Benard v. State

Decision Date09 May 1972
Docket NumberNo. 44828,44828
Citation481 S.W.2d 427
PartiesJohn BENARD, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Philip S. Greene, Jerry D. Patchen, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for the offense of 'operating a motor vehicle while license suspended.' Punishment was assessed at three days in jail and a fine of $50.00.

The record reflects that the automobile appellant was operating was involved in an accident in Harris County, on November 6, 1969. Appellant failed to produce a valid operator's license when the officer investigating the accident made a request to examine same. The officer issued the appellant a citation for 'operating a motor vehicle without a valid operator's license in his immediate possession,' Vernon's Ann.Civ.St., Art. 6687b, Sec. 13, to which charge appellant entered a plea of guilty in the municipal court and was fined the sum of $15.00. The officer subsequently received information from the Texas Department of Public Safety showing that appellant's license had been suspended because of his failure to comply with the Safety Responsibility Act. Appellant was then charged by information in the County Criminal Court at Law No. 1 of 'operating a motor vehicle while his license was suspended.'

Appellant challenges his conviction for operating a motor vehicle while license suspended contending that he was placed in double jeopardy by virtue of his former conviction for operating a motor vehicle without a valid operator's license, such being a violation of the Fifth and Fourteenth Amendments to the Constitution of the United States. 1 Appellant also contends that the two offenses arose out of the same transaction and were proven by the same evidence, a result which he argues is incompatible with the decision of the Supreme Court in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1969). In Waller, the petitioner was one of a number of persons who removed a canvas mural form the City Hall of St. Petersburg, Florida, and carried to through the streets. He was charged with violation of two ordinances of the City of St. Petersburg, destruction of city property and disorderly breach of the peace. He was found guilty on both charges in the municipal court and sentenced to 180 days' imprisonment. Shortly thereafter, a state court tried, convicted, and sentenced him to six years for grand larceny. The Supreme Court, in Waller v. Florida, supra, said:

'* * * The opinion of the District Court of Appeal first explicitly acknowledged that the charge on which the state court action rested 'was based on the same acts of the appellant as were involved in the violation of the two city ordinances.' * * *.' (emphasis supplied)

'We act on the statement of the District Court of Appeal that the second trial on the felony charge by information 'was based on the same acts of the appellant as were involved in the violation of the two city ordinances' and on the assumption that the ordinance violations were included offenses of the felony charge. . . ..'

'. . . We hold that on the basis of the facts upon which the Florida District Court of Appeal relied petitioner could not lawfully be tried both by the municipal government and by the State of Florida. In this context a 'dual sovereignty' theory is an anachronism, and the second trial constituted double jeopardy violative of the Fifth and Fourteenth Amendments to the United States Constitution.'

We find that the prosecution of appellant, in County Criminal Court at Law No. 1, was based on the same acts of appellant as were involved in the municipal court conviction. The second trial of appellant, under the holding of Waller v. Florida, supra, constituted double jeopardy violative of the Fifth and Fourteenth Amendments to the United States Constitution.

The judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.

OPINION

ON STATE'S MOTION FOR REHEARING

ROBERTS, Judge.

In its motion for rehearing, the State maintains that appellant's plea of former conviction was properly overruled by virtue of Art. 28.13, Vernon's Ann.C.C.P., and our holding in the case of Harrison v. State, 409 S.W.2d 848 (Tex.Cr.App.1966). The State contends that the holding in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1969) does not affect Art. 28.13 or our holding in Harrison v. State, supra, because Waller only overruled the 'dual sovereignty' fiction which had been followed by a number of states, not including Texas.

Article 28.13, V.A.C.C.P., provides:

'A former judgment of acquittal or conviction in a court of competent jurisdiction shall be a bar to any further prosecution for the same offense, but shall not bar a prosecution for any higher grade of offense over which said court had not jurisdiction, unless such judgment was had upon indictment or information, in which case the prosecution shall be barred for all grades of the offense.'

In essence, the statute provides that a conviction or acquittal in a lower court is not a bar to a subsequent prosecution in a higher court unless the first prosecution was had upon indictment or information. A conviction or acquittal had upon a complaint only is not a bar to a subsequent prosecution for a higher grade of offense if the court which tried the first case lacked jurisdiction to try the higher offense. e.g., Allen v. State, 389 S.W.2d 307 (Tex.Cr.App.1965).

The double jeopardy provisions of the Fifth Amendment to the United States Constitution are applicable to the states. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In Waller v. Florida,supra, the United States Supreme Court overruled a Florida rule which held that a conviction in a municipal court could not bar a subsequent prosecution in a state court for the same offense, and in doing so, the court pointed out that the judicial power of both municipal and state courts sprang from the same organic law. Since the power of both courts came from the same source, the Federal-State analogy was not applicable.

Upon consideration of the issue, we are of the opinion that the mode of procedure used in commencing a criminal prosecution (i.e. whether upon complaint or information or indictment) does not affect the fact that it is state action. Complaints are brought 'In the name and by authority of the State of Texas.' Art. 45.01, V.A.C.C.P. Therefore, that the prosecution was commenced by a complaint rather than by an information or indictment does not lessen the fact that the accused has been subjected to a prosecution brought about by the authority of the State. Whether the prosecution in the municipal court is had on information or by complaint, the possible penalties upon conviction are the same.

In its argument, the State contends that since a complaint may be made by any person without the knowledge of the district or county attorney or the grand jury, 1 a prosecution by complaint cannot act as a bar to a subsequent prosecution for a higher grade of offense, apparently because the State has not acted affirmatively through either its counsel or grand jury. This contention is not compelling in the constitutional sense, nor in terms of our existing State procedure.

That the State has chosen to permit certain prosecutions to be commenced in its name by complaint made by a private citizen does not make the prosecution a private action, and the person so prosecuted should not suffer a loss of his protection against double jeopardy merely because of the State's choice of manner of commencing the prosecution.

Even under our existing procedure, a prosecution upon complaint acts as a bar to a subsequent prosecution for the same crime in all cases...

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    ...v. Trivisonno, 112 R.I. 1, 5, 307 A.2d 539 (1973). State v. Carter, 291 S.C. 385, 388, 353 S.E.2d 875 (1987). Benard v. State, 481 S.W.2d 427, 429-431, (Tex.Crim.App.1972). If, the courts reasoned, the constitutional law of the land forbade successive prosecutions for the same criminal act,......
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    ...So.2d 1306 (Fla.1991); State v. Burton, 314 So.2d 136 (Fla.1975); State v. Nardone, 114 R.I. 363, 334 A.2d 208 (1975); Benard v. State, 481 S.W.2d 427 (Tex.Crim.App.1972). Did Aleman's actions in the case sub judice rise to the level of fraud or collusion such that he was not subjected to "......
  • Bracy v. Gramley, s. 94-3801
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    • 26 de junho de 1996
    ...defendant had bribed the judge and been acquitted, the double jeopardy clause probably would not bar reprosecution, Benard v. State, 481 S.W.2d 427, 430 (Tex.Crim.App.1972)--the defendant would never have been in any actual "jeopardy." The issue has not been definitively resolved, however, ......
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