McClendon v. State
583 S.W.2d 777
Tex. Crim. App.
1979
Check Treatment

*1 charge of a attention to the need if court’s burglary they should believe guilty stairway upon entry the only entered the unenclosed stair- the mere he habitation, house; burglary of a (2) defini- be the would not way attached alone ambiguous charge given. be vague so and as to such a tion was entitled to have he was “infirm”; and, constitutionally (3) State, court the 135 Tex.Cr.R. Foyt v. Compare State, charged the unen- (1938); Elliott v. 122 S.W.2d stairway yard por- and the are not (1928). closed also Tex.Cr.R. S.W.2d of the tions habitation. State, 76 S.W.2d v. 127 Tex.Cr.R. Gober State, Tex. (1934); v. Randolph Legis We believe that the do not (1931); v. Duke Cr.R. S.W.2d lature, 30.02 enacting 30.01 and Sections State, 57 S.W. 652 42 Tex.Cr.R. Code, expand the of the Penal intended to charge was calculat give The failure to concept of of a habitation to in burglary preju appellant’s jury to ed to mislead the upon an an unenclosed entry clude new trial. requires dice and a residence. stairway unsecured attached to (Tex. State, Day 534 S.W.2d Compare is re- judgment of the 1976). in supplemental Yet the Cr.App. is remanded. versed the cause struc defining struction habitation as each appurtenant to or connected with ture over adapted

structure or vehicle was, night persons with accommodations more, jurors out to lead calculated entry believe that such an would constitute offense, when the instruction especially jurors’ ques together is considered if were specifically inquiring the stairs tions McCLENDON, Appellant, Henry Willie part be considered a of the habitation. in supplemental It is true that Texas, Appellee. The STATE struction was in the exact of the words statute, ordinarily sufficient. 56993. No. also is entitled But it is true that accused Texas, Appeals Court Criminal every de to an affirmative instruction on Panel No. evidence, theory by fensive raised produced by whether the evidence July defendant, by state or and whether strong, weak, unimpeached contra be or State, (Tex. Day

dicted. S.W.2d State, 1976); Cr.App. Thompson v. (Tex.Cr.App. 1974); Shaw 1974). State, (Tex.Cr.App. 510 S.W.2d 926 charge determining whether And in such given, the evi credibility should be may not raising contradicting it dence it or considered. 488 S.W.2d be Gavia 1972). 420 (Tex.Cr.App. testimony In this case the only state’s witnesses showed stairway ground was on the or on the appel defense that yard. The affirmative stairway only yard lant entered or ap As was thus some evidence. raised objected called pellant properly *2 Vance, Atty., Ti- S. Dist. Alvin M.

Carol tus, Cain, Attys., and Dennis C. Asst. Dist. Houston, Huttash, Atty., and Robert State’s Austin, for the State. DALLY,

Before W. DAVIS and CLIN- C. TON, JJ.

OPINION

CLINTON, Judge. without

The conviction was for murder malice, was assessed at 5 and the sentence presented in years. controlling issue Jeopar- Double governed by this case Fifth dy Clause of the Amendment. Appellant originally was indicted in of “Mose Dineal” for murder was “158-786.” Trial indictment numbered ensued, in conviction held October brought this appeal and was Court. ap- ground One of error “Mose was victim’s name was peal that the Howard,” was and that the evidence Dineal he was also to show that sufficient alleged as as known “Mose Dineal” rejected was That contention indictment. had testified that because the victim’s wife by both names. the deceased was known however, reversed, other The case was grounds. McClendon (Tex.Cr.App.1974). re- reversal was After the mandate for Court, set for ceived was from sides April 1975. Both a new trial on jury was selected. ready, and the announced indictment, and Appellant pleaded from presenting evidence began the State During the course of its witnesses. did not trial discovered State testify any present who could by the name that the was known deceased The victim’s alleged indictment. in the Louisiana, no effort wife was in For bring the trial. her to made dismiss, and moved reason the State motion. granted the the trial court April Appellant reindicted was His counsel for same offense. plea in bar of filed Mercer, Houston, appel- ground for on the appellant. Jon motion dismiss justice has being jeopar- law invested Courts subjected late was “[T]he discharge denied, authority to dy. The motion was whenever, verdict, giving any before the court. in a convicted circumstances opinion, taking their all the consideration, a manifest pro into there is Jeopardy The Double Clause act, public necessity or the ends multiple “multiple punishments hibits *3 defeated.” justice would otherwise be prosecutions by single sovereign a for a Perez, Wheat.) (9 22 United States U.S. single promoted by policy offense.”1 The 579, 580, (1824). 165 6 L.Ed. the Clause was described in Green v. United hung States, 184, 221, jury, a and the Court 355 U.S. 78 2 L.Ed.2d Perez involved S.Ct. prohibited. a was not Oth- held that retrial (1957) as follows: constituting “manifest necessi- er situations idea, underlying deeply “The one that is opening prejudicial a have included ty” ingrained Anglo-Saxon sys- in at least the counsel,2 “jurisdic- a by defense statement jurisprudence, tem of is that the State indictment,3 and trial in an a tional” defect power its resources and all jury inference to a con- judge’s improper not repeated be allowed to make at- cerning prosecutor’s a conduct.4 to individual for an tempts convict an is controlling our decision In view the offense, thereby subjecting him alleged 734, States, 372 U.S. Downum United ordeal, embarrassment, expense, to 1033, 10 (1962). That case L.Ed.2d S.Ct. compelling him to live in a continu- prosecution for involved a federal seven ing insecurity, of as anxiety state mail. The trial counts theft the enhancing possibility well as the that jury se proceeded completion far as as though even he found may innocent be prosecution discovered lection when the 187-188, guilty.” Id. at at 223. S.Ct. key on sixth and sev its witness the question The to case first be decided in each present. At the prose enth counts was not jeopardy is when “attaches.” Crist request, and the defendant’s cutor’s over Bretz, 28, 2156, 57 L.Ed.2d S.Ct. discharged objection, (1978). More in specifically, question Two a was had on the jury. days later trial is time case whether at the charge, and the defendant was con same granted the trial court to the State’s motion victed. The Court reversed because the placed in already dismiss had been once placed jeopar in defendant had been twice jeopardy, thereby prohibiting prose- further dy- cution for that offense. say opinion specifically refused to The Bretz, In supra, Crist United States of a absence rule that Court held “the federal of a trial. justify discontinuance will never empan- jeopardy jury attaches when the Instead held that the Court “[e]ach eled integral part and sworn is 737, Id. at must turn on its own facts.” guarantee against However, majority opin- constitutional at 1035. States, jeopardy.” ap- The quoted decision mandates from Cornero v. United ion 1931), pellant placed jeopardy (9 in at the for what called 48 F.2d Cir. principle” in such cases: “governing time the State’s motion dismiss granted. However, inquiry does that, “The when the district attor- fact is point. though jeopardy end Even impaneled at without first as- ney attaches, may justified a trial be his witnesses certaining court whether or not present, took a chance. While granting a retrial: were he Somerville, Jeopardy Consequences Iliinois Beeny, Double 3. Mistrial, (1973). Dismissal and Reversal of Conviction L.Ed.2d Appeal, (1979). 16 Am.Crim.L.Rev. 235 States, 81 S.Ct. 4. Gori v. United U.S. (1961). Arizona v. 6 L.Ed.2d 901 U.S. 54 L.Ed.2d 717 might justified grant- their absence con- and sentenced the trial court ed trial tinuance of the case view of the fact a second motion for a new based they appear under at fundamental defect in the indictment. were bond present- granting The evidence place, question that time and showed that the motion ed for new trial occurred before the entirely here is different from that judge jurisdiction lost over the case involved in exercise of the sound dis- sending the appellate record this Court. in granting cretion of the trial court (1) jeopardy We made two conclusions: did justice. continuance furtherance fundamentally not attach because simply situation one indictment; (2) appellant defective where the district attorney upon entered bring any evidence show- failed forward the trial of the case without sufficient for new trial was im- ing that motion evidence to convict. This does not take granted. The Wockenfuss case properly the case out of the rule with reference to was similar in that the defendant claimed added). jeopardy.” (Emphasis former *4 previously had convicted for that he been Downum, at 83 S.Ct. at We noted that no evi- the same offense. presented on issue until the dence was that facts of are The the case before us mate on appeal, only evidence relied then the rially same The as Downum. State entry was an on the docket sheet that went a necessary to trial without witness. “sentencing” before defendant set for was The given discretion in such However, was dismissed. the indictment granting situations as to the of a State’s indicating any no that entry there was See, g., a motion for continuance. e. Asha held, entry on only been and the other had State, (Tex.Cr. branner v. 774 557 S.W.2d stated that the defendant the docket sheet App.1977). requested No continuance was jumped We held the evidence had bail. fact, by in this case. In its own admission finding jeopar- insufficient for a of double made no attempt State to secure the dy- No trial. “manifest necessi entirely case is different. Appellant’s ty” justify which would sub began, Before trial the new indictment jecting appellant jeopardy to twice. In plea bar of filed a appellant’s counsel deed, supra in Arizona v. note leading prosecution out the facts setting all Court reaffirmed that un support- A jeopardy. to his claim of double preparedness part on the of the also filed. A ing was brief authorities require scrutiny” would “the strictest held before trial hearing on motion was dismissal of a 98 at 832. trial. pages 27 approximately constitutes which appellant has the The State contends Appellant called of facts. the statement showing right against that his burden was David Gaul- three The first witnesses. Further, jeopardy was double violated. den, deputy district clerk for Harris Coun- a argues appellant failed to meet State Cain, assist- ty. The was Dennis second that burden there is no affirmative because County. Harris attorney ant district showing in the did not appellant record Third, in narra- appellant’s counsel testified discharge of the on the consent witnesses tive form. Those established/the State’s motion. The authorities cited for beginning in the uncontested facts set out State, proposition this are Wockenfuss v. are opinion. Those facts sufficient this (Tex.Cr.App.1975); 521 630 Ward S.W.2d jeopardy. It to establish case of former a State, (Tex.Cr.App.1975). 395 520 S.W.2d appel- require to would be unreasonable stat- did not negative, We feel that the Ward decision best that he prove lant to appellant ed had am- the test: “The burden was State agree to the dismissal. The hearing mo- on the go ple at the second trial to forth with evidence at the opportunity evidence, not but did allegation jeop- in support of his of former tion to introduce such added). Ward, forward ardy.” (Emphasis appellant went at 398. do so. Once claim establish In was convicted sufficient evidence the defendant thereby for- was on cumstances into account’ jeopardy, the burden of an ab- appellant application consented to bid mechanical prove State motion to dismiss. of the Perez State’s formula. The value stract capacity for principles thus lies in their judgment For is re- these reasons the widely differ- application informed under versed and the is ordered dismissed. cause injury to de- without ent circumstances interest.” public fendants or to the DALLY, Judge, concurring. at U.S. at attorney prosecuting Also, jury been sworn case, prior opinion only aware of our plea his State, (Tex. had entered but the McClendon v. S.W.2d 851 received when the of the evidence had been Cr.App.1974), need either se granted. motion to dismiss Un necessary cure the witness or to reindict. State’s, Moreover, prosecuting attorney holding prior when the of this Court to Crist der Bretz, recognize position, his he did did untenable attempt lay (1978),

not seek a continuance or jeopardy had attached. L.Ed.2d predicate admission of the witness’ State, (Tex.Cr.App. Ochoa S.W.2d original Raley trial. testimony State, at the 1973); Rameriz v. Tex.Cr.R. State, (Tex.Cr.App.1977); S.W.2d (Tex.Cr. Galvan S.W.2d 396 judgment. I concur in the reversal circumstances, App.1970). I Under agree must that there was no manifest ne *5 7, 1975,

cessity April proceed to dismiss the 497, ing. Arizona v. 824, (1978); 54 L.Ed.2d 717 Dow States, num v. United U.S. (1962); 10 L.Ed.2d 100 Pizano v. Tex.App. I separately emphasize write NEW, Ray Appellant, Charles while a dismissal due to the absence of a subject witness is to strict scru- Texas, Appellee. The STATE tiny determining when whether a subse- quent prosecution is by jeopardy, barred No. 57031. rule; mandatory there is no each case must Texas, Appeals Court of Criminal Hunter, turn on its own facts. In Wade v. Panel No. 3. 93 L.Ed. 974 (1949), Court, the United States July through Black, spoke Mr. Justice as follows: urged

“We are apply the Cornero [v. States, (9th 1931)] United 48 F.2d 69 Cir. interpretation ‘urgent necessity’ adopt rule here. We are asked to petitioner Cornero rule under which con- tends the absence of witnesses can never justify discontinuance of a trial. Such a

rigid with the formula inconsistent

guiding principles of the States [United (9 Wheat.) Perez 6 L.Ed. U.S.

v.] [22 (1824)] decision to which we adhere. courts in con- principles Those command sidering whether a trial should be termi- judgment to take ‘all cir-

nated without