Coleman v. State

• Decision Date: 29 January 1996
• Docket Number: No. 01-95-00609-CR,01-95-00609-CR
• Parties: Karen COLEMAN, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 39

918 S.W.2d 39

Karen COLEMAN, Appellant, v. The STATE of Texas, Appellee.

No. 01-95-00609-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 29, 1996.

Rehearing Overruled Jan. 29, 1996.

Discretionary Review Granted June 19, 1996.

Gerald Fry, Houston, for Appellant.

John B. Holmes, Kimberly A. Stelter, Terri Robert, Houston, for Appellee.

Before OLIVER-PARROTT, C.J., and TAFT and O'CONNOR, JJ.

OPINION ON MOTION FOR REHEARING

O'CONNOR, Justice.

We withdraw our prior opinion and substitute the following in its place.

The issue is whether the State may try a defendant twice for stealing the same property on the same date, first from an unnamed owner, and later from a named owner. We hold it may not, and reverse.

Summary of facts

The appellant, Karen Coleman, was indicted twice for theft of a tiller and a lawn mower. The first indictment alleged the appellant committed the offense on or about April 1, 1992, in Harris County, Texas, and said the owner of the property was "unknown to the grand jury." A jury trial on the first indictment resulted in an instructed verdict of not guilty. The trial court stated the following when granting the appellant's motion for instructed verdict:

[T]he Court believes that the allegation unknown to the Grand Jury applies to those cases where it cannot be determined with reasonable certainty what object or instrument of debt existed or who the owner was....

That is not the case in this case. I think the evidence established with reasonable amount of certainty either it belonged to HPD [Houston Police Department] or Home Depot, and with more reasonable certainty the owner in this case was properly HPD Officer Macejewski. ¹

After the instructed verdict, the State indicted the appellant for theft of the same tiller and lawn mower. The second indictment alleged the appellant committed the offense on or about April 1, 1992, in Harris County, Texas, and identified the owner as R. Reese. R. Reese is an employee of Home Depot.

The appellant filed an application for writ of habeas corpus on the grounds the second indictment violated the doctrines of double jeopardy and collateral estoppel. The appellant argued the first trial resolved the issue of ownership of the tiller, an essential element of the offense, in the appellant's favor.

At the hearing, the appellant called the assistant district attorney (ADA) from the first trial to the stand. She testified as follows:

Q: And an instructed verdict against you was received in [the first] case?

ADA: That is correct.

Q: Now, and then you reindicted the same case as 678394?

ADA: I don't have those numbers in front of me, but I did reindict the case, yes.

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Q: The same conduct that Miss Coleman was alleged to have committed in the first case 628743 is the same conduct that she's accused of committing in the second case, is it not?

ADA: It's the same type of conduct. The difference between the two indictments is the name of the owner of the property.

Q: That is the only difference in the second indictment, 678349 alleged a different owner than the first indictment?

ADA: That's correct. The first one, I believe alleged a person [sic] of the Grand Jury.

Q: The conduct that Miss Coleman did the criminal conduct, what she did herself, is the same in both case numbers?

ADA: The circumstances were the same, yes. The conduct was the same. The difference between the two is the proof of the owner of the property alleged to have been stolen.

Q: And so that same tiller in the same lot, the lawn mower and tiller are the same exact times in both indictments?

ADA: That is correct.

Q: And the same evidence that you would anticipate that would be introduced at the second trial in 678394 would be the same evidence that was introduced at the first trial?

ADA: I expect that it would be the same with the exception of the information concerning the owner of the property, which was, I think, at issue in the first trial.

Q: But the evidence introduced at the first trial also explored the ownership and showed clearly that the owner could be two people, either Home Depot or the police department?

ADA: As I recall the testimony, it could have been, and the witnesses on the stand were not sure who the owner was. That was my recollection of the testimony.

Court: At any rate, the record would speak best to that point.

After hearing evidence, the trial court denied the appellant relief.

The relevant criminal provisions

The appellant was charged under TEX.PENAL CODE ANN. § 31.03 (1994), "Theft," which provides in part:

(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

(b) Appropriation of property is unlawful if:

* * * * * *

(3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another.

Two provisions from the Code of Criminal Procedure are relevant. See TEX.CODE CRIM. PROC.ANN. arts. 21.07, 21.08. Article 21.07, "Allegation of name," provides:

In alleging the name of the defendant, or of any other person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the given name and the surname. When a person is known by two or more names, it shall be sufficient to state either name. When the name of the person is unknown to the grand jury, that fact shall be stated, and if it be the accused, a reasonably accurate description of him shall be given in the indictment.

TEX.CODE CRIM.PROC. art. 21.07 (Supp.1995). ² Article 21.08, "Allegation of ownership," provides:

Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them. When the property belongs to the estate of a deceased person, the ownership may be alleged to be in the executor, administrator or heirs of such deceased person, or in any one of such heirs. Where the ownership of the property is unknown to the grand jury, it shall be sufficient to allege that fact.

TEX.CODE CRIM.PROC. art. 21.08 (1989).

Analysis

In her sole point of error, the appellant claims the trial court committed reversible error by not granting habeas relief and by not dismissing the second indictment. The appellant relies upon the doctrines of double jeopardy and collateral estoppel.

Double jeopardy is the principle a person shall not be "subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. amend. 5. The Texas Constitution provides: "No 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. 1, § 14. These prohibitions protect against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same conviction; and (3) multiple punishments and successive prosecutions for the same offense. Ex parte Kopecky, 821 S.W.2d 957, 958 (Tex.Crim.App.1992).

Collateral estoppel is the principle that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970) (insufficient evidence to convict defendant of the robbery from one person at a poker table collaterally estopped State from trying the defendant for same offense against another person at the same poker table). The fifth amendment ³ prohibition against double jeopardy encompasses collateral estoppel. Ladner v. State, 780 S.W.2d 247, 250 (Tex.Crim.App.1989); Ex parte Daniel, 781 S.W.2d 412, 414 (Tex.App.--Houston [1st Dist.] 1989, pet ref'd).

When a defendant raises the issue of double jeopardy, the defendant bears burden of proving double jeopardy. See Ex parte Shutter, 868 S.W.2d 383, 387 (Tex.App.--Houston [1st Dist.] 1993, pet. ref'd). The defendant at a habeas corpus hearing must present evidence to support the allegation of jeopardy and collateral estoppel. See Hoang v. State, 810 S.W.2d 6, 8 (Tex.App.--Dallas 1991), aff'd, 872 S.W.2d 694 (Tex.Crim.App.1993).

To determine whether jeopardy attached, the court must inquire whether each offense contains an element not contained in the other. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). If a different element is present, double jeopardy does not attach. Id. However, if each element of the offense in the first indictment is identical to the offense in the second indictment, double jeopardy attaches and bars successive prosecutions. Id.

The essential elements relevant to a double jeopardy inquiry are those of the charging instrument, not of the penal statute itself. Although statutory elements will always make up part of the accusatory pleading, additional nonstatutory allegations are necessary in every case to specify the unique offense with which the defendant is charged. Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1984). The relevant factors to focus on in the charging instruments include the time and place of the offense, the identity of the defendant, the identity of the complainant, and the manner and means used in committing the offenses. Id.

As a general rule, when one offense has two victims, the offenses are not the same for double jeopardy purposes. Ex parte Rathmell, 717 S.W.2d 33, 35 (Tex.Crim.App.1986) (when two people were killed in car accident caused by the defendant, the State could indict defendant for two offenses). There are exceptions. When property is jointly owned by two persons, the State may not indict a defendant twice for the same theft,...