Ex parte Gary

• Decision Date: 28 February 1995
• Docket Number: No. 07-94-0326-CR,07-94-0326-CR
• Citation: 895 S.W.2d 465
• Parties: Ex Parte Ray Charles GARY.
• Court: Texas Court of Appeals

Page 465

895 S.W.2d 465

Ex Parte Ray Charles GARY.

No. 07-94-0326-CR.

Court of Appeals of Texas,

Amarillo.

Feb. 28, 1995.

Rehearing Overruled May 4, 1995.

Snuggs & Wischkaemper, Philip Wischkaemper, Lubbock, for appellant.

Robert W. Kinkaid, Jr., Asst. Dist. Atty., Plainview, for appellee.

Before REYNOLDS, C.J., and BOYD and QUINN, JJ.

BOYD, Justice.

Applicant Ray Charles Gary brings this appeal from the trial court's denial of a pretrial application for writ of habeas corpus. In two points of error, he argues the trial court erred in denying the relief he sought because 1) prosecution in this case is barred by the double jeopardy provisions of article I, section 14 of the Texas Constitution, and 2) the prosecution is a "sham" barred by the double jeopardy provisions of the Fifth Amendment to the United States Constitution.

Although the question presented by applicant is primarily a legal one, a brief resume of the facts is essential to a proper discussion of the appeal. On June 29, 1993, applicant was indicted in this case for the aggravated robbery of J.C. Bandy on December 26, 1992. In that indictment it was alleged that applicant took Bandy's Cadillac at gunpoint.

On September 21, 1993, applicant was indicted by a seven count indictment in the Federal District Court for the Northern District of Texas, Lubbock Division. In that indictment, applicant was charged with, inter alia, the December 26, 1992 armed carjacking of Bandy's Cadillac. ¹ Apparently, this charged offense involved the use of the same firearm mentioned in the instant state court indictment. Applicant was tried and convicted in federal court under this indictment and sentenced to 97 months confinement for the carjacking, as well as a mandatory 20-year sentence for carrying and exhibiting a firearm during the commission of a crime of violence. This conviction was "stacked" upon the 97-month conviction. The federal conviction is presently on appeal. The State acknowledged, during the trial court hearing on applicant's application, that the facts it intends to prove are the same as those established in federal court. The State further acknowledged that it had obtained, in preparation for the trial of the indictment in the state district court, a copy of the statement of facts covering the testimony elicited in federal court.

As is obvious from our recitation of the points on appeal, the question applicant presents for determination is whether the double jeopardy provisions of either, or both, the United States and Texas Constitutions prohibit applicant's prosecution under the state indictment. For reasons stated below, we hold the prosecution is not barred.

We initially note that a pretrial writ of habeas corpus is the appropriate mechanism with which to seek relief from an alleged exposure to double jeopardy. Double jeopardy may only be raised as a defense when a subsequent prosecution is for the same offense as a prior prosecution. In the seminal case of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Court opined that in determining whether the same offense is involved in two distinct trials:

[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether each provision requires proof of an additional fact which the other does not.

Id., 284 U.S. at 304, 52 S.Ct. at 182. The test suggested by the Blockburger Court is followed in Texas. See Ex parte McWilliams, 634 S.W.2d 815, 824 (Tex.Crim.App.1980), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982).

In support of his first point, applicant argues that application of the Blockburger "elements" test confirms that the elements of the offenses charged in the state court and the federal court are sufficiently similar so that prosecution of both causes constitutes double jeopardy. Therefore, he concludes, prosecution of the instant cause would constitute double jeopardy within the purview of article I, section 14 of the Texas Constitution.

In Breedlove et al. v. State, 470 S.W.2d 880 (Tex.Crim.App.1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1512, 31 L.Ed.2d 808 (1972), the defendants were convicted in state court for the offense of robbery by firearms. Id. at 881. Prior to the state convictions, the defendants were tried for the same actions in the federal district court and were convicted of the offense of bank robbery. The defendants appealed their convictions in the state court, contending that prosecution of those cases was barred by the double jeopardy provisions of both the United States and Texas Constitutions. En route to its decision overruling that contention, the Texas Court of Criminal Appeals noted that it was not disputed "that the transaction under consideration in these appeals is different in any respect from the transaction for which the federal convictions were obtained." Id. In affirming the convictions, the Breedlove court discussed and applied the "separate sovereignty" rule explicated by the United States Supreme Court in the case of Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Id. at 882. In doing so, and in further explication of its ruling, the Breedlove court quoted with approval the following language used by the federal court of appeals in Hill v. Beto, 390 F.2d 640 (5th Cir.1968):

It is true that but one act of robbery was involved. * * * But by committing that robbery appellant violated the statutes of two separate sovereigns and thus committed two separate offenses.

Id.

Additionally, in Reynolds v. State, 548 S.W.2d 733 (Tex.Crim.App.1977), the defendant was convicted of the offense of delivery of methamphetamine. Id. at 734. In his appeal, the defendant contended his conviction violated double jeopardy as he had previously been convicted in federal court for a drug offense involving the same transaction. The Reynolds court, citing the Bartkus, Breedlove, and Hill cases, rejected that contention and again cited the rule that transactions constituting violations of both federal and state law may be prosecuted in both state and federal courts. Id. at 735.

Even so, recognizing the Breedlove and Reynolds cases, applicant reasons that Texas courts have never decided whether article I, section 14 of the Texas Constitution bars a subsequent prosecution for the same conduct in federal court. Apparently, that conclusion is based upon a theory that the transactions referred to in the Breedlove and Reynolds cases do not necessarily include all the elements constituting the basis of the Blockburger test whereas, in this case, all those elements exist. Based on that premise, applicant urges us to adopt the rule adopted in Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971) and its progeny. That rule provides that a double jeopardy provision in a state constitution prohibits a prosecution in state court following a federal conviction or acquittal unless it appears from the record that the state interests and the federal interests are "substantially different." Id. 286 A.2d at 643. Concluding that this record does not show such a substantial difference in state and federal interests, he argues that a reversal and dismissal of his conviction is mandated. We disagree.

Initially, as pointed out in the Commonwealth dissent, the Pennsylvania court's rationale requires a factual determination in each case rather than a clear question of law. To follow this rationale would require the trial judge to review and pass judgment upon the sentence imposed by another court in the judicial system of a separate sovereign. Presumably, in making a case-by-case determination, the judge would also need to review the entire penal, probation and, where permissible, parole system of the other jurisdiction to determine...