test of Linkletter. believe for the rule that a stand Greene decisions that position misreads Robinson. Instead request for a new appeal or defendant’s emphasizing prong of the “reliance” of right to an “waive” his ac- trial does not stated, Linkletter, el- simply Robinson “The necessary prerequisite ap- quittal. The ement of embodied in the Linklet- reliance rule is that the defendant plication of the analysis wholly ter will be absent in the not to an Once show he was entitled not decisions related of constitutional necessarily showing is made it fol- such a procedure (Emphasis . .” subject- lows that the State is barred from added.) phrasing to indi- We construe ing wholly him a second trial. This is cate not component, that the reliance while where the retroactivity the issue of unlike absent, significance wholly will be of lesser can whether the State ob- alternatives are in the double area. We therefore without observation tain a conviction look prong to see what role the reliance rule, conviction, if any, must seek a new played under Linkletter. The complianсe with the new rule. issue is whether the State Desist v. under Burks-Greene United convic- post-acquittal the three be should allowed tion, relative roles rules for obtain- prongs changes of Linkletter and their and no Burks, language: were described in this As stated implicated. it are entry of requirements “Given recently we summarized “As most purposes of the judgment acquittal, Denno, them in Stovall v. afford negated were we to ‘The Clause would pro- for the the Government guiding criteria resolution ” apple.’ (a) bite at implicate pur- verbial ‘second retroactivity] [of standards, clearly points to retroac- of the rule pose purpose be served the new (b) law the extent of the reliance tive
Since under
judgment against
Robinson
element of
petitioner in cause
“[t]he
analy-
reliance embodied in the Linkletter
1519 in the 63rd
District Court of
Judicial
absent,”
sis” is
“wholly
we must ask
County
conviction)
Kinney
(petitioner’s first
gravity
whether it is of sufficient
to out-
acquittal,
ordered
to show an
reformed
weigh
the clear
of the rule.
It is
judgment against
her
cause 3671 in
true,
itself,
as stated in
Burks
the 63rd Judicial District Court of Val
prior
Court’s
holdings in the area “can
County (petitionеr’s
Verde
second convic-
hardly be
as models
con-
characterized
Kinney
tion
change
after a
of venue from
sistency
hand,
clarity.”
the other
On
aside,
she is
County) is set
ordered
prejudice
what
would the State suffer from discharged
any further
confinement
application
new rule
judgment.
copy
under said
A
of this opin-
reliance
the old rule? The
Department
ion
bewill
sent to the Texas
prejudice
application
pro-
in retroactive
Corrections.
primarily
cedural rules arises
from the deni-
It is so ordered.
al of use of evidence and the burden of
accompa-
retrial.
such prejudice
No
would
J.,
ONION,
J.,
CLINTON,
P.
concur.
ny
a retroactive
of the Burks-
DOUGLAS, Judge, dissenting.
Greene
simply
because it would bar
retrial,
require
rather than
and it in no
majority
wrong question
asks the
way affects what evidence
may
the State
necessarily
wrong
arrives at the
an-
*5
use. The
in its brief suggests preju-
State
swer.
petitioner
dice “if
might have been tried
interpretations
New
jeopar
of the double
upon
charges following
other
first
[her]
dy
per
clause are not
se retroactive. See
conviction,”
but the State abandоned
Neil,
505,
876,
Robinson v.
93 S.Ct.
409 U.S.
prosecutions
reprosecute
such other
to
(1973);
jeopardy
proceedings
bar after
do not
that
invariably
easy
that will
ap
afford the
even one “bite at the
category
сlassification
cases in one
ple,” (see,
Jones,
Breed v.
the other.”
346;
Bretz,
S.Ct.
44 L.Ed.2d
Crist v.
24),
U.S.
majority
interprets
The
correctly
express
; however,
and we
no
to the retroac-
in
flexible rule utilized Robinson
facts,
tivity
every
vel non in
case
applying
such cases. In
to
misstate
these
apply,
which the Burks-Greene rule
should be
the issue as “whether the State
past
future,
The
post-acquittal
the State
not denied its
conviction.”
allowed
by looking
one
apple.”
take
“bite at the
issue can be
framed
at the
better
We hold
protection against
the rule should be
full
purpose
retro
ultimate
petitioner
jeopardy.
purpose
and that
is en
underlying
active
double
is,
titled
relief.
Burks and
decisions in
Greene
“
so
any violation of it is
fundamen-
such that
оbserves,
‘squarely direct-
earlier
majority
retro-
requires
trial’s
full
automatic
prevention
ed to the
the second
tal
”
light,
We have not even ac-
taking
at all.’
a similar
place
active
protections,
Supreme Court stated the
our Fourth Amendment
corded
against
jeopardy
searches,
as fol-
protection
double
government
against
arbitrary
Walker,
lows:
lofty position.
such
Linkletter
in Robinson
guarantee
being
Supreme
twice
against
supra.
“It is
**
*
put
Jeopardy
offense
to trial for
same
the Double
Clause
held that
against
jeopardy
right,
guarantee
protect
such a fundamental
that, among
other
assures
individual
protection
there is no reason
elevate
forced,
he will not be
with certain
things,
Supreme Court inter-
bеyond the current
strain,
personal
exceptions,
endure the
interest,
constitution-
pretations. No
embarrassment,
expense
of a
public
by now
otherwise,
furthered
al or
will be
criminal
trial more than once
escape
the conse-
petitioner
allowing
Abney v. United
same offense.
from a conviction which
quences stemming
651, 97
conviction. issue,
In considering recog- we must nize that our federal constitution contains concepts evolving that have been
several continually reinterpreted by will be Supreme peti- Court. Retrial of the instant WILSON, parte Allan Ex Ronald Jeopardy tioner violate the Double Appellant. subsequent 1973. Clause in conviction suffi- good was obtained in faith and with No. 59775 already suf- cient evidence. Petitioner Texas, Appeals of of Criminal the second trial consequences fered the Banc, En jeopardy does not effect process. Double process. finding validity of the fact 17, 1979. Oct. Thus, which only interest possible retroactivity would be to be furthered Jeopardy Clause
elevate the Double rights highest magnitude of constitutional Greene, locutory appeal denial from the district court’s the decisions in Burks and Since Abney jeopardy. asserting for insufficient a motion when we reverse evidence, States, supra. our Court judgment both E. we order a United impor recognize (Tex.Cr. g., courts and the federal Owens S.W.2d preventing trial. App.1979). the second allow an inter tance of The federal courts