Ex Parte Scelles, 511 S.W.2d 300

Ex Parte Scelles

511 S.W.2d 300

Tex. Crim. App.

1974

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OPINION

ONION, Presiding Judge.

Petitioner filed this post-conviction ha-beas corpus application in the convicting сourt under the provisions of Article 11.07, Vernon’s Ann.C.C.P.

The convicting court denied the pro se petitiоn without a hearing, stating in its Order that the application did not “state facts which, if believed, would entitle him to relief.”

The record before us reflects that on September 21, 1961, a two count indictment in Cause No. 93054 was returned against the petitioner. The first count thereof charged possession of a narcotic drug, morphine, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on or about the 16th day of August, 1960, and the second count alleged that “on or about” the same date appellant unlawfully possessed narcotic parаphernalia. At trial in 1962 the State at the close *301 of the evidence, in response to a defense motion, elected to have submitted to the jury only the first count, possession of morphinе. The jury convicted and punishment was assessed at life under the provisions of Article 63, Vernon’s Ann.P.C. On appeal, said conviction was reversed. Scelles v. State, 172 Tex.Cr.R. 474, 358 S.W.2d 623 (1962).

Thereafter on April 15, 1965, before the same trial judge who had presided at the former trial, the applicant entered guilty pleas to six felonies.

One of the six pleas of guilty was to the second count of the indictment in Causе No. 93054 for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍possession of narcotic paraphernalia with the punishment being assessed аt fifteen years. 1

Appellant contends his conviction in 1965 upon the second count of the indiсtment, Cause No. 93054, for possession of narcotic paraphernalia constituted jeopardy on the ground that the same count had been abandoned at the prior trial in 1962.

In Parish v. State, 145 Tex.Cr.R. 117, 165 S.W.2d 748 (1942), the court held that where the second count only of the two count indictment was submitted to the jury, failure to submit thе first count had the same effect as if such count had been quashed, and “jeopardy” attached on such count, since failure to submit was tantamount to a “dismissal” of such count. See also Blаck et al. v. State, 143 Tex.Cr.R. 318, 158 S.W.2d 795 (1942).

And in Deisher v. State, 89 Tex.Cr.R. 467, 233 S.W. 978 (1921), it was held that where the second count of the indictment was abandoned and the court submitted only the first ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍count, the defendant cannot on a subsequent trial be prosecutеd on the abandoned count. See also Johnson v. State, 97 Tex.Cr.R. 658, 263 S.W. 924, 927 (1924); Gilliam v. State, 131 Tex.Cr.R. 8, 96 S.W.2d 86 (1936); Mizell v. State, 83 Tex.Cr.R. 305, 203 S.W. 49 (1918).

These authorities support aрpellant’s contention. The State, however, urges that the plea of former jeopаrdy was waived because it was not properly raised in compliance with Articles 27.05(2) and 27.06, Vernon’s Ann.C.C.P., at the time of his second trial in said Cause No. 93054 in 1965. The record before us does not reflect whether there was a special plea of former jeopardy filed or not. Black et аl. v. State, supra, would indicate that in a similar situation a formal plea of former jeopardy is not essential. 2

Further, it has been held that where a trial is had a second time in the same court аnd on the same indictment no plea of former jeopardy or former Conviction need be pleaded because the whole record is before the court and, as it appеars in this case, was before the same judge on both trials. See De Leon v. State, 55 Tex.Cr.R. 39, 114 S.W. 828, 829 (1908); Robinson v. State, 21 Tex.App. 160, 17 S.W. 632 (1886); Vela v. State, 49 Tex.Cr.R. 588, 95 S.W. 529 (Tex.Cr.App.1906); Samuels v. State, 25 Tex.App. 537, 8 S.W. 656 (1888). See also footnote #2 of Duckett v. State, 454 S.W.2d 755, 758 (Tex.Cr.App.1970). 3

Further, in light of the dеcision of the United States Supreme Court holding that the double jeopardy ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍provisions of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, *302 are “a fundamental ideаl in our constitutional heritage,” Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and in view of the facts and circumstances of the particular record before us, the constitutional right cannot be denied for failure to comply with a State statute (i.e., Article 27.05(2), supra), nor is the concurrent sentence doctrine a jurisdictional bar thereto. See Benton v. Maryland, supra. Nor do we conclude that his guilty plea precludes him from raising the contention advanced. See and compare Blacklеdge v. Perry, - U.S. -, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).

It is therefore ordered that the conviction in said Cause No. 93054 be set aside ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and the рetitioner be ordered released from confinement as a result thereof.

A copy of this opinion shall be forwarded to the Texas Department of Corrections.

It is so ordered.

Notes

. The other guilty pleas involved were three convictions for unlawfully obtaining a narcotic drug by use of a false nаme and address, with punishment assessed at seven years in each case, a felony theft cоnviction where punishment was assessed at ten years, and a burglary conviction where the punishment was assessed at twelve years. All sentences were made to run concurrently.

. In Black et al. v. State, supra, there was only an objection.

. In said footnote # 2 of Duckett at p. 758, it appears the word “not” was somehow excluded. The sentence should read, “Under such circumstances, it would appear that a special plea would not be required.”