*2 MURPHY, LEE, Before ELLIS and JJ. MAJORITY OPINION MURPHY, Justice. appeal
In this from the trial court’s denial appellant’s application for a writ of habeas corpus, we consider jeopardy whether double appellant’s bars possession trial for of a con- deliver, trolled substance with intent to after the State has obtained a arising out of the same criminal occurrence. We conclude that it does.
Appellant charged was arrested and possession of a controlled substance 656,133. with intent to deliver in cause No. later, days Three the State initiated forfei proceedings against ture him in the 55th County District Court of Harris cause No. 93-05397, pursuant to Tex.Code CrimJPROC. Appel Ann. lant and the State agreed entered into an judgment, whereby appellant $3,823.00in currency and one telephone. Motorola cellular Subsequently, pretrial application filed a for a corpus, writ of claiming habeas that constitu protections tional against jeopardy double barred the from prosecuting State him fur possession ther for the offense.1 The trial application, stayed court denied the fur proceedings ther pending the outcome this appeal.
Appellant
prosecu
contends that his
tion is
barred
the Double
claus-
pretrial
corpus
denied, - U.S. -,
1. A
appro-
Crim.App.1990);
writ of habeas
is the
cert.
priate remedy
jeopar-
to review a claim
(1991).
of double
dy.
(Tex.
Stephens v.
loss,2
an
the defendant
entitled to
account-
es contained
the United States
Texas
Const,
V;
ing
damages to
of the Government’s
deter-
amend.
Constitutions. U.S.
Tex.
Const,
I,
sought following
if-the
Conceptually,
State mine
jeopardy provisions
constitutes
Federal double
*3
449,
State,
812,
Stephens
Id.
at 1902.
v.
806 S.W.2d
at
109 S.Ct.
identical.
—
denied,
cert.
(Tex.Crim.App.1990),
815
Following
Halper,
the decision in
the Su
350,
-,
U.S.
112
when the
as
serves the
sovereign
“payment to a
sions constitutes
448 n
Id. at
109 S.Ct.
offense,” Browni
punishment
for some
The court stated:
Disposal,
Kelco
ng-Ferris
v.
[Industries
257, 265,
Inc.,
109 S.Ct.
that cannot
be said
[A] civil sanction
(1989) and,
as such
]
106 L.Ed.2d
solely
purpose,
serve
remedial
Eighth
of the
subject
limitations
explained
is
to the
can
be
as also serv-
Fines Clause.
Excessive
Amendment’s
pur-
or deterrent
ing either retributive
poses,
we have come to
at-,
Id.
term
understand the
value
Court
stated
because
statute can
under the
Id. The
Court went on to an-
forfeitable
dramatically,
relationship be-
vary
any
a rule
in the “rare case” where
so
nounce
costs and the
actual
imposed
overwhelmingly
dis-
tween the Government’s
coincidental,
merely
of a
proportionate
damage
caused
amount
forfeiture
correlation
no rational relation to the
and forfeiture as
offender and bears
by society or
any
goal
compensating
the Government for its
(1981
& West
Halper,
3. 21 U.S.C.A. 881
the defendant filed false Medicare
In
totalling
terms
$585. Under the
claims
Act,
over
False- Claims
fined
Federal
$130,000.
enforcing
preme
analyzed
the cost of
law.
Court
a series of
factors
helpful
-and
n.
making
and n.
our
which we believe are
(quoting
First,
448 U.S.
analyzed
determination.
242, 254, 100
L.Ed.2d 742 history
country’s
under this
(1980)).
law,
common
and concluded
punish-
historically
has been
understood as
Finally, the Court handed down its deci
ment.
-U.S.
Dept.
sion
Revenue Kurth
adopt
U.S. -,
S.Ct. at 2806-10. We
this conclusion.
(1994), in which the issue was whether a
Next,
on the
the Court focused
“innocent
marijuana
state
tax had
characteris
owner” defense
the statute un-
contained
subjected
tics that
it to
constraints of the
der which the forfeiture occurred. See 21
*4
Citing Halper
Double
clause.
and
881(a)(4)(C) (“no conveyance
§
U.S.C.A.
shall
Austin,
began by
the
noting
paragraph
be forfeited under
to the ex-
this
fines,
penalties,
that criminal
civil
civil forfei
owner, by
tent of an interest of an
reason of
tures,
government
generate
and taxes all
rev
any
by
act or omission established
that own-
enues, impose
individuals,
fiscal
burdens
er
or
to have been committed
omitted with-
behaviors,
subject
deter certain
and are
consent,
knowledge,
out the
or willful blind-
constitutional
constraints. Kurth
881(a)(7) (“no
owner”);
ness of the
and
at -,
(emphasis
U.S.
at
S.Ct.
property
para-
shall be forfeited under this
added).
“fines,
It
penalties,
then stated that
graph,
an
extent of
interest of an
readily
and
characterized as
owner, by
any act
reason of
or omission
Id, —
at-,
sanctions.”
at
S.Ct.
by
established
to have
com-
owner
been
This language clear-
knowledge
mitted or
the
omitted without
or
ly
indicates that the
Court has no
owner”).
consent of that
The Court conclud-
question that
forfeitures are
punish-
ed that the
more like a
statute looked
The
issue Kurth Ranch was whether the
exception
ment because the
focused on the
marijuana
purposes
tax’s
were
Austin,
culpability of the owner.
nature,
fines, penalties,
as are
and forfei-
-,
Finally,
at 2810-11.
tures. The
drug
Court concluded
the
the Court
the
found that
inclusion of an
tax
punishment,
characterized as
innocent owner
the
defense
statute re-
imposed
and thus could not be
in a second
congressional
punish only
vealed
intent to
proceeding following
punishment
the
for
-
trafficking.
those
in drug
involved
Id.
at-,
the criminal offense.
at-,
Interestingly,
S.Ct. at 1947.
the Court
application
also announced that the
of Hal- When we
Texas
consider the
statute under
per n
determining
pen-
method of
whether a
appellant
property,
his
we
alty
punitive, by
was remedial or
evaluating
find an
“innocent owner” defense. See
whether
damages
pro-
the
assessed were in
59.02(c)(2)
Tex.Code CRIM.Peoc.Ann.
portion
govern-
suffered
the
(Vernon
(“An
Supp.1994)
owner or interest
ment,
inappropriate
because
tax
the
as-
property
holder’s lien in
not be forfeited
sessed had no relation to costs to the State
chapter
under this
if the owner or interest
that are
the
attributable to
defendant’s con- holder ...
or
did not know should not rea-
duct.4
sonably
the act
have known of
or omission
giving rise to the
or that
today
The task
us
is to
before
deter
likely
mine
to occur at or
of
been
before
time
ac-
“punished” by
quiring
or,
property
perfecting
and
interest
his
property,
under
art. 59.02
real
or before the
Tex.Code Crim.Proc.Ann.
Austin,
interest,
acquiring
ownership
In
the Su-
time of
se-
Austin,
again
language
merely
4. We note
from
where
the amount of the
coincidental.
Austin,
U.S. at -,
absolutely
the Court stated that forfeiture has
and n.
113 S.Ct.
-
any damages
by society
(quoting
correlation to
and n. 14.
United States v.
law,
242, 254,
enforcing
any
or to the
cost of
448 U.S.
(1980)).
government’s
relationship between the
costs and
interest”).
interest,
curity
(holding
lien
at 1947
or
We can U.S.
demonstrating
provision
drug
punish-
construe this
because
tax constitutes a
legislative
impose
ment,
imposed
intent to
during
must be
the first
all).
forfeiture on
involved in criminal activi-
those
ty, which makes the
“look more like
statute
judgment denying appellant’s applica-
not less.”
reversed,
corpus
tion for writ of
habeas
-,
Moreover,
the inclu-
appellant’s ap-
we render
dealing
drug
sion of the
forfei-
granted.
plication is
Code of
Proce-
tures
the Texas
Criminal
support
lends
conclusion
dure
further
to our
ELLIS, Justice, dissenting.
punish
purpose
Chapter
that the
59 is to
Finding myself
disagreement
with the
drug traffickers.
panel,
respectfully
members of the
teaching Halper
is that if a sanction
Fant,
my
Appellant, Danny
ap-
file
dissent.
punishment, namely
retri-
goals
serves
peals
trial
application
court’s denial
deterrence,
even if it has remedial
bution
corpus, asserting'that
for writ
habeas
dou-
well,
goals as
then it should be characterized
jeopardy
possession
of a
ble
bars his trial
jeop-
punishment
purposes
of a double
controlled substance with intent
to deliver
*5
448,
ardy analysis. Halper, 490
109
previously
because the State has
obtained a
1901. See
arising
out of the same
12;
12,
-n.
113
at 2910 n.
Kurth
majority agrees,
criminal occurrence.
Ranch,
S.Ct.,
114
at 1943.
holding
“punishment.”
is
that the forfeiture
although Chapter may
find that
have
We
opinion
I am of
Ceim.
(h)
TexCode
59.06(e),
goals,
(pro-
Article
remedial
see
(Vernon
Supp.1994) is
ProcAnn.
viding
derived
that funds
from
State,
remedial
Ward v.
nature. See
under the
used for law enforce-
statute be
659,
(Tex.App.
[1st
S.W.2d
purposes,
programs
treatment
ment
and
—Houston
refd).
pet.
Specifically, article
Dist.]
drug
dependency),
abuse and chemical
59.06,
provides
disposition
for the
punitive,
must be
as
characterized
based
property,
forfeited
mandates that forfeited
the factors delineated
Austin. Contra
funds and funds derived from the sale
State,
(Tex.App.—
v.
Ward
«35 prolific small-gauge jects Accordingly, appellant’s would overrule offender ovemjohelminglydisproportion- points first and second of error and would judgment. affirm damages to the has the trial court’s ate caused. The rale one reason: Where a defendant
previously a criminal penalty sought the civil in the subse-
quent proceeding no rational bears relation goal compensating the Govern- loss, appears
ment for its but rather
qualify “punishment” plain in the mean- word, ing of the then defendant TATUM, Appellant, Michael accounting to an entitled the Govern- ment’s and costs determine if penalty sought in fact constitutes a POLYMERS, PROGRESSIVE INC., Appellee. No. 12-93-00036-CV. Texas, Appeals Court of Thus, Halper that if teaches us the statute Tyler. nature, is remedial in analy- then further qualifies sis determine pun- July ishment does not apply. See Rehearing Aug. Denied earlier, S.W.2d As mentioned of the face statute itself indicates that it is
remedial. See Tex.Code Crim.PROC.Ann. (h).
59.06(e), However, even the forfeiture remedial,
statute was than
appellant has failed to show this court that is one of contemplated the “rarest eases”
by Halper, and cash how the “overwhelmingly
forfeited is disproportionate damage” Halper, he has caused. See 1902-03; S.Ct. at
Ward,
ed (1993)
L.Ed.2d 488 Court held
that the Eighth excessive clause of the fines
Amendment to the United States Constitu applies to
tion forfeitures. Even if Austin proposition
stands for the that forfeitures are Court left to thé lower appro
courts consider what factors would
priately determine whether forfeiture was “excessive.” develop
at 2812. We need not the factors
here because the record before this court developed
does contain evidence settlement, developed to be prosecution.
the criminal
has not shown that forfeiture is “exces
sive.”