Casey v. State

• Decision Date: 23 March 1992
• Docket Number: No. 07-91-0041-CR,07-91-0041-CR
• Citation: 828 S.W.2d 214
• Parties: Kevin K. CASEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 214

828 S.W.2d 214

Kevin K. CASEY, Appellant, v. The STATE of Texas, Appellee.

No. 07-91-0041-CR.

Court of Appeals of Texas Amarillo.

March 23, 1992.

Phil Black, Borger, for appellant.

Michael D. Milner, County Atty., Borger, for appellee.

Before REYNOLDS, C.J., and BOYD and POFF, JJ.

BOYD, Justice.

Appellant Kevin K. Casey brings this appeal from his conviction of driving while intoxicated. The trial court assessed punishment of a $300 fine and 60 days jail confinement. In one point of error, appellant contends that the trial court erred in failing to grant appellant's motion for dismissal based on double jeopardy. We affirm the judgment of the trial court.

Appellant alleges he had previously been convicted in the Borger Municipal Court of the offense of driving on the wrong side of the road, and, to support the instant charge, the State introduced and relied upon evidence of the conduct underlying the prior conviction, thereby giving rise to his claim of double jeopardy.

Generally, to raise a double jeopardy claim, the defendant must file a sworn special plea presenting that issue at the time of trial. Tex.Code Crim.Proc.Ann. arts. 27.05, 27.06 (Vernon 1989). Appellant failed to present such a verified special plea, but waited until closing argument during the guilt/innocence stage to raise the issue by oral motion.

Ordinarily, when a defendant fails to raise a double jeopardy claim by filing the requisite verified special plea, no error is presented to the trial court or preserved for appellate review. E.g., Ex parte Murphy, 669 S.W.2d 320, 322 (Tex.Crim.App.1983), cert. denied, 469 U.S. 823, 105 S.Ct. 99, 83 L.Ed.2d 44 (1984); Nash v. State, 467 S.W.2d 414, 416 (Tex.Crim.App.1971); Dedmon v. State, 478 S.W.2d 486, 489 (Tex.Crim.App.1972); Lavan v. State, 363 S.W.2d 139, 141 (Tex.Crim.App.1962).

However, in the seminal case of Shaffer v. State, 477 S.W.2d 873, 875 (Tex.Crim.App.1971), the Court articulated an exception to that rule. In the words of the Court, it applies in those instances "where the trial court either knows or should know of the former proceedings, such as in those cases where the former jeopardy arose in the same case." Id. ¹ Additionally, in the recent case of State v. Torres, 805 S.W.2d 418, 422 (Tex.Crim.App.1991) (citing Ex parte Jewel, 535 S.W.2d at 365), the Court again explicated, "[W]here a plea of jeopardy is before the same court and judge, as in the case at bar, statutory requirements concerning the plea are relaxed."

We do note that in Ex parte Myers, 618 S.W.2d 365 (Tex.Crim.App.1981), cert. denied, 454 U.S. 1091, 102 S.Ct. 656, 70 L.Ed.2d 630 (1981), the Court held double jeopardy was not waived by appellant's failure to timely raise the issue, and in Rivera v. State, 716 S.W.2d 68 (Tex.App.--Dallas 1986, pet. ref'd), the Court reviewed the question of double jeopardy as unassigned error. However, upon examination, the holdings in both those cases are consistent with, and fall within the above exception to the general rule.

In the Myers case, the second conviction was apparently in the same court, and possibly before the same judge, in which the first charge was brought. Additionally, the second charge was brought under the same cause number as the first. Referring to Myers' failure to raise the double jeopardy question earlier, the Court commented, "[T]hat kind of silence does not amount to waiver that bars a subsequently raised claim of double jeopardy." Ex parte Myers, 618 S.W.2d at 367 n. 1. As authority for that proposition, the Court cited Ex parte Jewel and Ex parte Scelles, the citations and references to which are noted in our footnote # 1. Id. Those cited cases are factually consistent with the Shaffer case. In the Rivera case, the second conviction occurred after the granting of a new trial from the first conviction and was before the same court and before the same judge as the prior conviction. Rivera v. State, 716 S.W.2d 68.

It is also established that the fact that a right is of constitutional dimension will not, in itself, always justify the disregarding of state procedural rules with the test being whether the enforcement of the rule serves a legitimate state interest, or, whether under the circumstances of the particular case, the disregard of the rules did not affect that state interest. Berrios-Torres v. State, 802 S.W.2d 91, 96 (Tex.App.--Austin 1990, no pet.) (citing Shaffer v. State, 477 S.W.2d 873, 875-76 (Tex.Crim.App.1971) ). ²

According to appellant's testimony, the prior conviction occurred in a municipal court. The present conviction occurred in a county court. There is nothing in the record indicating the court knew or should have known of any alleged prior conviction. Therefore, appellant is not within the exception to the general rule requiring the filing of a verified special plea.

In Shaffer, in addressing the procedural requirement that a special plea of double jeopardy be verified, the Court commented, "Such requirement seeks to prevent the raising of such a defense in bad faith, and the resulting delay of hearing evidence on a plea without merit." Shaffer v. State, 477 S.W.2d at 876 n. 3. The need to protect these interests is further pronounced when a plea is not even filed.

Case law also requires the defendant to go forth with evidence in support of an allegation of former jeopardy. That procedural requirement serves a legitimate state interest as the trial court ordinarily has no way of knowing whether the allegations are true. The requirement that the plea and evidence be presented prior to trial serves a legitimate state interest as it allows the State to investigate and present evidence which might contradict the claim of double jeopardy, and precludes the waste of holding an unneeded trial if the claim is true. See Shaffer v. State, 477 S.W.2d at 875, 876.

Appellant asserts that it was impossible for him to earlier raise a special plea because he did not know what evidence would be presented by the State. Under the circumstances of this case, we disagree with that premise. Appellant should have reasonably anticipated the introduction of the evidence concerning the conduct for which appellant was previously convicted. As we have noted above, appellant's previous conviction was for driving on the wrong side of the road and the present prosecution arises out of the same transaction as the conduct underlying the prior conviction.

Additionally, appellant not only should have reasonably anticipated that the State would introduce evidence of appellant's alleged driving on the wrong side of the road in order to convict appellant for DWI, but, indeed did so. The record reveals that upon asserting his claim of double jeopardy, appellant had prepared for the trial court a copy of the case upon which he based that claim. During the discussion which followed the presentation of appellant's motion, in relation to why he had not filed an earlier motion, appellant's trial counsel stated, "There is nothing that says that I have to tell them what my strategy is going be ..."

The record also reveals that the trial counsel's justification for not complying with the statutory procedural rules was to prevent the State from avoiding the problem. In the course of the discussion, he commented: "... no, I haven't told them about it. If I told them about it, they would have--I am not under any obligation to tell them about it. They would have avoided the problem." "Frankly, this is the kind of thing that if I file motions on before the trial, the State would know what I was up to and they could avoid the problem."

Other than raising his claim of prior jeopardy during closing argument, appellant failed to present any evidence of a previous conviction at the guilt/innocence stage of the trial. The only evidence he ever produced concerning the prior conviction was during his testimony at the punishment stage of the trial. No court record concerning the prior conviction was ever presented.

The State has a valid interest in avoiding problems which would interfere with its lawful prosecution of alleged crimes and in being able to research and prepare responses to claims of double jeopardy. It also has a valid interest in being able to investigate and present any evidence which might exist that supports or controverts claims of double jeopardy in order that prosecutions be dismissed and that valid prosecutions continue when it is proper to do so. It has a valid interest in conserving valuable judicial time by not going through unnecessary trials when a double jeopardy claim is valid.

Although these may not be all of the legitimate state interests which would have been served by the special plea requirement in the instant case, it is a sufficient listing to indicate that the disregard of the procedural rule did affect state interests. Thus, there is no valid reason not to apply the general rule and hold that appellant's failure to raise his contention of double jeopardy by timely filing a verified special plea failed to preserve that question for appellate review. ³

Furthermore, even assuming the question of double jeopardy was preserved for our review, we find no error in the trial court's overruling of appellant's motion.

In making his claim, appellant primarily relies upon Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), for his assertion that the present prosecution is barred. In that case, the Court stated:

We hold that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

Id. 495 U.S. at 510, 110 S.Ct. at 2087, 109 L.Ed.2d at 557.

In the recent case of Ex parte Ramos, 806 S.W.2d 845 (Tex.Crim.App.1991), the Court had occasion to explore the ramifications of the Grady decision. In that case, the Court...