Stennett v. State

a condi- injury to another for caused ”) possessor (emphasis

tion “the has created

added). Spectrum challenged Martinez’s

Science a dangerous

claim that it created condition Further, adjacent property.

on the Science presented summary judgment evi-

Spectrum

dence, undisputed, which was that it did control over “hot” wire

exercise electrical

running through adjacent property injured. Consequently,

which Martinez was law, Spectrum a matter of cannot Science any injury liable for that elec- caused wiring.

trical

Judgment should be for Science rendered

Spectrum. not do Because the Court does

so, I dissent. STENNETT, Appellant,

Mark Texas, Appellee.

The STATE

No. 1013-95. of Criminal

En Banc.

Oct. Schneider, McKinney, Troy

Stanley W. Moran, Houston, appellant. Tom Houston, MeCrory, Atty., Dan Asst. Dist. Austin, Paul, Atty., State’s Matthew State. court en

Before the banc.

915 and the marihuana PETITION FOR his illegal possession of OPINION ON STATE’S effectively barred the DISCRETIONARY REVIEW punishment that such any punishment for the imposition further MEYEKS, Judge. Ap Fourteenth Court of same offense. The however, argument, rejected this peals pos- for After Mark Stennett was arrested discretionary review. Stennett v. we refused marihuana, he received from the session of State, (Tex.App. 612 905 S.W.2d — Houston Comptroller of Public Accounts a bill 1993). then took his case Stennett [14th] $49,070.00. Evi- for taxes in the amount of Court, Supreme which States United dently, Comptroller’s position that it was the certiorari, summarily granted his for on account of his Stennett owed these taxes Fourteenth vacated having purchased, acquired, imported, manu- Appeals, remanded to Court produced marihuana. See Tex. factured, or light Depart in for reconsideration 159.101(a).1 in- Tax The tax bill Code v. Kurth ment Revenue Montana past formed Stennett that his taxes were 767, 1937, 128 114 S.Ct. U.S. assessed, due, penalty that a late had been (1994). v. Stennett L.Ed.2d 767 might and that further and interest 130 L.Ed.2d 271 U.S. paid be assessed if the taxes were not (1994). promptly. right He of his was also notified hearing disagreed to a in the event that he Ap On remand the Fourteenth Court of with the bill. peals, relying on reversed Ranch holding prosecu position, earlier that further not, however, request Stennett did a hear- tion of under the Texas Controlled Stennett Instead, ing. Comptroller he mailed the Act for of marihuana Substances $100.00, amount of on his check drawn by the Fifth Amend barred account, personal simply and marked it because Stennett had ment application “Tax.”2 He then filed an by punished imposition for that offense corpus in habeas the 248th District Court partial collection of a tax on the marihua County, alleging payment Harris that his Stennett possessed. allegedly na he the tax barred further criminal (Tex.App [14th 905 S.W.2d 612 of marihuana under the Dou- . —Houston 1995). discretionary granted re Dist.] ble Clause of the United States Const, Appeals decision view because the Court of Constitution.3 See U.S. amend. 5. law, important question involves an of federal evidentiary hearing ap- An was held on this constitutionality stat affecting the of a Texas plication, at which Stennett and the District ute, yet by this has not been settled which Attorney paper each introduced a few exhib- 200(c)(2),(4). Tex.E.App. Proc. offering Court. See its. Both sides then rested without any argument, further evidence or and the In Kurth Ranch the United State judge trial denied relief without comment. pos- that a Montana tax on the Court found marihuana, many similar re- appeal claimed that assess- session of

On Stennett against Stennett punishment spects the tax to the tax assessed ment of constituted 159.101(a) hypothesis, imposes We cannot confirm this also a tax on the hibit 5. however, Section However, "possession” pho- the no- appellate of marihuana. record contains a Comptroller to Sten- tice of tax due sent nett tocopy only the check. of the front of conspicuously omitted to claim taxes on marihuana, possessing account of Stennett’s the exaction of in marihuana 3.Because purchase, pay that he “tax on the demanded acquisition, a result of Stennett was not obtained as importation, produc- manufacture or proceeding, judicial quasi-judicial Stennett’s See Defendant’s Exhibit 4. marihuana!.]” tion of necessarily presents a jeopardy claim double Comp- does not reflect whether the prosecu- 2. The record multiple punishment, not a successive check, although it is troller ever cashed this likely Pearce, tion, question. North Carolina v. See he because the check was offered did L.Ed.2d 656 See Defendant’s Ex- into evidence Stennett. cause, pur- discourage activity not alone make punishment instant was a such does poses prohibition against of the constitutional purposes it a of the Double punishments for the successive Jeopardy Clause. Id. S.Ct. at way. happened offense. It The defen- But, 128 L.Ed.2d at 778-79. dants Kurth Ranch were first prosecuted only persons to the tax are those possession criminal and convicted for of or against charges already whom criminal have conspiracy possess illegal drugs. to The longer possess or brought and who no sought state of Montana then to collect from tax otherwise exercise control over the money large them a sum of as tax on the contraband, imposition a claim that able they pos- marihuana had been convicted of penal constitutionally the tax is not becomes sessing. The defendants contested this as- Montana, if, implausible, particularly inas proceeding sessment in an administrative 782-83, Id. at remarkably high. the tax is stayed they which was later when filed a at 780-81. S.Ct. at 128 L.Ed.2d bankruptcy. bankruptcy in jeop- court declared the tax assessment to be Many of these same considerations barred, ardy and a federal district court af- apply to controlled substances also the Texas judgment, firmed its as did the Ninth Circuit tax in favor of a conclusion that and militate Appeals. Court of certiorari the United On it, tax, like the Montana Supreme agreed, holding States Court that Montana, in the mari the Montana tax was criminal conduct. As nearly high, huana tax in punishment contempla- a second within the ounce, imposed only against those and is protection that has tion of constitutional in or persons possess who or deal marihuana history jurispru- deep roots in our and illegally. other Tex. controlled dence, imposed and therefore must be dur- 159.101(b)(3). But, § unlike Mon Tax Code prosecution ing the first or not at all. The tana, only impose its tax on proceeding Montana initiated to collect a Texas does not drugs charged tax on the was the those who have been arrested equivalent functional of a successive crimi- Instead, with a criminal offense. the obli placed in nal that the Kurths gation pay tax when the taxable to arises offense. occurs, has event whether or not event yet of law enforcement come to the attention 114 S.Ct. at U.S. agencies, become the of a let alone (citations and inter omitted). prosecution. criminal Tex. Tax Code quotation nal marks 159.101(c). Moreover, legisla § the Texas punishment That the Montana tax was a owe provided has a means for those who ture to became manifest pay to their taxes on controlled substances suggesting that it considered several factors satisfy tax in confidence and thus their bills merely the tax was not intended as a reve- obligation subjecting to without themselves place, In it nue-producing measure. the first bringing upon themselves arrest or otherwise higher expected much than would be prosecution. a criminal Tex. Tax Code purely plainly tax and was intend- revenue reasons, might § For these we 159.005. by legislature, ed the Montana at least system of to find that the Texas part, a deterrent inclined as Furthermore, duty pay taxation, unlike the controlled substances expressly upon com- the tax was conditioned scheme, punishment, were Montana is not a by mission of a criminal offense obli- tax was fact that it not for the gor against him after his and assessed undoubtedly plainly intended to be prop- dispossession arrest and of the taxable legislature that enacted it. punishment erty. 511 U.S. at 128 L.Ed.2d at 779-80. As the case of civil forfeitures to be seem on their surface which course, a tax is Of the fact that and, therefore, subject to con- part remedial illegal activity or that it is intended stitutional affecting typical restrictions These comments are of those ex- prosecutions, question the threshold pressed publicly decid- officially by sponsors all ing punishment whether a tax amounts to bill, proponents of the tax and are satis- purposes of the Double Clause is factory legislature evidence that the intended actually whether it was intended to serve a the tax on marihuana and other controlled revenue-producing purpose designed or was substances to as serve further punish persons instead to for the commission punishable criminal conduct Halper, crimes. See United States v. 490 heavy protracted fines and un- incarceration 435, 442-444, 1892, 1898-1900, der the Texas Penal Code. Tex. Gov’t Code (1989); Helvering 104 L.Ed.2d 487 v. Mitch- 311.023(1-3). conclude, therefore ell, 391, 398-405, 632- did the Fourteenth Court of in this legislative 82 L.Ed. 917 his- case, reasons, albeit for different tory of question the tax statute here in Texas tax on controlled and mari- substances legislature makes it clear that the Texas punishment subject huana is a prohibi- to the actually meant this tax to serve against tion of the United States Constitution purpose. latter A examples, excerpted few imposing separate it in a proceeding from legislative records, adequately relevant that in punishments which other criminal point. illustrate the imposed. the same Accordingly, offense are levy large enough

The threat of a tax judgment we affirm the of the Fourteenth wipe any illegal profits out should add to Appeals. Court of prison deterrent value of a sentence and criminal drug dealing. fine for WHITE, J., dissents. tax would be due even if the dealer es- caped criminal conviction on some techni- McCORMICK, Presiding Judge, cality- bill, This is a law-and-order dissenting on State’s Petition for bill. revenue Discretionary Review. Organization House analysis, Research bill I Appellant formally charged dissent. 9,1989. May H.B. by indictment with the criminal offense of What this bill does is establish the ... possessing five, fifty, more than but less than requirement of payment licensure and the pounds Thereafter, of according respect taxes with to illicit controlled majority opinion, to the Comptrol- the Texas dangerous drugs ler of Public appellant Accounts sent a tax tool, would, would offer you another if $49,070.00 bill the amount of on account of law enforcement in addition to the actual appellant “having purchased, acquired, im- current criminal offenses. ported, manufactured, produced marihua- McFarland, Sen. Appellant personal Senate Criminal na.” sent Justice his check for Committee Public Hearing, May Comptroller to the Texas $100.00 Public Comptrol- Accounts. It is not clear that the It was not conceived initially as a reve- negotiated ler’s office ever this check. nue bill. It has not worked out to be a basically revenue bill. It’s prosecutorial Appellant now claims the State cannot prosecutors get tool. The to use the state punish him for the criminal offense because basically yet as another hammer when already “punished” he has been for that of- working people with that are arrested for “payment” fense $100.00 drug various ultimately offenses. And Comptroller of Public Accounts. theory is it would packaged up plea in a Ranch, majority Based on Kurth holds bargain. And that it would make it easier the “Texas tax on controlled substances and to work with individual defendants. punishment” marihuana is a the Fifth Weiss, clause, Testimony jeopardy of Mark Amendment’s Comptroller’s double Of- fice, Committee, before the Ap- Senate Finance affirms the the Court 20,1989. May peals. Department See Revenue Mon- here, where, 767, 114 a criminal especially S.Ct. tana v. Kurth stake, uphold I also the constitu- is at would 1937, 128L.Ed.2d 767 statutory tionality scheme ease, However, un completely it is it to the in this case and leave issue the broad constitutional necessary to address double it violates Court to decide whether majority addresses because question the Ranch, 511 jeopardy principles. See taxing authorities is no evidence Texas there U.S. at actually trying the entire tax of are to collect (Scalia, J., (point- dissenting) at 794 $49,070.00, “payment” of out and the $100.00 circuit court ing out that at least one $49,070.00 cannot be of a tax assessment jeopardy suggested that double appeals has jeopardy “punishment” for double considered punishment when principles allow a criminal purposes. the Kurth Ranch Court Even imposed, has a civil sanction gone this far. See would not have costs of pointing out that the social and also 511 U.S. at multiple-punishments double “fictional” (Montana taxing au higher at 774-75 prohibition 128 L.Ed.2d will be much stake). $900,- almost attempted to collect are at thorities proceed 000.00 in taxes in administrative respectfully I dissent. really ings). Ranch court seemed The Kurth it believed was the to be concerned with what KELLER, J., joins actually col this dissent. tax Montana tried to

excessive family. Kurth from the Kurth See lect MANSFIELD, dissenting on Judge, Ranch, fn. 114 S.Ct. at 511 U.S. at 780 Discretionary Appellant’s Petition for (Mon L.Ed.2d at 779 fn. 17 1946 fn. 128 Review. of marihuana at 400% its tana taxed the value). appellant’s I hold vol market would felony of- Appellant was indicted the partial “payment” of an untary, de minimis five, greater than but possession of fense of under the “punishment” tax is not assessed marihuana. Tex. fifty, pounds of less than jeopardy clause. Fifth Amendment’s double 481.121(b)-4. § Safety Code Health of Pub- Comptroller Subsequently, the Moreover, it is not even clear whether appellant a statement for lic Accounts sent punishments” a Kurth Ranch is “successive $49,070.00, due, under in the amount of taxes prose offense or a “successive for the same Chapter provisions of the applicable offense ease since the cution” for the same Code, The Texas Controlled Sub- Texas Tax to hold majority opinion in that case seems informed The statement stances Tax Act.1 later “punishment” tax was but Montana’s overdue, pen- a late appellant the taxes were “proceeding Montana goes on to conclude the assessed, pay the and failure alty had been possession collect a tax on the initiated to in additional might due result taxes then equivalent of a suc drugs the functional was being imposed. Appel- taxes and Compare prosecution.” cessive criminal to a informed he was entitled lant was also at validity to contest the hearing should he wish with, 781-82, 128 L.Ed.2d at against him. assessment the hearing. He (Scalia, J., request a dissenting). Appellant did not at 795 however, did, Comptroller a cheek mail the very clear in this area is not Since the law (2) gram of a taxable substance provides: $3.50 for each § Code 159.101 1. Texas Tax containing consisting of or (a) purchase possession, the tax is manufacture, pro- acquisition, importation, chapter (g) under this determination made If a a taxable substance on a dealer of payment duction the amount of becomes final without made, paid comptroller previously being which a tax has the determination of the chapter. add to the amount 10% shall (b) of the tax and interest. amount the rate of the tax is: $100, on which he the word “tax.” cause the Texas tax does not contain the two wrote cheek, appears Comptroller It “unusual features” that were found control- cashed though conclusively ling the record does not dem- in Kurth Ranch.

onstrate whether it was so cashed. appeals The court of considered five fac- determining tors in the Texas Con-

Appellant application then filed an for writ Court, punitive: Tax corpus in trolled Substances of habeas the 248th District claiming the Double of the Clause 1. tax on commission of is conditioned Fifth Amendment to the United States Con- crime; subsequent prosecution stitution barred the 2. statute allows a tax assessment possession having for marihuana due to his after the substance that is taxed is paid tax on that marihuana under Texas Tax confiscated; Code 159.101. The trial court denied re- lief. 3. the rate of tax exceeds the value of the making taxed substance it similar in rejected The Fourteenth Court of (and respect to the Montana Tax appellant’s argument that assessment of the key factor Court’s find- constituted ing punishment); the Montana tax was marihuana, thereby barring appellant subsequently The assessment the tax on noncon- the same marihuana that is the misrepre- trolled substances that are tax assessment. Stennett v. substances; sented as controlled (Tex.App. S.W.2d 612 [14th Dist.] — Houston Comp- 5. The coordination between the 1993) refused). (pet. The United States Su un- prosecutor troller’s office and the preme summarily granted appellant’s which, among der Section 159.206 oth- certiorari, vacated the things, permits Comptroller er appeals, of the court of and remanded the taxes, compromise or settle interests appeals cause to the court of for further and otherwise due with proceedings light in Department of Reve of prosecutor. the written consent of the nue Montana v. Kurth 511 U.S. of 767, 1937, (1994). 114 S.Ct. 128 767 L.Ed.2d Stennett, 905 at 613-614. S.W.2d 922, v. Stennett 513 U.S. 115 S.Ct. State, brief, The in its noted two differ- (1994). 271 ences between the Texas Controlled Sub- remand, First, Ap On the Fourteenth Court of stances Tax and the Montana tax. the peals prior judgment. reversed Relying imposed only its Montana tax is on individuals appeals on Kurth the court of held arrested for or sale of controlled appellant that the posses of tax is on while the Texas jeopardy-barred by illegally possess sion of marihuana was all individuals who controlled Second, appellant the Fifth Amendment because had im- substances. the Montana tax is already punished by imposition posed only been the and the substance is after controlled partial seized; payable collection of the tax on that same the Texas tax is due marihuana. Stennett v. 905 S.W.2d when the controlled substance comes into the 1995). (Tex.App possession. [14th Dist.] individual’s . —Houston granted the State’s for discre jeopardy provides: clause The double tionary following to consider review the any person shall for the “[N]or ground for review: put to be in same offence twice Const., appeals Whether the court of erred life or limb.” U.S. Amendment V. determining preventing the Texas Controlled Substances The clause the function of serves punishments Act constitutes ... suc- [Tax] for double both “successive jeopardy purposes light Department prosecutions.” cessive United States v. Dix- on, 688, 696, 2849, 2855, Revenue Montana v. Kurth Ranch be- 113 S.Ct. U.S. (1993), citing North therefore hold that under the Double 125 L.Ed.2d 556 Car “We Pearce, v. 395 U.S. 89 S.Ct. has al- Jeopardy olina Clause a defendant who (1969). protection ready punished prosecu- 23 L.Ed.2d 656 The in a been criminal against multiple punishments prohibits the subjected may tion not be to an additional twice, attempting a “punishing State civil to the second sanction the extent that punish criminally time for the second to may as re- sanction not be characterized — States, offense.” Witte v. United medial, only as a deterrent or retribu- but -, -, 2199, 2204, 132 L.Ed.2d 115 S.Ct. previously tion.... a Where defendant Mitchell, 351, citing Helvering v. 303 U.S. penalty has a and the sustained criminal 391, 399, 630, 633, 82 L.Ed. 917 pro- penalty sought subsequent civil in the ceeding bears rational relation no goal compensating government for the Halper, In United States loss, appears qualify but rather to (1989) 1892, 104 L.Ed.2d 487 ‘punishment’ plain meaning of the a Supreme Court addressed whether civil word, then the defendant is entitled to instances, be, may sanction some consid damages accounting government’s “punishment,” thereby implicating ered if penalty and costs determine Fifth Amendment’s Double Clause punish- in fact sought constitutes second barring prosecu subsequent must to the trial court ment. We leave person tion of the the same offense or discretion to determine the basis civilly has offenses which he sanc civil accounting such an the size of the Halper In Halper, tioned. was convicted of government may receive with- sanction claims, filing 65 and was Medicare false sen remedy crossing out line between years’ imprisonment and fine tenced two punishment.” The evidence showed the total loss $5000. resulting govern from the false claims to Halper, At prosecuting ment was The cost of $585. Halper, with it clear that Consistent $16,000. Halper approximately was subsequently a civil where the State files government subsequently brought a against against sanction action an individual Act, civil action under the False Claims con- whom it has obtained criminal Halper U.S.C. under which viction, court it must demonstrate to the trial subject to a each false it seeks the amount of the sanction claim, $130,000. for a total district “remedial,” i.e., rationally is re- the amount concluded, light Halper’s previous court damages lated costs of to the punishment, pen- civil additional a the it as result of individual’s sustained alty large Jeop- this Double would violate the Any in excess of criminal conduct. sanction multiple ardy prohibition Clause’s on crimi- punishment such is and is barred an amount punishments nal for the same offense. by Jeopardy the Double Clause. Supreme unanimously held that Court Ranch, supra, In Kurth the may criminally prose “government not the imposed a mari- Court held that state tax on defendant, impose a criminal cute Jeopar- invalid the huana was Double him, upon bring separate then civil dy where the individual had Clause based action on the conduct receive on of marihuana convicted rationally to that is not related ini- imposed. tax was The Court which the government goal making the whole.” the calling sanc- tially merely a civil found 451, 109 Halper, at S.Ct. At 1903. so, purposes it tion a “tax” did not make then jeopardy analysis. of double The Court acknowledged that a civil sanc- The Court punitive whether the tax was so considered following tion a criminal conviction com- to the of a sanction as rise to level civil for its costs of pensates government the “punishment” subject qualifying as damages is prosecution and actual remedial Jeopardy punishment. Double Clause. in nature and is not Initially, high rate is even re rate the tax —several State Texas whose marihuana, imposed motely Controlled times value of the similar to the Substances recognized by under the statute —-was the Tax. The intent behind the Texas Controlled nature, punitive dealers, as evidence of its punish drug Court Substances Tax is to not though emphasized that the rate revenue, clearly produce to demonstrated as tax, alone, necessarily standing ren does history. by legislative Majority Opinion its Ranch, punitive. it der Kurth at significant Legislative at 916. intent is significance at 1947. Of more was that a tax determining whether or other sanction on the tax is conditioned commission of a punishment purposes amounts to illegal possession of a controlled sub Halper, crime— Double Clause. Indeed, imposed stance. the Montana at at Kurth only taxpayer is after the arrested for the Ranch, 18, 114 at n. n. 18. precise gives conduct that rise to the tax It is evident the Texas Controlled Substances liability in place illegal possession the first — punish drug Tax to Act is intended dealers imposed upon illegal “Taxes aspect revenue-producing merely fundamentally activities are different from incidental.2 pure revenue-raising purpose taxes with a brief, notes that imposed despite

that are their adverse activi imposed Controlled Tax is Substances on ty activity.” on the taxed 782, 114 anyone “dealer” defined as a under section S.Ct. At 1947. 159.001(3), Montana whereas the controlled imposed The Court further noted the tax is substances tax is on individuals goods longer possessed taxpay- no illegal possession/sale arrested for of con- following the tax er: is levied confiscation of trolled substances and whom controlled government. the controlled substances seized. have been These differ- significant, especially ences are not tax, imposed “This on criminals and no 159.001(3) Section per- defines “dealer” as “a others, departs so far from normal revenue son who violation of the law of this State as punishment. laws to become a form of imports manufactures, pro- into this or State whole, drug as a Taken tax is a concoc duces, acquires, possesses in this anomalies, tion of removed in too-far crucial State_” Thus, like its Montana counter- respects from a standard tax assessment part, the Texas Substances Tax Controlled escape characterization applies only illegally to individuals who are in purpose Jeopardy analysis.” of Double substances, i.e., it of controlled S.Ct. at 1948. applies only to criminals.3 The Texas Controlled Substances Tax is majority that, agree given I with the nearly identical to tax at the Montana issue strong similarities between the Montana tax the extent that per the rate $98 tax — tax, appeals’ and the Texas the court of per ounce marihuana versus ounce of finding tax is a marihuana sig- under the Montana statutes — jeopardy purposes nificantly double is correct. exceeds the of the value substance However, State, brief, does not pro- taxed. The does not the record below indicate any imposed by sending evidence of tax than vide other whether the other a no- that, again prosecution possession 2. note under Texas Tax Code nal of the same con 159.206, prosecutor written consent trolled that were the of the tax required Comptroller’s my before the office com- Jeopardy violated the Clause. Wilson v. Double promise any or settle controlled substances tax Revenue, Department 169 Ill.2d 214 Ill. under the due Texas Controlled Substances Tax provi Dec. 662 N.E.2d 415 Act, primarily further evidence the Act intend- Cannabis and Controlled sions the Illinois dealers, punish drug ed to not raise revenue. Substances Act are similar those of its Texas counterpart. recently 3. Illinois held that a tax under the Cannabis and Controlled following appellee Act on Substances his crimi- appellant, tice of tax due to has made allegedly

effort to collect the tax owed

appellant.

Accordingly, I would vacate the appeals the court of would remand the following to resolve

cause to that court

two issues:

(1) sending of a tax Is the mere notice of

due the Texas Controlled Substances “punishment” implicate so as

Tax Act appellant’s and thus bar

double

prosecution of marihuana?

(2) by sending a cheek appellant, Was Comptrol-

marked “tax” to the Office $100, equal

ler to much than less 1% due, “punished,” pending his of marihuana thus

barred the Double Clause?

I respectfully dissent. MATCHETT,

Farley Appellant, Charles Texas, Appellee.

The STATE of 71664.

No.

Court of Criminal

En Banc. 6,

Nov.

Rehearing Denied Jan.

Case Details

Case Name: Stennett v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 16, 1996

Citation: 941 S.W.2d 914

Docket Number: 1013-95

Court Abbreviation: Tex. Crim. App.