State v. Engelking

HUGHES, Before WARREN and DUNN, JJ.

OPINION HUGHES, Justice.

Pursuant to Tex.Code Crim.P.Ann. art. (Vernon 44.01(a)(1) Supp.1989), the State appeals the trial court’s dismissal of the charging appellees indictments Donald Wayne Engelking and Aaron Lambert Sloan with grams methamphetamine. Tex.Rev.Civ. 4476-15, 4.04(b), StatAnn. art. secs. 4.02(b)(6)(Vernon Supp.1989). grand A jury originally appellees indicted methamphetamine weigh grains. at least 400 Tex.Rev.Civ.Stat. 4476-15, 4.04(c), (d)(2) (Ver Ann. art. sec. Supp.1989). Appellees non were tried to gether, and jury guilty found them punishment assessed years at 45 confine They appealed ment. their convictions to Court, this which affirmed judgments. Sloan 290 (Tex.App.— Houston pet. granted); [1st Dist.] Engelking 727 S.W.2d 694 App. 1987, pet grant [1st Dist.] — Houston ed). Court of Criminal granted appellees’ petitions discretionary re- view. The court found the evidence insuf- ficient appellees possessed grams methamphetamine; least 400 not- show ed that the evidence was sufficient grams; and four three to remanded judgments reversed instructions “with to the trial court cases judgment[s] to enter ... of acquittal to the must be established to secure convic- tion in of the possession methamphetamine prosecution. offense of Sloan v. grams.” least 400 weighing at Article provides: 27.07 "All issues of S.W.2d 788 (Tex.Crim.App.1988); presented by special plea fact a shall be Engelking v. 750 S.W.2d 213 (Tex. by tried the trier of the facts on the trial on Crim.App.1988). argues merits." the The State that the granting precluded of the written motions grand Subsequently, jury ap- a indicted jury resolving any the from fact issues pellees methamphetamine of possession relating to jeopardy. the claim of double The weighing less indict- Yet, in response, its the State identified no to previous ments were identical the ones issue, unresolved it not fact and has identi- with the exception of the amount of meth- appellate fied one in its brief. the amphetamine alleged. Appellees filed mo- has State no need for the involve- shown claiming tions to dismiss indictments of a jury appel- ment in the resolution of prohibitions against that the jeopar- double claims, and, double jeopardy lees’ accord- dy under and state federal their law barred ingly, has failed to how it show was Const, prosecution. V, XIV; amends. by pretrial harmed consideration of the Const, I, Tex. art. see. 14. trial court The motions to dismiss. hearing parties conducted wherein the consisting appel- Further, introduced evidence of we note that the failure to com transcripts late and of facts statement ply pre with 27.05-.07 articles does previous from the opinions cases and the prohibi clude the of assertion the federal and mandates from the against of Criminal Galloway jeopardy. tion double Appeals reversing Beto, (5th Cir.1970); and or- convictions 288 n. 4 F.2d dering appellees' acquittal. Scelles, court parte The trial Ex granted appellees’ Crim.App.1974). motions dismissed and The indictments. appeals. State of point first We overrule State's error. contends, point SUte its The error, contends, of in its second that State issue “[t]he error, the trial points should not third of that ©nsidered pretrial as a mat ter, dismissing the either erred in indictments via court motion applica or via a writ they by tion.” federal not barred are Specifically, the that State contends jeop prohibitions against and state only bar may be raised special possession plea parties agree All ardy. under Crim.P. Tex.Code 27.( n -.07 Ann. methamphetamine arts. of 28 or less of (Vernon Pamph.1989). possession of a lesser included offense objection raisei this in its writ ten response methamphetamine. least 400 appellees’ to dis motions miss. Article provides: 27.05 if: included An offense is a lesser A defendant’s he special plea is that (1) on\ by proof it is established already has been prosecuted required the facts or less all than same or a different out of arising «fíense the offense commission establish the the same criminal episode or that charged.... should have been one into consolidated (Vemon 37.09 art. Tex.Code Crim.P.Ann. trial, and that prosecution: former 1981). (1) resulted in acquittal; possession Proof (2) resulted in conviction; establishes necessarily methamphetamine (3) was improperly terminated; The same or less. (4) was terminated commission establishes order or final judgment larger for the charged defendant that has not been reversed, the smaller amount, set aside, vacated 37.09, pos- necessarily amount; therefore, article required a deter-

mination a lesser inconsistent amount the smaller with session a fact larg- 1988, included of (Tex.App. offense of the 208 S.W.2d — Dallas pet. granted). er. second We sustain State’s and third presented prose- The issue is whether the points error. of cution of a lesser included offense is barred prohibitions against double grant- reverse the trial orders We court’s after a jury convicts a defendant of the dismiss, ing the motions to reinstate the offense, greater appellate an court indictments, and remand the cases to the subsequently finds evidence insuffi- trial court. support

cient to the conviction for the DUNN, J., dissenting. offense, greater an on the acquittal orders offense, greater does not find the evi- but DUNN, Justice, dissenting. dence to lesser insufficient convict on the respectfully I dissent. included offense. disagree in majority I with its conclu- Appeals Court of Criminal has con progeny sion that Moss and its control the sistently ordering held that the an ac resolution the federal double quittal greater appellate on a offense an agree plurality opinion issue. I with the subsequent prosecution court does not bar Garrett, holdings which concluded that like for a lesser included offense. Black allowing in Moss and those its an State, 923, (Tex.Crim.App. S.W.2d appellant to be tried for a lesser included 1982); State, Taylor v. S.W.2d appellate offense after an court has deter- (Tex.Crim.App.1982); State, Granger v. previous mined that a conviction for the 605 (Tex.Crim.App.1980); S.W.2d supported by offense is not parte Harris, Ex 600 S.W.2d acquit- evidence and orders the defendant’s Crim.App.1980) (op. reh’g); on Rogers v. advisory controlling. tal are and not State, (Tex.Crim.App. 575 S.W.2d S.W.2d 803-04. 1979); Moss v. S.W.2d 546 Moss did not address an actual controver- (Tex.Crim.App.1978)(op. on reh’g); but see sy capable adjudication final because no Garrett v. 749 S.W.2d 791-95 charging had indictment been filed the less- (Tex.Crim.App.1986). Garrett, plurality er offense court included when the ordered opinion, purportedly and its overruled Moss A acquittal an on the offense. progeny, prosecution and held that of the justices called plurality Garrett such plu lesser offense is included barred. The opinion “advisory”: an however, rality opinion rehearing, calls case, Ap- In the instant the Court of previous opinion’s discussion of double peals try determined that the State could jeopardy “advisory” and further states: appellant any lesser express opinion “We no at this time as to appellant’s despite of murder ac- fenses appellant whether could some be tried for quittal for the offense of murder. How- lesser included offense.” 749 S.W.2d at ever, point Appeals at that Court interpret 804. We Garrett as not overrul attempt did not if the would know progeny. Accordingly, Moss and its we retry appellant lesser for some includ- controlling. hold that Moss is Moreover, infor- ed offense. without an

Further, parties naming particular have cited no author mation indictment none, ity, Appeals found holds the Court of could not we have any certainty. prohibition against specificity rule with Texas sum, Appeals’ holding did jeopardy provides protections surpassing controversy capable an those not resolve actual counterpart. of its federal The fed adjudication. anticipated of final It prohibitions against eral and state controversy presumed hypothetical ap- do not bar facts. pellees for the lesser included power meth no less had

amphetamine. parte Stephens, the issue Contra Ex decide that issue because only there are offenses or only appel- if whether could arise charged subsequently provision

lant were with each requires one is whether some lesser included offense. proof of an additional fact which the not. other does plurality at 803-04. The also holding previous opinion concluded that its of meth Possession that of the lesser proof amphetamine require does not of a advisory. the fense was barred was For fact additional to those facts that must be reasons, I conclude that Moss and its same possession of 400 proved to establish controlling. advisory are and not words, In as stated grams or more. other Moreover, practice in violates the Moss opinion, possession of majority in the when jeopardy clause of the fifth the double proved, possession of 28 grams Constitu- amendment to the United States Thus, under proved. Blockbur tion, applicable is made to the states which a lesser included offense is the “same ger, by the fourteenth amendment. greater the offense. offense” as provides The supported by This conclusion is the Unit- subject person no shall “be Supreme opinion in ed States Court’s put of life offense to be twice Ohio, 97 S.Ct. Brown v. guar separate three or limb.” It contains (1977), the which involved 53 L.Ed.2d pros 1) protection against a second antees: jeopardy guarantee, protection third double acquit ecution for the same offense after the against multiple punishments for same tal; 2) against prosecu protection a second conviction. The defendant offense after conviction; tion for the same offense after joyrid- pled guilty to and was convicted 3) protection against multiple punish ing, included offense of auto theft. a lesser v. ments for the same offense. Illinois appellant charged with Subsequently, 410, 415, Vitale, theft, arose of auto which and convicted (1980); January the nine-day joyride as out of the same (Tex.App 695 S.W.2d . —Cor The issue previous joyriding conviction. 1985), pus aff'd, 732 S.W.2d Christi for a the conviction presented, whether The indictments in (Tex.Crim.App.1987). subsequent included offense barred lesser the first this Court violate the case before offense, re- greater prosecution for the guarantees. of these whether, un- to determine quired the Court purposes, the lesser For double in- greater and lesser Blockburger, a der of less than included offense of- the “same cluded offense constitute methamphetamine is the jeopardy clause. fense” under the double possession of more than offense” as “same The Court concluded: Posses- methamphetamine. Ap- agree with the Ohio [W]e metham- sion of more theft, and auto as peals joyriding at least violations of phetamine constitutes court, “the by the constitute defined the same stat- separate provisions of two the statutory offense” within same 4.04(c), (d)(2), 4476-15, section ute—article Jeopardy Clause. meaning of the Double more, grams or and arti- “each clearly the case that For it is 4.04(b), 4476-15, section cle proof fact which requires of a Blockburger [statute] less than invariably other does not.” As is 299, 304, States, United greater and lesser included true (1932), Supreme 180, 182, 76 L.Ed. joyriding— the lesser applied test to be when set out offense— beyond that which is statutory requires proof no more than one conduct violates greater— required conviction provision: greater is there- auto that, rule is where applicable theft. offense pur- the “same” constitutes a vio- transaction act or same fore definition any lesser provi- poses as statutory distinct lation of included in it. applied to determine sions, test to be ordering acquittal an (emphasis add- offense and 97 S.Ct. at 2226 Id.

ed) (citations omitted). The Court reversed defendant. greater conviction for the Likewise, involving lesser includ- cases offense. offenses, the must the conse- ed State bear I see no reason for a and lesser failing quences for included offense “same offense” initially proceeding for not offense and jeopardy guarantee third under the included offense. The State se- the lesser and not be the “same offense” under the it will bear lects burden guarantee. ex- Nor does the Court seeking grand jury’s indictment of the in- pressly its conclusion to cases restrict for an offense that the State defendant volving guarantee. Accordingly, the third in- specifies. if the seeks an Brown, greater and lesser included alleging proof that it dictment a burden offense,” offense is the “same and the fifth trial, it must the conse- cannot meet at bear prosecu- and fourteenth amendments bar get not quences of its choice and must acquittal. after tion of the “same offense” apple expense three at the at the bites 2261; Vitale, 410, 447 100 S.Ct. at U.S. the defendant. Garrett, 749 S.W.2d at 792-93. holding majority’s I also dissent from the particularly compelling This result is of the Tex- that the double one examines the trials that a defen- when as does not bar the indict- Constitution if prosecu- dant must endure included offense. Art. ments for the lesser per- on tions lesser included offenses are I, sec. 14. Moss and its do not proscribes possession mitted. 4.04 Section pro- discuss the Texas Constitution. It methamphetamine in three different vides: grams, grams amounts —less than 28 or offense, person, shall be No grams, more but less than 400 and 400 put liberty, in of life or twice grams prosecute or more. The State could person again put upon trial nor shall a possession grams a defendant of 400 more, for the same after a verdict conviction, ap- obtain and lose on competent juris- peal guilty it failed not in a court of because possessed grams amount was 400 or more. diction. grand jury

The State could then have the recite the standard un- Early Texas cases possessing indict the defendant clause1 der the Texas double grams or more less than 400 but acquitted: previously a defendant is when conviction, methamphetamine, and obtain acquit, necessary it is In autrefois appeal again alleged lose on because could been convicted prisoner have proved. amount not then indictment of the offense on the first grand jury has the indict the defendant for second_ charged in the The rule possession puts be well settled that a seems to former him to trial a third time. indict- trial is not a bar unless scenario, In suffers this defendant prisoner might ment was such consequences of the failure to State’s upon proof have been convicted proof choose a that it can meet. burden in the second indictment. set forth facts States, 1, 98 In Burks v. United 97 Tex.Crim. v. Carlile (1978), 57 L.Ed.2d 1 S.Ct. Greene added). (1924) (emphasis S.W. Massey, 437 U.S. v. applying the Clearly, and cases Carlile (1978), Supreme im- L.Ed.2d 15 in conflict with same rule are direct posed consequences of its the State Court, case before this by Brown. proof its burden of failure to sustain only the lesser included prohibiting reprosecution proof of the identical early applied to the states until 1969. Although ment was not the court in expressly Maryland, cases does not stitution, refer to the Texas con- S.Ct. Benton jeopar- (1969). is Texas double it clear that the dy clause is in issue because the fifth amend- adequate of- case can be resolved on will establish Carlile, See Michi- independent grounds.” if the first fense. state Long, charges 1032, 1040-42, indictment gan v. charges more 3469, 3476-77, (1983). and the second 77 L.Ed.2d grams, of less and the than I would affirm the trial court’s dismissal acquitted indict- defendant on the first of the indictments. ment, subsequent prosecution pos- for the session of less than 28 is not barred the defendant could not have been upon

convicted under the first indictment

proof of the facts set forth the second less than 28 indictment — Brown, and less- Under “same offense”

er included offense jeopardy purposes. The for federal double BROWN, Appellant, Charles VAN rule Carlile permits subsequent prosecu- tion of a lesser included offense after ac- allowing quittal greater thereby on the Texas, Appellee. STATE

prosecutions for the “same offense” there- No. 01-88-00877-CR. by violating the federal double I Accordingly, clause. conclude that Texas, Carlile has no precedential value rule (1st Dist.). Houston holding in contrary it is to the because May Brown. state’s

A state court is free to read its broadly

constitution more than the Su-

preme Court reads the federal constitution. Castle, Inc., Mesquite City v. Aladdin’s 283, 293, 1070, 1076, (1982). A state constitution

may provide additional defendants with

protections not afforded the federal con- Hass, Oregon

stitution. 1215, 1219,

719, 95 S.Ct. 43 L.Ed.2d 570

(1975); Cooper California, 788, 791, (1967); 17 L.Ed.2d 730 and the

Brennan, State Constitutions Rights,

Protection Individual 90 Harv. (1977). Assuming the federal L.Rev. 489 does not clause bar in- appellees for the lesser concluding, so

cluded without may clause read

Texas double provide pro- prosecutions such bar surpassing that afforded the fed-

tection

eral constitution. charg-

I hold that the indictments would offense are barred the lesser included and lesser the “same offense” under

fense are of the Texas Consti- Thus, ruling on the federal consti-

tution. unnecessary because the

tutional issue

Case Details

Case Name: State v. Engelking

Court Name: Court of Appeals of Texas

Date Published: Aug 30, 1989

Citation: 771 S.W.2d 213

Docket Number: 01-88-1143-CR, 01-88-1144-CR

Court Abbreviation: Tex. App.