Keith v. State
782 S.W.2d 861
Tex. Crim. App.
1989
Check Treatment

*1 and TEAGUE, J., note: See dissents with 50(a) agree appel- Rule transcription provided lant be with a 704 S.W.2d compare v. David reporter’s notes the revocation court from (Tex.Cr.App.1985). case, however, hearing.3 In we cannot this 50(e) broadly as allow read Rule so to To a new trial. do so would be Code,

clear conflict with Tex.Gov’t Section

52.046(a)(4), provides for a court re- which

porter “preserve to the notes for future years from the date on

reference for three If they

which were taken.” we were 50(e) to,

read Rule as wishes us probation

each time a defendant’s is year period,

voked after a three the defen- a automatically

dant would entitled to be reporter’s though

new trial even the court properly destroyed. have been

notes 50(e) Clearly, Rule cannot so read. be Kenneth Arthur Thus, attempt we hold that an KEITH, Appellant, designate the statement of facts from v. original plea hearing part to be a revoking appeal record on from the order Texas, Appellee. The STATE probation untimely is after the made No. 1361-88. reporter destroyed properly court has her 50(e), pertains which “a notes. Rule Texas, of Criminal Court facts,” timely request a is statement of En Banc. applicable.4 therefore not Appeals incorrectly as- The Court of Nov.

sumed that was entitled to a Rehearing Denied Jan. original plea statement of facts from the hearing years prior had ten to the revoca- incorrectly interpreted

tion 50(e).

Rule is not entitled to Accordingly,

new trial. the trial reversed and judgment is affirmed.

court’s J.,

CLINTON, dissents. failing a defendant a state- judgment, the tions to afford collateral attacks defen- See, e.g., us. pleading proving also not before dant is restricted to funda- ment of facts are Illinois, error that makes the void. 373 U.S. mental Norvell (Tex.Cr. (1963) attempt- (indigent Trayler v. defendant L.Ed.2d 456 App.1978). ing collaterally not entitled attack conviction reporter’s transcription of unavailable afforded counsel at

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW WHITE, Judge. originally convicted of in-

voluntary manslaughter in a trial before court, years sentenced to ten con- V.T.C.A., finement. Penal Code Sec. 19.05. appeal Appeals On direct held the evidence was insufficient to establish of, was aware but conscious- ly disregarded the unjusti- substantial and fiable risk of his actions. Keith v. Dist. 1985).1 result, As Appeals reversed the of the trial acquittal and ordered charge on the involuntary manslaughter. The Court of Appeals then concluded the evidence at tri al would have been sufficient to convict appellant on the lesser included offense of su- pra, at 923. The remand- ed the cause with instructions to conduct “independent review” of all the evidence and determine whether a conviction for criminally negligent homicide should be en- Keith, supra. tered. This Court refused the State’s for discretionary re- view.2 begin

Before the trial court could “independent hearing, appellant review” Secrest, Jr., Houston, pre-trial corpus. filed a George McCall writ habeas appellant. pellant argued in his writ that the double trial, proven 1. For account of the facts as without to remand the cause with summary see the factual in the instructions to the trial court to conduct an supra, at independent review of the evidence and deter- upon criminally mine whether a conviction refusal, Presiding Judge In his dissent to this negligent homicide should be entered and wrote: McCormick finding being an affirmative made the Further, grant I would review on this punishment. trial court should then assess Court's own motion and reform the (Tex.Cr.App. Keith v. 721 S.W.2d 294 of the Court of to reflect a rever- 1986). sal remand. The Court of for crimi- a conviction whether jeopardy protections of the Fifth Amend- determine en- should be nally negligent homicide ment to the United States Constitution *3 parte supra, Ex I, 14 the Texas tered.” Art. Sec. Constitution for petition granted appellant’s the This Court bar his retrial for lesser included of- discretionary criminally negligent review. fense of homicide.3 appellant's The trial court denied writ a convic- Appellant argues that because plication. appealed the Appellant then trial necessarily bars greater offense tion for a application. of his court’s denial in- for a lesser subsequent prosecution for offense, reversal appellate an Appeals appel The Court of also denied cluded a greater for insufficiency of a conviction corpus Relying lant’s relief. on habeas States, 284 Blockburger v. subsequent necessarily United also bars U.S. offense 299, 180, (1932), included offense. prosecution for a lesser 76 L.Ed. 306 in that the State Appellant wherein the Court held a second trial was states his brief permitted to more than when each of the offenses should not be allowed take two overpled the apple when it require proof of an additional fact which one bite of the argues not, allegation initially. Appellant also the other does remedy in the that the mental of invol erred concluded states Ap- in case. untary manslaughter criminally negli which it ordered the instant for calls gent type differ contends this error homicide contain elements “so for new trial. ent that the second will not a remand pros first involve the same evidence as the the response petition, appellant’s In its to 442, ecution.” 761 criminally argues a retrial for that State Dist.1988). 444 the negligent homicide does not violate principles The again then ordered Fifth Amendment’s emphasizes an jeopardy.4 the instant case trial court The State that returned all in of a conviction for invol- appellate to “review the evidence the record reversal brief, application, 3. In his writ his before the 4. In the State devotes considerable brief argument space the test for double and his and brief to an that Court, appellant argu- jeopardy Blockburger 284 before in v. United this refers to 180, 299, (1932) rights jeopardy ment that his S.Ct. double under U.S. 52 analysis. The Texas Constitution have ever, How- on "autrefois convict” been violated. founded advisory opinion alleges in these documents or in the State Court’s nowhere State, hearing on his before the court did the v. 749 S.W.2d 790-795 writ Garrett mistakenly appellant present any argument (Tex.Cr.App.1988) "autre- as to how or extended analysis acquit" why jeopardy protections Tex- into “autrefois double fois convict” apply State contends this to be as Constitution to the instant case. No- situation. The law, espe- policy, trial court error not but also where in these documents "acquit- authority cially light appellant’s any the fact that for the does cite appellate reversal for application tal” was no more than of the Texas Constitution’s double cause; goes to ar- jeopardy protections evidence. The State nor does he insufficient his I, Jeopar- authority gue that the Double proposition Art. Sec. that the conclusion cite for the dy lesser protection bars a retrial of the offense than the Clause 14 extends to him more insufficiency appellate for after an reversal to the U.S. Constitution. Fifth Amendment greater sup- is not evidence such, support appellant has his As failed to expressed Supreme ported by policy in the I, argument conclusory 14 with on Art. Sec. States, 437 of Burks v. United Court decisions analysis. right The either or discrete (1978); 1 57 L.Ed.2d U.S. appellate not extend com- review does 2151, 57 Massey, 437 S.Ct. v. U.S. 98 Greene with this plaints are not in accordance which Florida, (1978); v. U.S. and Tibbs L.Ed.2d 15 relating appellate review. State’s statutes 72 L.Ed.2d 652 S.Ct. State, (Tex.Cr.App. Phillips 511 S.W.2d 22 v. 1986); argument 40.09, 1974); reach this (repealed We do not however, V.A.C.C.P. Art. preserved for it has not been Tex.Cr.App.R.; because and Foster Rules 74 and State, it Court. The before this (Tex.Cr.App.1989). For review brief, reasons, of Wilson arguments did not have benefit reject appellant’s filed its these we (Tex.Cr.App.1989). In confine our- under Texas Constitution and State Court held that where the arguments Amend- his under the Fifth selves to an error the Court intends to claim ment. untary manslaughter (on does not bar a (Tex.Cr.App.1986) rehearing), subse- the issue quent prosecution for criminal- of double in the instant case is not ly negligent homicide. ripe because the issue has been addressed “prior to the existence of an actual contro- We do not reach the issue of versy capable adjudication.” of final Gar- whether the Appeals’ reversal of rett, supra, n. 4 at 804. and the appellant’s conviction man courts day should await the he is subse- slaughter subsequent prosecution bars a of quently charged with the lesser included criminally offense of negligent homicide. *4 ripe This issue is not for review because of This Court denies the relief he the fact that there yet has not been an seeks. We also set aside the Court of initiation any subsequent of prosecution. Appeals’ decision to remand the instant All we have had attempt by is an the trial cause to the trial court for an unauthorized court to convene the “independent review” hearing “to determine whether a conviction hearing by ordered Appeals. the Court of upon criminally negligent homicide should parte Keith, supra, at 444. We hold be entered.” that the Court of lacked the au It is so ordered. thority to issue part of its remand order. supra. See note DUNCAN, JJ., TEAGUE and concur After the Court of reversed the in the result.

judgment of conviction and remanded the cause to the trial court with an order to CLINTON, Judge, concurring. acquit appellant of involuntary manslaugh ter, (Tex. Keith in alleged Indictment district court S.W.2d 921 App. Dist.1985), thusly: offense this Court refused the petition State’s discretionary for re “The April defendant on or about view, thereby rendering the Ap Court of 1982, did then unlawfully and there reck- peals’ judgment final. Under the mandate lessly cause the death of Kenneth A. Ott the trial court was by shooting gun ... in the direction of obliged to judgment acquittal. enter a of and adjacent apartment building into an single judgment This would terminate the directly facing with windows the defen- against 42.01, case appellant. Article V.A. dant.]” C.C.P. Pre-trial Petition for Writ of Habeas Cor

Having judgment entered the acquit- of pus, para. V.* tal involuntary manslaughter, of the trial One must read Keith v. longer court no jurisdiction, power had or [14th] — Houston authority to “independent conduct the re- 1985), gain understanding of facts view” by ordered surrounding and circumstances the “act” peals. appellant. Essentially they of are that dur ing early morning

As a result of Appeals’ asleep hours Ott was order, appellant unauthorized seeking through his bed when a bullet crashed lief from a criminally negli- sixty eight for window some feet on a direct gent homicide yet proper- apartment appellant, that has not been line the en ly by filing charge. death; initiated the of a body formal tered his and caused his As in Garrett v. 749 S.W.2d 784 bullet had pistol appel been fired from a peals’ rejection argument, necessary preserve of an that claim for issue review- presented should be to this Wilson, Court in a supra. this Court. discretionary cross-petition for review or a * emphasis original; emphasis Above all other discretionary review. Since the State "won” be- throughout is mine unless other- fore the Court of cross-petition in the instant wise indicated. appropriate would have been both instructing trial court handling night in his below and lant admitted viction acquittal of But, judgment enter a apartment. appeals as the court of involuntary manslaughter felony discerned, viz: refused final this Court became by the "... We are most troubled ab- issued to PDR. The mandate State’s concerning the cir- sence evidence obliged surrounding discharge cumstances acquittal as instructed. judgment enter a gun. Such evidence consistent- entry judgment, one There can be but ly man- found cases where terminate the case. judgment of that would slaughter convictions have af- been 42.01, (judgment is writ- Article V.A.C.C.P. firmed, From [citations omitted]. of court and entered ten declaration us, record before we are unable to deter- acquittal showing record conviction recklessly mine acted if defendant). ” handling weapon. his it entered the Once Id., Accordingly, at 923. tal, but and erroneous unauthorized court reversed the of the trial *5 “an remand instructions conduct with court and remanded the cause “with in- independent review of all the evidence” structions to enter a of crim- “determine whether conviction involuntary manslaughter.” tal Ibid. en- inally negligent homicide should be However, finding criminally negli- tered,” the trial court was without further gent is homicide a lesser included offense power jurisdiction, gratui- manslaughter, and case. tously concluding that “the evidence would Dicta in S.W.2d 542 Moss v. State [574 support be sufficient a conviction for (Tex.Cr.App.1978) progeny, cited ] offense,” appellate this lesser by the Court in its first Houston [14th] remanding also stated it was cause opinion, 692 S.W.2d at the trial court with conduct instructions “to pudiated in 749 Garrett v. independent review of all the evidence” 784, n. n. 4. In the and at and then to decide whether to convict event, inapplicable is that notion here criminally negligent case simple reason that each cited Ibid. is a the lesser included offense mentioned felony jurisdiction within the corpus proceeding, In the instant habeas the cause was remanded. to which holding that “this will not violate double The homi- jeopardy,” appeals the court adhered A cide is a Class misdemeanor. V.T.C.A. notion. Code, Penal 19.07. § 1988). 444 [14th] — Houston now decides the latter re But seeking against a applicant Thus relief legal authority, mand instruction is without yet properly has prosecution that not been Presiding Judge as and other McCormick repeat “the same initiated. Rather than dissenting Judges from insisted earlier cases,” Garrett, past supra, at mistake in refusal of State’s PDR. 804, 4, applicant n. and courts should await charged day “subsequently with he it, fact, Despite the because Garrett, at some lesser included offense.” urge appeals succumbed to an the court of “advisory” concerning disposi- to render an criminal unalleged tion of an offense of homicide, the resolution

negligent MILLER, correct Judge, concurring. denying matter is an order this habeas opinion’s agree majority I with the While relief. review, I ground of handling appellant’s appeals prior judgment of the Houston to comment the court The write reversing analysis jeopardy of his issue. of con- [14th] In unanimously adopted against multiple 1987 this court punishments for the Corpus as our own the decision of the same offense a court to review January statutory Christi Court of elements two offenses ” (Tex.App.—13th they alleged S.W.2d 215 tr are to be “the same. Dis ict, 1985). Blockburger v. United January See U.S. 1987). S.Ct. (Tex.Cr.App., In that guarantee jeopardy The second of double appeals the court of succinctly deline protection (which protects against a sec- separate guarantees ated the three afford ond for the same offense af- jeopardy ed the double clause of the conviction) proven ter quite has difficult United States Constitution and also the and, below, to effectuate as noted has determining three different tests for trying pa- confused courts to define the meaning phrase ger “same offense” protection. rameters of the constitutional quote mane to each of the I three tests. present The case involves second extensively opinion: from that guarantee jeopardy protection, outset, necessary At it is us to (emphasis supplied) point out that the Supreme United States January, supra at 220. specifically sepa- Court has noted three apparent present It should be that in the guarantees arising rate the Fifth case1 the protec- issue concerns Amendment Jeopardy Double Clause. tions afforded guarantee, under the first It: not under the second or third. Therefore (1) protects against prosecu- a second the “same offense” test of Blockburger v. *6 tion for the same offense after 299, United 284 U.S. 52 S.Ct. tal, (1932) would, me, seem (2) protects against prosecu- a second inapplicable to the case at bar. tion for the same convic- offense after comments, join With these I majority tion and opinion. (3) protects against multiple punish- ments for the same [in trial], same Vitale,

Illinois v. 447 U.S. 65 L.Ed.2d 228 guarantees

Each of these affords an ac- separate protec-

cused a constitutional

tion, protection requires and each a court to focus on different factors determin- PETTIJOHN, Appellant, Arthur N. ing pro- the extent of the constitutional example, tection. For the collateral es- Texas, Appellee. The STATE of toppel doctrine owes its existence to the guarantee jeopardy pro- No. 199-88. first (which protects against tection a second Texas, Criminal same offense after En Banc. acquittal) reviewing to determine what issues were Nov. 1989. favorably to the resolved accused Rehearing Denied Jan. trial, Swenson, Ashe v. 397 U.S. former (1970), 25 L.Ed.2d 469 guarantee while the third double (which protection protects And, homicide, negligent complaint should the State file a new in this new case also. alleging criminally information the offense of notes defendant was present appeal where record contains 3. The appeal); not hearing. have but did his trial could revocation of facts statement Illinois, 351 U.S. Griffin (1956) (indigent entitled defendant L.Ed. 891 4. We that the issue before caution protections all other convicted 50(e) afforded to same Tex.R.App.P. in this case Court whether convictions, in- appealing their defendants appellant a new trial when is to be read to allow reporter's transcription of the court properly cludes reporter’s notes have been the court ANNOT., Reporter’s notes). generally See destroyed. regarding whether a defen- Issues Transcribing Disability Notes as Prior to existing Death or statement would be entitled to an dant Trial, therefore, New 57 A.L.R.4A ques- Reversal or Grounds not us and of facts are before 1049, (1987). concerning ramifica- the constitutional tions