Collins v. State, s. 2-83-284-C

• Decision Date: 16 May 1984
• Docket Number: Nos. 2-83-284-C,2-83-285-CR,s. 2-83-284-C
• Parties: Guy Henry COLLINS, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 588

672 S.W.2d 588

Guy Henry COLLINS, Appellant, v. The STATE of Texas, State.

Nos. 2-83-284-CR, 2-83-285-CR.

Court of Appeals of Texas Fort Worth.

May 16, 1984.

Danny D. Burns, Jerry J. Loftin, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, for the State.

Before JORDAN, BURDOCK and JOE SPURLOCK, II, JJ.

OPINION

JOE SPURLOCK, II, Justice.

Appellant, Collins, was charged in a two count indictment, cause number 23228, with possession and delivery of a controlled substance, hydromorphone. An enhancement paragraph alleged a previous felony conviction. Collins pled not guilty to the charges and he was tried before the court without a jury. The court found Collins guilty of possession of a controlled substance and also found the enhancement allegation to be true. Collins then admitted his guilt to the charge contained in a second indictment, cause number 24022, which alleged the possession of a controlled substance, hydromorphone; and the court took such admitted offense into consideration in determining sentence. Punishment was assessed at confinement for life in the Texas Department of Corrections.

Collins appealed and the Court of Appeals for the Second Supreme Judicial District of Texas reversed the conviction and remanded the case to the trial court. Collins v. State, 642 S.W.2d 80 (Tex.App.--Fort Worth 1982, no pet.). A bench warrant was issued transferring Collins from the Texas Department of Corrections to the County Jail in Tarrant County so that he might be retried.

Collins filed an application for a writ of habeas corpus, claiming double jeopardy, and the trial court denied the relief requested by his application. Collins appeals the denial of relief under his application for a writ of habeas corpus.

We affirm.

Collins alleged four grounds of error. In grounds of error one, two and three, Collins contends that he is being illegally restrained because the trial court erred in denying his application for writ of habeas corpus. He argues that he has already been tried and acquitted for the same offense, and a retrial is barred by the double jeopardy provisions of the Texas and United States Constitutions, Article 1.11 of the Texas Code of Criminal Procedure, and the doctrine of collateral estoppel. In his ground of error four, Collins contends that retrial is barred by the misconduct of the prosecution at the prior trial. The trial events leading to his conclusions, and a discussion of the relevant trial evidence, show the following chain of circumstances.

Sometime prior to his arrest, the Fort Worth Police Department was informed that Collins was selling drugs in Fort Worth. A "buy bust" was arranged with the cooperation of a convicted felon, Sharon Diane Malone, in order to catch Collins during the course of an illegal narcotics transaction. In exchange for promises that certain charges would not be filed against her, Malone agreed to participate in the scheme to expose Collins' unlawful activity.

On September 5, 1980, a Fort Worth police officer watched from inside a store as Malone, after having summoned Collins to that location, approached and entered Collins' car. The officer observed Collins reach into his left shirt pocket and pull out a yellow envelope. At that time, the officer exited the store. Collins apparently saw the officer and quickly put the envelope down out of sight, between himself and Malone. Malone got out of the car and after Collins departed from the area, she showed the officer two dilaudid tablets which she had received from Collins. Collins was arrested some distance away, and a total of 87 other dilaudid tablets were seized from his car.

On March 23, 1981, a hearing began on Collins' motion to assert the defense of entrapment. Collins called Malone to the stand to testify on his behalf as his only witness. Malone, testifying inconsistently with her grand jury testimony, stated that she never received any drugs from Collins and claimed that a detective told her to say that she had received drugs from Collins. The trial judge interrupted the testimony and questioned why the case had been brought to trial. He then said he was granting appellant's motion on entrapment and the day's proceedings came to an end.

On the following day, March 24, 1981, the State expressed its intention to proceed to trial. The trial judge restated his finding that there was entrapment in the sale. The State then objected to this ruling since it had never been allowed to present any evidence during the hearing. The court then seemed to indicate that it would reconsider the ruling which it had made the previous day and that appellant's motion on entrapment would be heard simultaneously with the case in chief. Collins was then arraigned, he pled not guilty to the charges in cause number 23228, and his trial to the court began. After the conclusion of the testimony, the court rescinded its earlier ruling and held, after hearing all of the evidence, that there was no entrapment. The court then found Collins guilty beyond a reasonable doubt only of possession of hydromorphone, in cause number 23228, and found the enhancement allegation to be true. Collins then admitted his guilt to the charge contained in the second indictment, cause number 24022, which was taken into consideration in assessing punishment. The court sentenced Collins to confinement for life in the Texas Department of Corrections.

We note at the outset that Collins was found guilty only of the charge of possession of a controlled substance, in cause number 23228, and was acquitted of the charge of delivery of a controlled substance in the same indictment. Therefore, we find that any retrial of the delivery charge, in cause number 23228, is absolutely barred. Young v. State, 117 Tex.Cr.R. 349, 35 S.W.2d 424 (Tex.Cr.App.1931).

We find that retrial of the charges contained in cause number 24022 is not barred by the double jeopardy clause and that Collins may be retried for the charges contained in such indictment. Collins admitted his guilt to the charges contained in cause number 24022, for the purpose of assessing punishment in the adjudicated offense in cause number 23228 pursuant to TEX.PENAL CODE ANN. § 12.45 (Vernon 1974). The court entered a judgment on Collins' plea in bar and an order barring further prosecution for the charges contained in cause number 24022. By previous opinion of this court we reversed the judgment of the court in cause number 23228, Collins, supra. We therefore, find it necessary to set aside the judgment on plea in bar and order barring further prosecution in cause number 24022. We draw support for such action from the Texas Court of Criminal Appeals' decision in Ex parte Chisena, 623 S.W.2d 354 (Tex.Cr.App.1981).

In Ex parte Chisena, the defendant was found guilty of the charges contained in a cause number 28,273. In assessing punishment, the court took into consideration six separate unadjudicated offenses. The court found that the indictment in cause number 28,273, under which the defendant was convicted, failed to allege an offense. Therefore, the indictment was void. Ex parte Chisena, supra at 355. The court then went on to find that "[t]he indictment in cause number 28,273 being void, the court was without authority to assess punishment, and therefore could not 'lawfully take into account' the unadjudicated offenses, and the orders barring prosecution are likewise void." Ex parte Chisena, supra at 355. In the present case the reversal of the court's judgment in cause number 23228 is based on trial error. "[R]eversal for trial error does not preclude another trial." Ex parte Duran, 581 S.W.2d 683, 684 (Tex.Cr.App.1979). Therefore, we find that such reversal does not preclude another trial on the charges contained in cause number 24022.

In ground of error one Collins contends he is presently being illegally restrained of his liberty by being subjected to the conditions of a bond for trial, the subject of which has already been tried, and concluded in his favor. In ground of error two, Collins contends that he is being wrongfully held to answer to a felony indictment in one or more cases arising out of the same transaction for which he has already been tried. He argues that as the ultimate questions of fact therein were resolved in his favor, further prosecution is barred for offenses arising out of that transaction under the doctrine of collateral estoppel. Collins' ground of error three contends that denial of the relief requested by his application for writ of habeas corpus was error in that a trial on the cases from which these applications are brought is barred under the double jeopardy prohibitions of the Texas and Federal Constitutions and the Texas Code of Criminal Procedure, 1965, as amended.

Collins' argument concerning these first three grounds of error has two parts to it: 1) that jeopardy attached at the hearing on entrapment held on March 23, 1981; and 2) that the disposition of that hearing was an acquittal of Collins. We will address these arguments in the same order.

Collins contends that jeopardy attached at a point during the proceedings held on March 23, 1981. The Supreme Court has stated that "[t]he protections afforded by the" Double Jeopardy Clause "are implicated only when the accused has actually been placed in jeopardy." United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977). Only if "a defendant is deemed to have been put in jeopardy ... does any subsequent prosecution of the defendant bring the guarantee against double jeopardy even potentially into play." Crist v. Bretz, 437 U.S. 28, 32-33, 98 S.Ct. 2156, 2159, 57 L.Ed.2d 24 (1978). The Supreme Court has determined that the time at which jeopardy attaches in a criminal trial should be controlled by federal procedure. ¹ McElwee v. State, 589 S.W.2d 455, 456 (Tex.Cr.App.1979); Schaffer v. State, 649...