665 F.2d 1347 (5th Cir. 1982), 80-2187, Bullard v. Estelle

Docket Nº:80-2187.
Citation:665 F.2d 1347
Party Name:Charles Edwin BULLARD, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.
Case Date:January 20, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1347

665 F.2d 1347 (5th Cir. 1982)

Charles Edwin BULLARD, Petitioner-Appellee,


W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent-Appellant.

No. 80-2187.

United States Court of Appeals, Fifth Circuit

January 20, 1982

Page 1348

Douglas M. Becker, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Kenneth E. Houp, Jr., Frank Maloney & Assoc., (court-appointed) Austin, Tex., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Page 1349

Before POLITZ and RANDALL, Circuit Judges, and PARKER [*], District judge.

RANDALL, Circuit Judge:

The State of Texas appeals a determination by the district court, 502 F.Supp. 887, on petition for a writ of habeas corpus that Charles Edwin Bullard was placed in double jeopardy in violation of the fifth amendment to the United States Constitution. Subsequent to a conviction for theft, Bullard was subjected to two sentencing proceedings 1 to determine if he had committed two prior offenses which would lead to a finding of habitual offender status and to the enhancement, i.e., increase, of his sentence to life imprisonment. 2 The second proceeding was ordered by the Texas Court of Criminal Appeals after it determined that, at a first habitual offender (or enhancement) proceeding, the proof by the State that Bullard had committed one of the two prior offenses alleged in the indictment was insufficient.

The State asserts that the double jeopardy clause of the Constitution does not apply to enhancement proceedings. Alternatively, the State asserts that even if the double jeopardy clause bars a second enhancement proceeding when there has been a finding of insufficient evidence at the first proceeding, the United States Supreme Court decisions establishing that principle should not be made retroactive to invalidate Bullard's second enhancement proceeding and resulting life sentence which occurred before those decisions were rendered.

We hold that the double jeopardy clause bars a second enhancement proceeding when the evidence at the first enhancement proceeding was insufficient to establish that the defendant committed one or more of the prior offenses necessary for enhancement, and that this principle must be retroactively applied to Bullard's petition for a writ of habeas corpus.


The State of Texas has custody of Bullard pursuant to a conviction, in Texas district court, for theft of property over the value of two hundred dollars but less than ten thousand dollars, a third degree felony. The indictment for theft also alleged, for enhancement of sentence purposes, two prior felony convictions: a 1970 conviction for burglary and a 1962 conviction for passing a forged instrument.

Bullard was found guilty by a jury of the offense alleged in the indictment. Pursuant to his written election, the jury was excused and the trial judge, after the state

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presented evidence 3 that Bullard was the same person who had committed the two prior offenses alleged in the indictment, assessed punishment at imprisonment for life.

Bullard pursued a direct appeal of his conviction and on March 3, 1976, the Texas Court of Criminal Appeals upheld the conviction, Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976), but held that the State's evidence was insufficient, under any acceptable method of proof, 4 to identify Bullard as the defendant who was convicted in one of the convictions alleged in the indictment and remanded to the trial court for a new punishment hearing. After a new sentencing hearing which resulted in imposition of a life sentence, Bullard appealed. His conviction and sentence were both affirmed by the Texas Court of Criminal Appeals. Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977).

Bullard subsequently exhausted his state remedies by filing several post- conviction applications for a writ of habeas corpus under the Texas statutes. He then filed a federal habeas corpus petition, alleging six grounds of error. The district court rejected all grounds of attack except one: that his second enhancement proceeding violated the double jeopardy clause 5 of the United States Constitution. The court ordered Bullard discharged from custody unless retried or resentenced, in compliance with state law, within ninety days. The State appealed, challenging both the applicability of the double jeopardy clause to the enhancement proceedings of a trial and the retroactivity of controlling Supreme Court rulings to Bullard's conviction which occurred prior to those rulings. We address each argument in turn.


  1. Purposes of the Double Jeopardy Clause

    The double jeopardy clause of the fifth amendment which provides that, in criminal proceedings, no person shall be placed twice in jeopardy for the same offense, though

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    seemingly clear in its language, has been difficult to apply to discrete fact situations when a claim of double jeopardy is raised because the double jeopardy clause is a multifaceted provision which serves several distinct jurisprudential interests and values. These interests and values, delineated from jurisprudential literature and decisions of the United States Supreme Court,

    (i)n ascending degrees of importance ... are (1) an interest in finality ...; (2) an interest in avoiding double punishment which comes armed with a presumption in the defendant's favor; and (3) an interest in nullification-vis., an interest in allowing the system to acquit against the evidence-which is absolute. These three interests are all loosely connected to the notion of ending litigation.... But they are conceptually distinct and should be separately addressed.

    Westen and Drubel, Toward a General Theory of Double Jeopardy, 1978 Supreme Court Review, 81, 86 (1979) (hereafter Double Jeopardy Theory ). Phrased another way, the double jeopardy clause implicates recognized values of:

    (1) the integrity of jury verdicts of not guilty, (2) the lawful administration of justice, and (3) the interest in repose.

    Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich.L.Rev. 1001, 1002 (1980) (hereafter Three Faces of Double Jeopardy ).

    Because there are several different and distinct values implicated, analysis of when a person is placed "twice" in jeopardy for the "same offense" has presented complex problems and has resulted in inconsistency and confusion in judicial rulings. 6 Additionally, there are myriad circumstances during the course of a criminal prosecution which may suggest that the defendant is being unconstitutionally subjected to double jeopardy.

    (A)lthough the state may firmly believe it can prove a defendant guilty if given another opportunity, it may not retry a defendant following a mistrial declared over his objection if the declaration was capable of being "manipulated ... to allow the prosecution an opportunity to strengthen its case;" (Illinois v. Somerville, 410 U.S. 458, 469, 93 S.Ct. 1066, 1073, 35 L.Ed.2d 425 (1973),) nor following a declaration of any mistrial or the reversal of any conviction caused by deliberate prosecutorial harassment or overreaching; (see United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976),) nor following a conviction for either exactly the same conduct; (see Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970),) or nearly the same conduct; (see Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977),) ... nor following a trial that ultimately terminates in a basic failure of proof. (See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).)

    Three Faces of Double Jeopardy at 1037 (footnotes omitted).

    The attempts to apply the appropriate values to numerous, seemingly unrelated circumstances have created a body of law which, because of its complexity, must be carefully examined to define the values implicit in the double jeopardy clause and to identify the circumstances where those values are implicated. 7 This decisional law has additionally produced a plethora of legal literature in which attempts are made to explain why the clause is or is not applicable and to predict its application in future

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    cases. 8 Unfortunately, neither in judicial decisions nor in legal literature are the complexities of the clause clarified and the inconsistencies reconciled so as to provide us with "explicit guidance" and a "bright line" analysis 9 to utilize in examining the question before us: whether a defendant may be subjected to a sentencing proceeding a second time in order to prove facts necessary to show habitual offender status when a reviewing court has determined that, in a prior sentencing proceeding, the evidence was insufficient to sustain the habitual offender status and sentence determined by the finder of fact. We must thus undertake a careful examination of the double jeopardy clause, the implicit values it seeks to protect and the circumstances in which it is applied in order to determine whether the interests protected by the double jeopardy clause are implicated in this enhancement proceeding and whether a second proceeding would offend any of these values or interests.

  2. Implications of the Double Jeopardy Clause in Sentencing.

    Bullard was convicted of theft, a third degree felony. That conviction is not under attack here. Rather, Bullard attacks his subjection to a second enhancement proceeding which may be characterized as a retrial of the factual issue whether his sentence should be enhanced because of prior convictions after an initial finding of insufficient facts to support habitual offender status. 10 Our analysis must focus on the question whether there are any values of the double jeopardy clause 11 implicated in this sentencing proceeding where Bullard's...

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