Ex parte Granger

• Decision Date: 10 February 1993
• Docket Number: No. 1109-91,1109-91
• Parties: Ex Parte Feryl John GRANGER.
• Court: Texas Court of Criminal Appeals

Page 513

850 S.W.2d 513

Ex Parte Feryl John GRANGER.

No. 1109-91.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 10, 1993.

Rehearing Denied April 7, 1993.

Logene L. Foster, Sugar Land, for appellant.

Sam W. Dick, Dist. Atty. and Frank Follis and Richard A. Dawson, Asst. Dist. Attys., Richmond, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

On January 3, 1978, Steve Anderson and his wife were murdered in Sugarland. In October of that year, appellant Feryl John Granger was tried and convicted of capital murder for the killing of Steve Anderson. Although the jury charge at the trial included instructions on both murder for remuneration (a capital offense under Texas Penal Code § 19.03(a)(3)) and the lesser included offense of "ordinary" murder (a non-capital offense under Texas Penal Code § 19.02(a)(1)), the jury chose to find appellant guilty of murder for remuneration. On direct appeal, this Court reversed the capital murder conviction on the ground the evidence was, under state statutory law, insufficient to prove the capital element of remuneration. Granger v. State, 605 S.W.2d 602 (Tex.Cr.App.1980). ¹ We concluded our opinion, inappropriately, with the purely advisory comment that "[a]ppellant may ... be retried for the lesser included offense of murder." Id. at 605.

Appellant was later indicted, tried, and convicted of "ordinary" murder based on the same criminal transaction. That conviction, too, was overturned, because of trial error unrelated to the sufficiency of the evidence. Granger v. State, 653 S.W.2d 868 (Tex.App.--Corpus Christi 1983), aff'd, 683 S.W.2d 387 (Tex.Cr.App.1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985). In its opinion reversing appellant's second conviction, the Thirteenth Court of Appeals ² specifically rejected his argument that his retrial for murder had been barred by our federal and state constitutional guarantees against being placed in jeopardy twice for the same offense. See U.S. Const. amend. 5; Tex. Const. art. 1, § 14. The court of appeals citing this Court's advisory statement in its 1980 Granger opinion, explained that "the Court of Criminal Appeals has already indicated that appellant could be retried for the lesser included offense of murder." Granger v. State, 653 S.W.2d at 877.

Before appellant could be tried again for murder, he filed an application for writ of habeas corpus in district court, arguing that any further prosecution for murder was barred by our federal and state constitutional and statutory double jeopardy guarantees. ³ See Tex.Code Crim.Proc. art. 1.10. The district court denied the requested relief, and the First Court of Appeals affirmed in two unpublished opinions, one on original submission and one on rehearing. In both opinions, the First Court, citing our 1980 Granger opinion, again rejected appellant's double jeopardy claim on the ground "[t]he decision of the Court of Criminal Appeals is final and conclusive and constitutes the law of the case." Ex parte Granger, No. 01-89-01140-CR (Tex.App.--Houston [1st Dist.] 1990) (opin. on orig. sub. at 3), 1990 WL 76660.

We granted appellant's petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(2), to consider whether the double jeopardy clause of the Fifth Amendment ⁴ bars a prosecution for murder when (1) the accused was previously convicted of capital murder based on the same criminal transaction, (2) the conviction for capital murder was reversed on appeal due to the insufficiency of the evidence to prove the capital element, and (3) the jury charge at the capital murder trial included instructions on both capital murder and the lesser included offense of murder. Compare State v. Engelking, 817 S.W.2d 64, 67 (Tex.Cr.App.1991); Stephens v. State, 806 S.W.2d 812, 814 n. 4 (Tex.Cr.App.1990), cert. denied, 502 U.S. 929, 112 S.Ct. 350, 116 L.Ed.2d 289 (1991). ⁵ We conclude that a further prosecution for the lesser included offense of murder is not barred.

In his brief to this Court, appellant argues, as he did below, that "[t]he State is barred [by the double jeopardy clause of the Fifth Amendment] from prosecuting [him] again for murder after [his] capital murder [conviction was] reversed for insufficiency of the evidence on the [capital] element." ⁶ Appellant cites Stephens v. State, 806 S.W.2d 812, in support of his claim. The State counterargues that the federal double jeopardy clause is not implicated here because a greater offense and a lesser included offense are not the "same" offense for double jeopardy purposes.

I

At the outset, we must address the court of appeals' holding that appellant's double jeopardy claim is barred by the law of the case doctrine. We have previously recognized that "[u]nder the doctrine of 'the law of the case,' where determinations as to questions of law have already been made on a prior appeal to a court of last resort, those determinations will be held to govern the case throughout all its subsequent stages, including a retrial and a subsequent appeal." Granviel v. State, 723 S.W.2d 141, 147 (Tex.Cr.App.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987). The doctrine is required by neither constitution nor statute, however; it is merely a court-made prudential doctrine designed to promote judicial consistency and efficiency. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986). As such, it should be disregarded when compelling circumstances require a redetermination of the point of law decided on the prior appeal. As our sister court explained a century ago, "[t]he question as to whether [a] court will reconsider, upon a second appeal, what [was] formerly decided in the same case, must always be addressed to the discretion of the court, and determined according to the particular circumstances of that case." Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066, 1067 (1896).

We believe that compelling reasons do exist for a redetermination of appellant's double jeopardy claim and that the court of appeals abused its discretion in holding otherwise. First, our statement in appellant's original appeal in 1980 that he could be retried for the lesser included offense of murder was, as we stated before, purely advisory. Second, our decision in Stephens v. State, 806 S.W.2d 812, cast considerable doubt on the correctness of our earlier advisory comment. ⁷ Under these circumstances, we conclude that it was incorrect, although understandable, for the court of appeals to rely upon the law of the case doctrine.

II

Having concluded that the law of the case doctrine does not bar appellant's double jeopardy claim, we address next the State's contention that the double jeopardy clause is not implicated in this cause. We note first that, read literally, the double jeopardy clause's prohibition against any person being "twice put in jeopardy of life or limb" for "the same offence" would seem to apply only to criminal prosecutions involving the possibility of capital or corporal punishment. Notwithstanding that constitutional language, the United States Supreme Court held long ago that the guarantee applies to all "crimes," regardless of the form of punishment imposed. Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873).

The Supreme Court also long ago created a test for determining whether conduct that violates two distinct statutory provisions constitutes the "same" offense for double jeopardy purposes:

The 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 there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). If application of the Blockburger test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the two offenses are the "same" for double jeopardy purposes. Grady v. Corbin, 495 U.S. 508, 515, 110 S.Ct. 2084, 2090, 109 L.Ed.2d 548 (1990); Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977). ⁸

Texas Penal Code § 19.03(a)(3) defines the elements of capital murder for remuneration as: (1) a person (2) intentionally or knowingly (3) causes (4) the death of an individual (5) for remuneration or the promise of remuneration. Texas Penal Code § 19.02(a)(1), in turn, defines the elements of murder as: (1) a person (2) intentionally or knowingly (3) causes (4) the death of an individual. Since the lesser offense of murder requires no proof beyond that which is required for the greater offense of capital murder, the two offenses are necessarily the "same" offense for the purposes of double jeopardy. Stephens v. State, 806 S.W.2d at 815. Thus, contrary to the State's assertion, the double jeopardy clause is implicated here.

III

We consider next the protection afforded by the double jeopardy clause and whether that protection would be infringed by a retrial of appellant for the offense of murder.

"When we interpret broadly-phrased constitutional provisions such as [the double jeopardy clause], we seek to effectuate the general principles suggested by the language of the text." Proctor v. State, 841 S.W.2d 1, 3 (Tex.Cr.App.1992). We do so on the reasonable supposition that those who adopted such broadly-phrased provisions intended for the principles suggested therein to remain vital over time.

Without doubt, the key principle suggested by the language of the double jeopardy clause is that the State may not use the prosecution power as an instrument of oppression. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977). In Green v. United States, 355 U.S. 184, 187-188, 78...