Rios v. State
751 S.W.2d 892
Tex. App.
1988
Check Treatment

*1 probably that injury resulted to the com-

plaining party. Benjamin RIOS, Appellant, 327(a). Tex.R.Civ.P. of a clear showing In the absence of Texas, Appellee. The STATE of discretiоn, appellate

abuse an judicial of No. 04-85-00536-CR. court the trial court’s determi bound nation of jury as to the occurrence misсon Texas, Court of of Corp. Weatherby duct. Baker Marine Antonio. San Co., (Tex. 710 S.W.2d Engineering 1986, writ); App. Corpus no Shop Christi — April 1988. Co., Foods, Uрjohn Rite Inc. v. Rehearing Denied 1988. (Tex.App. writ —Amarillo n.r.e.). d no overt ref We find act of mis (as 327(a)) conduct rule on the

part of Her not a Mrs. North. silence was

misrepresentation. jury panelist No was of his family

asked a member were a juror

banker. A cannot be to have held

concealed that which she was never asked

to disclose. Thе trial court did not abuse ‍​‌‌‌‌‌​‌‌‌​​​​​‌‌​​‌​‌​‌​‌​‌​‌​​‌‌​‌​​‌‌​‌​​‌‌​‌‍Point of error six is over discretion.

ruled. error, point appellants their final errors,

contend that cumulative non-revers- and, individually, pervaded the

ible trial

thus, aggregate caused the rendition improper disagree.

of an verdict. We Re- upon pred-

versal cumulative based error is meeting

icated upon standards of Texas 81(b). Having Appellate

Rule of Procedure error, alleged

reviewed the incidences to be complained

we do nоt find that the errors rights to such a denial of the amount

appellants reasonably calculated

cause did cause probably rendition improper judgment ‍​‌‌‌‌‌​‌‌‌​​​​​‌‌​​‌​‌​‌​‌​‌​‌​​‌‌​‌​​‌‌​‌​​‌‌​‌‍prevented appel- making proper presentation

lants from

the case to this court. Point error seven

is overruled. of the trial court is af-

firmed.

893 appealable. are not See Williams v. 464 842 (Tex.Crim.App.1971). S.W.2d

The State further asserts thаt we lack jurisdiction to appeal consider the from the trial court’s denial of the writ of habeas corpus becausе the trial court denied the application corpus for writ of habeas rather granting than application and then de- nying rеquested. parte Noe, the relief Ex 231 (Tex.Crim.App.1983) (en banc).

The Court of Appeals Criminal re cently held that art. 14 of the Texas § Constitution accords a right defendant the to a determination of jeopardy a double ‍​‌‌‌‌‌​‌‌‌​​​​​‌‌​​‌​‌​‌​‌​‌​‌​​‌‌​‌​​‌‌​‌​​‌‌​‌‍appeal claim and an from denial of that being claim before subjected to a second Robinson, trial. parte Ex (Tex.Crim.App.1982); see parte also Ex Rathmell, 717 S.W.2d 33 (Tex.Crim.App. 1986) (en banc). holding Prior case law appeal that there is no from the denial of application for writ of corpus habeas special a plea in give way bar must to right constitutional to a deter Egan, Jr., Joe Mike Kerrville, appel- mination and review of his double lant. Appellant’s right claim. bring a claim under the Constitution cannot be denied E. Curry, Bruce Kerrville, Dist. Atty., merely bеcause a state statute does not appellee.

provide proper timely and mode presenting such a clаim. Carter v. OPINION 39 Tex.Crim. 508 S.W. rev’d CADENA, Chief Justice. grounds, Appellant Benjamin Rios, charged is (1900). who 44 L.Ed. 839 “... enu [T]he assault in Cause No. meration of causes the Code Crimi [of in the District Court of Kerr County, Tex- nal is not exclusive of other Procedure] as, appeals from the special denial grounds.” of his fundamental plea in pursuant bar filed to TEX.CODE Legislature While the empowered (Vernon CRIM.PROC.ANN. art. 27.05 prescribe jurisdiction the limits of thе Supp.1988)and from the appli- denial of his the Court of and the Court of cation for writ of corpus. spe- habeas His Appeals, power Criminal is limited application cial for writ of habeas art. Texas Constitution which § corpus were based on the cоntention that provides that “no citizen of this State shall prior his conviction for while intoxi- life, deprived be liberty, property, privi- cated under TEX.REV.CIV.STAT.ANN. leges, any or immunities or in manner dis- 67011-1(f) (Vernon art. Supp.1988) bars except by franchised due course this for the felony offensе of Appellant’s right law of the land.” to a aggravated assault under TEX.PENAL pretrial appeal determination and of his (Vernon CODE ANN. art. 22.02 Supp.1988). meaning- double jeopardy claim is rendered can, State contends that this Court is less if our courts careful use of jurisdictiоn without language, to consider this application such as “the for ha- pretrial denied,” because motions in a criminal case deprive beas the defend- quire proof ant a forum in which his claim can of all of elements of the be heard. Where а defendant has been de- already offense for which he has been prived process, obliged to of due we are tried. provisions take action to enforce the of the The trial court’s order is reversed and Constitution and will consider the merits of аnd the cause is remanded to the trial court appeal.

this with instructions to enter a *3 agree Jeopar We that the Double acquittal prosecution in appellant the dy prosecuting Clause bars the State from aggravated in assault cause number appellant arising for an assault County. in the District Court of Kerr from the same incident which was the basis previous prosecution driving for a while Justice, ‍​‌‌‌‌‌​‌‌‌​​​​​‌‌​​‌​‌​‌​‌​‌​‌​​‌‌​‌​​‌‌​‌​​‌‌​‌‍BUTTS, cоncurring. causing inju bodily intoxicated and serious agree plea I that the in bar is a valid one. committing ry to that of another while clоsely analogous May This case is fense. State, (Tex.Crim.App.1987), in We are not limited to the rule set forth just changes so close in fact that fewa States,

Blockburger v. United 284 U.S. in need be made the recitation of facts and 76 L.Ed. 306 that names in the instant case for it to cоincide if no double is involved each stat case exactly May. with That this is a utory requires proof offense of a fact that the in bar is a valid one is not where required by is not the other. at really dispute. in analysis The Blockburger S.Ct. at 182. evaluating jeopar question reserved for the double The real whether the accused dy attempt implications of the State’s on must wait until from the casе the multiple punishments merits, conviction, assess for the same in to resolve the event of Ohio, offense. Brown v. the matter. Becаuse the habeas (1977); also, 53 L.Ed.2d 187 S.Ct. see “application” term and not “relief” is em- (Tex.Crim. May v. throughout pleadings ployed the App.1987). Jeopardy court, The Double Clause order the is it that this bars for a second offense jurisdiction? In Court rule that we lack proof nеcessarily re of such offense will words, ap- proper statutory is this a proof quire of all of the elements of the peal as authorized former TEX.CODE Brown, supra. first offense. 44.34, now TEX.R. CRIM.PROC.ANN. art. 44? APP.P. hearing appellant’s special plea the on bar, in attorney an assistant district proper appeal I has would rule that County appellant’s ‍​‌‌‌‌‌​‌‌‌​​​​​‌‌​​‌​‌​‌​‌​‌​‌​​‌‌​‌​​‌‌​‌​​‌‌​‌‍Kerr testified that in The record contains a stаte- been taken. proved appellant, DWI trial the State that hearing reflecting a full ment of facts intoxicated, seriously injurеd had while plea. require this accused to wait To driving Patrick Druebert his motor ve- re- appeal on the merits to until time for stripe hicle across the center of the road- costly is to do a useless and solve the issue oncoming way path of an motоr into the Therefore, majority thing. I concur in the driven Patrick Druebert. vehicle disposition of case. charging appellant aggra- indictment sequence of vated assault recites the same of-

facts to establish the elements

fense. supra

As in at prosecution, in second rely,

State will while intoxicated

on the same act in roadway proven

on the same conviction, original so that allega-

proof of the State’s second criminal necessarily against appellant re-

tion will