Ex parte Gonzales, 3-83-164-CR

• Decision Date: 21 March 1984
• Docket Number: No. 3-83-164-CR,3-83-164-CR
• Citation: 667 S.W.2d 932
• Parties: Ex parte Claudio Arnold GONZALES, Relator.
• Court: Texas Court of Appeals

Page 932

667 S.W.2d 932

Ex parte Claudio Arnold GONZALES, Relator.

No. 3-83-164-CR.

Court of Appeals of Texas Austin.

March 21, 1984.

Charles O. Grigson, Austin, for relator.

Ronald Earle, Dist. Atty., Paul Womack, Asst. Dist. Atty., Austin, for the State.

Before SHANNON, EARL W. SMITH and GAMMAGE, JJ.

EARL W. SMITH, Justice.

Claudio Arnold Gonzales appeals from an order denying his application for writ of habeas corpus. He was indicted March 23, 1978 for the offense of delivery of cocaine. In June of 1978 he pleaded guilty to the lesser-included offense of possession of cocaine, made a judicial confession to his guilt and was adjudged guilty. Punishment was assessed at confinement in the Department of Corrections for ten years and a fine of $1,500.00. Imposition of sentence was suspended and he was placed on probation for ten years.

On May 13, 1983, the State filed an amended motion to revoke probation. Appellant moved to dismiss the indictment on the grounds that it was fundamentally defective and void under Crowl v. State, 611 S.W.2d 59 (Tex.Cr.App.1981). Appellant and the State agreed that the indictment was void. The motion was granted and the indictment was dismissed. Gonzales was reindicted for the same offense on June 15, 1983. Because the second indictment was defective, a third indictment for the same offense was returned August 25, 1983, following which Gonzales filed a Writ of Habeas Corpus in the trial court, who, after hearing, denied the writ. This Court has jurisdiction to hear the appeal pursuant to Tex.Code Cr.P.Ann. art. 44.34 (Supp.1982).

Gonzales assigns two grounds of error: (1) the trial court erred in denying appellant's application for Writ of Habeas Corpus because allowing the State to proceed with this case will place appellant in jeopardy a second time for an offense for which he has already been convicted, and (2) the trial court erred in denying the writ because allowing the State to continue with the prosecution of the case under the circumstances would constitute a denial of due process of law. We overrule both grounds of error and affirm the order of the trial court denying the writ.

The Fifth Amendment to the United States Constitution, prohibiting a person from being placed twice in jeopardy for the same offense, is applicable to the states. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). See Ex parte Robinson, 641 S.W.2d 552, 554 (Tex.Cr.App.1982). Gonzales correctly argues that because the focus of the writ, under his first ground of error, is on the risk of conviction, he may present his writ claiming double jeopardy to the trial court prior to trial and if the trial court denies same after hearing, he may appeal to this Court. Tex.Code Cr.P.Ann. art. 44.34; United States v. Hollywood Motor Company, 458 U.S. 263, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982); Ex parte Robinson, supra.

Gonzales argues that following his being found guilty and being placed on probation he did nothing to set aside his conviction until a motion to revoke his probation was filed five years later. It was then that the indictment was dismissed upon his motion in which he correctly contended that the indictment was void. Despite the fact that the indictment was dismissed on his motion, he insists that jeopardy can attach even though the indictment was void. Counsel for Gonzales candidly admits that none of the authorities cited in his brief are based upon a dismissal at the instance of the accused where the indictment upon which the conviction is founded is void.

In Allen v. State, 656 S.W.2d 592, 594 (Tex.App.1983, no pet.) we held:

In every appeal involving the issue of double jeopardy, inquiry begins with the question of whether the defendant was ever first placed in jeopardy, Crist v. Bretz, 437 U.S. 28 [98 S.Ct. 2156, 57 L.Ed.2d 24] ... (1978), for it is axiomatic fact that there can be no double jeopardy unless the defendant has been previously placed in jeopardy.

In Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), the defendant was indicted for the crime of theft. The case was called for trial and a jury was impaneled and sworn. The next day, the prosecuting attorney realized that the indictment was fatally defective under Illinois law. As in Texas, an indictment in Illinois is the means by which a defendant may be brought to trial for felony offenses. The trial court granted the State's motion for a mistrial, after which a second indictment, meeting the requirements of the statute, was returned. Defendant, at arraignment, raised the claim of double jeopardy and was overruled. The jury convicted the defendant, sentence was imposed, and the conviction was upheld by the Illinois courts. The defendant sought federal habeas corpus relief, alleging double jeopardy. The Seventh Circuit affirmed the denial of habeas...