Durrough v. State
| Decision Date | 22 July 1981 |
| Docket Number | No. 65792,65792 |
| Citation | 620 S.W.2d 134 |
| Parties | Fred T. DURROUGH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
The appellant has been indicted and placed on trial three times for the murder of Henry S. Tyler. The first trial, Cause No. 74-CR-575-A, was aborted when the trial court granted the State's motion to dismiss the original indictment after only five jurors had been selected and sworn. The appellant was reindicted and found guilty of the offense of capital murder in Cause No. 74-CR-2140-A, but that judgment was reversed on appeal because the trial court erred in failing to grant a change of venue upon the appellant's uncontroverted application. Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978). After the case was remanded, but before the trial which resulted in the present conviction began, the State moved to dismiss the then pending indictment because it was "faulty." A third indictment charging the appellant with the same conduct for which he previously had been tried was obtained, and the appellant was found guilty and sentenced to death a second time. He appeals from that judgment entered in Cause No. 79-CR-0078.
We shall first consider the appellant's claims that the prosecution for this offense was barred.
The appellant contends that the dismissal of the indictment in Cause No. 74-CR-575-A after five jurors had been impaneled prevented the State from subsequently trying him under a new indictment charging the same offense. He advances two arguments to support his conclusion that the Double Jeopardy Clause of the Fifth Amendment precluded a second trial. The appellant contends that retroactive effect should be given to Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), which applied to the states the federal rule that jeopardy attaches in a jury trial when the jury is impaneled and sworn. See McElwee v. State, 589 S.W.2d 455, 460 (Tex.Cr.App.1979). He further contends that for jeopardy purposes a jury is impaneled and sworn in a "death penalty case" when the first juror is selected. We find that the dismissal of the original indictment did not bar the appellant's second trial regardless of whether jeopardy had attached.
A defendant may be subjected to the kind of jeopardy that bars a second trial even though the first trial is discontinued without a verdict. But the double jeopardy provision of the Fifth Amendment does not mean that every time a defendant is put to trial he is entitled to go free if the trial fails to end in a final judgment. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949). Whether there can be a new trial for the same offense after a mistrial or the dismissal of an indictment over the defendant's objection depends on whether there is a manifest necessity for the early termination of the first trial, or the ends of public justice would otherwise be defeated. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). The Supreme Court of the United States has specifically held that a new trial is not barred by the Double Jeopardy Clause when a mistrial 1 is declared because the indictment was insufficient to charge an offense.
"If an error would make reversal on appeal a certainty, it would not serve 'the ends of public justice' to require that the (State) proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court." Illinois v. Somerville, 410 U.S. 458, 464, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973).
In the instant case the trial court dismissed the original indictment because it failed to charge an offense. 2 Since this error would have made reversal on appeal a certainty, the State was not required by the Double Jeopardy Clause to proceed to a final judgment in Cause No. 74-CR-575-A. The Fifth Amendment was not a bar to the appellant's second trial.
The appellant next contends that the State responded to the successful appeal of his first conviction by obtaining a new indictment charging a more serious offense, based on the same conduct for which he previously had been tried, in violation of the Fourteenth Amendment. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Ronk v. State, 578 S.W.2d 120 (Tex.Cr.App.1979).
Following the dismissal of the original indictment the appellant was reindicted and tried in Cause No. 74-CR-2140-A. The indictment in that cause alleged, in pertinent part:
"that Fred T. Durrough ... on or about the 11th day of August, A.D., 1973, did then and there unlawfully, voluntarily, and with his malice aforethought, kill and murder Henry S. Tyler ... and the said Fred T. Durrough was then and there in the course of committing and attempting to commit the offense of burglary." 3
This indictment was also dismissed on the State's motion after the judgment in Cause No. 74-CR-2140-A was reversed, and a new indictment which contained the additional culpable mental states of "intentionally and knowingly" was returned. The two indictments were similar in all other respects. The appellant contends that the dismissed indictment did not charge the offense of capital murder because it failed to allege that the murder was committed "intentionally" during the course of committing and attempting to commit burglary and robbery. 4
The State responds that the culpable mental state of intentionally was included within the term malice aforethought. The State concludes that the second indictment (Cause No. 74-CR-2140-A) adequately charged the offense of capital murder under Art. 1257(b)(2) even though the word "intentionally" was not included. The term malice aforethought means the "willful and intentional doing of some wrongful act," or "that condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, which is evidenced by the intentional doing of wrongful acts without legal excuse." Crutchfield v. State, 110 Tex.Cr.R. 420, 10 S.W.2d 119, 121 (1928) (Emphasis added.) An averment that murder was committed with malice aforethought necessarily includes the idea that the killing was intentional. The indictment in question alleged that the appellant did "unlawfully, voluntarily, and with his malice aforethought, kill and murder Henry S. Tyler." This averment adequately alleged the element of intent required by former Art. 1257(b)(2). See Sanders v. State, 402 S.W.2d 735 (Tex.Cr.App.1966) (). The appellant's contention that the State improperly elevated the grade of offense from murder to capital murder by adding the culpable mental state of intentionally to the final indictment is rejected.
The appellant further contends that his retrial in Cause No. 79-CR-0078 violated the rule announced in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In Green, the defendant was charged with first degree murder and found guilty of the lesser included offense of second degree murder. That conviction was reversed on appeal and the appellant was retried for the offense of first degree murder. On appeal from this new trial, the Supreme Court of the United States held that because the jury's verdict in the first trial was an implicit acquittal on the charge of first degree murder, Green could not be tried a second time for that offense. The Double Jeopardy Clause required that the retrial be limited to the lesser included offense of second degree murder.
Green is not applicable to the instant case. The appellant in this case was not acquitted of any charge. He was indicted for and found guilty of the offense of capital murder. Following an appeal of that conviction the appellant was retried for the same offense. This retrial did not offend the double jeopardy provision of the Fifth Amendment. It is clear that a defendant may be tried a second time for an offense when his prior conviction for that same offense has been set aside on appeal. Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). The reversal granted the appellant a new trial and he could be retried on the original indictment or, as in this case, on a new indictment charging the same offense. Whitehead v. State, 162 Tex.Cr.R. 507, 286 S.W.2d 947 (1956); Harvey v. State, 64 S.W. 1039 (Tex.Cr.App.1901).
The appellant also contends that his last trial was barred by the doctrine of double jeopardy because of willful prosecutorial misconduct that occurred during the second trial of this case. The appellant claims that at the second trial the prosecution failed to disclose favorable evidence regarding deals with accomplice witnesses made in exchange for their testimony. He concludes that this willful misconduct barred any future prosecution for this offense. We find no support for the appellant's contention. The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrials so as to afford the prosecution a more favorable opportunity to convict the defendant. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). But when the trial proceeds to its conclusion despite a legitimate claim of seriously prejudicial error, the Double Jeopardy Clause will present no obstacle to a retrial if the conviction is reversed on appeal. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In the present case the alleged misconduct did not result in a mistrial. The appellant was found guilty of capital murder...
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