Case Information
*1 PD-0915-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/17/2015 5:16:18 PM Accepted 7/22/2015 3:48:12 PM IN TI]E ABEL ACOSTA CLERK COURT OF CIIIMINAI- APPEAI,S OF TEXAS ANTI.IONY IÌILL, $
APPELI,ANT s
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V" No.
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THN STATE OF ]'EXAS, s
APPELI,EE $
sss APPELLANT'S PETITION F'OII DISCRETIONARY IìEVIEW $s$
MICHAEL LOGAN WARE 300 Burnett Street Suitc 160
Fort Worth, TX 76102 Telephone: 817/ - 4100 Telecopier: 817i 698- Texas Statc Bar Number:20864200 ATTOIìNEY FOII APPIì,LLANT' *2 IDIINTITIES OF PAIITIIìS AND COUNSEL Appellant: Anthony lJill
lì.e¡rrcsented by: Michael Logan Ware (on pletlial wlit habeas cor.pus
and on appeal) Terri Moole (on pretrial writ habeas colpus and on appeal
300 Bulnett Stl'eet
Suire
l-ort Vy'orth, TX76102
A¡rpellee: 1-he State Texas
Re¡rresented by: Susan Hawk, Criminal Disn"ict Attorney
Chris Plyor', Assi.stant l)istrict AÍtorney (on writ of habeas colpus)
Brian P. Higginbotharn, Assistant District Attolney (on appeal)
Dallas County District Attorney's Office 133 North Riverflont Boulevard LB-19
l)allas, 'fX 5207 -4399
Trial Judge: The l{onorable Brandon Birminghani
Presiding Judge
292nd Judicial Distlict Couú
Dallas County, Texas
The IJonolable Lan'y Mitchell .Tudge who plesided ovel'the Writ lJabeas Corpus 292nd Judicial District
Dallas County, Iexas
u *3 TAI}LE OF CONTENTS PAGE lNDllXOFAUlllORlTllìS.. .... iv STATEMENT REGARDING ORAL ARGUMENT . .
STATEMI]NT OF- I-I-IE CASI]
STATEMENTOFPROCEDURALHISTORY ........,.. 2 GROUNDSANDREASONSFORREVIEW
.......3 ARGUMENT SUPPORTING GROI]NDS AND REASONS
FORREVIEW
.........9 PRAYERFORRELIEF ......... 20 CERTIFICA"I]] OF COMPLIANCE. . ..... 2I CERTIFICATE OF SERVICE .. ..
COURT OF APPEALS' OPINION (May 20,20t5). . . . . APPENDIX A COURT OF APPEALS ORDER DENYING MOTION I.-OR REHEARING
(June 17,2015 .. . . .. APPENDIXB
ul
INÐEX OIéUT:IIAßIT]ES
Cases Abneyv. UnitedStates,43 1U.S.651 (1977) ....... 11 Aekins v. Srate, 447 S.W.3d 270 (Tex.Cr.im .App. 2014) . . . . . 10 Ashe v. Swenson,397 U.S. 436 (1970) . . 16-17 Bigonv. State,252 S.W.3d 360 (Tex.Cr.im.App.1970) ... ... 13 Blockburger v. United States, 284 U.S. 299 (1932) . . . 3,1-8,13,15,17-19 Brownv. Ohio,432 U.S. 161 (1977) . . . . 13-17 Cooper v. State,430 S.W.3d 426 (Tex.Crirn.App. 2014) . . . . . 13 Diaz v. United States,223 U.S. 442 (1912) 2,6-7,15-16 Ex ¡tarfe Amador,326 S.W.3d 202 (Tex.Crirn.App. 2010) . . . . . . . . . . 14 Ex parte Carle,369 S.V/.3d 879 (Tex.Clirn .App.2012) . . . . . 13 Ex parte Chaddock,369 S.W.3d 880 (Tex.Crirn.App. 2012) . . . . . 9,18-19 Ex Parte lIill, 2015 Tex.App.l-EXIS 5 [1] 32 (Tex.App.Dallas May 20,2015) . . . . 2 Graves v. State,539 S.W.2d 890 (Tex.Crirn .App. 1976) . . . . . 17 Green v. Uniled States,355 U.S. (1951) . . . . . 9,11 I.ittrellv. SÍate.,271 S.W.3d 273 (Tex.Cr.in,.App.2008) ..... 13 North Carr¡linav. Pearce,3gs U.S.711 (1969) 10,16 Price v. State,434 S.V/.3d 601 (Tex.Cr.irn .App.2014) . . . . . . l3
Shelby v. State, S.W.3d (Tex.Clim.App. 2014) . . . . . . . . . 13 Tibbsv.Florida,457U.S.31(1982)
.......9 I4thalenv.UniledStates,,294U.S.299,304(1932) . ........ 14 Codes and Articles
U.S.Constitution,FifthAmendment .. "....9 TexasRules ofAppellatePlocedureRule66.3(a),(b), &(c). .. .. .. . 4-8 TexasPenalCode$1.07(46)...,.
........16 DoubleJeopaldy:UnravelingaGordianKnot(2013) .......
STATEMENT IìEGARDING OR 'l-his case involves cor.nplex issues ol'làct and law.'ì'he undersigned counsel believes this Court's understanding of the relevant factual and legal issues could be substanlially enhanced by oral argurnent. Appellant requests oral argument
STATEMENT OF THE CASE Appellant his co-defendant wele each indicted for the aggravated lobbely Ryarr Lusk, which was alleged have occurred ol' about March 18, 2012. The indictrnent, filed April 25,2012, alleged that Appellant had shot Ryan Lusk with a firearm causing serious bodily injury, during the coul'se comlnitting theft of property.
Ayear later, on April 4,2013, Appellant, on the advice his then counsel, waived jury pled guilty coult. On May ,2013 and June 21, 2013, the trial court heard punishment evidence. On June 21,2013, tlial cou¡t found Appellant guilty of agglavated robbery as alleged, which included shooting Ryan l-usk with fireann, causing him selious bodily injury. The trial cour1 assessed a sentence 45 years in plison. Judgment was entered June 24, 2013.
On Novernber 19, 2013,, five months after Appellant was convicted and sentenced, Ryan Lusk died, allegedly due, at least sorne part, to the gunshot wound sustained on ol about March 18, 2012. Appellant was then indicted (filed Decernber
30, 2013) for tlre capital lnul'der of lìyar.r Lusk, "by shooting thc deceased with a fit'eat'rn, and the defendant was theli and there in the course o1'committirrg. . . r'obbely of said deceased."
Appellant filed pre-tlial writ of habeas corpus alleging a successive pt'osecution, oonviction, and punishrnent for the grealer ol'lense ofcapital murder a1ler having been ah'eady finally convicted ofand sentenced the lesser'-included offense ofagglavated lobbery, would violate doublejeopardy protections guatanteed by United States and Texas Constitutions. The trial court agreed and by court order. dated Decelnber 29,2014, barred fulther prosecution under capital rnurder. indictnrent fi led Decen.rber 30, 2013.
The State appealed Dallas Court of Appeals.
STATDMENT OF PROCEDURAL HISTORY In published opinion, handed down May 20,2015, coult of appeals leversedtlretrial court, ExParteHill,20l5 Tex.App.LEXlS 5132(Tex.App.Dallas May 20,2015). 1'he Coult Appeals held that Appellant could be prosecuted, convicted, punished the greater offense ofcapital murder, even after.having beeu convicted sentenced for, lesser,included offense aggravated lobbely, because purpolted exception double jeopaldy plotection cleated by United States Suprerne Coult Diaz v. United States,223 U.S. (1912). The
Cor-rft of Alrpeals held that neìther Blockburger v. United States,284 U.S. 299 ( I932) nor legislative intent was eitl.rer controlling or even l.rad any real application to this case.
Appellant's tirnely Motion Rchearing was denied June , 2015. This petition was then filed with Clerk of Coult Clirninal Appeals within thirty (30) days aftel such lhnal luling, wit on July 17,2015.
GROUNDS FOIì REVIEW
GROUND FOR REVIEW NO.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTION PERMITS THE STATE TO CONVICI'A Dì]FENDANT OF BOTH A I-ESSER INCLUDED AND A GREATER OÞ-FENSE IN SUCCESSIVE PROSECUTIONS, REGARDLES S OF LEGISLATIVE INTENT. REASONS FOR REVIEV/
In holding that the double jeopardy clause United States Constitution per'rnits state convict defendant ofboth lesser included and a greatel offense successive prosecutior.rs, even when there is no legislative intent to pennit it, the coult of appeals made decision that conflicts with applicable decisions the Couft Climinal Appeals, the United States Supleme Court, othel courts of appeal on same issue. In the altelnative, coult ofappeals decided irnportant question of'state federal law that has been, but should be settled by the Courl
o1' Climinal Appeals. $_eç, Iìule 66. (a),(b), & (c), T.R.A.P.
GROUND FOR REVIEW NO.2
TIIE COUIìT Oþ' APPEAI-S ERRED IN HOLDING '|HAT THE DOUBLE JEOPARDY CLAUSE OF TIJE UNITED STATES CONSTITUTION PERMITS TI-IE STATE TO IMPOSE MULTIPLE PUNISHMENTS ON A DEFENDANT FOR BOTH A LESSER,INCLUDED AND A GREATER OIììENSE IN SUCCËSSIVts PIìOSECUTIONS, RÌ]GARDLESS OF I-EGISLATìVE INTtrNT.
REASONS FORREVIEW
In holding that the double jeopardy clause of United States Constitution permits the state irnpose rnultiple punishrnents on defendant both lesser- included and greater offense successive prosecutions, even when thel'e no legislative intent perrnit it, court of appeals made decision conflicts with applicable decisions ofthe Courl Criminal Appeals, United States Supreme Court, other courts appeal same issue. ln the alternative, the court of appeals decided irnpodant question state l"edelal law that has been, but should be settled by the Courl Criminal Appeals. See, Iìule 66.3(a),(b), &. (c), T.R.A.P.
GROUND F'OIì RIìVInW NO.3
.TI]E COURT OF APPEALS ERIìED IN HOLDING TI IA'1' CI]ARGING AND TRYING A DI]FENDANT I]OR THB OIìIENSE OI.- CAPITAL MURD]]Iì, AFTER TI]E DEFHNDAN]' IIAS ALREADY BEI]N FINALI-Y CONVICT'Ëì) AND SENTENCED FOIì THE LESSI]R INCLUD]]D *10 oFtìllNSE (AGGRAVA'IED ROBBÌ]RY) OF TIIAT SAMII ALLIIGED ..CAPITAI- MT]RDER'" DOI]S NOl'VIOI-ATE TI-IE DOUI]LE J]]OPARDY PROVISION OF TI-IE TJNITED S]]AI'ËS CONSI]TU'TION.
REASONS I]OR REVIEV/
In holding that charging and trying defendant for capital mulder., after.the defendant has already been finally convicted and sentenced lesser included offense (aggravated robbely) ofthat same alleged "capital r.nuLdeL", does not violate doublejeopaldy plovision ofthe United States Constitution, court ofappeals made decision that conflicts with applicable decisions the Coul't of Crirninal Appeals, the United States Supreme Court, othel' coults appeal on same issue. ln alternative, court ofappeals decided irnportant question state fedel'al law has been, but should be settled by the Court Criminal Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.
GROUND FOR RDVIEW NO.
THE COURT OF APPEALS ERRED IN HOLDING THAT PUNISHING/SENTENCING A DEFENDANT Þ-OR CAPITAL MURDER AFTER THE Dì]FENDANT IJAS ALREADY BEEN FINALLY CONVICTED AND SENTENCED FOR THE LESSER INCLUDED OFFENSE (AGGRAVAIED ROBBERY) O}'TI]AT SAME ALLEGED ..CAPITAL MIJRDER'" DOES NOT VIOLATETHE DOUBLE JEOPARDY PROVISION OF TIIE UNITED SI'ATES CONSTITIJTION.
IìEAS ON S ìlOR IììrVlEV/
In holding that punishing/sentencing defendant capital murdel'after the *11 delèndant has ah'eady been linally cclnvicted and sentenced fol'the lessel includecl offense (aggravated robber'y) of that same alleged "capital ruur.der", does not violate the double jeopardy plovision of the United States Constitution, the cour.t of appeals made decision that conflicts with the applicable decisions of the Coud of Crirninal Appeals, the United States Suprerne Court, other cour.ts of appeal on the same issue. In the altemative, the coult appeals deoided an important question of state and federal law that has been, but should be settled by the Courl Crirninal Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.
GROUND FOR REVIEW NO.
]-I-IE COURT OF APPEAI,S ERRED IN HOLDING 'IHA'T' DIAZ V. L]NITED STATES,223 U.5.442 (19t2), rS GOOD LAW AND CREATED A CARTE BLANCIIE EXCEPTION TO THE DOUBLE JEOPARDY PROTECTION OTHEIì.WISE PROVIDED BY THE UNITED STATES CONSTITUTION. REASONS FORREVIEW
In holding thatDiaz v. United States,223 U.S. 442 (1912), still good law and creating cal'te blanche exception double jeopar.dy protection otherwise provided by United States Constitution, coult ofappeals made decision that conflicts with applicable decisions of the Court Criminal Appeals, United States Supreme Couft, other courts of appeal on same issue. ln alternative, the court ofappeals decided irlporlant question state and fedel'al law has
not been, but should be settled by Coult of Cliruinal ,Appeals. See, ltule 66.3(a),(b), & (c), T.R.A.P.
GROUND IIOIì IIEVIDW NO. 6
THE COURT OF APPEALS ERRED IN Ì.IOLDING THAT ANY EXCEPTION TO DOTJBLE JEOPARDY PROTECTION CIìEA'|ED BY D|AZ V. UNITED STATES,223 U.S. 442 (1912), APPLIES TO THU CASE- AT-BAR.
REASONS FOR REVIEW
ln holding that any exception to double jeopat'dy protection cl'eated by Diaz v. United States,,223 U.S. 442 (1912), applies case-at-bar', court of appeals tnade decision that conflicts with applicable decisions of Court of Clirninal Appeals, the United States Suprerne Court, other courts appeal the same issue. In altelnative, coult appeals decided important question state federal law has not been, but should be settled by the Courl Criminal Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.
GROUND FOR REVTEW NO.
THE COT]]I]' OF APPEALS ERRED IN HOI-DING THAT ]-HE *BLOCKBU]IG¿,¿ì", SAME OFFENSE TEST, DOES NOT APPLY TO SIJCCESSIVE PIìOStsCUTIONS, DOUBLE JEOPARDY ANALYSIS ìN THE CASE-AT-BAR.
Iì]]AS ONS IìOR R]]VII]W
In holding that the "Blockburger, sarne offense test, does apply to *13 successive prosecutions, double jeopardy analysis the case-at-bar, thc cor-u't of appeals urade a decision that conflicts with the applicable decisions of the coufi of crirninal Appeals, united States Supleme court, other courts of appeal or.r tl, e saure issue. In the alternative, the courl ofappeals decided an irnportant question of state and federal law has not been, but should be settled by the Court of Crirninal Appeals. See, Rule 6ó.3(a),(b), & (c), T.R.A.P.
GIìOUND FOR REVIEW NO.
TIIE COURT OF APPEALS ERRED IN HOLDING THAT 'fHE "BLOCKBURGER'1 SAME OFFENSE TEST, DOES NOT APPLY TO MULTIPLE PUNISIIMENT, DOUBLE JEOPARDY ANALYSIS IN TIIì] CASE-AT-BAR.
REASONS FOR REVIEW
In holding thafthe "Blockburger" , same offense test, does not apply multiple punishrnent, doublejeopaldy, analysis in the case-at-bar, the court ofappeals rnade decision that conflicts with applicable decisions coul't of climinal Appeals, United States Supreme Court, and othel.cour.ts appeal salne issue. In altelnative, court ofappeals decided irnpottant question state fedelal law tl.rat has been, but should be settled by the coult climinal Appeals. See, Rule 66.3(a),(b), & (c), T.R.A.P.
ARGUMENT SUPPOIìTING GIì.OUNDS ÄND IìEASONS FOIì REVIEW 1-8
The double jeopardy clause lifth amendment to Ullited States Constitutior.r, protects the individual against abusive governrnent "evils attendanl upon successive prosecutions, namely the 'embarrassment, expense, and ordeal' of t'epetitive trials, 'compelling fthe accused] to live a continuing state of anxiety and insecurity' creating 'a risk conviction through sheel governrnent pe1'severance."' Ex parte Chaddock, 369 S.V/.3d 880, 886 (Tex.Crirn.App. 2012)(quoting,Greenv. United States,355 U.S. 184 (1957),Tibbs v. Florida,45l u.s. (1e82)).
The government's plosecutorial powel discretion to charge a citizen with a crirninal offense ahnost unlimited. The government is, likewise virlually unaccountable for its chalging decisions. Although grand jury indicted Appellant, at the time the capital tnurdeL case was plesented to grand jury, Appellant had "resolved" his case through plea ofguilty and had begun serving his forty-f,rve year. sentence aggravated robbely. Appellant had no reason to know that the case was again being presented to the gland jury, this time as capital rnulder', which canies possibility tl're death penalty, and had no reason know he still needed counsel. Appe llant was the¡efole l'epresented by counsel when the grand jury met with plosecutor and voted indict capital mul'der. Any algurnent that
l'epresentatiorl by counsel would probably have made a dil'l'elence would be, to sonlc extent, acknowledgment of govemrnent's virlually unlirnited power and discretion charge (in this case capital ururder', the most selious existent offense under Texas law), and what little mitigating effect the grand july really has that power and discletion.
Likewise, government has vast resources pursue convictions, once they have charged a citizen. The governrnent generally ready willing to expend vast l'esources in pursuit convictions and sevele sentences in "big cases", such as a capital murder case. Of coul'se, once the state obtains conviction a capital murder' case, only possible punishments are death or life without possibility ofparole.
In this case, either punishrnent would necessarily be cumulative the 45 years agglavated tirne Appellant began serving in2013.
h"t North Carolina v. Pearce,,395 U.S. 7ll (1969), the Supreme Court stated that the guarantee against double jeopaldy consists three separate constitutional protections:
first, it plotects againsl second prosecution same offense after acquittal; second, it protects against second prosecution same offense aftel' colrviction; tliird, it protects against rnultiple punishments fol' the same offense.
Aekins v. State,447 S.W.3d 270,274 ('l'ex.Criur.App. 2014xcitine, Pearce af 717).
The case-at-bal' involves both impeltnissible successive plosecution, and irnpennissible multiple punisl.urent issues.
ln Abney v. United States, 431 U.S. I (1977), the Supr.eme Court emphasized:
the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It gualantee against being twice put to trial on sarne offense [d. at pp. ó60-661]. . . the guarantee against double jeopaldy assures an individual that, arnong other things, he will not be forced, with certain exceptions, to endule the pelsonal strain, public embarrassrnent, expense criminal tl.ial tnore than once same offense. lt thus protects interests wholly untelated to plopriety any subsequenl conviction. Mr'. Justice Black aptly desclibed the purpose ofthe clause:
"The underlying idea, one deeply inglain ingtained in at least the Anglo-Arnelicân system julisprudence, is that state with all its resources and power should be allowed to make repeated attempts to convict ar.r individual alleged offense, theleby subjecting hirn to embarrassment, expense and ordeal compelling him to live in a continuing state anxiety and insecurity, as well as enhancing the possibility even though innocent he rnay be found guilty." Green v. Uníted States,335 U.S. 184, 187-188.
Id. at 661-662.
The doublejeopardy clauses United States and Texas Constitutions ale, leal istically, oniy checks on govelnrnent's power to both cr.irninally charge and pul'sue criminal convictions and punishnrcnts against its citizens once they ar-e chalged. In its opinion below, the Court of Appeals purports seize yet another
il *17 "exception" citizen's doublejeopaldy lights and lieleby ernpower governnlent even furtlier ir.r its charging decisions.
In the case-at-bar', Appellant was convicted and sentenced to 45 years iu pr.isou agglavated robbery. The indictment was filed on Aplil 25,2012 and r.eads, in perlinent parl, as lollows:
On or about 18'r'day of March A.D. 2Ol2 . .. intentionally and knowingly, while in the course comrnitting theft pl'opelty . . . cause selious bodily injuly to another Ryan Lusk . . . by shooting Cornplair.rant withafir'earm...
Appellant was convicted and sentenced on June 21, 2013. On November 19,2013, Ryan Lusk died, allegedly due, at least in part, to the gunshot would he had sustained twenty rnonths earlier on March 18,2012.1
In indictrnent filed Decernber 0, 20 [1] 3, Appellant who had begun serving his forly-five year sentence and who had no legal counsel and no reason believe he needed furthel legal counsel, was indicted capital rnurder, pertinent pal-t, as follows:
On or about 18tr'day Malch A .D.,2012. . . intentionally cause the death of Ryan Lusk . . . by shooting deceased with firearrn, the defendant was then thele in the course comruitting . . . robbery of said deceased.
¡11 worth noting that the statutory definition ol'"serious bodily injury" includes, "bodily irrjury . . .1hat causes death. . ." T.P.C. g 1.07(46).
The State concedes undel a long line of lJnited States Suprerre Coult and Texas Court o1'Climinal Âppeals cases, tl.rat State is atternpting to couvict and punish Appellee subsequent prosecution fol salne offense (capital n.rulder'), aftel convicting punishing him fol lesser-included offense agglavated robbery. In fact, undel any analysis, one offense (aggravated lobber'y) is the lesset' included and, therefore, double jeopardy purposes, the sarne offunse as, the other'(capital rnulder). See. e.g.. ßlockburger v. United States,284 U.S. 299 (1932); Brown v. Ohio,432U.5.161 (1977); Bigon v. State,252 S.W.3d 360 (Tex.Cr.im. App. 2008);Cooperv. State,430 S.W.3d 426 (Tex.Crim.App. 2014); Littrel.l.v. State,271 S.W.3d 273 (Tex.Crirn.App. 2008); Shelby v. State,448 S.W.3d ('l'ex.Crim.App.
2014); Ex Parte Carle,369 S.W.3d (Tex.Crirn.App.2012).
The t'ial court, the court appeals, and even State aglee with Appellant that the offense which Appellant was convicted and sentenced is lesser included offense ofthe new, alleged capital muldel'and thatthey are the "same offenses" under a"Blockburger" analysis. All appeal to also agree that there is no legislative intent to punish both statutory offenses when, as here, they arise flom sarne transaction.
See, Price v. SÍate,434 S.W.3d 601 (Tex.Clirn.App.20l4). In fact, i1 would seern patently absul'd irlrpose both death sentence a telln yeals, run cousecutive to the death sentence, all fol'the identical conduct.
l3 *19 l-ikewise, the court of appeals acknowledged as follows: When two o1'fenses arise undel different statutes, the two offenses are consideled the saure offense purposes of applying tl.re double jeopardy prohibition if all the statutory elelnents are included within the statutoly elements of the other offense. Se e þl4talen v. Uníted States,294 U.5.299,304 (1932). Thus the state nlay convict defendant an offense when the defendant has been convicted already of lesser- included offense arising fi'om the same event. Brown,432lJ.S. al 161, Ex parte Amador,326 S.W.3d 202,204 (Tex.Crirn.App. 2010).
Slip Op. Below at 3.
The Coult below and the State both concede this case rneets the Blockburger test. Id.
The courl ofappeals, however, then disrnissed the long standing"Blockburger" rule analysis as a mere "general ploposition" and one which has absolutely no relevance or applicability case-at-bar'. "In all of IIill's autholities fincluding Blockburger], however, greater and lesser offenses were colnpleted available as potential charges at tirne defendant's tlial." Slip Op. below at 4.
While that rnuch is technically true, neither did any cases r'elied by Appellant "Hill", including Blockburger, oither explicitly ol irnplicitly, lirnit their' (sornetimes extensive) analysis ol application fifth amendment's double jeopaldy clause exclude the situation case-at-bar, as coult appeals seelned to imply.
ln deternrining tl.re ir.rapp li cab ìlity of Blockburger,the courtbelow relied allnosl exclusively on Diqz v. United Slates,223 U.S. (1912), a case (out the Philippine lslands) decided twenty years before Bl.ockbzzrger. Cases since Blockburger have acknowledged the theoretical possibility of exception cl'eated by Diaz that survives Blockburger."Anexception rnay exist whele the State is unable toproceedonthernoreseriouschargeattheoutset..."Brownv.Ohi.o,432U.S.16l , I69&n.7(1977).
In Diaz, the defendant was tried and convicted in a Justice the Peace Coult, in {he Philippines assault and battely. He was lined. The cornplainant died a sholt time later as result the injulies suffered in the assault and the defendant was charged in l.righer court with homicide. He pled jeopardy lost. In upholding the denial ofhis doublejeopardy plea, United States Suprerne Court stated:
. . . undel'the Philippine law, thejustice ofthe peace, although possessed ofjurisdiction to try accused fol assault and battery, was without julisdiction to try hirn for lT omicide; and, ofcoulse, thejeopardy incident trial before justice did not extend an offense beyond his julisdiction. All could be claimed fol that jeopaldy was that it proteoted the accused from being again plosecuted assault and battery, therefore required tl.rat lattel be tl'eated as included, as lesse¡ offense, the chalge hotnicide, as otherwise rnight have been done witli Phii. Comp. Stat. $3284.
Diaz at 449.
In othel wol'ds, unlike the case-at-bar,ln Diaz, first court of conviction (a I5
Justice the Peace Coult), had r.ro julisdiction over'homicide cases, "and, of course, the.jeopaldy ir.rcident the trial before tl.re.justice diil not extend to offense beyond his julisdiction." Id. That leasonir.rg has no application to the case-at-bar wl.rere the same couú has jurisdiction over both offenses and Diaz is distinguisl.rable for that reason-
The Diaz opinion does state that "[t]he death the injuled person was the principal elernent homicide, but was no part of the assault and battely. At the tilre ofthe trial fol latter the death had ensued, and not until it did ensue was honricide comrnitted." Diaz at 251 .
Again, case-at-bar distinguishable in that Appellee was convicted of inter.rtionally and knowingly causing victim "seLious bodily injuly" by shooting hirn with firearm during robbery. Under Texas law, the statutoly definition of "selious bodily injuly" includes "bodily injury . . . that causes death . . ." T.P.C. $1.07(46)(emphasis supplied). Therefore, unlike Díaz, unlike any case rel'erencing Diaz with approval, Appellee has ah'eady been convicted and punished for causing "sel'ious bodily injuly", which includes bodil), injury "that causes dcath." 'l'he facl lhc victirn has rrow died, allegedly t'ont tltat bodily july adds nothir.rg elements which Appellee has been ah'eady convicted and punished when he was convicted punished causing "serious bodily ir¡ury".
t6 *22 A subsequerrt plosecutiol-r would be a violation eveu undel reas oning Diaz, and tlre leasoning any case citing Diaz with apploval.
F'inally, it is not cleal whether Diaz is even still good law. The cases that ale rnost cited as establishing double jeopaldy julispludence and legal analysis, for' exarnple, Rlockburger v. United States,284 U.S. 299 (1932); North Carolina v. Pearce,395 U.S. 711 (1969);Ashev. Swenson.,397 U.S. a36Q970);Brownv. Ohio, 432 U.S. 161 (1977), all were decided well after Diaz and Diaz has never been scrutinized under the tests and standards established by these cases violations of double.jeopaldy. Although Di.azhas never been explessly overluled some cases rnake l'efelence it in dicta, no Supreme Court case relies it in reaching a decision. Even a lecent arlicle on the Texas District & County Attot'neys Association website questions whethel Dí.az is good law. "l)oes this case survive the Blockburger test?" It resolves this question with less than resounding endolsement, "[i]t hasn't been expressly overruled . . . You may want to keep Diaz handy." Stride, "Double Jeopardy: Unlaveling Gol'dian Knot" (2013). w,.rvw.tdcaa.com.
The Coul't below also lelied heavily on Graves v. State, S.V/.2d (Tex.Clirn.App. 1976), whicli cites Diaz in allowing second plosecution for iuvoluntary manslaughter aftel his conviction driving while intoxicated. 'lhat case likewise distinguishable because as Judges Odom Douglas point out their
1l *23 concurl'it'tg opinions, unlike the case-at-bar, driving rvhile intoxicated is not lesser included offense involuntary manslaughter and the defendant's doublejeopardy argument does not lneet the lllockburger lesl ld. Graves is, therefole, clearly distinguishable.
Oddly, in its decision below, the couú of appeals seeured to both acknowledge the possibility that rnultiple punishments under these circumstances would violate doublejeopaldy and, yet, remain seemingly unconcerned about that constitutional violation. "Moreover', even if the cornplainant had died immediately and Hill was chalged and convicted both offenses at same tirne in violation of his double jeopaldy rights, the proper resolution such cases vacate conviction and punishrnent lesser-included offense leave intacl the conviction and punishrnent gleater offense." Slip Op. Below at pp. 7-8 (citation ornitted).
First, plotection double jeopardy clause provides against successive prosecutions is at least as bload as strong as protection it provides against rTrultiple punishments. "Multiple punishments that result fi'orn single prosecution do not subject defendant to the evils attendant upon successive prosecutions." -Ex parte Chaddoclc,369 S.W.3d 886 (Tex.Crirn.App. 2012). Ilow could it, ther.r, be a violation of double jeopardy punish for both offenses if tried together., but if tt'ied successively? Pafliculally when successive tlials were not the choice the
delèndant. 01'course, both successive ploseoutions ancl rnultiple punishments are at play in the case-at-bar'.
Second, the remedy inragined by lfie courl ofappeals ofvacating the conviction ancl sentence fol agglavated robbel'y once Appellant is convicted ancl either sentenced to death ol Iilb rvithout possibility parole on the capital murder., would be availabÌe here, and would be utter.ly meaningless at point, even if it wele available.
Finally, absuld abjeotly unfàir results the rule announced by cour"t below could lead to are unlin,ited. Þ-or exanrple, there is no statute o1l limitations on capital murder. A deatli that occul'r'ed years, even decades aftel a <lefendant had been convicted ofa fir'st degree assaultive felony involving identicaÌ conduct for which the defendant had already served decades plison, could be r.epr.osecutecl as rnurder oI. capital murder. Any sentence pul'suant a l-ìew oonviotion would star.t over. Likewise, under rule announced by the coult below, defendant could ser.ve decades attempted ururder and then get stacked life senterìce for.rnurder.if the injuled pal'ty latel'died. clearly, if the governrnent could be trusted not abuse its almost uniil¡ited powel to charge, thele would be no need clouble jeoparcly clause.
It true that with all its powel to charge, the govelnrnent still cannot char.ge I9 cilizeD with an offense does not yet exist, that simply r.eality. It is also true,
however, that â citizen has constitutional light, once cor.rvicteci and, in this case, halshly sentenced, be free abusive govelnment "evils attendant upon successive plosecutions, narnely 'embanasstnent, expense, and orcleal, of repetitive tlials, 'compelling [the accused] to live continuing state ofanxiety and insecurity' and creating lisk ofconviction thlough sheel' governlllent preservance.',, Expartechaddock,369s.v/.3d atsS6,supra.Inlesolvingthisissuebydiscounting seminal double jeopardy case, Blockburger, and ploviding the gover.nment even rnore charging power at expense irnpo|tant constitution light, court of appeals reached wrong decision. The trialjudge got i1 right.
PIIAYER FOII RELIEF The two offenses are the sane jeopar.dy pul-poses. Both successive prosecutions rnultiple punishments are prohibited. The trial court's ruling should be afhlmed the court appeals opinion should be reversed.
z0 *26 LAW OFFICES OF MICI{AEL LOGAN WARE 300 Bun.rett Street Suite 160
Fort Wor1h, Texas 16102 Telephone: (817) 338-4100 Telecopier: (817) 698-0000 Wa reúd¡uikew¡re.!e¡¡_,çq¡u 2t t,,¡". / .'¡-, ,, , ',/ MICIIAEL L-õÃÑTARE_ State Bar No.
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1. This Petition contains 4,098 words prepared using Vy'ordPerfect and
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CEIìTIFICATE OF SERVICE I heleby certify July 17,2015, true copy ofthìs document has been served ou lJlian P. I{igginbotharn, Assistant Distlict Attorney, N. Rivelfi'ont Boulevard, LBl9, Dallas, "I'exas75207 by email to
brian'hi@rg Lisa McMinn, State Plosecuting Attorney, P.O. llox 1304ó, Capitol Station, Austin, TX
'',/ / -'t I / y'.../t ¿.. í,y: MICHAEL T-OGAN V/ARE *28 APPENDIX A
Court of Appeals Opinion dated May 20,2015) *29 l:I t] co])\' CnÌ¡l)lusl()l luslrc¡ts SroDD?\RT CR/\t(ì Scu¡iNcK D^vù)J. AD^ ßROWN ll\,^Ns D^\4D l-cñrs DAvrD W¡r¡1!¡r¡r-L llr¡-r- IrrÌ^Ncts MoL¡-Y MY¡tRs llt-tz^ìlu l,ANc S. RoDDIU L^NGMltRs M. ¡'t.'-l\{onD J l-^N,\ DoLlÇI.^s D^\,rD L. lì¡lrDclts aì^t{ot-\,N NRìcjff 0f at 4¡¡[[ns @exûd fíftf.¡ þfg¡¡¡¡¡ Co¡\rM¡R(lr SrR¡]lil. Sutlr, [200] [600] nlø Øppe ([ourt D^ L¡-^ s. [75202] 'l'rìx^s 12-3400 (214\ [7] A Spx ñww,t-xcouÌI L:oA, s.co\,/51.ll hunUfl (¿Slh.txcourts.gov gâyÌo IlusìNuss rhccìcrk(al5llì.txcourls. gov C:OURl' lrrt Ct-lilìx Ol: 7t2-3434 t083 [745] (2t4) (2r4) - G^\,t_! IlL,À¡p^ (2t4t1t2-1450 l_ts^ Mi\1.2 I:^(istM _D INl¡ltNUt- ^DM tN ìt¡/.11)lt ¡s
May 20,2015
Michael Wale Susan Hawk
Attomey at Law Dallas County Distlict Attomey 300 Burnett Street lì'r'ank Crowley Courts Building Suite [160] 133 N. Riverfront BIvd., LB l9 Ft Worth, TX76102-3428 Dallas, TX 75207 + DELIVERED VIA E-MAIL {. + DELIVEIìED VIA E-MAIL +
Telri l{arnmond Mool'e Brian lJigginbothan.r
Terri Moole Assistanl District Atto[rey
300 Buniett Street, Suite 'îX Worth, lì't 76102-3428 VIA DELIVEIìED + E-MAìL * lìr'ank Courts 5207 -4399 * DELIVERI]D Building Crcwley Dallas, l'X E-MAIL + VIA 133 LBl9 N. lndustrial Blvd.,
Rll: CourtofAppealsNurnber: 05-l5-00053-CIì
Trial Courl Case Nuurbcr: WX l4-90030
Slyle: The State ofTexas
Anthony Ilill
Please find attached the opinion that issued in tlie above cause toclay lìespectfully,
/s/ Ltsa Matz, Clei'k Coult cc: Eìr'andon Iìiuringharn (DELI\4IRED VIA E-MAìL)
F-elicia Pitle (DìiLJVEIìED VIA E-MAIL)
The llonolable Maly L. Murphy Q)ELIVËlìllD VtA ìì-MAIL) *30 lìcvcrscd lìcmandcrl and Opinion Filcd l\1lay 20,,2015
In l-hc
(ûrrt¡rt üf AFpr¡¡IÍ ^ãfiffh Ðixtrirt rrf @ux¿¡¿r cf B¡¡llfis No. 05-15-00053-Clì
EX IAIITE ANl]IONY HÌLL On A¡rpcal fronr thc 292nd Judicial District Court Dallas County, Texas
ï'rial Court Causc No. WXl4-90030 OPINION
Before Justices Francis, l.ang-Miers, and Whilehill Opinion by Justice Irrancis
Anthony I'lill pleaded guilty to shooting a rnan during a robbery and was sentcnced to folty-five years in prison. Months later, complainanl died, allegedly fronr cornplications ol' the gì.lnshot wotì¡id he receivcd du|ing tlie agglavated robbery. 'l'helealìer, the Slate indictecl Iìill fol capital nrurder.
Ilill filed an application for rvrit ol'habeas corpus which he asserted, anrong othel. tlrings, violations the double.jeopardy pr.otections al'iorded b¡, fhe tJnited States l-exas colìstitutions.' Specifically, he algued his subscquent plosecution for capital lnurder was barr.eci by his provious oonviction aggravated lobbcly. Aftcr a healing, llial courl agreed ancl barred the prosecution.
l-he State appealed, oontending the triâl court's ruling is erroneous because Ilill's case lalls under a longstânding exception to the double .icopardy bar alloi,r,ing for. a sLrbscquent prosecution on lnore serious cllarge when additional làcts necessaly to suslain that charge have occurred in this case, the complaiuant's death. For reasôns set oUt below, \\,e agr.ec with Sfate. We teve¡se lrial court's order and reurand for fuúher procccdings consistent with this opinion.
An applicant seeking habeas corpus relief must prove his or her clailn by prepondelance 01- thc cvidence. Knidtt v. Slore, 206 S.W.3d 657, 664 (Tex. Clim. App. 2006); Ex parte Scott, I90 S.W.3d 672,673 (Tex. Crirn. App. 2006) (per culiarn). In reviewing lrial court's order glanling habeas corpus relief, we view the facts the Iight tnost f¿vorable to tl'ial court's Iuling, and rve will uphold the trial court's ruliug absent an abuse ofdìscretion. See Kniatl,206 S.W.3d at 664. We afford ah'nosl total defelence tlial coult's delennination the hislorical facls record supports. See Dx parte Peterson, ll7 S.W.3d 804, 819 (Tex.
Crinr. App. 2003) (per atiant), overruled on other grounds by list parte Lewis,2l9 S.W.3d (Tex. Crim. App.2007). We likewise defer to the lrial court's application the larv the facts if the resolution ofthe ultimalc question lurns on evahration ofcredibility derneanol'. S¿¿ id. llthc resoh¡tion ofthe ultimate questiorì turns on an applicalion oflegal standards, we revicw the deter'¡n inatioll de novo. S¿¿ i¿./.
The ìr'ifth Amendmcnt's Double Jeopaldy CIause plotects an accused against second prosecufiott for the satnc offense afler acquiltal, a second plosecution the same offense aftel. conviclion, and being sub ject to nrultiple punishments I'or'the sarne offense. U.S. CoNs'1. arrend Y;Ilrov,nv. Ohio,432 U.S. ló1, (1977); Littrell v. State,271 S.W.3d 273,2?5 ('l'cx. Cr.inr.
App.2008). l-he Fifth ,A,llcndrìlenl made applicable ltr the stafes through Due Process ClaLrse of thc lìoull.cc¡rth Amendrncnt. llenton y. lt4atyland,395 U.S. 784, 787 (1969). I'he
-..).- *32 'Iexas Constitution's plohibilion against double .jeopaldy provides substantially identioal proteclioì'r the Doubie Jeopaldy ClaLrse of'the Uuited Stales ConslitLrtion. .ç?¿ TuX. CoNsl'. arl.
I, $ I 4 (West 2007); Ilx patr: Mitchell" 977 S.W.2d [5] 7.5, [5] 80 ('I'ex. Crinr. App. 1997).
\rly'hen trvo offenses aÍise under dil'ferent statutes, two ollenscs aro considercd the same oflènse for pulposes of applying double .ieopardy prohibition if all of thc slatutoÐ, elements of one offense are included within statutory clements ol'thc other offense. S¿¿ I4/halen v. United States,445 U.S. 684, 693 94 (1980); Ilktckburger v. Uniled States,284 tJ.S.
299, 304 (1932). Thus, thc Statc rl'ìay convict a defendant for offense when tlre defe¡rdant has been convictod already ofa lesser-included offense arising fi'orn the sarìle event. Ilrotun,432 U.S. at 161; Dx parle Antador,326 S.W.3d 202,204 (Tex. Crinr. App. 0).
I'he indiotrnent that formed the basis o1'the aggravated robbery conviction provides that Ilill, while in the coulse ol'cornmitting theft, caused serious bodily injuly to the cornplainant by shooting him with a l'irearm. l'he indiclnlent for capital muldel alleges that while in the coulse cornmilting or atteurpting to comrnit lobbery, Ilill caused death the complainant by shooting him r.vith firearm. The State concedes aggravated robbery lesser-included ofl'ense ofcapital nrurder as alleged this case thus satislìes lhe Blockl:urger tesf. Conrytare 'l'DX. PDNAT. CoDri ANN. $ 19.03(a)(2) (West Supp. 2014), u,irh TEX. PriNAr. CODU ANN. S 29.03 (West 201 I ).
Because aggravated robbcry is a lesser-included offense capital rnulder, llill contends prosecrìting hinr capital murder exposes him to doLrble -ieopaldy because he would be bolh tried and punished twice. ìJill oites nurreLous authorities suppolting the general ploposition that defendant n.ìay not lre convicted both greatel lesser o1'lènses arising liom same cvcnt. In all ofIlill's authorifies, horvever', greâter antl lesser olïellses were completod and
-3,. *33 avaifable âs potcntial ohargcs at thc tintc olthe delcntlant's tlial. 5'¿¿, c.g., Littrell,2Tl S.W.3d at274; Bigon v. State ,252 S.W.3d 360, 363 ('l-ex. CLim. App. 2008).
The State âsserts it rnay tly llill capital rnurder becausc an "exception may exist where the Slatc unablc to proceed the urore selious charge at the outset because the adclitional facts neccssary to sustain that charge have not occurred or have Dot been discoveled despite the exelcise ofdue diligence." Ilrov,t¡,432 U.S. at169 n.7.
The United States Supreme Courl reoognized this exception to the general double jeopardy rule in Diazr llnited States,223 U.S.442 (1912). Diaz was convictecl ofassault and battery and fined aller beating and kicking the victit¡. ld. aI 444. AîÍer Diaz's convicl.ion, the victim died, Diaz was tried and convicted of holnicide. Id. 'fhe case proceeded the United States Suprerne Court [10] consider the application o1'the provision against doublejeopardy contained within the Philippine Civil Government Act, which govelncd adnrinislr'ation thc Philippines where the case alose. Id. al 448. hi liolding thal Diaz was not subjected dor¡trle .jeopardy, the Supreme Court pronounced:
'l'he death injured person was principal elernent o1'the homicide, but was no pârt assault and battery. At tilre ofthe trial for the latter the death had not ensued, not until it did cnsLre was holricide committed. Then, and before, was it possiblo 10 put thc accused in .ieopaldy for that offen se.
Id. at 449. Irr reaching this oonclusion, the Su¡rreme CoLrrt ciled early Tcxas case,,Iohnsoll tt.
,tt(tte, [19] 'ì'ex. C1. App.453 (1885). Johnson explained the exception as fòllows:
'fhere never can be the crirne murdel or rranslaughtel unlil party assaultecì dies; fhese clirnes have no existeÍìce facl or law till such death. It cannot, therefore, be said one is lried for the same crime when he is tl ied assault tlLring Iife, and tried lòr'utrder ol nranslaughtcl alìer 1he death, ol'lhe injuled pany. 'l'he death ofthc assaultcd party creates ncw crime.
John.son, I l'cx. Ct. A1':tp. at [461] .
Ilill questions whelher Diaz Icntains good iarv and conte¡rds it is distinguishable fi.o¡r his casc llill lìrsl llÕ1es tl'ttrt ìt Dinz, the Su¡rlemc CoL¡rt also îound an âltelnâtivo gr.ound I'or. concluding double.jeopa|dy prolections did not apply: Diaz was not sub.iected fo doublejeopardy because fhe justice ofthe peace court thât tlied hirn for assault and ballely had no jurisdiction to try hirn for homicide. Diaz,223 u.S. at 449. IJill contends that because ths alternative ju¡isdictional double jeopardy exception in Diaz has no application to his case, /)¿az is d istinguishable.
In fhe ensuing cenfuly since I)ioz was decided, united states Supreme court lias abandoned jurisdictional double .jeopardy cxceplion described in Diaz. see llaller t,.
Florida, 397 u.s. 387, 394-95 (1970) (overturning dual sovereignty exceplion dor¡ble jeopaldy and concluding petitioner could not be tried sarne offense in both municipal court and stâle cotrrt). The Suprettte Court, horvever', has not abancìoned the incornpletc offense ruling Diaz at issue in lJill's case. ,s¿¿ culberson v. lllainwrighr, 453 lt.2d 1219, )zz0-21 (5th cìr. 1972) (pu cnriant)- cert. denied,407 u.s. (1972) (concluding llaller had no effect Dr¿72 rule pelnritting subsequent prosecution after victim dies and upholding manslaughter conviction against clailr double jeopaldy prenrised on conviclion for assault obtained before victirn died).
As it't ctrlberson, we soe no leason not apply Dioz its exception 1o double.jeopardy under.
the facls ìl ill's case.
Ilill nexl contends /)laz disfinguishablc because under'l'exas law phlase "serious bodily iniuly" as r¡sed the aggravated robbe¡y statute enconìp¿ìsses itriuries that resLrll in cleath.
,S¿¿ lltx. PDNAI. CoDD ANN. { L07(46) (Wesf Supp. 2014) (defining ,,serious bodily injur.y', to include bodily iniLtry causes dcath). l'hus, unlike Diaz, l\ll conte¡ds he has alrea{y been punished f'or causing the complainant's death. We disaglec. At llie tinle ofI Iill's conviction for âggravatcd lolrbery, the cornplainanl was still alive. We caunot agrec l-lilÌ has been punished fol.
-5 *35 comlllitting capital mt¡rder ì.¡ndeÌ 1l'ìe circllrrslances, and the punishmenl asscssed aggravated robbery has t'lo Lclevartce to tlìe question ol'rvhether a doLrble .icopaldy exccption exists iu this case.
Irinally, lìill questions the continued validity of Diaz in light rnore recent cases. llill points ôut that cases
most cited as establishing double jeopaldy jurisprudence and legal analysis, for cxanrple, BÌockburger v. Uniter.l Starets,284 U.S. 299 (1932); North Carolino v. Pen'ce,395 U.S. 7ll (1969); Ashe v. Sv,enson,397 U.S. a36 (970); Brown v. Ohio,432 lJ.S. l6l (1977), all were decided well aller Diaz and Diaz never has been scrLrtiniz"ed under tests standards established bv these cases f'or violalions of double.leopardy.
Even rvhile applying lhe Blockburger lest, the Suprenre Court continues recognize the double jeopardy cxception lòr incornplete or undetected crimes. 5'¿¿ lllinoi,y ¡,. I¡itale, 447 U.S.
410,420 n.8 (1980), trbrogated on other ground.s by United Staru v. Dixon,509 U.S. 688,704 (1993); Brou,n,432 U.S. at 169 n.7; Blackledge v. Perty,417 U.S. 21,29 n.7 (1974); Ashe v. Svenson,397 U.S. 436, 453 n.7 (1970) (Brennan, J., conculring); see olso Rutledge v. United ,ftates,517 U.5.292,307 n.l7 ( 1996) (declining to "explore the consequencas" its holding on successive-prosecution st|and ofDouble Jeopardy Clause and Diaz). HtIl concedes that /)l¿z has never beett overluled but ilcorlect asserting that no Suprelne Coult decision has evel lelied trpon it in Icaclring a decision. For exarnple, the Suplcnrc Cor¡rt lelied on Diaz as ahcrnalivc tcason uphold plosecution brought against ¡nariiuana smugglel for conducting a continuing criminal enterpt ise even though the smuggler had been earlier convicted specific instance of niariiuana in'ìportaliou was part ofthe cÌifirinal aofivity. See Gaftett v. t]nited Skrtes,4Tl u.s. 773, 79r-93 (198s).
ln addition to the Suprernc Court's Iirlited plonouncellents lhc Dinz cxception, thc exception or).ioys lo¡rgstanding supporl in'l'exas law. See (ìrat,e,y v. State,539 S.W.2d 890, 891- 92 (1'ex. Crirn, App. 1976); llill y. St(ile, S.W.2d 93, 95-96 ('lex. Cr.im. App. 1941); Curri.s
-6- *36 v. Sta(e.22 'l-ex. Cf. App. 227, 236,37, 3 S.W.86,87-88 (1886); Joltnson. l9 T'ex. Cr. App. at 461. l-ikovise, exccpt.ion apirears well-cstablished in the dou ble jcopaldy .juris¡rr.udence ol the lower fedsral couús and thc slates. See, e.g.,llhittlese¡, v. (-r¡nroy,30l I:.3d 213,219 (4tlt Cir.2002); MitchelÌ v. Cod)t,783 lt.2d 669,671 (6th Cir. 1986); Culberson,453 lt.2d at 1220, 2l; Srare v. llilson, P.2d 613, 615 (Ariz. 1959); Lott,e v. State,242 S.E.zd 582, 584 (Ga.
1978); People v. IJarrison, T0 N.E.2d 596,601 (lll. l9a6); State v. Ilenty,483 N.V/.zd 2,4 (lowa App. 1992); Stote v. Ifutchinson,942 A.2d 1289,1292-93 (N.l-I. 2008); Con¡ntonwealÍh ex rel. Papyv. Marcne¡,,207 A.2d814,816 (Pa. 1965); T'urner v. Conntonwealth, 641 S-]E.2d771, 774 (Ya. App.2007).
ln this case, I'lill was tried for agglavated lotrbery before one clemenls that complises his capital murder offense-narnely, dealh complainant-had taken place.
ìlecause the State could not have brought the capital murdcr case against Ilill a1 time he was tlied for agglavatcd lobbely, it is jeopardy-bared front doing so now. S¿¿ Diaz,223 lJ.S. at 44849; Graves,539 S.W.2d at 892.
ìrinally, I-lill contends if State allowed proceed and he is convicted, he will làce nrultiple punishments for thc same offènse, result that may not occur unless the legislatur.e "has cleally expressed a contrary inlenlion that the accused should bc punished both the glcater and lesscr-included offenses." Littrell,2T'l S.W.3d a1 276. In the case ofan individual rvho colrrnrjts a crime that encolnpasses bolh aggravated |obbery and rnurder, thele is no such Iegislative intent. Id. at 278.
As we have already explained, undel Iinited lale circu¡rsfances oJ'I{ill's case, fhe aggravafed lobbery and capital murder offenscs IIill rvas charged with are not 1lìe same oflense double.ieopardy l)urpôses. See Diaz,223 U.S. at 44849; Grn,es, 539 S.W.2d at 892. Moleover, evcn il thc oornplainanl had died immedialely and llill was charged and
--7 *37 convicted ol'both offenses at the salt'ìe tirne violation o1'his double_jeopaldy lights, pr.opcr. resolution itt sL¡ch cases vacate lhc conviction and puuishnlelìt lesse¡-included offertse and leavc inlact the conviclion punishrnent lòr the greater offense. Id. at279-
Ilecause the trial coull's determination in this case conflicts rvith binding plecederrt from United States Supreme Courl anci the Texas Court Crir¡inal Appeals, we conclude trial coult abused its discretion ìn glanting lJill reliefon his application l'or writ ofhabeas corpus. S'ee Diaz,223 U.S. at 448-49; Kni(ttt,206 S.W.3d at 664; Graves,539 S.W.2d at 892. We suslain the State's issue appeal.
We reverse trial court's order granting l"lill's application í'or writ habeas corpus, we rer¡arrd this case 1o t'ial coLlrt proceedings consistent with this opinion. Publish /Moliy l'rancis/
TEX. R. APP, P. 47 MOLLY FRANCIS
150053F.P05 JUSI]CE
(luurt uf Appulx ífifth 4lixttirt rrf @trux ¡tt Сtll¿tr¡ JUDGMENT
EX PARI'LJ AN]].-IONY IJII.L On Appeal lìorr 292nd Judicial District
Court, Dallas County, Texas Trial Court Cause No. 'ir'Xl4-90030. No. 05- I 5-00053-Clì
Opinion dclivclcd by Justicc Francis. Juslices Lang-Mie rs and Whitebill participating.
Based Court's opinion of this date, the older ofthe tlial coult granting appellce Anthony l{ill's application for writ habeas corpus RI,VtrRSDD thc cause REMANDDD for fLrther proceedings.
.lrrdgrncnt cnlcled May 20, 5.
APPENDIX B Courf Appeals Order denying Appellee's Motion Rehearing dated June 17,2015
Ordcr cnfcrcd June 17,2015
ln'I'he
@ourt of Øtpeuts f íttÍ) Díßttíct ot @txus et Dslted No. 05-15-00053-CR
EX PARTB, ANTI.IONY ITILL On Appcal from thc 292nd Judicial District Court f)allas County, Tcxas
Trial Courf Causc No. WX14-90030 ORDE]I
Appellee's Motion l'ol llehearing filed on June 4,2015 DENIED.
MOLLY FRANCIS JTJSTICE