Ex parte Davis

• Decision Date: 08 February 1995
• Docket Number: No. 03-93-00646-CR,03-93-00646-CR
• Citation: 893 S.W.2d 252
• Parties: Ex Parte Jack Warren DAVIS, Appellant.
• Court: Texas Court of Appeals

Page 252

893 S.W.2d 252

Ex Parte Jack Warren DAVIS, Appellant.

No. 03-93-00646-CR.

Court of Appeals of Texas,

Austin.

Feb. 8, 1995.

Rehearing Overruled March 15, 1995.

Stanley G. Schneider, Houston, for appellant.

Bill M. Reimer, Dist. Atty., New Braunfels, Raymond E. Taylor, Taylor, Holiner & Spicer, P.C., San Antonio, for State.

Before POWERS, KIDD and DALLY, ^* JJ.

CARL E.F. DALLY, Judge (Assigned).

Appellant Jack Warren Davis appeals from the trial court's order denying relief in a pretrial habeas corpus proceeding in which appellant urged his retrial was jeopardy barred. A jury previously convicted Davis of capital murder. Act of April 16, 1985, 69th Leg., R.S., ch. 44, § 1, 1985 Tex.Gen.Laws 434 (Tex.Penal Code Ann. § 19.03(a)(2), (b), since amended). When the jury was unable to answer the special issue on deliberateness, the court assessed punishment at incarceration for life. Id. § 2 at 434 (Tex.Code Crim.Proc. art. 37.071, since amended). On appeal, this Court reversed the judgment and remanded the cause to the trial court for a new trial. Davis v. State, 831 S.W.2d 426 (Tex.App.--Austin 1992, pet. ref'd).

After remand, appellant filed a pretrial writ of habeas corpus moving the trial court to dismiss the prosecution. Appellant alleged that his retrial was barred by double jeopardy and due process provisions of the United States Constitution. U.S. Const. amend. V, XIV. Appellant also alleged that his retrial was barred by the double jeopardy and due course of law provisions of the Texas Constitution. Tex. Const. art. I, §§ 13, 14, 19. The trial court issued the writ and convened an evidentiary hearing. After the hearing, the trial court made findings of fact The facts adduced at appellant's trial were summarized in this Court's opinion on appeal. Davis, 831 S.W.2d at 429-33. The facts elicited in the habeas corpus hearing are summarized in the trial court's findings of fact. In the Appendix of this opinion is a copy of those findings of fact, the court's conclusions of law, and the order denying the writ.

and conclusions of law and entered an order denying the writ and the relief requested. This appeal followed. Tex.R.App.P. 44. We will affirm the trial court's order.

In his first point of error, appellant asserts that his retrial is barred by the Fifth Amendment Double Jeopardy Clause. On original appeal, this Court held that the evidence was legally sufficient to support the jury's verdict. The judgment was reversed because the prosecutor's misconduct in threatening witnesses and in knowingly using perjured testimony deprived appellant of a fair trial and denied him due process. In addition, we held that the admission of evidence derived from an unlawfully obtained blood specimen was reversible error. To provide "guidance for the trial court in the event of retrial," we found that "the present record evidence of misconduct [was not] sufficient to compel the conclusion that the police or their agents acted in bad faith regarding the failure to preserve evidence."

On original appeal, we also held that the trial court erred in refusing appellant's motion for mistrial on grounds of prosecutorial misconduct. Without due regard for the remainder of the opinion, appellant makes this holding the foundation for his entire appellate argument. In support of his double jeopardy claims, appellant relies heavily on many cases concerned with jeopardy problems arising from mistrials that were granted prior to verdict. Since a mistrial was not granted in this case and the trial proceeded to a verdict, the authorities concerning mistrials granted before a verdict do not control our disposition of this appeal. The failure to grant the mistrial was trial error and we held that the proper remedy was retrial.

When a trial proceeds to conclusion despite a legitimate claim of serious prejudicial error and the conviction is reversed on appeal, retrial is not jeopardy barred. Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Insufficiency of evidence is an exception to this rule. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). As the United States Supreme Court observed in Oregon v. Kennedy:

The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606, 47 L.Ed.2d 267, 96 S.Ct. 1075 [1079] (1976). As a part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689, 93 L.Ed. 974, 69 S.Ct. 834 (1949). The Double Jeopardy Clause, however, does not offer a guaranty to the defendant that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding. United States v. Jorn, 400 U.S. 470, 483-484, 27 L.Ed.2d 543, 91 S.Ct. 547 [556-57] (1971) (plurality opinion); Wade v. Hunter, 336 U.S. at 689, 93 L.Ed. 974, 69 S.Ct. 834 [at 837]. If the law were otherwise, "the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again." Ibid.

Oregon v. Kennedy, 456 U.S. 667, 671-72, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982). In Justices of Boston Municipal Court v. Lydon, the court stated:

The Double Jeopardy Clause is not an absolute bar to successive trials. The general rule is that the Clause does not bar reprosecution of a defendant whose conviction is overturned on appeal. United States v. Ball, supra. The justification for this rule was explained in United States v. Tateo, 377 U.S. 463, 466, 12 L.Ed.2d 448, 84 S.Ct. 1587 [1589] (1964), as follows:

While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain In Price v. Georgia, 398 U.S. 323, 329, 26 L.Ed.2d 300, 90 S.Ct. 1757 [1761] (1970), we recognized that implicit in the Ball rule permitting retrial after reversal of a conviction is the concept of "continuing jeopardy." See also Breed v. Jones, 421 U.S. 519, 534, 44 L.Ed.2d 346, 95 S.Ct. 1779 [1788] (1975). That principle "has application where criminal proceedings against an accused have not run their full course." 398 U.S., at 326, 26 L.Ed.2d 300, 90 S.Ct. 1757 [at 1759]. Interests supporting the continuing jeopardy principle involve fairness to society, lack of finality, and limited waiver.

the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.

Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984). Finally in Montana v. Hall, the court observed:

It is a "venerable principl[e] of double jeopardy jurisprudence" that "[t]he successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, Burks v. United States, [437 U.S. 1 [57 L Ed 2d 1, 98 S Ct 2141] (1978) ], poses no bar to further prosecution on the same charge." United States v. Scott, 437 US 82, 90-91, 57 L Ed 2d 65, 98 S Ct 2187 [2193] (1978). See generally 3 W. LaFave & J. Israel, Criminal Procedure § 24.4 (1984). Justice Harlan explained the basis for this rule:

Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest. United States v. Tateo, 377 US 463, 466, 12 L Ed 2d 448, 84 S Ct 1587 [1589] (1964).

Montana v. Hall, 481 U.S. 400, 402-03, 107 S.Ct. 1825, 1826, 95 L.Ed.2d 354 (1987); see also United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

We find no Supreme Court authority for holding that appellant's retrial is barred by the Double Jeopardy Clause of the Fifth Amendment. The authorities we have cited allow appellant's retrial. Appellant's first point of error is overruled.

In his second point of error, appellant urges that even if the Fifth Amendment does not bar his retrial, the double jeopardy provision of the Texas Constitution does. The Fifth Amendment Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The Texas Constitution provides that: "No person, for the same offense, shall be twice put in jeopardy of life or liberty." Tex. Const. art. I, § 14.

Appellant points out that the Court of Criminal Appeals and the Texas Supreme Court have held that in some instances the Texas Constitution gives greater protection to Texas citizens than does the United States Constitution. Sax v. Votteler, 648 S.W.2d 661 (Tex.1983); Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992); Heitman v. State, 815 S.W.2d 681 (Tex.Cr...