Ex parte Drewery

• Decision Date: 01 May 1986
• Docket Number: No. 01-85-0170-CR,01-85-0170-CR
• Citation: 710 S.W.2d 148
• Parties: Ex parte Charles Ray DREWERY. . (1st Dist.)
• Court: Texas Court of Appeals

Page 148

710 S.W.2d 148

Ex parte Charles Ray DREWERY.

No. 01-85-0170-CR.

Court of Appeals of Texas,

Houston. (1st Dist.)

May 1, 1986.

Rehearing Denied June 12, 1986.

Terrill L. Flenniken, Houston, for appellant.

John Holmes, Dist. Atty., Don Clemmer, Asst. Dist. Atty., for appellee.

Before SAM BASS, DUGGAN and WARREN, JJ.

OPINION

WARREN, Justice.

This is an appeal from a denial of pre-trial habeas corpus relief. We withdraw our previous opinion in this case and substitute this one in its place. This revised opinion was required because of an error in the facts stipulated to by the State and appellant's attorney. Upon appellant's request, we abated the appeal to allow the parties to correct the errors in the stipulation of facts. The stipulation has been returned, and this opinion is a result of the revised stipulation.

Appellant, charged with aggravated robbery and aggravated assault, claims that his prior conviction of attempted capital murder placed him in jeopardy on the aggravated assault and aggravated robbery charges and that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars further prosecution. We agree that in this case the aggravated assault and aggravated robbery charges are the same offense as attempted capital murder, and that he cannot be tried and convicted of all three. But we conclude that the attempted capital murder conviction was void when it was entered and that appellant can be retried on the aggravated assault and aggravated robbery charges. We therefore deny the relief appellant requests.

This Court has jurisdiction because appellate review of a pre-trial double jeopardy claim is constitutionally required. United States v. Hollywood Motor Car Co., 458 U.S. 263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982); Ex parte Robinson, 641 S.W.2d 552, 555 (Tex.Crim.App.1982).

In April 1982, appellant was arrested for the attempted murder of Russell Ruth during the course of robbing and assaulting Michael Moore. Two separate indictments were filed against appellant as a result of that arrest. Trial court cause number 354,693 charged appellant with attempted capital murder. It alleged:

that ... Charles Ray Drewery ... on or about April 27, 1982 ... did ... with the intent to commit capital murder, attempt to cause the death of Russell R. Ruth.... by intentionally shooting at the complainant with a gun, while in the course of committing and attempting to commit aggravated robbery of Michael Moore.

Trial court cause number 362,829, charged appellant with aggravated robbery and aggravated assault as follows:

Charles Ray Drewery.... while in the course of committing theft of property owned by MICHAEL WAYNE MOORE ..., and with intent to obtain and maintain control of the property, [did] intentionally and knowingly threaten and place [MOORE] in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely a firearm.

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It is further presented that ... DREWERY.... did then and there unlawfully intentionally and knowingly threaten imminent bodily injury to [MOORE] ... with the use of a deadly weapon, namely, a firearm.

Cause number 362,829 was originally tried in November of 1982. Prior to trial, the State abandoned the aggravated robbery count. The jury convicted appellant of aggravated assault and found two enhancement allegations true. The trial court then assessed punishment at life imprisonment, as required by the law at the time. Appellant moved for a new trial shortly after the trial.

On December 3, 1982, prior to the decision on appellant's motion for a new trial in cause number 362,829, appellant was convicted in cause number 354,693 on his plea of guilty to attempted capital murder. He was sentenced to five years.

On January 16, 1983, appellant's motion for a new trial in cause number 362,829 was granted, and the aggravated assault conviction was set aside. Several months later, the trial court rescinded the order for a new trial. In October 1984, the Court of Criminal Appeals directed the trial court to reinstate the order for a new trial in cause number 362,829. Ex parte Drewery, 677 S.W.2d 533 (Tex.Crim.App.1984). The State now seeks to retry appellant for aggravated robbery and aggravated assault as alleged in cause no. 362,829.

In one ground of error, appellant contends that the court below erred when it refused to bar further prosecution on indictment 362,829. The only evidence presented at the writ hearing was a stipulation by the parties that:

1) the aggravated robbery alleged in the attempted capital murder count is the same aggravated robbery alleged in the aggravated robbery/aggravated assault indictment;

2) the aggravated assault alleged in the aggravated robbery/aggravated assault indictment is based on the same facts and circumstances as the aggravated robbery alleged in that indictment;

3) only one aggravated robbery and/or aggravated assault occurred; and

4) the appellant is the defendant in both of the indictments.

Appellant contends that the reprosecution of cause number 362,829 is barred because 1) the State used the same aggravated robbery as an element of the attempted capital murder indictment upon which he has been convicted, and 2) under these facts, the aggravated assault is a lesser included offense of the aggravated robbery. On the other hand, the State maintains that 1) jeopardy does not bar the conviction for aggravated assault but might bar the conviction for attempted capital murder, and 2) aggravated robbery and aggravated assault are not lesser included offenses of attempted capital murder.

The Double Jeopardy Clause affords protection against a second prosecution for the same offense after conviction or acquittal. Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984). The question before us is whether, under these facts, the aggravated robbery and assault allegations are "the same offense" as attempted capital murder for jeopardy purposes, and if so, whether appellant can be retried on cause 362,829.

The test for determining whether two or more offenses are the same for purposes of barring successive prosecutions was stated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which in turn relied on Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911). The Blockburger test was stated thusly: "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182.

The Blockburger test is used to determine whether a legislature intended to impose separate sanctions for multiple offenses arising in the course of a single act or transaction. Brown v. Ohio, 431 U.S. 161, 166, 97 S.Ct. 2166, 2169, 52 L.Ed.2d 225 (1977); Iannelli v. United States, 420 U.S. 770, 785, 95 S.Ct. 1284, 1293, 43 L.Ed.2d 616 (1975). It "... focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial." Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980). If each of the statutes under scrutiny requires proof of an additional fact that the others do not, the offenses are not the same. Id. The review of the statutes must not be made in a vacuum, however. Consideration must also be given to the proof the State would have to present in the particular case under question, rather than to the statutes in general. The following cases illustrate why, in some cases, two statutory offenses, which are not necessarily the same offense under the Blockburger test, can be the same offense in other cases because of the restrictions imposed by the facts as set out in the indictment.

In Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228, the United States Supreme Court was required to determine if involuntary manslaughter and failure to reduce speed to avoid an accident were the same offenses under Illinois law. Vitale argued that the State was barred from prosecuting him for involuntary manslaughter because failure to reduce speed to avoid an accident, of which he had previously been convicted, "required no proof beyond that necessary for a conviction of involuntary manslaughter." The State,...