Ex parte George

• Decision Date: 29 November 1995
• Docket Number: No. 578-94,578-94
• Citation: 913 S.W.2d 523
• Parties: Ex Parte Aaron Lee GEORGE.
• Court: Texas Court of Criminal Appeals

Page 523

913 S.W.2d 523

Ex Parte Aaron Lee GEORGE.

No. 578-94.

Court of Criminal Appeals of Texas En Banc.

Nov. 29, 1995.

Discretionary Review Denied Jan. 10, 1996.

Jerry D. Conner, Houston, for appellant.

J. Harvey Hudson, Asst. Dist. Atty., Houston, and Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

When the State charged appellant by information with criminally negligent homicide, he filed a pretrial application for writ of habeas corpus, claiming that the prosecution was jeopardy barred by an unusual incident which occurred a few weeks earlier. At that time, appellant had entered a plea of not guilty to another information, also charging him with criminally negligent homicide, and had signed an instrument waiving his right to a jury trial. But the prosecuting attorney would not consent to the waiver, as is his right under Texas statutory law. Code Crim.Proc. art. 1.13. The trial judge, for reasons which are not entirely clear, nevertheless demanded that the State proceed to trial without a jury and, when the prosecutor refused, ordered the clerk to prepare a judgment showing that appellant had been found not guilty.

Shortly afterwards, however, the State filed a new information charging appellant with the same offense. That information is the subject of the instant proceeding. Appellant argues that the earlier judgment, reciting he was found not guilty, proves that he was acquitted of the charged offense and cannot, therefore, be tried for it again. The habeas court denied relief, but the First Court of Appeals reversed, holding the prosecution to be jeopardy barred on account of appellant's prior acquittal. Ex parte George, 874 S.W.2d 916 (Tex.App.--Houston [1st] 1994). We granted the State's petition for discretionary review to elaborate the conditions under which a person is acquitted for purposes of Texas statutory prohibitions against retrial after an acquittal. Tex.R.App.Proc. 200(c)(2).

This case is not really about double jeopardy, state or federal. It is really about a Texas statute, which provides in part that "[a]n acquittal of the defendant exempts him from a second trial or a second prosecution for the same offense, however irregular the proceedings may have been[.]" Tex.Code Crim.Proc. art. 1.11. See also art. 28.13. Of course, double jeopardy principles in general do have something to do with this statute. There is, after all, a kinship between it and article I, section 10 of the Texas Constitution, which provides not only that "[n]o person, for the same offense, shall be twice put in jeopardy of life or liberty," but also that no person shall "be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction." The point to be emphasized in the present context is that the first constitutional prohibition, the one specifically having to do with double "jeopardy," does not seem to be involved much in this case. Only the prohibition against a second prosecution following an "acquittal" or a "verdict of not guilty" is clearly at issue.

In most situations, this distinction would not be important. Some aspects of double jeopardy law are virtually coextensive with the law of prior acquittal. But the modern development of constitutional jurisprudence makes the resolution of jeopardy questions to depend, in most contexts, upon a doctrine known as the attachment of jeopardy. Thus, before it can be said that an accused has been put in jeopardy a second time, in violation of the Texas or United States Constitution, it must appear that he was actually put in jeopardy before. In the instant cause, however, it is reasonably clear that appellant was never put in jeopardy for the offense of which he was purportedly acquitted, since no jury was ever empaneled or sworn, no evidence was offered or received, and no plea was entered by appellant after the announcement of ready by both sides. In short, jeopardy did not attach to appellant in this case, either for purposes of the United States Constitution or for purposes of the Texas Constitution. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); State v. Torres, 805 S.W.2d 418, 420-21 (Tex.Crim.App.1991).

It is no wonder, therefore, that the Court of Appeals did not pause long on the question of jeopardy attachment. Indeed, its entire discussion of the subject appears in a terse comment on the fourth page of its opinion. "Nothing occurred during this proceeding that compels us to hold that jeopardy did not attach." Ex parte George, 874 S.W.2d at 918. This remark underscores the real thrust of the lower court's opinion, which is devoted to the argument that a successive prosecution is barred, not because the appellant was formerly in jeopardy for the same offense, but because he was actually acquitted of it. In fact, what makes this case so interesting is that he was acquitted of it without ever having been in jeopardy for it in the first place.

If this were just a case of double jeopardy, therefore, the fact that appellant was never at risk of a conviction would be sufficient for the conclusion that a successive prosecution is not barred. But, as is manifest from the Court of Appeals's opinion, the issue here is more a question of whether the appellant was "acquitted" or found "not guilty" than of whether he was in "jeopardy" before. And this presents a somewhat more puzzling problem.

From reading its opinion in this case, it seems to us that the Court of Appeals simply assumed appellant was acquitted because the trial judge said so. It then reckoned that, because the trial court had jurisdiction of the case, any other error or defect associated with the acquittal must have been merely an "irregular[ity]" within the meaning of article 1.11. But, this process of reasoning is incomplete. Just because the County Criminal Court at Law Number 1 of Harris County has jurisdiction of criminally negligent homicide prosecutions does not mean that appellant was really acquitted in this case.

In the first place, jurisdiction, at least in the narrow sense, is something possessed by courts, not by judges. The judge is merely an officer of the court, like the lawyers, the bailiff and the court reporter. He is not the court itself. Accordingly, if we consider the question presented as a matter of the judge's authority, not of the court's jurisdiction, it is apparent that the judge in this case did not have authority to acquit the appellant. This is true not only because he had no discretion to serve as factfinder in the case, but because factfinders have no discretion to reach a verdict of any kind outside the context of a trial. See, e.g., Tex.Code Crim.Proc. arts. 1.13(a), 36.13, 37.01, 37.04, 37.07 § 1, 38.05. The Court of Appeals effectively admits this to be true by conceding that a writ of mandamus would lie to force performance of the judge's ministerial duties in this matter. State ex rel. Turner v. McDonald, 676 S.W.2d 371, 373-74 (Tex.Crim.App.1984); State ex rel. Curry v. Carr, 847 S.W.2d 561 (Tex.Crim.App.1992).

In the second place, entry of a judgment of acquittal is itself a ministerial duty, not a matter of discretion. After all, the trial judge is required by law to enter judgment on the verdict. Tex.Code Crim.Proc. art. 37.12. Thus, the judgment in a criminal case merely documents the fact of, and certain important events associated with, the process leading to conviction or acquittal. Tex.Code Crim.Proc. art. 42.01. It is not the conviction or acquittal itself. Jones v. State, 795 S.W.2d 199 (Tex.Crim.App.1990). Consequently, if the judgment reflects that an accused was acquitted, and it is later made to appear that he was not acquitted in fact, the judgment may be reformed accordingly. For this reason, the fact that a judgment of acquittal was entered by the trial judge in the instant cause does not alone settle the question whether appellant was actually acquitted. And because it is clear that article 1.11 of the Code and article I, section 14 of the Constitution do not forbid retrial after acquittal unless the accused was actually acquitted, there is a good deal more to be said about the instant cause than that a judgment of acquittal was entered by the trial judge before we can know for sure whether the law forbids another prosecution on this ground.

In an ordinary case, we would indulge a presumption of regularity in support of the judgment, finding that its recitation of acquittal is sufficient to establish an acquittal in fact. E.g., Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App.1992). But the record in this case reflects all events necessary to determine whether appellant was actually acquitted with sufficient clarity that no presumption of regularity is necessary. Ex parte Lyles, 891 S.W.2d 960, 961 (Tex.Crim.App.1995). And it is a given in the instant cause that events leading to the judgment were anything but regular. The question then is whether any of these events constitutes an acquittal in contemplation of our law.

As far as we have been able to determine, there is no Texas statute expressly defining the word "acquittal." But the context in which it appears throughout the Code of Criminal Procedure creates a powerful inference that it means a finding of fact that the accused is not guilty of the criminal offense with which he is charged. See, e.g., Tex.Code Crim.Proc. arts. 37.10, 37.12, 38.17, 42.01, 46.02. And not just any finding of fact either. It is an official factfinding, usually the verdict of a jury, made in the context of an adversary proceeding, by an individual or group of individuals with the legal authority to decide the question of guilt or innocence. It is not the opinion of a bystander, the result of a public opinion poll, or the prediction of a medium. And...