Ex parte Duran, 60222

• Decision Date: 30 May 1979
• Docket Number: No. 2,No. 60222,60222,2
• Parties: Ex parte Richard DURAN
• Court: Texas Court of Criminal Appeals

Page 683

581 S.W.2d 683

Ex parte Richard DURAN.

No. 60222.

Court of Criminal Appeals of Texas, Panel No. 2.

May 30, 1979.

Paul G. Johnson, Huntsville, for appellant.

Carol S. Vance, Dist. Atty. and Douglas M. O'Brien, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, ROBERTS and ODOM, JJ.

OPINION

ROBERTS, Judge.

On June 29, 1977, we reversed the applicant's conviction for possession of heroin. Duran v. State, 552 S.W.2d 840 (Tex.Cr.App.1977). At the applicant's non-jury trial, it had been stipulated that the contents of an exhibit were heroin, and a chemist's laboratory report had been admitted by stipulation. The record had not contained the applicant's written waiver and consent to stipulation, approved by the court, as required by Article 1.15 of the Texas Code of Criminal Procedure. A majority of this Court held: "Since the State did not follow the requirements of Article 1.15, V.A.C.C.P., the stipulation may not be considered and the evidence is insufficient to support the convictions. (Sic; only one conviction was affected by the stipulations.)" 552 S.W.2d at 843.

On remand, the applicant was convicted again. By his post-conviction application for habeas corpus relief, the applicant now says that we should apply retroactively Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), and relieve him from the conviction on the re-trial which followed our remand. ¹ We already have held that Burks and Greene will be applied retroactively. Ex parte Mixon, 583 S.W.2d 378, (Tex.Cr.App. 1979). But this is not the end of the matter, for Burks and Greene do not clearly require that the relief sought be granted. That we used the words "the evidence is insufficient to support the conviction" (552 S.W.2d at 843) in our earlier opinion, a year before Burks and Greene were decided, does not control the correct analysis of this case. The words are not a magic phrase which produces automatic results.

Burks held that "the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, (and) the only 'just' remedy available for that court is the direction of a judgment of acquittal." 437 U.S. at 18, 98 S.Ct. at 2150. The Supreme Court was careful to distinguish reversals caused by trial error from those resulting from evidentiary insufficiency.

"In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished." 437 U.S. at 15, 98 S.Ct. at 2149.

Therefore, reversal for trial error does not preclude another trial.

Greene held that the Burks standard applies to state criminal proceedings. "But the situation (in Greene ) was confused by the fact that three of the four Justices (of the seven-member Supreme Court of Florida who voted to reverse Greene's first conviction) expressly qualified their action by 'specially concurring' in an opinion which discussed only trial error." 437 U.S. at 25, 98 S.Ct. at 2155. Because the state courts' actions were subject to varying interpretations, the Supreme Court remanded the case for reconsideration. Before doing so, the Court delivered this dictum (the last sentence of which is a footnote): (I)t could reasonably be said that the concurring Justices thought that the Legally competent evidence adduced at the first trial was insufficient to prove guilt. That is, they were of the opinion that once the inadmissible hearsay evidence was discounted, there was insufficient evidence to permit the jury to convict. We express no opinion as to the double jeopardy implications of a retrial following such a holding." 437 U.S. at 26, 98 S.Ct. at 2155. Our holding in Duran's appeal was just "such a holding."

Our holding in the applicant's appeal was that, once the inadmissible stipulated evidence was discounted, there was insufficient evidence to support the conviction. This holding presents the question on which the Supreme Court expressed no opinion in Greene: What are the double jeopardy implications of a reversal by an appellate court of a conviction that was supported only by inadmissible evidence (in this case, a stipulation admitted into evidence without the defendant's written waiver of his rights to the appearance, confrontation, and cross-examination of witnesses and his written consent to stipulation and introduction of written statements)?

Burks points out that an appellate reversal on grounds of insufficient evidence will be confined to cases where it is clear that the prosecution has failed. Such a reversal means that the prosecution was given one fair opportunity to offer whatever proof it could assemble, and it presented a case so lacking that it should not have been submitted to the jury. Since a jury's verdict of acquittal is final, a holding that the evidence was insufficient should be just as final. 437 U.S. at 16-17, 98 S.Ct. 2141. In effect the appellate court's reversal merely supplies the directed verdict of acquittal which the trial court should have ordered. Does this applicant's case match the description in Burks of a case necessitating appellate reversal for insufficient evidence?

The applicant was on ten years' probation when the alleged offense occurred. Both a motion to revoke probation and an indictment alleged that on April 3, 1975, the...