Breedlove v. State, s. 43866--43868

• Decision Date: 23 June 1971
• Docket Number: Nos. 43866--43868,s. 43866--43868
• Citation: 470 S.W.2d 880
• Parties: Matthew James BREEDLOVE, Appellant, v. The STATE of Texas, Appellee. Aaron Leon LUNDY, Appellant, v. The STATE of Texas Appellee. Claude Edward REED, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 880

470 S.W.2d 880

Matthew James BREEDLOVE, Appellant, v. The STATE of Texas, Appellee.

Aaron Leon LUNDY, Appellant, v. The STATE of Texas Appellee.

Claude Edward REED, Appellant, v. The STATE of Texas, Appellee.

Nos. 43866--43868.

Court of Criminal Appeals of Texas.

June 23, 1971.

Rehearing Denied Oct. 13, 1971.

Buddy Stevens, Houston, for appellant.

Robert O. Smith, Dist. Atty., Philip A. Nelson, Jr., and Lawrence Wells, Asst. Dist. Attys., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The appears are from convictions in a joint trial for robbery by firearms. Each appellant was assessed a punishment of seventy-five years by the jury.

The sufficiency of the evidence to support the convictions is not challenged.

In their first ground of error, appellants contend that the United States District Court convictions rendered against them for the same robbery for which they were tried are a bar to the prosecution in these cases in the State court, and therefore, the convictions in the instant cases violate the double jeopardy provisions of the United States and Texas Constitutions. It is undisputed that prior to the present prosecutions the appellants were convicted in the United States District Court, Western District of Texas, of robbery of the Citizens National Bank in Austin, where deposits were federally insured, nor is it disputed that the transaction under consideration in these appeals is different in any respect from the transaction for which the federal convictions were obtained.

Appellants contend that the recent Supreme Court decisions of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, overrule the prior decisions of Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684, and Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, and therefore prohibit a subsequent prosecution in a state court for a transaction for which a defendant has been tried in a federal court.

In Bartkus v. Illinois, supra, the Court, in a very comprehensive opinion, traced the development of the double jeopardy provision in the Fifth Amendment. It was there held, in a case similar to the one at bar, that successive trials of the petitioner in federal and state courts did not deny Bartkus due process. The Court also reiterated its prior rulings that the Fifth Amendment double jeopardy provision was not applicable to the States.

The Benton v. Maryland decision, supra, expressly overruled the holding of Palko v. Connecticut, supra, and held that the double jeopardy clause of the Fifth Amendment is applicable to the states through the Fourteenth Amendment. The appellants contend that this language likewise overruled Bartkus wherein the Court had stated that the Fifth Amendment double jeopardy provisions were not applicable to the States.

In Bartkus there was an acquittal in a federal prosecution for bank robbery. Following this acquittal Bartkus was indicted in the state court in Illinois for violation of that state's bank robbery statute and was convicted. On certiorari, the Supreme Court affirmed the conviction holding that no double jeopardy question was presented. The Court pointed out that the prosecutions in such cases are based on the violation of separate statutes and are separate offenses, one being against the people of the state and the other being a violation of the federal law.

The Court adopted the reasoning of Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, that the allowance of the subsequent prosecution would avoid a possible derogation of the federal system by displacing the reserved power of the states by reason of prosecution by federal authorities of what may be a minor federal offense and thus effectively deny the states the right to prosecute what could be a major violation of the state laws. The Court fully recognized the sovereignty of the states and their right to maintain peace and order within their confines.

Unlike Palko, in which the Court upheld the right of a state to appeal a conviction in a criminal case by holding that the double jeopardy clause did not apply to the states, Bartkus did not present a true double jeopardy question. Palko presented the question of multiple prosecutions for the same transaction within the confines of a single state, a single sovereignty. Bartkus on the other hand presented the question with respect to prosecution by separate sovereignties.

Benton v. Maryland, supra, expressly overruled the earlier Palko decision, holding that the Fifth Amendment double jeopardy provisions were applicable to the states, thus barring a prosecution by the state for an offense for which the petitioner had been previously acquitted. Benton, like Palko, dealt with two prosecutions by a state of a single criminal act. Bartkus on the other hand dealt with two prosecutions by two different sovereignties, a question which was not presented by the facts in Benton.

Waller v. Florida, supra, presented essentially the same question as that presented in Benton v. Maryland. Waller had been convicted in a municipal court for violation of a city ordinance. Thereafter, he was convicted in a Florida state court for violation of a state statute, the violation being predicated on the same acts for which he had been convicted in the municipal court. The Supreme Court of the United States held that the second trial constituted double jeopardy in violation of the Fifth Amendment. The Court reasoned that the municipal court was merely a subordinate governmental instrumentality of the state and...