Brown v. State

• Decision Date: 26 April 1995
• Docket Number: No. 04-94-00202-CR,04-94-00202-CR
• Parties: Ronald Ellis BROWN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 805

900 S.W.2d 805

Ronald Ellis BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 04-94-00202-CR.

Court of Appeals of Texas San Antonio.

April 26, 1995.

Discretionary Review Refused Sept. 13, 1995.

John F. Carroll, San Antonio, for appellant.

Steven C. Hilbig, Criminal Dist. Atty., Barbara Hervey, Asst. Criminal Dist. Atty., San Antonio, for appellee.

Before RICKHOFF, LOPEZ and GREEN, Justices.

LOPEZ, Justice.

Appellant was convicted on one count of possession of less than 28 grams of cocaine. He asserts on appeal that the trial court erred in submitting possession to the jury as a lesser-included offense of possession with intent to deliver because prosecution on both offenses was barred by double jeopardy. We find that the charge of possession was not effectively waived, abandoned or dismissed by the State after jeopardy attached. Submission of both offenses to the jury was proper. Appellant's conviction is affirmed.

Appellant's first point of error is that the trial court erred in overruling his special plea of double jeopardy. His second point is that the trial court erred in submitting the offense of possession of cocaine to the jury because prosecution was barred by double jeopardy. We address both points in the same manner as Appellant--in one general discussion.

A. Facts and Procedure

Appellant was initially charged in a two-count indictment: count one was possession of less than 28 grams of cocaine with intent to deliver, and count two was straight possession of less than 28 grams of cocaine. During voir dire, the State asserted that it intended to abandon the count of straight possession because they wanted to submit the offense to the jury as a lesser-included offense of count one. The trial judge did not indicate whether it consented to the abandonment of count two. After the evidence was presented but before the charge was read to the jury, Appellant entered a special plea of double jeopardy, arguing that after jeopardy attached to the indictment, the State affirmatively waived and abandoned count two. This, Appellant argued, barred any further prosecution for possession of cocaine, including prosecution for the greater offense of possession with intent to deliver. Appellant concluded in his special plea that submission of either offense to the jury violated the constitutional prohibitions against double jeopardy. The trial judge denied the special plea. The jury charge included both offenses, and the jury returned a verdict of guilty on straight possession. Appellant was thus impliedly acquitted of possession with intent to deliver. See Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).

B. Double Jeopardy

Under the Fifth Amendment of the United States Constitution, applicable to the States through the Fourteenth Amendment, "[n]o person shall ... be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amends. V, XIV. The double jeopardy provision of the Texas Constitution further provides that "[n]o person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction." TEX. CONST. art. I, § 14.

A person is placed in jeopardy of life or liberty at the moment jeopardy "attaches" to a charge, and if a prosecutor subsequently dismisses that charge, the State loses the opportunity to try that charge forever. McElwee v. State, 589 S.W.2d 455, 460 (Tex.Crim.App.1979). Jeopardy attaches in a jury trial when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Alvarez v. State, 864 S.W.2d 64 (Tex.Crim.App.1993); Vasquez v. State, 740 S.W.2d 120, 121 (Tex.App.--San Antonio 1987, no pet.). If the State orally waives or abandons a count or charge in the indictment on the record before the jury is empaneled and sworn, with the trial court's permission, no jeopardy will attach to the abandoned count. Proctor v. State, 841 S.W.2d 1, 4 (Tex.Crim.App.1992); Ex parte Preston, 833 S.W.2d 515, 518 (Tex.Crim.App.1992). However, abandonment after jeopardy attaches is tantamount to an acquittal on the abandoned count, and subsequent prosecution on that count or on any greater-included offense is barred by double jeopardy under the United States and Texas constitutions. State v. Florio, 845 S.W.2d 849, 853 (Tex.Crim.App.1992); Ex parte Ramos, 806 S.W.2d 845, 847 (Tex.Crim.App.1991). The timing of the State's abandonment of the count or charge is thus crucial in determining whether the State preserved its right to subsequently prosecute a defendant for that offense.

Both Appellant and the State contend that count two of the indictment, straight possession, was effectively abandoned by the State before the charge was read to the jury. Their disagreement lies in the timing of the abandonment. The State argues that the abandonment of count two occurred during voir dire, before the jury was empaneled and sworn, thus preserving the count for submission in the charge as a lesser-included offense. Appellant argues that the abandonment occurred later, after the indictment was read to the empaneled and sworn jury. We address each argument in turn, beginning with the State.

1. State's Version of the Events

The State contends that the prosecutor abandoned count two during voir dire. The record reflects the following exchange:

[PROSECUTOR]: Judge, can we take up one matter real quick? I talked to [Defense Counsel] and I know we've explained to the jury that the defendant has been charged with possession with intent to deliver.

Actually, it's a two count indictment. Our intentions would be to waive count two. I've researched the case law and my understanding is that the State would be entitled to a lesser included offense if we requested just a straight possession, if the evidence raises that.

THE COURT: So you're dropping. What is count two?

[PROSECUTOR]: Straight possession. And count one is possession with intent to deliver. So one is a first degree and one is a second degree.

[DEFENSE COUNSEL]: Is Defendant's Exhibit 1 admitted?

THE COURT: It is received.

(WHEREUPON, the item was

(admitted into evidence as

(Defendant Exhibit Number 1.

[Voir dire of individual panel members then resumed].

Nothing more was said on the record with respect to the State's waiver of count two. Defendant's exhibit 1 was unrelated to the discussion of waiver. While the law is clear that the State may orally waive, abandon or dismiss a charge or portion of the indictment, Yeagin v. State, 400 S.W.2d 914 (Tex.Crim.App.1966), such waiver is only effective to preserve the count for further prosecution if the State obtains the trial judge's permission to waive the count, on the record, before jeopardy attaches. Preston, 833 S.W.2d at 520. See also Proctor, 841 S.W.2d at 4; TEX.CODE CRIM.PROC. art. 28.11 (Vernon 1989) ("All amendments of an indictment or information shall be made with the leave of court and under its direction."). The record before us does not show that the trial judge ever gave the State permission to abandon count two. "So you're dropping. What is count two?" does not constitute permission to drop the count. We therefore hold that the State's attempt to waive count two during voir dire was not effective.

Because the State did not effectively waive or abandon the charge of straight possession during voir dire, jeopardy attached to the entire indictment, which included both the count of possession with intent to deliver (one) and the count of straight possession (two), when the jury was empaneled and sworn. See Crist, 437 U.S. at 35, 98 S.Ct. at 2160-61; Alvarez, 864 S.W.2d at 65; Vasquez, 740 S.W.2d at 121.

2. Appellant's Version of the Events

Appellant contends that after the jury was empaneled and sworn, the prosecutor read count one of the indictment to the jury, and then "stated, in open court, that the State waived and abandoned count two of the indictment." He argues that the State was barred from that point on from further prosecuting him for possession of cocaine under the double jeopardy...