Ex parte Fortune, 71022

• Decision Date: 24 October 1990
• Docket Number: No. 71022,71022
• Citation: 797 S.W.2d 929
• Parties: Ex parte Harvey Carrie FORTUNE.
• Court: Texas Court of Criminal Appeals

Page 929

797 S.W.2d 929

Ex parte Harvey Carrie FORTUNE.

No. 71022.

Court of Criminal Appeals of Texas En Banc.

Oct. 24, 1990.

Harvey Carrie Fortune, pro se.

Peter Speers, Dist. Atty. and F.M. "Rick" Stover, Asst. Dist. Atty., Conroe, Robert Huttash, State's Atty., Austin, for the State.

OPINION

W.C. DAVIS, Judge.

This is a post-conviction application for a writ of habeas corpus filed with the Court pursuant to Article 11.07, V.A.C.C.P. Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

Applicant was convicted in a single trial in two counts under one indictment for the offenses of burglary of a habitation with intent to commit sexual assault and aggravated sexual assault. A jury found him guilty and assessed punishment at fifteen years on the burglary conviction and thirty years on the sexual assault conviction. On direct appeal, the burglary conviction was affirmed but the sexual assault conviction was reversed on double jeopardy grounds. Fortune v. State, 699 S.W.2d 706 (Tex.App.--Beaumont 1985). This Court affirmed that judgment in a published opinion. Fortune v. State, 745 S.W.2d 364 (Tex.Cr.App.1988) (Fortune I ). Along the way, we discussed the continued viability of Drake v. State, 686 S.W.2d 935 (Tex.Cr.App.1985) and Ex parte Siller, 686 S.W.2d 617 (Tex.Cr.App.1985):

In its petition, the State contends, and rightfully so, that the two preceding opinions are irreconcilable, and that the bench and bar of this State deserve a clarification. We will now take the opportunity to do so. The basic issue here is not whether the State may obtain multiple convictions from one indictment. That issue has been clearly decided: multiple convictions may not be had from a single indictment, regardless of whether the offenses arose out of the same or different transactions. Rather, the real issue here is whether the defendant must object to misjoinder in order to preserve the issue on appeal. As observed by the State, the opinions in Siller and Drake, supra, do not provide a principled basis for the differences in their outcomes.

Fortune v. State, 745 S.W.2d at 369. Overruling the portion of Drake, supra, which held when the State joins two or more offenses arising out of different transactions, such error must be objected to at trial or waived on appeal, a majority of this Court found the proceedings void and affirmed the Court of Appeals' disposition in reversing one conviction while affirming another. ¹

Subsequent to that decision, applicant pled guilty, was convicted of the aggravated sexual assault, and was sentenced pursuant to a plea bargain to twenty years in the Texas Department of Corrections. ² There was no direct appeal. Applicant is currently serving time for the burglary and sexual assault cases as well as a twenty-year sentence assessed on a separate offense out of Angelina County.

Applicant in the instant cause contends the State violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution by re-indicting, trying and convicting him of the aggravated sexual assault case earlier reversed on appeal. Specifically, applicant argues the State was precluded from retrying him because there was no showing of "manifest necessity" so as to justify retrial. The State responds by asserting applicant has waived his right to complain due to the plea bargain agreement and the "law is well settled that a reversal of a conviction generally does not bar retrial." See Ex parte Sorola, 769 S.W.2d 920 (Tex.Cr.App.1989). The trial court recommended relief be denied without making specific findings of fact or conclusions of law on the matter. After further review, we are of the opinion relief should be denied.

Initially, we reject the State's threshold argument that applicant has waived the right to bring his application because he pled guilty to the charge and was convicted and punished pursuant to a plea bargain agreement with the prosecution. Both federal and state law speaks to the issue. The fact a defendant enters a plea of guilty to the latter charge does not preclude him from raising a double jeopardy contention in an application for writ of habeas corpus. Ex parte McAfee, 761 S.W.2d 771 (Tex.Cr.App.1988) (and cases cited therein); Ex parte Morehead, 596 S.W.2d 895 (Tex.Cr.App.1980); Ex parte Hilliard, 538 S.W.2d 135 (Tex.Cr.App.1976); see Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The Menna Court explained the matter in the following manner after citing several cases for the proposition that counseled guilty pleas inevitably waive all antecedent constitutional violations:

The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established. Here, however, the claim is that the State may not convict petitioner no matter how validly his factual guilt is established. The guilty plea, therefore does not bar the claim.

423 U.S. at 62, 96 S.Ct. at 242. ³ (emphasis in original).

Based on the above, we reject the contention of the State and will turn to the merits of the habeas application.

The Fifth Amendment provides in relevant part: "[N]or shall any person be subject to the same offense to be twice put in jeopardy of life or limb." The Double Jeopardy Clause serves three primary purposes:

(1) it protects against a second prosecution for the same offense after acquittal;

(2) it protects against a second prosecution for the same offense after conviction; and

(3) it protects against multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted). In the instant case, applicant has clearly been subjected to "successive prosecutions" of aggravated assault if only because that conviction was reversed as void on appeal. While on original appeal applicant claimed error in being subjected to multiple punishments, see Fortune I, supra, in the instant application he contends the government improperly retried him for the same offense for which his conviction was reversed. Thus, we are concerned with the second "purpose" under Pearce, supra.

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, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), poses no bar to further prosecution on the same charge." United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65, reh. denied 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 197 (1978). See also Montana v. Hall, 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987) (per curiam); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), cert. denied, 464 U.S. 1046, 104 S.Ct. 718, 79 L.Ed.2d 180, reh. denied, 465 U.S. 1074, 104 S.Ct. 1431, 79 L.Ed.2d 754 (1984); United States v. Mize, 820 F.2d 118 (5th Cir.), cert. denied, 484 U.S. 943, 108 S.Ct. 328, 98 L.Ed.2d 355 (1987); Millard v. Lynaugh, 810 F.2d 1403 (5th Cir.), cert. denied, 484 U.S. 838, 108 S.Ct. 122, 98 L.Ed.2d 81 (1987); Harris v. State, 738 S.W.2d 207 (Tex.Cr.App.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 159 (1987); Franklin v. State, 693 S.W.2d 420 (Tex.Cr.App.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986); Ex parte Duran, 581 S.W.2d 683 (Tex.Cr.App.1979). See generally 3 W. LAFAVE & J. ISRAEL, Criminal Procedure § 24.4 (1984); TEX.JUR.3rd, Vol. 21, Crim.Law, § 1644, p. 462. In United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964), Justice Harlan explained the basis for this principle or 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 are now in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of such a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendant's rights as well as society's interest.

United States v. Tateo, 377 U.S. at 466, 84 S.Ct. at 1589.

As in the case of the Fifth Amendment Double Jeopardy Clause of the federal constitution, Article I, Section 14 of the Texas Constitution protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense. Zimmerman v. State, 750 S.W.2d 194 (Tex.Cr.App.1988) and cases cited therein. Legal precedent concerning prosecutorial or judicial overreaching becoming a bar to retrial has generally been limited to those cases where a mistrial has been declared without a defendant's consent or due to "manifest necessity" under circumstances of the individual case. See Harrison v. State, 788 S.W.2d 18 (Tex.Cr.App.1990) (when mistrial has been declared without consent of defendant and State seeks subsequent retrial, "manifest necessity" mandating declaration of mistrial must be shown); McAfee v. State, 761 S.W.2d 771 (Tex.Cr.App.1988) (no jeopardy violation where defendant retried under count of indictment abandoned...