Knorpp v. State

Decision Date26 January 1983
Docket NumberNo. 08-81-00030-CR,08-81-00030-CR
Citation645 S.W.2d 892
PartiesKerry KNORPP, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

George Whittenburg, Whittenburg, Whittenburg & Schacter, Michael B. Charlton, Amarillo, for appellant.

Tom Curtis, Dist. Atty., Amarillo, for appellee.

Before STEPHEN F. PRESLAR, C.J., and WARD and SCHULTE, JJ.

OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is an appeal from a jury conviction for official misconduct. The court assessed punishment at ten years confinement and granted probation. We reverse and remand for a new trial.

Ground of Error No. One asserts that the criminal prosecution was barred by the doctrine of collateral estoppel, as set out in Article 27.05 of the Tex.Code Crim.Pro. (Vernon Supp.1982), and established as a constitutional element of double jeopardy in Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475 (1970). The present indictment alternatively alleged theft of funds from Potter County and official misconduct in the misapplication of those same funds for personal benefit. The Appellant, the former Potter County Attorney, arranged to attend the June, 1975, Executive Prosecutors Course conducted by the National College of District Attorneys in Houston. In April and June, 1975, by requisition, he caused the treasurer of Potter County to issue two checks totalling $225.00 to the college to pay for tuition. Appellant subsequently cancelled his registration, and on June 20, the college sent him a refund check for the entire amount. The check was sent to the Appellant at the Potter County Courthouse and was made payable to him personally, without designating his official position or otherwise restricting the payee designation. On December 5, 1975, Appellant deposited the check in his personal account in the Western National Bank, Amarillo, Randall County, Texas. The deposit slip identified the check as a refund of the college tuition. In the latter part of 1975, informal internal county auditing requests were made for an accounting, which were put off by the Appellant. In early 1976, an annual external audit disclosed the outstanding funds and further demand was made for an accounting. On June 28, 1976, Appellant sent a reimbursement to the county, including the $225.00 indicated above, as well as an $800.00 advance made earlier in 1975 for deposition expenses arising out of a federal civil suit. An accompanying letter indicated that Appellant retained the $225.00 in the expectation of attending the June, 1976, prosecutors course.

Appellant was indicted in this cause on March 24, 1977. He was also the subject of numerous other indictments alleging bribery, theft and official misconduct. The Potter County District Attorney's office also initiated a removal suit based on twenty-four allegations of official misconduct. One count alleged the same acts which were the basis of the alternative counts in this cause. The jury found for the Appellant in the removal suit on all counts. Appellant contends that the removal suit was punitive in nature, that the parties and issues were identical, and that the jury verdict could only have been based upon a finding of no culpable intent; since the latter issue is essential to the criminal conviction, the removal suit verdict bars the later criminal prosecution. In conjunction with a pre-trial motion to dismiss, Appellant offered an affidavit signed by all jurors in the removal suit to the effect that their verdict was in fact based upon a finding of no culpable intent.

The rule of collateral estoppel expressed in Ashe v. Swenson, and statutorily prescribed by Article 27.05, bars a subsequent prosecution where a previous verdict necessarily was grounded upon a factual finding adverse to an essential element of conviction in the subsequent trial. The statute requires that the prior proceeding have reached a final judgment. Appellant's complaint is without merit on three grounds. At the time of this trial, the results of the prior removal suit had not reached finality. Following appeal by the district attorney, the Amarillo Court of Appeals ruled in favor of the Appellant, and the Texas Supreme Court refused the subsequent writ, finding no reversible error. The Supreme Court had not, however, ruled on the State's motion for rehearing. The mandate was ultimately issued after this criminal prosecution. State ex rel. Russell v. Knorpp, 575 S.W.2d 401 (Tex.Civ.App.--Amarillo 1978, writ ref'd n.r.e.). Consequently, the finality requirement of Article 27.05 was not satisfied.

As noted in Ashe v. Swenson, general issue submission necessitates a rule that the first jury verdict necessarily entail a finding fatal to subsequent conviction. Accordingly, Appellant's offer of a joint affidavit from the first jury identifying the sole ground of their decision was not appropriate to a determination of the collateral estoppel issue. The question must be resolved by a comparison of pleadings, parties, evidence and charges. Such a comparison in this case discloses an issue favorable to the Appellant which was present in the charge to the first jury but not present in the criminal prosecution. The first jury was charged on the public forgiveness doctrine. They were instructed that they could not find against the Appellant unless they found from a preponderance of the evidence that the public did not know of the alleged misconduct prior to Appellant's November 2, 1976, reelection. Momentarily ignoring the appellate outcome of the removal suit, this additional issue is sufficient to eliminate the first jury verdict as a basis for collateral estoppel.

Proceeding to the appellate decision in the removal suit, we find a further basis for overruling Ground of Error No. One. During the removal suit, Appellant argued that the forgiveness doctrine was not applicable and that his removal from office was barred simply by reelection under Article 5986 of the Texas Revised Civil Statutes. The Amarillo Court of Appeals sustained Appellant's contention and held that the jury trial proceedings were immaterial to the proper judgment to be rendered in the removal suit. The submission to the jury and its findings could form no basis for judgment and consequently were a nullity. Ultimately, Appellant prevailed in his removal suit as a matter of law and not of fact. Ground of Error No. One is overruled.

Ground of Error No. Two contends that the trial court erred in denying his motion to dismiss under the Speedy Trial Act. Article 32A.02 Tex.Code Crim.Pro.Ann. (Vernon Supp.1982). The indictment was returned on March 24, 1977. Appellant was arrested and placed on bond the same day. The local district judges recused themselves, and on September 10, 1977, retired Judge Arthur Tipps was appointed to preside. The civil removal suit was tried before Judge Tipps in January, 1978. On May 1, 1978, a change of venue hearing was held. On October 13, the court ordered a venue change to the 34th District Court of El Paso County. In the interim, a pretrial hearing had been set for September 22, but was reset upon Appellant's request. The cause was refiled in El Paso on October 19, 1978, 111 days after the July 1, 1978, effective date of Article 32A.02 of the Code Crim.Pro. The trial was specially set for January 15, 1979. This was postponed at the request of the Appellant to enable him to present pretrial motions. On January 19, pretrial motions to dismiss were presented alleging denial of speedy trial and prosecutorial vindictiveness and two motions to quash the indictment were heard. A second trial setting of February 19 was established but was changed to February 20 due to a holiday on the previous day. Additional pretrial motions by the Appellant voided that setting which was replaced with a March 26 date. On March 13, Appellant's counsel sent a letter to the trial court requesting a postponement of the March 26 setting. The prosecution opposed the delay in writing, and Appellant's request was denied. A hearing on Appellant's motion was set for March 23. Appellant's presence was not waived, but he did not appear. Counsel presented a telegram indicating that Appellant was under a doctor's care in Amarillo due to his emotional state. The March 23 motions were nonetheless heard and overruled. The March 26 trial setting was vacated, Appellant's bond forfeited and a capias issued. On April 3, 1978, based upon the doctor's telegram, the court ordered a psychiatric evaluation of Appellant to determine his competency to stand trial. The examination was conducted on April 16, and an evaluation of competency was reported to the court on April 19. A new trial setting of June 4 was granted. On that day, Appellant reurged his speedy trial motion and his motion to dismiss for prosecutorial vindictiveness. He also filed a motion for continuance, seeking a delay until the completion of the appellate review of his civil removal suit. The motions were denied and trial commenced on the following day.

Appellant contends that the State never announced that they were ready in this case within 120 days of the Speedy Trial Act effective date. As a result of Appellant's varied efforts to block this prosecution, a great deal of the material from the civil removal suit proceedings was presented to the trial court and appears in this record. Included is the January 9, 1978, announcement of ready by the prosecution in the civil removal suit. It is conceded that, with the exception of the reelection defense, the issues and evidence arising in this criminal prosecution were identical to one count of the civil removal suit. We further note that, following transfer to El Paso, all State's witnesses were subpoenaed and served for each and every trial setting. El Paso Court Administrator Donna Young presented an affidavit indicating that each of Appellant's trial dates was a special setting, and, given the court docket, they were the only...

To continue reading

Request your trial
9 cases
  • Zertuche v. State, 13-88-239-CR
    • United States
    • Texas Court of Appeals
    • June 8, 1989
  • State v. Hart
    • United States
    • Texas Court of Appeals
    • August 3, 1995
    ...on "temporary withholding" merely negated an essential element of the State's case, i.e. intent to deprive. 3 See also Knorpp v. State, 645 S.W.2d 892, 903 (Tex.App.--El Paso 1983, no Appellant cites Reid v. State, 377 S.W.2d 654 (Tex.Crim.App.1964), and Rafford v. State, 139 Tex.Crim. 497,......
  • Cullen v. State, 3-90-148-CR
    • United States
    • Texas Court of Appeals
    • June 24, 1992
    ...pleading will support a disjunctive submission to the jury. Zanghetti v. State, 618 S.W.2d 383, 387-88 (Tex.Crim.App.1981); Knorpp v. State, 645 S.W.2d 892, 904 (Tex.App.1983, no pet.). Thus the State was required to show that appellant either damaged or destroyed tangible property. However......
  • Thompson v. State, No. 07-03-0237-CR (TX 2/4/2005)
    • United States
    • Texas Supreme Court
    • February 4, 2005
    ...of evidence standard, the evidence is sufficient to support that venue was proper in Randall County. See generally Knorpp v. State, 645 S.W.2d 892, 900 (Tex.App.-El Paso 1983, no writ). Point of error four is Accordingly, the judgment of the trial court is affirmed. 1. John T. Boyd, Chief J......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT