Stephens v. State

pleadings, parties, number or the No. 88-16085-M. We are confident that respondent generated, comply promptly. will activity amount of we Our writ only if not. approve trial will issue he does be reluctant to court’s supervision delegation of the dis- all

covery MAUZY, J., to conducted in the case to the be in result concurs is master. This blanket reference much opinion. justify more difficult to than the reference MAUZY, Justice, concurring. Indeed, single it would of a issue. be majority’s I Under concur result.

truly exceptional case re- which warranted case, ap- of this the trial court’s facts discovery of all to a master. ferral matters special pointment of a master a clear Assuming problems already have abuse discretion. La v. Howes Buy discovery in case to warrant arisen this Co., Leather U.S. master, although the reference record to assumption, does not this there nothing in record reflect this to however, majority’s I un object, to discovery justify future conduct of will su- necessary discourse the historical role than pervision by a master rather special to masters. This Court’s role is not showing, parties such a court. Absent legal Reagan author treatises. Cf. pay by simply have been ordered (Tex.1991)(Hecht, Vaughn, 804 S.W.2d 463 of the same kinds of J., rehearing). hour resolution dissenting on motion by litigants in issues a master that other opinions. advisory Nor issue is it to Cf. (Tex. can from the court without cases obtain Edgewood Kirby, 804 S.W.2d 491 expense. The trial court’s order as- 1991) rehearing). such (on peo The motion for parties of a serts that the benefit to the judges ple state elect their to decide of this his case will exceed rather master As that come before courts. cases explain does not expense, substantial but it rea surely that role is served sound parties the same why the should not obtain soning, is it disserved needless exer so any expense from the court without benefit pedantry. cises in at all.14 heavy are unmindful of the bur-

We not upon resources of

dens the limited time and courts, unsympathetic. trial nor are we

our 171, however, masters cannot

Under Rule cases, “in appointed except exceptional good before us cause”. record that there is not shows discovery ^[*] that this case matters to master. ^[*] good ^[*] cause ^[*] exceptional, ^[*] refer ^[*] all The STATE Haron STEPHENS, Appellant, Texas, Appellee. No. 914-88. appointment of a court’s clear abuse of this case was a master Texas, Appeals of Court of Criminal require parties to re To discretion. En Banc. complaint appeal would be serve their 2,May relief from the deny any effective them en They are therefore court’s order. 30, 1991. Rehearing Overruled Jan. Buy, La by mandamus. See to relief titled at 312-13. respondent to va Accordingly, direct we master Cause appointing the order

cate judgment. of costs in the final award parties argue court exceed- that the trial 14. The case, disposition do we pay of our authority ordering view them his ed argument. prior address this time or at fees in advance master’s Byck, appeal only, Michael D. Law- Mitchell, Dallas, appeal only, rence B. appellant. Vance, Atty. John Dist. and Pamela Sulli- Klein, van Berdanier and Michael A. Asst. Dallas, Huttash, Attys., Dist. Robert Austin, Atty., State’s State. Opinion on State’s Petition Discretionary Review CAMPBELL, Judge. initially by a

Appellant was convicted rape.1 He was sen- years’ tenced to confinement in the twelve ap- Department Texas of Corrections.2 On peal, the Dallas Court of Penal, 21.03, Department Jus- repealed V.T.C.A. the Texas of Criminal § now su- 2. Now Penal, perseded by tice, term § V.T.C.A. 22.021. The Institutional Division. sexual assault has now been substituted for that rape. evidence insufficient to the convic under the Double Clause.5 We will consequently tion affirm. reversed and ordered judgment acquittal. Stephens outset, it At the should be noted State, (Tex.App. — Dallas pretrial corpus writ habeas 1984) I). (Stephens This Court affirmed appropriate remedy to review judgment Appeals. of the Court of parte Rathmell, claim. Ex (Tex.Cr. State, v. 717 S.W.2d 338 33, (Tex.Cr.App.1986). 34 In Abney S.W.2d II).3 App.1986) (Stephens v. 97 S.Ct. (1977), 52 651 Subsequently, appellant was indicted for the preferred proce Court observed that rape the offense the same victim jeopar dural vehicle for review of a double Appellant arising out of the same incident. dy corpus claim was the writ of habeas filed pre-trial application for a writ of since: claiming prosecu- corpus habeas rights conferred on a criminal “[T]he of rape tion for the lesser included offense by Jeopardy accused the Double Clause Jeopardy was barred the Double Clause significantly ap- would be undermined if previous appellate acquittal due to the for pellate jeopardy of double claims review aggravated rape sexual [now postponed were until after conviction and appellant’s The trial court denied assault]. sure, Jeop- sentence. To be the Double application corpus. for writ of habeas Sub- against being ardy protects Clause twice for sequently, appellant petition filed a dis- crime, convicted for the same cretionary Court of review Dallas right fully can aspect of the vindicat- Appeals. appeal following judgment, as ed on final However, suggests. the Government published opinion, Dallas recognized long has that the Dou- Appeals appellant’s subsequent held Jeopardy protects an ble Clause individu- rape indictment for after the reversal of his being subjected to al than more rape prior aggravated conviction violated guarantee punishments. It is a double parte Clause. Ex put to trial for the against being twice (Tex.App 208 Stephens, 753 S.W.2d . —Dal same offense.” 1988) III). (Stephens granted las We 431 97 at 2040-41 U.S. discretionary petition State’s for review original). (emphasis appellate reversal of determine4 whether aggravated rape appellant’s conviction sole jeopardy prohibition against double The ly ground that there was insufficient Fifth Amendment to is found prove aggravating pro- element A evidence to similar United States Constitution. I, 14 subsequent prosecu may in Art. of the offense bars a vision be found § The Fifth Amendment rape tion the lesser included offense Texas Constitution. important question of state and feder- 3. This Court noted appellant have raises an could been been, be, should settled al which has not but law convicted of the lesser included Court, 200(c)(2); (2) Tex.R.App.Pro. jury. it 717 S.W.2d if had been submitted justices have Dallas Court of appel- the trial court refused question disagreed upon important law charge request lesser included for a lant’s decision, parte Stephens, necessary to their Ex respond not to or com- offense. The State did (Kin- 1988) (Tex.App. S.W.2d 208 appellant’s request. ment on —Dallas J., 200(c)(5). keade, dissenting); Tex.R.App.Pro. opinion purport 4. This to answer does today precise has been addressed issue question Double Clause whether the presented previously in the case to this Court subsequent prosecution if the would bar a State, (Tex.Cr.App. S.W.2d 784 Garrett charge on the lesser included an instruction 1986). initially found that such This Court the trial court had errone- included offense or if subsequent prosecution on double was barred ously request refused the State’s however, grounds; jeopardy offense instruction. advisory is- opinion since the as an disavowed State, ripe Garrett v. for review. sue was 1986) (opinion (Tex.Cr.App. petition granted for discretion- the State’s 5. We rehearing). (1) ary following on State's Motion reasons: for the review prohibition against fully statutory provisions two distinct the test applicable through to the States the Four- applied to determine there to be whether Maryland, teenth Amendment. Benton v. only offenses or one is whether are two 784, 787, 2056, 2062, provision requires proof of a fact each (1969). Conceptually, that the other does not. jeopardy provi- State and Federal double Although 284 U.S. at 52 S.Ct. at 182. State, Phillips sions are identical. it clear Court has since made 2 (Tex.Cr.App.1990). 5.W.2d 393 n. principal statutory is the Blockburger observed, As one commentator has few determining construction test whether Rights provisions of the Bill of have been barred, prosecution a successive Illinois frequently litigated, more the mere vol- but Vitale, U.S. activity light ume of much has not cast the Court also upon meaning concept of double reaffirmed the “same incidents” test con- jeopardy. Sigler, Jeopardy: J. Nielsen, tained in In re Development Legal Policy of a and Social 672, (1889). 118 S.Ct. 33 L.Ed. (1969). hoary Its antecedents have been Turning case, to the instant in 1982 at to traced Greek and Roman times its trial, appellant’s the time of Y.T.C.A. Penal Eng- establishment in the common in law Code, rape 21.02 defined the elements of § becoming part land before a of this Na- (2) intercourse; (1) person; as: a has sexual jurisprudence. Maryland, tion’s Benton v. (3) female; (4) wife; (5) with a not his 784, 2063, 795, 2056, 395 U.S. 89 23 S.Ct. person without the female’s consent. A (1969); parte L.Ed.2d 707 see Ex also if, aggravated rape in committed addition Rathmell, (Tex.Cr.App.1986) 717 S.W.2d 33 committing rape to as defined in Y.T.C.A. (Teague, J., concurring dissenting). Code, 21.02, any Penal he committed § simply “While the Clause itself states that aggravating acts listed in V.T.C.A. Pe- person subject no shall ‘be for the same Code, 21.03(a)(l-5). invariably nal As is § put jeopardy offense to be twice of life greater true of and lesser included of or limb’ the decisional law in the area is a fenses, rape—requires the lesser offense— Sargasso veritable Sea which could not fail proof beyond greate —ag that of the r challenge intrepid judicial the most navi Ohio, gravated rape. 6 Brown v. 432 U.S. gator.” States, Albernaz v. 450 United 161, 2226, 168, 2221, 97 S.Ct. 53 L.Ed.2d 333, 343, 1144, 1137, U.S. 101 S.Ct. 67 (1977). 187 The offense is there (1981). L.Ed.2d 275 these With observa fore definition the “same” as tions, necessary emphasize it is our what Clearly, offense in it. under Id. analysis does or does not involve. rape is the offense as Blockburger, “same” question An initial before this Court aggravated rape purposes of Dou aggravated rape is whether are Jeopardy ble Clause. purpose “same” offense for the The central issue in this case was Jeopardy In Blockburger Clause. Supreme States, 299, reserved Court Greene v. United 284 U.S. 52 S.Ct. 180, namely, appellate re Massey, 76 L.Ed. 306 v. whether determining a Court established the test for versal of a conviction for statutorily precludes whether a “second” defined of retrial for a lesser offense. 7, purposes 19, fense is the “same” for of double 25 n. 98 Massey, v. 437 U.S. Greene jeopardy. (1978). held: 2151, 2154-55, 57 L.Ed.2d 15 begins literal lan analysis Our with the applicable rule is the same act where Amendment, guage of the Fifth that no

or transaction constitutes a violation 98, 1355, denied, Jones, DeLuca, (11th e.g., Beverly cert. 6. 108 N.J. 527 A.2d v. 854 F.2d 412 Cir.1988), denied, 1082, 944, 331, cert. 109 S.Ct. 490 U.S. L.Ed.2d 358 484 U.S. 108 S.Ct. 98 2104, (1989); State, Beverly 492, Muniz, 104 L.Ed.2d 665 v. (1987); N.J.Super. 228 550 State v. Simons, (Ala. 1986); 497 So.2d 530 State v. 549 (App.Div.1988); Commonwealth A.2d 487 (Fla.Dist.Ct.App.1989); So.2d 785 538, Williams, Pa.Super. A.2d 579 379 550 McBride, (La. 1987); 504 So.2d State v. 840 (1988). Walker, (La.Ct.App.1987); So.2d 602 State v. 514 816

person same offence subject “be for the 395 U.S. at 89 S.Ct. at At put be twice of life or policy limb.”7 heart is the concern that permitting sovereign freely subject separate guarantees Three are rec the citizen to second trial for the same ognized (1) Clause: po- offense would arm Government with protection against reprosecution United States weapon oppression. tent following (2) acquittal; same offense an Co., Supply v. Martin Linen 564, protection against reprosecution for the 569, 1349, 1353, 97 51 conviction; following same offense (1977). (3) protection against punishments multiple for the same offense. Albernaz v. United upon well-settled that convic It States, 450 U.S. at 343, 101 1144- acquittal S.Ct. at tion a trial court the Double Vitale, 45; 410, 415, Illinois v. U.S. Jeopardy Clause bars retrial (1980); Ohio, 100 S.Ct. 65 L.Ed.2d “same” offense. See Brown v. v, Pearce, 711, North Carolina 161, 2225, 165, 2221, U.S. U.S. 97 S.Ct. 717, 2076, 89 S.Ct. The Double Peterson, (1969); parte Ex 738 S.W.2d precludes also Clause second trial once a guar It (Tex.Cr.App.1987). is the first reviewing has court determined that prosecutions fol antee successive evidence is insufficient the ver sustain Missouri, lowing Bullington acquittal implicated dict. instant case. 68 L.Ed.2d (1981); Burks v. prosecutions Where successive are 2141, 2149-50, - issue, guarantee against being at (1978); Massey, Greene v. 1 L.Ed.2d 437 represents placed jeopardy” “twice a 24, at 98 at 2154. U.S. S.Ct. finality judg- of policy constitutional of Nielsen, 176, ments for the defendant’s benefit. Brown In re In 131 9 U.S. S.Ct. Ohio, 164, 2221, 672, (1889), 161, Supreme U.S. 33 L.Ed. 118 432 97 S.Ct. (1977); 2224, of States 53 L.Ed.2d 187 Court addressed issue whether Jorn, 479, 554, 470, 547, Jeopardy a subse- 400 91 Clause barred U.S. S.Ct. (1971). for quent prosecution 27 a lesser included of- L.Ed.2d 543 The United States great- Maryland, Benton v. following fense a conviction for the Supreme Court dicta, In com- er. observed: acquittal on the effect of an a mented Today, every incorporates some prosecution: subsequent prohibition of in its form the constitution it In on Criminal put common As this Court Mr. Wharton’s treatise or the law. 560, States, Law, v. United the rule is stated as Green 355 U.S. vol. § acquittal or convic- follows, to wit: “an 2 S.Ct. L.Ed.2d 187-188 [78 tion a included is a idea, one underlying 199] “[t]he offence for a subsequent bar indictment deeply ingrained in at least for former, in the minor offence Anglo-American system jurisprudence of wherever, the indictment under that the all of its resources State with for greater offence, the could power not be allowed to make should defendant ” less; have been convicted and he attempts repeated an individu- convict of in which the rule alleged thereby sub- instances several cases for an al acquittal on embarrassment, example, an applies; for “an expense him to jecting burglary, and lar- robbery, in a for compelling him to live indictment and ordeal and ceny, may pleaded to an indictment be continuing anxiety state of and insecuri- goods, because enhancing larceny possibility same ty, as well as the defen- though upon the former indictment may he be that even innocent of the might been convicted dant have guilty.” found Garrett, (citing 1189, v. Swen at Ashe implicate application 749 S.W.2d 791 analysis an 7. This does not son, L.Ed.2d estoppel U.S. 90 S.Ct. as is im- doctrine of collateral (1970)). plicitly Clause. in the Double larceny.” Repeated prosecutorial one be indicted mur- tion. sallies “If der, indictment, acquitted on that unfairly burden the defendant policies: cessive explained Supreme Court’s more recent decisions. State’s added); indicated that retrial on a lesser included there was some contrary authority that L.Ed. 300 observations offer the trial taches er rendered First, acquittal. A verdict of perpetration swer to that slaughter. he cannot be ry with ly taining the crime Vic. acquittal U.S. at Greene rest acquitted 662, 670-71, Tibbs v. charge afterwards c.86, 2, position policy might see also United States v. prosecutions 9 S.Ct. at 677. special weight judge, violence, of a ” Double Florida, not be as the part on that by allegation concerns in the “If murder would be an an- again absolutely shields the de- upon 9 S.Ct. at 676 be convicted The Court prohibition little solace for the under burglary, general acquittal barred contained party charged instant case in the indictment con- indictment, two indicted offense. 131 U.S. committed in the not expressed 1192, 1194-95, However, or directed closely Wm.IV judgments guilty, acknowledged violence.” against suc- the case of Clause (emphasis Ball, general- burgla- he can- related wheth- Burks and 1 these man- light at- by prosecuting double tends that under provides its er included offenses greater offense. §§ instruction, for the trial court’s failure to include the lesser offense in the lant’s contends that since it did not bars the Turning sheer case, ond produce reason, ground co, 449 and create a risk 187-188 199] Green v. United brief, 37.08; charge affirmatively impair request attempt (1957); United States v. DiFrances- jeopardy governmental perseverance. 137, 31, 41-42, the State concedes that Texas law U.S. that the 37.09. when a reversal rests [78 sufficient evidence to State to the instant prosecutor a defendant consolidating greater (1982) for a lesser included offense ^[117] at conviction. protection. is Jeffers prosecution should not be not 221, 223-224, at 130 (emphasis See also V.A.C.C.P. charge by including 2207, precluded on the trial of the (1980)]. so v. United [101 case, long 53 L.Ed.2d 168 the State con- making oppose appel- has failed to added). Clause then appellant’s the State penalized prove upon jury. and less- from re- For this through both in States, a sec does its In opposed In Jeffers, the defendant from fendant retrial. A reversal based consolidation of the two offenses with on the insufficiency of the evidence has charged, which he was but he failed to the same effect because it remains that object jeopardy grounds. on double no rational factfinder could have voted to Court held that the defendant had thus convict the defendant. jeopardy waived his double claim. 432 U.S. Second, implement Burks Greene 154, Supreme at 97 S.Ct. at 2218. The principle that “[t]he Court that: observed considerations pur- Clause forbids a second “[t]he relating propriety to the of a second trial pose affording prosecution anoth- obviously would be different if action opportunity supply er evidence which sepa- Government contributed proceed- it failed to muster in the first greater Burks, prosecutions rate on the lesser and ing.” supra, at 11 at S.Ct. [98 charges. present No hint of that is prohibition, lying This 2147]. us, case since the protections, pre- core before Government Clause’s af- sought on the indict- honing firmatively vents the two State its trial 152-53 n. strategies together.” ments 432 U.S. at perfecting its evidence added). through attempts (emphasis We successive at convic- 97 S.Ct. at Jeffers, proposition read for the Supreme stand the Montana Court was based on may grounds guilt innocence, his that waive double unrelated to defendant protections retrial under the Fifth the same offense was not Amendment. barred. Id. at 107 S.Ct. at 1827. In Id. case, appellant’s the instant case, prosecuted In the instant the State was reversed because the was in evidence appellant on the offense. prove aggravating sufficient to element Nothing prevented request- the State from Stephens, of the offense. ing a lesser included offense instruction. 341. A conviction that is reversed because By electing pro- See V.A.C.C.P. 36.15. the evidence is insufficient will bar a retrial only ceed on the State for the same offense. See Burks v. Unit hardly can claim that it did not contribute ed 437 U.S. at 98 S.Ct. at 2149- to the error. find that does We Jeffers 50. support the State’s contention. Next, reprosecu- the State contends that also contends Su appellant tion of the should not barred be Hall, preme decision in Court’s Montana “continuing appellant because the was in 400, 107 jeopardy.” The State relies Price v. (1987) applicable to the instant case. Georgia, 398 U.S. Hall, trial, days four before the defendant (1970) proposition for the original moved to have the indictment “continuing appellant jeopar- remained in charging him sexual assault dis- dy.” misplaced. This The con- reliance missed, arguing that because the victim originally viction in Price was reversed be- stepdaughter only pros- his he could was be Therefore, the defen- cause of trial error. granted The trial ecuted for incest. court Supreme dant still retried. The could original his motion to dismiss the indict- “consistently noted it had re- Court subsequently ment and he indicted for was jeopardy for an fused to rule that of incest. The and convicted Montana Su- acquittal.” after an 398 U.S. at continues preme set aside the Court conviction as acquit- A 90 S.Ct. at 1761. verdict violating post prohibition the ex facto be- final, ending jeopardy. tal is a defendant’s cause, crime at the time the was commit- States, 355 U.S. Green v. United ted, apply to the incest statute did not 221, 223-24, stepchildren. The Montana insufficiency of the A reversal based on subsequent prosecution for also held that a acquit- has the same effect as an sexual assault would be barred Tibbs, 102 S.Ct. at tal. 457 U.S. at jeopardy. appellant’s jeopardy Accordingly, re- of his The United States he secured a reversal ended when court, insufficiency holding the lower versed conviction based placed in Appellant found in the result of trial defect Hall was of the evidence. 404, reindicted for charge. jeopardy again he was jury error in the 481 U.S. when the “same” offense.8 107 S.Ct. at 1827. Since reversal Supreme Court found argues ap- robbery. Ohio bank The The State also that the reversal pellant’s as an barred and conviction did not work that the conviction was implied acquittal of the lesser offense judgment a conviction to reflect reformed the thus, not be barred. The retrial should statutory pursuant authori- to state for murder impli- appellant that the was not State is correct Supreme affirmed. ty. Court The United States rape. edly acquitted its reliance on 1032, Mathews, 237, 106 S.Ct. 475 U.S. Morris Mathews, 475 U.S. Mortis (1986). 89 L.Ed.2d 187 (1986) misplaced. 89 L.Ed.2d 187 Court, Unlike the Ohio Mathews, accomplice an the defendant and authority to reform a convic- does not have the ap- the two were robbed a bank. When greater felony be based on found to tion of dead, accomplice prehended, was found felony, which insufficient evidence to pled guilty apparent suicide. The defendant generally support. See Morris will aggravated robbery. Subsequently, defen- Mathews, 106 S.Ct. 475 U.S. killing partner. his The defen- dant admitted to (1986); Tex.R.App.Pro. for- L.Ed.2d 187 aggra- later indicted and convicted dant was 44.24(b). rep- instant case merly V.A.C.C.P. being aggravating factor vated Essentially, society legitimate the State would have this has interest convict- ing punishing Court re-examine our in Stephens those who violate its II, Somerville, improper and hold that it is for an laws. Illinois v. 410 U.S. (1973). appellate 35 L.Ed.2d 425 Fur- sufficiency court to reverse on ther, argues grounds determining the State that the Court of without first whether Appeals’ Stephens decision in III hin- will there are reversible trial errors. The prosecutors charging argument, essence, der defendants State’s is that aggravated crimes for fear of with reversal Appeals’ appellant’s reversal of “get away and that defendants will with in Stephens conviction I should have been peti- ‘free’ lesser included offenses.” In its on the failure of based the trial court to review, discretionary tion for the State ar- give requested lesser included instruc- gues asking State is not tion, transforming “[t]he the reversal from one apple. one more than bite at the The State sufficiency based on of the evidence to one merely requires replace a new bite to that, based on trial error. We find while appellant away through bite which took his appellant’s might have been re- appeal.” argu- successful We find these charge versed because the failed to unpersuasive. ments instruction, timely requested include the disposition this Court’s final predicated Swenson, attorney In Ashe v. the State’s acquittal by on the reversal and the Court appeal acknowledgment made the frank Appeals due to insufficiency of the evi- prosecutor that the trial had treated the dence, II, not trial error. See dry first trial as a run: “No doubt the at 340 n. 2. prosecutor provable felt the state had a and, charge lost, case on the first when he Any opinion by the Court of good he did every attorney what propriety to the of the refusal of the trial presentation do—he light refined his give court to a lesser in included offense the turn of events at the first trial.” 397 advisory. struction would have been Even U.S. at 90 S.Ct. at 1196. The correct, if the State were once a defendant precisely Court held that this was what the acquitted, “egre has been no matter how Jeopardy prohibits. Double Clause Id. giously legal erroneous” the rationale lead State, This is no less true when the inas ing be, might to that conclusion case, pursue the instant has elected Jeopardy Clause would bar a retrial of the greater offense and seeks to “hone its now appellant. States, See Sanabria v. United strategies” perfect its case awith 54, 75, 2170, 2184, second trial. (1978); Fong Foo v. United 671, 672, The Double Clause a sec- bars prosecution require ond that would the ac- gauntlet” again. cused to “run the There- Finally, argues the State that there are fore, we hold that when a defendant has important policy interests that obtained a reversal of a conviction for a position appellant repro- should be solely ground on the State, respect secuted. prove insufficient there was evidence to offense, argues lesser included that a re- aggravating element of that insufficiency versal based on of the evi- subsequent Clause bars a aggravating dence as to the element should prosecution a lesser included offense. not be accorded the same status as other appellate Accordingly, appellant’s reversals because the issue we find that the present- subsequent prosecution rape lesser included offense never for would be was jury. argues precluded by ed to the The also the Double Clause. prosecution, place epi- in different criminal resents a “second” unlike Mathews murder took required proof proceeding. other to which was one sodes. Neither of the and, therefore, distinguishable The instant case is also for sustain a conviction were not the First, Mathews, Jeop- purposes in the defendant “same" offense for of the other reasons. Therefore, "continuing” jeopardy. ardy Clause. was still in a Second, state of robbery bar a conviction for murder. the commission of the and the Clause did not 820 judgment Appeals of the Court of I.

affirmed. Both before after the States and United

Supreme Court’s decisions in Burks v. States, 437 U.S. McCORMICK, P.J., dissents. Massey, (1978), and Greene v. 57 L.Ed.2d OPINION ON DENIAL OF STATE’S MO- my it has view that the suffi- been TION FOR PETITION REHEARING ciency of the to support evidence a convic- FOR DISCRETIONARY REVIEW tion in a case measured criminal was to be against penal allegedly statutes violat- McCORMICK, Presiding Judge, by means, any ed other as a and such dissenting. judge’s jury. trial court instructions to The Court overrules State’s motion State, v. beginning with Benson rehearing in cause. The for this State’s (Tex.Cr.App.1982), 661 S.W.2d 708 this legal problems dealing Harón Ste sufficiency has held that the phens' activity the Court criminal antedates support evidence to a conviction must be State, Stephens Appeals’ decision light of the the trial viewed instructions 1984) (Ste (Tex.App.-Dallas 683 S.W.2d gave jury. court to the I), phens this Court’s affirmance II, majority Stephens In of this Court Stephens Appeals’ the Court of decision in appears to have assumed that State, (Tex.Cr.App.1986) could have convicted been II). (Stephens prob genesis of those jury if the had been instructed on lems was this Court’s self-inflicted first V.T.C.A., Code, 6.04(b)(1)1 Penal Sections State, Benson decision wound — the 7.02(b).2 and/or Because did not the State (Tex.Cr.App.1982). In Ex 661 S.W.2d 708 request pursu- be instructed Stephens, parte (Tex.App. S.W.2d 208 Code, ant to these of the Penal subsections III), 1988) (Stephens the Court of Dallas however, a majority of this Court found in Appeals Stephens’ subsequent held that insufficient to a convic- dictment the lesser included aggravated rape. tion proceed to rape could not trial because has jeopardy princi The United States do so would violate double petition imposed of Texas or granting After the State’s never courts ples. Court, review, jurisdiction require- on those of other discretionary submission, sufficiency judgment ment that the evidence affirmed the parte Ex Ste the trial court’s Appeals. the Court to be measured in Burks itself the Court fact, charge. phens (Tex.Cr.App., No. delivered IV). 1990) (Stephens Stephens IV Forman v. United cited May (1960),as is the Court’s second self-inflicted wound. re- being “a was Because believe Benson was wrongly I de a case where to an and, due I believe a versed the Court cided because i.e., trial jury, seriously misapprehends improper instruction this Court opposed evidentiary insufficien- principles error as misapplies the double Burks, 2145. case, respectfully cy.” present I involved An examination of Forman reflects that dissent. If, conspir- V.T.C.A., Code, 6.04(b)(1), "(b) attempt carry pro- out a Penal Section 1. felony, felony is acy vides: to commit one another conspirators, all con- "(b) criminally of the person re- committed one A is nevertheless causing only actually felony dif- com- sponsible spirators mitted, a result if the are it, actually what occurred having ference between though intent to commit desired, contemplated, risked is he what in furtherance if the offense was committed that: “(1) purpose one that and was of the unlawful committed, ...” a different offense anticipated a result of the should have been conspiracy.” carrying out of V.T.C.A., Code, 7.02(b), pro- Section Penal vides: pose procedural top on evi- defendant there convicted a state law rule on was Greene, Burks under legally differently was insufficient and dence which treat cases instructions, jury instruc- judge the trial court’s depending jury on whether a or failed to facts,4 tions to which Government unnecessarily and the trier of autho- but, Court autho- object3; although acquittal rizes the defendants rized a retrial because the evidence was guilty.5 shows them the evidence to be to sustain a under the sufficient emphasis, repeat And to

indictment. II. in Burks unobjected the Court labeled in Forman jury erroneous instructions Stephens ag- Had Harón tried for been “trial error.” as him gravated rape jury and a had found I guilty, might agree then Su- and until the United States Unless ” retry the lesser State could him for a “Benson standard imposes preme Court of rape. included offense But that is not courts, I dissent on shall continue to lower happened Stephens. Stephens was what requires a standard which a review- from guilty jury aggra- found tried and a him ing sufficiency to measure of the court rape. finding guilty of this vated him against jury in- court’s necessarily jury See, e.g., Benson, structions. 661 S.W.2d guilty of included of- the lesser State, 717-721; Boozer v. 712, at rape. As Su- fense the United States (Tex.Cr.App. S.W.2d 608 at 617-621 Mathews, in Morris v. stated State, preme Court Marras 1984); 395 at 741 S.W.2d 237 at 1032 at Garrett (Tex.Cr.App.1987); 411-414 State, (1986): jury “The did not (Tex.Cr. 749 S.W.2d 784 at Benson and its acquit Mathews of App.1986). progeny repre- him but found by sent an overreaction to the this Court fortiori, of the and, Burks and of that offense Court’s decision Benson et Thus, Greene. al. im- unnecessarily of murder as well.”6 Benson, alone, are, 3.Remarkably, judge Court 4. In a trial before there course, great jury against progeny and which to 661 S.W.2d at its attach no instructions sufficiency legal significance as in Ben- that the State ac- measure the evidence the fact progeny. quiesced object and its results in a double in or did not instructions son This to the standard, jury depending judge jury on or given request whether or additional did not Nothing of facts. Burks or Greene is the trier instructions. the Court in Forman suggests dichotomy. even such bizarre stated: osition the Government’s failure to error to Yet, party Or, structions legal significance. Perhaps no further elaboration. Burks and structions are implicitly "The ry1 condemned in our mitted to the advertence' instruction error ure ory, opinion, (1957) ]; the Forman objects which error was put is, Government ^[963] by the trial court's are "trial recognized and it another Greene, me at Government to on the it still jury request requests pages allowed the case to least, erroneous, although the trial ^[391] now ‘subsidiary conspiracy1 error” that erroneous way, 971-974 compounded by of the appears attention. additional so basic says at Grünewald ‘impermissible erroneous judge the Forman pages object object as without petitioner for an contemplated even to have [1 one calls the as to Such a instructions. through thereto.” if neither [v. i/.S.] jury be sub- led into the fail- require viewed prop- theo- the- 'in- in- in- 5. In have Mathews discussion Attorney Mathews, court’s preme at (1983): ing In the brief With the Administration of American courts rules of the Pound, Ann.Rep. contests not a "Over 75 great sufficiency my misread Court said Morris v. justice,’ charge ‘game,’ ..." view, detail. to footnote supra, years ago, in which of that case the Court Mathews, goes Causes the Benson game is reminiscent of what of the evidence filed was discussed treating been Roscoe Pound eight. Court’s ignoring submission, Popular ‘inquiry approach carried out Although A criminal trials as Slappy, on to state: Justice, 29 ABA ‘substantive law Dissatisfaction is, quoted from L.Ed.2d 610 Prosecuting condemned appears to to measur- Morris 461 U.S. 1 Have the relegates strictly?’ sporting the Su- trial is "Un- its 822

acquittal by justification” a find- most appellate an court after “the reasonable for al- ing guilty by jury significantly lowing of differs a a a retrial of a defendant after finding guilty by of a outright appeal. from an successful Burks v. United jury- States, 437 1 at 2141 at 1 L.Ed.2d Stephens appealed aggravated When his continuing, a sin- rape conviction there was majority opinion original submis- gle jeopardy as to the offense and sion makes less sense one con- even when necessarily implied the also to conviction if siders what would have occurred Ste- rape the lesser included of for offense phens’ aggravated rape result- for single jeopardy That terminated as well. hung jury ed a rather a verdict of than agreed rape when this Court aggravated to guilty. Under the United States the Court of that the evidence Court’s decision Richardson v. United aggravating insufficient to the was its factor issued mandate. hung jury L.Ed.2d a at Ste- this the suf- Court found evidence because phens’ aggravated per- rape for support Stephens’ to for ficient conviction if the mit a retrial for that offense even rape,7 the the lesser included offense of legally evidence had been insufficient continuing, single jeopardy that offense first trial a for the to sustain conviction of his did not terminate with reversal aggravated rape offense of or even Thus, rape. a conviction rape. lesser offense Rich- included of Stephens of for the lesser retrial held ardson that neither the failure rape does not offend double reach nor court’s jury to a verdict the trial Therefore, principles. since jeopardy hung following of mistrial a declaration implied Stephens’ necessarily reversal orig- that terminated the jury was event for the lesser included offense conviction jury jeopardy inal which attached when the evidence, the not based on insufficient was sworn, so that the defendant had was him present opinion grants which Court’s jeopardy claim that a second valid immunity as makes little to that offense failure trial was barred because contrary, Ste- On the so far as sense. prosecution offer sufficient evidence to implied phens’ necessarily conviction go jury, regardless of the suffi- to rape is con- the lesser included first trial. ciency of the evidence cerned, following quotation from Unit- Tateo, 377 U.S. 463 at ed States hung original jury If did not terminate (1964) 1587 at if the even jeopardy Richardson’s case applicable: to sustain legally was insufficient high price indeed for “It would be a conviction, jury’s how is then every grant- society pay to were accused finding Ste- necessarily implied verdict immunity punishment from ed because included offense guilty of the lesser phens revers- any defect sufficient constitute in his terminated leading to proceedings error in the ible Stephens’ original jeop- And case? how did conviction.” ardy after our own Court terminate to sustain legally the evidence quotation It is Tateo sufficient rape. my view In Stephens’ Supreme Court found States (Tex.Cr. II, (sic), Stephens at 339 In this Court the Ohio like authority "By App.1986), a convic- stated: his own state- not have reform this Court does greater felony based on appellant found to be tion of could have found ment felony, which to a lesser insufficient evidence rape.” Stephens noted Ste- IV support.” I am convinced the evidence will been convicted of the phens could have permit such a reformation. law does Texas rape if been sub- it had included offense 80(b) (c). majori- Tex.R.App.P. Because (P. 3). Again, the jury. n. mitted unnecessary contrary ty’s statement to “The majority opinion states: IV pos- present disposition case in its of this the ture, impli- appellant is correct that majority’s dictum statement I consider the 8). (P. acquitted rape.” edly n. issue. pretermit discussion of the further puts permissible under the Double present case der was the Court’s Burks, 395 U.S., proverbial Jeopardy the horse. More- Clause. See cart before hand, S.Ct., over, say 10, our deci- illogical, it is on the one at at 2147. Given hung jury, that, Stephens could recon- today after a to remand this case for sion aggravated rape Appeals, been retried for even we by have sideration the Court though the question evidence reach the of whether need not insufficient aggravated rape could, sustain a conviction the Dou- consistent with hand, and, say that rape Clause, on the other try Greene a ble a Stephens cannot be retried for after that included offense in the event lesser guilty jury had found him first-degree murder is void- his conviction there rape where this Court concedes added.) (Emphasis ed.” him of evidence to convict was sufficient v. United Green The citation of Court’s Richardson result turns rape. Such a significant, and I turn next to that States its head. An examination of Green decision. me that the

subsequent decisions convinces already had decided the Supreme Court II. Burks prior issue to the decisions majority erroneously The asserts Greene. re- central issue this case was “[t]he Green, defendant, arson In tried for Court Greene v. Supreme served murder, degree was convicted Massey, namely, and first appellate whether reversal lesser included pre- jury for a for arson and the of a conviction (P. degree cludes retrial for a lesser offense.” offense of second murder. Green 815) cites, does not appealed degree but murder convic- his second Greene quote, footnote seven of the tion, and the Court of reversed Massey opinion. That footnote reads: sup- that conviction because it was not ported by and remanded the case “Arguably, per curiam 186, for a trial.8 355 U.S. at new might meaning although read as again tried at 223. On remand Green was

there was insufficient evidence to convict original degree for first murder under the defendants of ‘murder in the first offense, indictment, of that convicted degree,’ there was nonetheless evidence given mandatory death sentence. support a lesser includ murder, e.g., second-degree ed however, that, held, Supreme (1977). see Fla.Stat. Sec. 782.04 At the jury at the first trial convicted when time of the Florida Court’s murder, implicit- degree second it Green of holding case, in this degree him murder. ly acquitted of first applicable pro not to state Clause was Therefore, held “that the second the Court ceedings, and hence that court conceiva degree for first murder was trial of Green bly consider did not see need to contrary spirit the letter and to both Constitution, whether, under the Federal Amendment.” 355 U.S. at Fifth only for some a retrial would be allowed pre- at 229. But the Court did S.Ct. Green included offense. Cf. for second a third trial of Green clude States, 355 U.S. S.C. degree murder. Indeed, (1957). if even L.Ed.[2d] 323, 90 Georgia, Price v. 784, 89 Maryland, Benton v. (1970), the defen 26 L.Ed.2d 300 S.Ct. jury but tried for dant was prior been decided to the State included offense him of the lesser action, might convicted the Florida court Court’s appeal the manslaughter. On voluntary from our deci reasonably concluded have aside because of was “set first-degree mur- verdict sions that a retrial degree course, pro- for even second murder. hibit a new trial and Green would now 8. Of Burks error,” i.e., appellate doing, effectively court “re aside. In so formu- concept continuing lated versed the conviction because an errone application pro- new jury ous instruction and ordered a that has where criminal ceedings 1758.9 an accused have run trial.” U.S. again placed on trial for murder their full course. See Green v. United Price was under the indictment. The 2 L.Ed.2d

court included instructions on the offense so jury of murder to the second continuing jeopardy principle “The rendered on that could have a verdict necessarily applicable to this case. first, The like jury, offense. second the sought re- Petitioner and obtained the voluntary manslaugh Price of guilty his initial conviction vol- versal of for Although ter. Price relied on Green by taking ap- untary manslaughter an United, in States, supra, during his appeals peal. aspect Accordingly, the bar courts, rejected Georgia those his courts jeopardy prevented re- on double his conviction, upheld his and contentions and the trial that crime. However for first granted the Supreme Court certiorari. verdict, the limited as was to lesser offense, required that re- reversed the volun- to that be limited conviction, offense. tary in the manslaughter but inescapably from Such a result flows following its opinion course of made emphasis on risk of Constitution’s con- Stephens’ to comments which are relevant explication viction and the Constitution’s omitted): (footnotes case prior in decisions of this Court. Ball, “In 163 U.S. United States 41 L.Ed. ^{[*] [*] [*] [*] [*] [*]} (1896), ‘The this Court observed: holding “The rationale of Green States, in the Constitution of the United applies concept continuing here. The Amendment, declares, “nor shall Fifth implicit Ball jeopardy case subject of- any person be same [for petitioner’s retrial vol- would allow for life put jeopardy to in be twice fense] his untary manslaughter after first against prohibition or is not limb.” The had been conviction that for being being punished, twice but added). 398 U.S. (Emphasis reversed.” * * (Emphasis *.’ put jeopardy twice at 1759-1761. added.) put jeopardy’ lan- The ‘twice thus to guage reversing of the Constitution relates gave The reason the Court i.e., accused potential, manslaughter the risk that an voluntary omitted): was, (footnotes for a second time will be convicted as follows initially he for which was ‘same offense’ remains. further consideration “One tried. petitioner convicted was Because first and give both the rise crime at “The circumstances same trials, he suffered no potential have second and because such a forbidden been subsequent on the greater punishment discussion this Court. subject much conviction, that the sec- Georgia submits example, the Court In the Ball case error when harmless jeopardy dou- ond was expressly rejected view Chapman by the criteria judged sec- provision prevented a ble 824, 17 California, had set a conviction been ond trial when originally was It is that Price’s conviction opinion manslaughter rather then to continue aggravated robbery,” ... the robbery be- to debate his innocence. See United ing that to previously which Mathews had Wilkins, States ex Hetenyi rel. v. 348 pled guilty. At the conclusion of the evi- (C.A.2d F.2d Cir.1965), denied, cert. dence aggravated on Mathews’ trial for Hetenyi, Mancusi v. 913, murder, judge the trial jury instructed the 896, (1966).” (Em 15 L.Ed.2d 667 offense; as to the elements of that on the phasis added). murder, jury included offense of the was instructed: But, the a third prohibit Court did not “If you find that proved the State be- voluntary of Price for manslaughter under yond a reasonable doubt all of the essen- Rather, Double Clause. aggravated tial elements of your Court remanded the Georgia case to the verdict guilty must be of that crime and courts, stating: you that event will not consider parties “We asked post- submit lesser offense. argument memoranda directed to the you if “But find that the State failed to question petitioner of whether can now prove killing was done while the de- be re-indicted or voluntary retried for committing fleeing fendant was or imme- manslaughter Georgia under law. These diately committing aggravated after rob- memoranda have been filed and indicate bery, killing but that the was nonetheless question appears answer to our done, purposely you proceed will depend upon the construction of sever- your deliberations and decide whether Georgia al power statues and on the proved beyond the State has a reasonable Georgia courts to fashion remedial or- doubt the elements of the lesser crime or Accordingly, although ders. we reverse murder. The crime of murder is distin- petitioner’s conviction, also we remand guished aggravated murder Georgia case to enable the courts prove killing State’s failure to pertaining petition- resolve issues done was while defendant was com- retrial, er’s if any such retrial is to be mitting fleeing immediately after com- had.” mitting aggravated crime rob- Mathews, In the case of Morris v. bery.” U.S. 106 S.Ct. 89 L.Ed.2d 187 aggrava- Mathews defendant, Mathews, pled guilty ted murder. charges aggravated robbery to Ohio at a robbery events, bank. After the Mathews’ code- subsequent To understand fendant, Daugherty, procedural posture, found shot handling case subsequent petition

Court’s ultimate it is denied his for certio- Ohio, quote from Justice best to White’s rari review. Mathews v. (foot- 975, 101 length [2057], the Court Mathews at S.Ct. 1057 omitted): (1981). exceedingly showing small ... would remand, Appeals “On the Court of ’ Id., quoting Graham suffice.” Clause, Jeopardy found that the Double Smith, 1078, 1083(CA2 1979). 602 F.2d Vitale, by as construed respondent’s Apparently agreeing with respondent’s aggra for barred conviction ‘evidence was admitted assertion that Mathews, murder. State No. vated aggravated for murder that his trial (Licking County Ct.App., Nov. admissible a trial have been noted, however, 1980). The that court murder,’ stating jury and for aggravated 2903.01 defines murder Sec. prejudiced’ by ‘may have that evi [been] causing of purposely as the death anoth dence, respon the that court concluded felonies, committing and er while certain possibil sufficient dent established simply defines murder that Sec. 2903.02 new ity prejudice to warrant a of causing of purposely the death anoth charge. Mar the murder Mathews v. A-26. App. er. to Pet. for Cert. shall, supra, 162.” therefore, ‘if all respondent’s trial the facts of which relating he was convicted aggravated are excluded robbery ^[*] # ^{[*] [*] [*] [*]} matter, we note sever- jury, of the and “As an initial from consideration court First, dispute. that are not in charged still with and al issues the defendant was our cases pur concedes that under of murder in that he did the State convicted respondent ag- Daugh prosecution the death of Steven posely cause of for the Double charged.’ gravated murder violated Ibid. Accord erty on date Similarly, respon- Jeopardy Clause. ingly, Appeals the modified Clause would concedes murder to dent aggravated the conviction of trying him prevent the State respondent’s sen murder and reduced from Next, all courts murder. term tence to an for indefinite case have Id., have reviewed this again, years at A-27. Once to life. respondent that, finding respon agreed Court denied the Ohio murder, jury guilty aggravated appeal, this Court motion to dent’s necessarily 'purposely manslaughter that he had been influenced found ’ another, charge death which is murder cause[d] —that charge for under which murder Ohio definition of jury unwilling was to convict also Rev.Code Ann. Sec. 2903.02 jury willing made less to consider the supra. Finally, n. this is not a ‘harm- defendant’s innocence on the lesser allowing respondent less error’ case: charge. finding pre- That basis for aggravated tried murder er- suming prejudice present is not here. ror, and it was not sense harm- jury acquit did not Mathews aside, less. With these considerations aggravated only issues us is whether offense of before but guilty charge him reducing respondent’s conviction and, fortiori, the lesser aggravated murder to a conviction as well. murder adequate remedy murder is an jeopardy violation. Maryland, “Benton v. (1969), L.Ed.2d 707 also “Respondent argues that, because the strongly prevail here, indicates that to trial for murder should never trying Mathews must show that him on occurred, the Double have jeopardy-barred charge tainted his taking Clause bars the State from advan- conviction for the lesser-included offense. tage of jeopardy-barred Benton larceny was tried for both converting it into a conviction for the burglary. jury acquitted him on the lesser crime of murder. He submits that count, larceny guilty but found him granted a new trial must be whether or burglary. His conviction was later set showing not there is a of prejudice. jury aside improp- because the had been “Respondent heavily relies on Price v. erly again sworn. Benton was tried for Georgia, 398 U.S. burglary both larceny, and the sec- but his reliance is ond found him of both of- misplaced. Price was tried for murder Maryland fenses. The Court of and convicted of the lesser-included of- held there had been no double manslaughter. fense of After that con- violation, disagreed, ruling but we appeal, viction was reversed on there required Clause set- was another trial for murder and another ting larceny aside the conviction and sen- conviction of the lesser crime of man- Id., tence. at at 2063- S.Ct. slaughter. We held that the second con- viction could not stand because Price had urged burglary “Benton that his con- impliedly acquitted been of murder at the viction must also fall because certain evi- first again trial and could not be tried dence admitted at his second trial would charge. Id., S.Ct., at at not have admitted had he been been tried 1761. Nor could we ‘determine whether evidence, burglary for alone. This he charge against or not the murder peti- claimed, prejudiced jury and influ- tioner induced the to find him enced their decision to him of convict voluntary of the less serious offense of burglary. rejected argument, We manslaughter rather than to continue to saying both that not obvious ‘[i]t [was] Id., debate his innocence.’ at burgla- of the record the face S.Ct., at 1762. by ry conviction was affected the double holding impose “This in Price did not violation,’ jeopardy and that we should an automatic retrial rule whenever a de- evidentiary not make this kind of deter- jeopardy-barred fendant is tried for a prior mination ‘unaided consideration S.Ct., crime and is of a Id., convicted lesser-includ- by the state courts.’ at Rather, (footnote omitted). ed offense. the Court relied on We thus va- Maryland judgment the likelihood of the conviction for cated the court, proceed- and remanded for further possibility’ the court’s ‘reasonable stan- dard, ings. which could satisfied ‘an showing,’ exceedingly small was not suf- suggest “Neither Benton nor Price prevail To in a ficiently demanding. that a for an unbarred offense this, case like must show defendant inherently jeop- is tainted if tried awith that, improper but inclusion Instead, ardy-barred charge. both cases jeopardy-barred charge, result suggest is required only that a new trial proceeding probably would have in- when the defendant shows reliable been different.” prejudice. perceive We no ference departing approach basis for from this S.Ct. 1036-38 here; except that murder awas less- jeopardy-barred Mathews was tried for aggravated er offense included in the offense, i.e., murder, aggravated and was charge separate rather than murder convicted of that offense. The such reason charge, there difference between jeopardy-barred a trial and conviction was jeopardy this case and Benton for double already was because Mathews had an unva- purposes. cated, prior aggravated conviction for rob- “Accordingly, we hold when a bery, which was an element of the jeopardy-barred conviction is reduced But, murder. to a conviction a lesser included that, Court held since Mathews had neither barred, jeopardy is not which previously acquitted been convicted nor the burden to murder, shifts defendant a trial and conviction for that less- probability demonstrate reasonable offense, i.e., er included was not that he have been convicted jeopardy-barred. It is for this reason that non-jeopardy-barred In permissible of this offense. constitutionally for the situation, we believethat a ‘reason- appellate jeopar- Ohio court to reform the probability’ probability able is a dy-barred aggravated murder conviction to suffi- cient undermine confidence of murder. one for lesser included offense Washing- outcome. Cf. Strickland v. Mathews Although admittedly involved ton, U.S. nothing in only proceeding, one there is all, After suggest that a Supreme Court’s purposes Jeop- one of in that case retrial the defendant ardy prevent multiple prose- Clause is to of murder would be lesser included offense protect cutions and an individual principles. prohibited by embarrassment, anxiety, suffering the fact, true, for the Court contrary expense of another trial for the same that retrial was one method of plain made v. United Green curing jeopardy violation: the double 221, 223-224, 184, 187-188, 78 this, therefore, it “In like where cases this, In cases like jury necessarily is clear that the therefore, it is clear that the where found conduct that necessarily satisfies defendant’s defendant’s the elements the lesser the elements conduct of- of of satisfies always incongruous would be fense, it lesser included in- as a means yet to order another trial yet congruous always to order another Jeop- curing a violation the Double curing a violation trial as means added.) ardy Clause.” (Emphasis Clause. judg- to reform the Another method was thus was cor- “The Court lesser a conviction respondent’s ment to reflect rejecting per se sub- rect in Mor- only, as was done mission, included offense it was nevertheless too but But, together, read ris v. Mathews itself. made ready find Mathews had that First, Green, Price, and Morris v. Mathews make showing necessary prejudice.

829 State, plain that, greater (Tex.Cr.App.1980); retrial for a of- 605 602 where S.W.2d State, Taylor principles, (Tex.Cr. fense is barred v. retrial 637 929 S.W.2d State, for a is not. lesser included offense App.1982); Scott v. 712 S.W.2d 782 1986); (Tex.App.-Houston and [1st Dist.] State, v. Teague compare S.W.2d 628 240 III. Ramon v. (Tex.App.-Fort 1982); Worth Until recent months this had held Court State, (Tex.App.-Corpus 657 S.W.2d 437 Burks and Greene do prohibit 1983) (acquittal Christi ordered because evi retrial of a lesser included offense after an dence insufficient to sustain a conviction appellate court had found the evidence in- greater for both and included of sufficient to sustain a for a conviction State, Flanagan v. fenses); 675 S.W.2d State, greater In Moss v. offense. 574 parte and Ex (Tex.Cr.App.1984); 734 (Opin- S.W.2d 542 545 (Tex.Cr.App.1978) Keith, (Tex.App.-Houston 761 442 S.W.2d Rehearing), ion on this Court observed: 1988), pet. granted.). [14th Dist.] agree “We with the dissent Moss was decided on rehearing on No- opinions of Greene v. 15,1978. vember From that date and for a Massey, 98 57 period of seven years over and one-half (1978) v. Burks and thereafter law in Texas was that a 57 retrial on a lesser included offense was not (1978) prevent 1 the retrial of necessarily appellate acquittal an barred appellant for the burglary greater ground offense on the of a residence. there is noth- the evidence was insufficient to sustain a ing opinions pre- these which would conviction for the offense. Retrial vent retrial for the of burglary for a prohibited lesser included offense was building. of a appellant We hold only appellate may where the court found the be retried for burgla- the offense of ry building.” evidence insufficient to of a sustain both and a lesser included Among the cases which have cited and State, supra. offense. Ramon v. State, Rogers follow Moss are: v. 575 S.W.2d 555 559 (Tex.Cr.App.1979) (ag 11, 1986, however, On June did Harris, gravated rape); parte Ex 600 trilogy about face and decided a cases S.W.2d (Tex.Cr.App.1980) 791 at 792-793 original submission, purported which State, (aggravated robbery); Cruz v. change Curiously, Texas well-settled law. S.W.2d (Tex.App.-Corpus 852 at 860 Christi neither decision referred to other. 'd) pet. murder); (capital ref Black v. State, Garrett These were decisions State, 637 S.W.2d 923 at (Tex.Cr.App. Ibanez (Tex.Cr.App.1986); S.W.2d 784-801 State, 1982); Seidel v. 39 at 40 S.W.2d State, (Tex.Cr.App. 804-812 S.W.2d (Tex.App.-Dallas 1983, ref’d) (concur- pet. 1986); State, Stephens v. S.W.2d ring (theft $200); opinion) Welch v. over (Tex.Cr.App.1986). State, (Tex.App.-Houston 683 S.W.2d 54 Garrett the defendant convicted 1984) (possession of metham- [1st Dist.] Betty Lynn murder Bennett. phetamine deliver); Keith v. with intent to Garrett wanted shoot Bill Rankin. She State, (Tex.App- at 923 fired her but hit killed rifle Bennett 1985) Houston (involuntary [14th Dist.] appeal instead of Rankin. On inter- State, Chandler manslaughter); Court, mediate court review to S.W.2d 736 (Tex.App.-Corpus at 744-745 Garrett contended that the evidence was 1987) habitation); (burglary Christi of a for mur- insufficient to sustain Engelking, State v. (Tex. 771 S.W.2d 213 der. the App.-Houston Although evidence was sufficient pet. grant- [1st Dist.] ed) (possession grams of to the doctrine at sustain the conviction under least 400 intent, V.T.C.A., Granger methamphetamine). See also transferred see Penal Ibanez the defendant was convicted 6.04(b)(2)10, re- In Code Section this Court Citing Ben- capital elevated the offense apply fused doctrine. murder. What State, supra, murder, Y.T.C.A., son v. non-capital reviewed the Penal this Court 19.02, sufficiency comparing capital of the evidence Code Section V.T. C.A., 19.03, was admitted at trial “to the indict- Penal Code Section the incorporated charge.” allegation into ment as additional element that the murder committed the course of The Court conceded that was was committing robbery. charged judges in- With four dis- on the doctrine transferred tent, that, senting, held but held since law trans- bare abstractly prove only ferred intent was stated the evidence was insufficient element, i.e., elevating “applied and was that were additional not facts trial,” developed rely committed the course of the State could murder was Thus, acquitted robbery. without the doc- It therefore Ibanez of on doctrine. capital trine of intent the evidence was the crime of murder. all transferred appear for to sustain a conviction mur- members of the Court have insufficient I, agreed supra. that the evidence sufficient der. See Part non-capital murder. sustain conviction for there, stop The Court did not however. that, “following May 11,1988, appel- hold On the Court overruled the It went on to in Ibanez rehearing for late of a conviction on the basis of State’s motion reversal verdict, again judges dissenting. See support the with four insufficient evidence to opinion reprose- 812-813. Neither the Clause bars dissenting original for on nor the cution lesser offense which submission greater, acquitted opinion on denial of the State’s motion ‘same’ as the Blockburger rehearing the issue of addressed wheth- under test [v. er defendant could be retried 21). (1932)].” (Op. doing, In offense of murder. L.Ed. 306 so lesser included State, it overruled Moss v. 574 S.W.2d 542 Stephens II the defendant was con- progeny (Tex.Cr.App.1978), and its which rape. victed of With three contrary. had held the See 749 S.W.2d at dissenting, a judges majority of the Court accompanying text. n. that, although Stephens’ code- held some may Stephens himself have April its fendants and the Court issued On aggravated rape, the evi- rehearing in been opinion State’s motion for prove aggra- held was insufficient to Garrett. doing, In so the Court dence Stephens rape as to vating element of the any discussion of whether the defendant incorporated into reprosecuted if he were subse- when the “indictment could be State, supra, rule of Benson charge” quently charged “with some lesser included Teague’s dissent applied. Judge “advisory.” See 749 S.W.2d was offense” was Garrett, mentioning Therefore, which, “express[ed] although the Court at 804. basically same conclusion as came to opinion appel- this time as to whether original submis- tried for some lesser included the Garrett majority on could lant be Stephens could Nevertheless, on the issue whether offense.” Ibid. sion included of- reprosecuted for the lesser submission Garrett had set IV. stage rape. fense of actually 6.04(b)(2) he occurred and what de- provides: tween what Section sired, contemplated, that: or risked is criminally responsible person "A nevertheless causing only result if the difference be- "(2) person property or was in- a different harmed, jured, affected.” otherwise May Indeed, On Court of greater for the offense. if an accu- Stephens III, “overreaching” rendered its decision sation appropriate, is 2,1990, May Court, suggest on then I majority majority a of this has “over- on original submission, reached” the and its citizens with affirmed Court of such (Ste- Stephens decisions as Benson and Appeals’ present decision in IV. case decisions, stand, These IV). permitted if will phens Consequently, the majority give Ibanez one free murder under his belt. original on submission Garrett reborn. Can the defendant Garrett be retried for a lesser included offense? The Ste- the majority opinion original If on sub- Likewise, phens says IV “no.” in Stephens stand, mission is allowed to IV Stephens says IV himself reprosecute the State will be able to Ibanez cannot a be retried for lesser included of- non-capital murder? The Garrett ma- fense. This is nonsense. jority on submission had stated: In my is absolutely view there no valid evidentiary “Even if the deficiency in reason for this Court overrule Moss and proof greater offense lies its progeny. majority opinion in Ste- merely in prove a failure to the addition- phens squared IV cannot be with Richard- required al ‘facts to establish the com- son, II, Price, see supra, Green, Part with [greater] offense,’ mission of the or the Mathews, III, supra, see Part nor with greater culpable state, mental or the jurisdictions, decisions from other see Part proof only attempt establishes an at com- IV, infra. offense, mission of greater or a less injury serious injury or risk of than that required greater offense, Article IV. 37.09, V.A.C.C.P., in nevertheless having York, In highest New court of that

proceeded greater as well that, state has held where the any properly authorized lesser includ- insufficient to a conviction for a offenses, ed the State has risked the greater offense, an indictment or count of possibility obtaining a verdict on the charging greater indictment greater offense, proves, appel- which must People be dismissed. Mayo, review, late unsupported to be N.Y.2d 422 N.Y.S.2d 397 N.E.2d Having overreached, evidence. thus as it (1979). However, prosecution were, the State cannot heard to com- permitted to new charg- seek a indictment plain that it has its one bite ing the People lesser offense. Mayo, apple. at the No consideration of ‘fair- supra; Gonzalez, People v. 61 N.Y.2d society’ ness to justify can the additional (1983). 471 N.Y.S.2d 459 N.E.2d 1285 ‘embarrassment, expense and ordeal’ to an accused under these California, circumstances.” the State Court at 794. has jury’s acquittal held that a effective murder did not bar retrial of the defen- ironic It is prosecutor, “[h]av- dant for a lesser included offense where ing overreached,” jurors thus jury at the first trial deadlocked and was four members agree of this agree unable to on verdict as to the lesser is, therefore, him Ibanez. It unfair to Superior offense. Stone v. prosecutor accuse Ibanez or County, Diego San Cal.3d having other case of “overreached” where 183 Cal.Rptr. P.2d is sought on a offense in good faith. It is even less fair to accuse a parte Beverly, (Ala. In Ex 497 So.2d 519 prosecutor “overreaching” 1986), where he has the Alabama Court held sufficient evidence to obtain a conviction appellate acquittal that an of a but for some request reason fails to ground offense on insufficient evi- permit instruction which prohibit conviction dence did not a retrial of a lesser 832 successfully appeals judg-

included offense evidence at the dant a where the who ‘may first trial was sufficient to sustain a convic- ment him anew tried ... the tion for lesser offense. he the same offense which Id., been convicted.’ at 16 at S.Ct. Jones, Beverly (11th v. F.2d 412 854 policies 1195. closely Two related under- Cir.1988), the Eleventh it Circuit had before (1) exception: lie the on reversal based corpus on federal the same events habeas insufficiency of has the evidence parte in Ex Beverly, supra. are that found acquittal, judgment same effect as a The Eleventh Circuit concluded that Jeopardy to which the Double Clause at- greater and lesser offense there included special significance, taches because both jeop- involved were the “same” mean no finder of fact that rational could ardy purposes.11 The on to Court went to have voted convict the defendant on state, however: (2) presented; pros- the evidence ecution should not be afforded another “B. opportunity supply failed trial. Tibbs v. in the previous to muster “Having concluded that offenses Florida, 31, 41-42, 102 S.Ct. U.S. Beverly for which was convicted are 2211, 2217-18, (1982). 72 L.Ed.2d 652 as same insofar policies implicated Neither of these are concerned, is Clause we consider next the this case. wrongfully prose- he contention that following cuted murder Court Appeals’ “The Criminal rever- great- Appeals’ acquittal on the Criminal Beverly's sal of second conviction for robbery er when victim robbery intentionally when the victim primarily killed. intentionally Relying killed not constitute a decision that did Burks U.S. prove beyond failed a rea- (1978), Beverly included of- sonable doubt argues appellate reversal of the parte Beverly, Ex fense. 497 So.2d evidentiary in- 1981 conviction based on fact, explicitly at 523. In the court limit- sufficiency operative equivalent is the finding ed its of insufficient evidence to acquittal judgment of on the robbery common law when it stated that all of the lesser offenses included particular deficiency in case is ‘[t]he therein, including murder. insufficiency not a mere of the evidence proof lack of of all but rather the total Burks, “In held of common law the essential elements pre- Clause fense cludes mined that once a second the evidence introduced reviewing trial for an court has deter- alleged of- at [Beverly v. State robbery ] ^[758] at 762 [Ala.Cr.App.1983]. charged Beverly II, indictment.’ 439 So.2d included of- was instructed on the lesser sustain ver- trial was insufficient fense and common sense dic- Id., 18, 98 at dict. at they necessarily Beverly tates that case, Court, companion applied guilty by returning a of that offense Burks rule proceed- criminal a state offense. verdict Massey, Greene v. ing. U.S. 98 S.Ct. Brown See Ohio, ^[161] Through these cases, the Court carved ^[2221] 2226-27 [53 ap- no state (1977) exception Since an- out a narrow to the rule ]. pellate court has declared that the evi- United States long ago in nounced Ball, Beverly dence murdered Scott De- roo was a criminal defen- L.Ed. insufficient purpose. present I have no case "same" for double 11. In the IV, 815), (Stephens p. quarrel the Court concluded with that conclusion. aggravated rape are the offenses of verdict, express finding guilt jury’s Beverly’s claim that he different from acquitted been is merit- has murder for a lesser offense. This treat- less. wholly ment is unwarranted. There is difference, significant legal constitutional “Moreover, is in which not a case or otherwise. presented multiple State was the with opportunities punish to an convict and majority takes Burks and Greene’s rather, single a offense; individual for exception,” Jones, su- Beverly v. “narrow quite opposite the is true. At his re- pra, general it to and allows swallow the quest, Beverly given another permitting punishes rule retrial. It the chance rebut the State’s evidence prose- State and its citizens not because the that he even committed the murder cutor insufficient offered evidence at trial though the State already obtained the to convict for lesser included offense a conviction offense. but because there was insufficient evidence “Furthermore, Beverly was not sub- greater of the offense when measured jected any greater pun- threat of the trial court’s instructions. than ishment he would have received had that, if any “punishment” It seems to me is Alabama Appeals Court of Criminal prosecution, prohibiting due the then re- judgment rendered on the lesser included greater enough. trial on the offense is offense of murder and remanded the Moreover, re- while views a sentencing, case to the trial court for a rape trial for the lesser included offense of procedure approved by prede- this court’s giving prosecutor a “second bite” cessor and the despite courts of Alabama apple,” the “conviction it fails to realize jeopardy objections. e.g., double give Stephens that such retrial will also Theriault v. United F.2d 212 “second bite” to establish his innocence. (5th Cir.1970); Edwards, parte Ex Jones, (Ala.1984). Beverly supra. So.2d It is difficult imagine, therefore, Beverly’s how sec- my this Court’s view decisions in Moss acquittal chance at ond be could consti- and are progeny its correct and should tutionally when a remand infirm is overruled. Moss consistent with sentencing would not have been. Price, Supreme Green, Court’s decisions and It is also consistent Mathews. with “C. of view taken New York Court Appeals, Courts of California “We conclude that the Constitution’s Alabama, and and the United States Court prohibition against double did Appeals of for the Eleventh Circuit. The preclude retrying the State from (Ste- majority opinion present case Beverly on the lesser included offense IV) phens once the Court of submission is Criminal re- versed his greater conviction on the of- prior clear conflict this Court’s own fense. To hold impose otherwise decisions, of those Court of high price society. too See United Circuit, the United and the States Eleventh Tateo, 463, 466, States highest and those of courts of New 1587, 1589, (1964).” California, York, and Alabama. (Emphasis added; omitted.) footnotes finding As Mathews illustrates a verdict V. Stephens guilty aggravated rape neces- principles jeopardy, Under implies sarily found him jury also finding guilty verdict defendant included offense offense is an lesser included treated as rape. The majority present case IV), greater however, implied acquittal of the offense (Stephens implied treats finding guilt accepted by a lesser included offense verdict is where such a now Finally, cannot

trial court both the hold that tried for lesser included offense to be the lesser included had been submitted now contrary to Justice Harlan’s is during the trier of fact the trial. The other for the Court in Unit famous observation that, the trier of side the coin where 463, 466, Tateo, ed States fact convicts for the (1964): 12 L.Ed.2d court, accepted that verdict is the trial ad- different theories have been necessarily implicit “While in that verdict that permissibility of vanced the predi- the trier of fact also convicted of retrial, greater importance than offense, regardless cate lesser included ex- conceptual employed to abstractions predicate or of whether the lesser included plain principle implica- the Ball are submitted separately offense was ad- principle tions of that the sound trier of fact as an alternative basis Corresponding to justice. of ministration Mathews, supra. conviction. See Morris given to fair right of an accused Any logic other and com- conclusion defies punishing trial is the societal interest in mon sense. he has guilt one whose is clear after Stephens’ example of case is an excellent high It such a trial. would be a obtained side coin. the other of double price society pay ev- indeed for were aggra- Before could convict him of ery granted immunity pun- accused from V.T.C.A., rape Penal Code Sec- vated under ishment because of defect sufficient (now repealed), necessarily tion 21.03 pro- in reversible error constitute predicate find for such a conviction as leading ceedings to conviction. From rape Stephens had committed as de- defendant, least standpoint it is at of V.T.C.A., Penal Section nounced Code appellate would be doubtful that courts (now repealed). 21.02 they protecting in as now are zealous as improprieties of the effects Stephens No trier of fact has ever found stage knew pretrial they or if predicate in- guilty” “not of the or lesser put of a conviction would that reversal rape offense of under Section 21.02. cluded irrevocably reach beyond accused and, appellate court—trial or —has reality, there- prosecution. further evidence insufficient to sustain fore, practice retrial serves defen- predicate for the or lesser includ- rights society’s interest. dants’ as well as All rape under Section 21.02. ed re- permitting underlying purpose that has been said was the evidence by application is as much furthered Stephens’ was insufficient show that has rule this case as it been cry rape aggravated. This is a far previously cases decided.” saying that the evidence was insuffi- stated, view previously As I Harlan’s have rape! him cient to convict “the adopted by the Court as has now been continuing the Ball doctrine of Under justification” most reasonable Price, quoted supra, after a jeopardy, in a policy permitting retrial the Ball successfully his appealed defendant has present one. Burks situation such conviction, authority under the of cases v. United Green, Price, Richardson, such as Mathews, I believe that respectfully I It reasons that is these is Stephens submission IV corpus granting Stephens habeas dissent to wrong. I contrary, On the believe A for the relief. retrial nothing inescapable conclusion rape is not barred included offense prohibits Ste- Clause policies principles either lesser included of- phens’ retrial for the jeopardy law. Rather, rape 21.02. fense of under Section under Section 21.02 a retrial permitted the authorities

specifically under

heretofore cited. notes true page its 9. At 818 of majori- propo- on Price "trial error." State had relied reversed for continuing ignores language remained ty totally sition that charge. then jeopardy on the reversing convic- Price’s second Court used "mis- reliance as curtly the State’s dismisses language which the State con- is that tion. It Price placed,” noting conviction in “[t]he tended, Stephens' agree, applies case. I originally error.” reversed because v, Harrington death in a farmhouse to which the robbers California, fled. Based coroner’s initial ruling suicide, Daugherty’s death was charged aggravated Mathews was reject “We must this contention. The robbery rather than homicide. After a fo- Clause, as we have not pathologist performed autopsy, rensic ed, is couched in terms of the risk or changed ruling, listing the coroner his mul- conviction, hazard of trial and not of the tiple gunshot wounds as the cause of legal consequences ultimate of the ver days guilty plea death. Then two after the charged dict. To subjected and to be aggravated robbery, Mathews confessed to a first-degree second trial for murder having shot Daugherty. is an ordeal not to lightly. be viewed Further, perhaps impor more Subsequently, Mathews was indicted tance, we cannot whether determine ag- murder. The murder was charge against petition the murder gravated because “purposely Mathews er induced the him the death of [Daugherty] ... find cause[d] the less serious voluntary fleeing immediately while committing after

Notes

notes conviction, “Respondent “Respondent appealed sought his then a writ ha- claiming corpus Applying his beas in federal court. following ag- reasoning Ap his murder Ohio Court of gravated peals, robbery respon violated the Court denied District petition. Marshall, Ap- Clause. The Ohio Court of dent’s Mathews District, (WD Ohio, peals, Apr. Fifth Judicial affirmed his No. C-1-81-834 conviction, 1983). Mathews, CA No. State v. (Licking County Ct.App., Aug. panel Ap “A divided the Court of 1979), and the Ohio Court de- peals for the Sixth Circuit reversed. grant discretionary clined to review. Marshall, Mathews v. 754 F.2d 158 Mathews, (Ohio No. 79-1342 (1985). Although refusing to hold that 7, 1979). grant- Sup.Ct., Dec. This Court like case this a new trial on the non- respondent’s petition ed for writ of cer- charge always necessary, barred tiorari, and remanded the case fur- held ‘a conviction court obtained light ther consideration of Illinois v. jeopardy violation the double clause Vitale, U.S. if be modified the defendant can cannot (1980). Ohio, Mathews possi a “reasonable show there was 65 L.Ed.2d prejudiced” by the bility that he was ‘ violation,’ and that “an

Case Details

Case Name: Stephens v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 30, 1991

Citation: 806 S.W.2d 812

Docket Number: 914-88

Court Abbreviation: Tex. Crim. App.