Bailey v. State

• Decision Date: 09 October 2002
• Docket Number: No. 1222-01.,No. 1224-01.,No. 1220-01.,No. 1226-01.,No. 1225-01.,No. 1223-01.,No. 1229-01.,No. 1227-01.,No. 1221-01.,No. 1228-01.,1220-01.,1221-01.,1222-01.,1223-01.,1224-01.,1225-01.,1226-01.,1227-01.,1228-01.,1229-01.
• Citation: 87 S.W.3d 122
• Parties: Ex parte Brenda Sue BAILEY et al., Appellants, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

87 S.W.3d 122

Ex parte Brenda Sue BAILEY et al., Appellants, v. The STATE of Texas.

No. 1220-01.

No. 1221-01.

No. 1222-01.

No. 1223-01.

No. 1224-01.

No. 1225-01.

No. 1226-01.

No. 1227-01.

No. 1228-01.

No. 1229-01.

Court of Criminal Appeals of Texas.

October 9, 2002.

George McCall Secrest, Jr., Houston, for Appellant.

Alan Curry, Assist. DA, Houston, for the State.

OPINION

MEYERS, J., delivered the opinion of the Court in which KELLER, P.J., PRICE, HERVEY, and HOLCOMB, J.J., joined.

Appellants were charged with engaging in organized criminal activity resulting in a theft from the City of Houston. TEX. PEN.CODE ANN. § 71.02 (Vernon Supp. 2002). During trial, at the close of the State's evidence, appellants moved for an acquittal.¹ Appellants' motions were granted. The State subsequently secured a second set of indictments charging appellants with the offense of engaging in organized criminal activity resulting in a theft from Rick Collins. Appellants filed pretrial applications for writs of habeas corpus on the ground that the second set of indictments violated the prohibition against double jeopardy. The trial court denied the requested relief. The Court of Appeals affirmed. Bailey v. State, 44 S.W.3d 690 (Tex.App.-Houston [14th Dist.] 2001).² We granted appellants' petitions for discretionary review to determine whether a subsequent prosecution on the second set of indictments is jeopardy barred. We will affirm.

I.

Appellants were employed by C & C Services, a construction company, to work as flagmen on several projects for which C & C Services had been hired by the City of Houston to complete. It was alleged that appellants were involved in a scheme of falsifying their time sheets. Appellants were indicted for engaging in organized criminal activity with theft as the underlying offense.³ The City of Houston was named as the complainant.

A bench trial on the first set of indictments commenced on April 3, 2000. At trial, the State called Rick Collins, the owner of C & C Services, to testify. Collins explained that he would receive daily reports containing the names and the amount of time that each flagman worked. He issued paychecks based on these daily reports and was eventually reimbursed by the City of Houston.

Sharon Messa, a senior assistant attorney for the City of Houston was also called to testify by the State. She explained the differences among the contracts that existed between the City of Houston and C & C Services for the projects that were being worked on during the time period of the alleged offenses. C & C Services would first pay the flagmen and then later be reimbursed by the City of Houston in accordance with the terms of the contract. On cross-examination, Messa testified that she was not aware of any conditions in the contracts that would require the city to monitor checks written by C & C Services to the flagmen. In addition, she explained that under the terms of the City's contracts, if a subcontractor came to the City and said that he was not paid by the contractor, then aside from providing the subcontractor the name of the general contractor and bonding company, it could not provide any relief to the subcontractor. Claude Hill, the director of the Operations Division within the City of Houston's Controller's Office, also testified that he would be unable to provide relief to a subcontractor who was not paid by the contractor.

At the end of the State's evidence, appellants filed motions requesting an acquittal. On April 7, 2000, the trial court granted appellants' motions and ordered acquittals with the following comments:

After having reviewed the arguments of counsel and reading the brief, so that you all know for any curiosity, as I am listening to you all as the trial progresses, I make notes as to what I need to hear to satisfy the State's case. The second item was — well, first, was money misappropriated? I was able to answer that yes. The second item is, so whose money, the City's or the contractor's? Bad as it pains me to do it, I have to grant the motions based on the law. Each defendant is acquitted.

On April 13, 2000, appellants were indicted for engaging in organized criminal activity with theft as the underlying offense. However, instead of naming the City of Houston as the complainant, the State listed Rick Collins. Appellants subsequently filed special pleas of double jeopardy and applications for writs of habeas corpus in the trial court. The trial court conducted a hearing on applicants' motions. The State contended that not only was it alleging a different victim, but a different set of property as well since the money paid by the City of Houston to Rick Collins was different from the money paid by Rick Collins to the flagmen. Appellants argued that since the new prosecution would involve the same set of facts and the same witnesses, with the only difference being the name of the victim, the State should be barred from proceeding on the new charges against appellants. The trial court denied relief.

Appellants argued on appeal that double jeopardy prohibits the State from re-litigating the same offense with the same evidence of the same conduct by merely changing the identity of the owner. Relying on the facts of Smotherman v. State, 415 S.W.2d 430 (Tex.Crim.App.1967) the Court of Appeals concluded that the State was not barred from prosecuting appellants under the second set of indictments. We granted appellants' petitions for discretionary review to determine (1)whether "federal double jeopardy principles bar a second trial for the same offense after [a defendant is] acquitted if the State changes its theory as to who owned the property allegedly stolen"; and (2) whether "Smotherman v. State, 415 S.W.2d 430 (Tex.Crim.App.1967)[is] still good law under federal double jeopardy principles."

II.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This provision is applicable to the States through the Fourteenth Amendment. See Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The Double

Jeopardy Clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after con viction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (foot-notes omitted). In the present case, we must determine whether re-indicting appellants for the same course of conduct while alleging a different victim constitutes a prosecution for the "same offense" for double jeopardy purposes.⁴

Appellants contend that since a separate offense is not created by merely changing the name of the complainant, prosecution under the second set of indictments is a violation of federal double jeopardy principles. Specifically, appellants argue:

A "separate offense" is not, somehow, magically created, which would warrant bypassing the protections of the Double Jeopardy Clause, by merely changing the name of the complainant in the accusatory pleading and, then once again, subjecting an individual to trial after previously being acquitted for allegedly participating in the same combination and in the profits of the same combination, pursuant to the same alleged scheme and continuing course of conduct by allegedly' appropriating the same property by virtue of the defendant's same status as a public servant.

Based on the facts of appellants' case, we disagree.

Traditionally, courts in Texas have held that an acquittal because of a variance between the pleading and the proof does not bar reprosecution on a new charge alleging that version of the offense which the State's evidence proved in the first trial. 43 GEORGE E. Dix & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 31.233 (2d ed.2001). See, e.g., Swindel v. State, 32 Tex. 102, 103-04 (1869) (denying habeas relief to an appellant who claimed that he would twice be put in jeopardy if prosecuted for theft of a gelding since he had been previously discharged for theft of a horse when evidence at trial adduced a theft of a gelding); Nance v. State, 17 Tex.App. 385, 389 (1885) (concluding that an acquittal under an indictment for incest charging the appellant of having carnal knowledge of one Pauline Leitz did not bar prosecution under the second indictment alleging the name of the female to be Pauline Seitz unless proof that the appellant had carnal knowledge of Pauline Seitz would have supported the allegation that appellant had carnal knowledge of Pauline Leitz); Reynolds v. State, 58 Tex.Crim. 273, 274, 124 S.W. 931 (1910) (concluding that where there is a distinct error in the name of the person assaulted as set out in the information and the appellant is acquitted of the offense, a second prosecution for an assault upon the same person charged under the correct name is permitted). The rationale behind this rule was explained in Fulmer v. State, 731 S.W.2d 943 (Tex.Crim.App.1987) (Clinton, J., concurring) (opinion adopted by majority).

The appellant in Fulmer was charged with indecency with a child. The indictment named "Kim Nguyet" as the victim. Proof at trial, however, established the victim's name to be "Kim Ngo" and appellant was acquitted of the offense. We held that the acquittal, which was based upon an indictment that did not correctly set out the complainant's name, did not operate as a bar to prosecution under an indictment that correctly identified the complainant. In his concurrence, Judge Clinton explained the reason behind permitting the subsequent prosecution:

Manifestly in the instant cause "Kim Nguyet" is different from "Kim Ngo." The names are neither the same nor idem sonans. Proof of one will not prove the other. That trial on the indictment resulting in an acquittal is not void or...