Ex parte Hernandez

• Decision Date: 24 September 1997
• Docket Number: Nos. 1025-95,1024-95,s. 1025-95
• Citation: 953 S.W.2d 275
• Parties: Ex parte Henry David HERNANDEZ.
• Court: Texas Court of Criminal Appeals

Page 275

953 S.W.2d 275

Ex parte Henry David HERNANDEZ.

Nos. 1025-95, 1024-95.

Court of Criminal Appeals of Texas En Banc.

Sept. 24, 1997.

Mark Stevens, San Antonio, for appellant.

Edward F. Shaughnessy, III, Asst. Dist. Atty., San Antonio, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

HOLLAND, Judge.

Appellant was indicted for aggravated assault on a jail guard and aggravated assault on a peace officer. ¹ TEX. PENAL CODE ANN. § 22.02. Soon after the alleged aggravated assaults occurred, and prior to appellant being indicted for those alleged assaults, officials at the Bexar County Adult Detention Center imposed 15 days disciplinary detention upon appellant for his actions in those alleged aggravated assaults. At a pre-trial hearing, appellant argued that the imposition of the disciplinary detention and restriction from privileges barred the State from prosecuting him for the aggravated assaults. ² Appellant based his argument upon both the Federal and State Constitutions. See U.S. CONST. amend. V & XIV, and TEX. CONST. art. I, § 14. The trial court overruled appellant's special pleas of double jeopardy and his applications for writ of habeas corpus seeking relief from double jeopardy. Appellant pursued an appeal of the trial court's decision. The Court of Appeals overruled both of appellant's points of error. Hernandez v. State, 904 S.W.2d 808 (Tex.App.--San Antonio 1995). Appellant sought review of this decision by this Court. We will affirm the judgment of the Court of Appeals.

I. THE FACTS.

On September 9, 1991, while incarcerated in the Administrative Segregation Unit of the Bexar County Adult Detention Center, appellant and a fellow inmate, Edward Salazar, became involved in an altercation with two of their jailers, Roger Ybarra and Terry Payton. When Salazar allegedly assaulted Payton, appellant came up behind Ybarra and allegedly assaulted Ybarra. Two days later, on September 11, 1991 ³, pursuant to a complaint by Officer Ybarra, appellant was brought before an administrative hearing before the Administrative Hearing Board of the Detention Center for a violation of Rule 1-1 of the Bexar County Adult Detention Center Rules ⁴. Appellant pled not guilty to the rules violation. The Board found that appellant "did assault officer Ybarra" and concluded that appellant was guilty of violating Rule 1-1. The Board assessed appellant fifteen days disciplinary detention. Within that disciplinary period of fifteen days, the Board imposed upon appellant restrictions from the commissary as well as from newspapers, visits, phones and programs.

Three years later, on November 3, 1994, ⁵ appellant appeared at the pre-trial hearing in the instant cases in which the trial court heard and ruled upon the issues in dispute before this Court. Appellant argued that he had already been punished by the ruling of the Administrative Hearing Board. He testified that for fifteen days he was cut off from communications with his family, that he had no way of knowing what was going on in the world outside, that he could not obtain late evening snacks from the commissary, and that he was cut off from participation in both the Detention Center's art program and continuing education. Appellant also presented evidence that he was locked-up in administrative segregation for 23 hours of the day and shackled whenever he was allowed out of his cell.

In rebuttal, the State attempted to show appellant suffered minimal additional sanctions as a result of the Administrative Hearing Board's decision. The State proved appellant was already confined in the administrative segregation unit of the Detention Center when the alleged assault occurred on September 9th. At the time of his hearing, appellant and every other inmate in the administrative segregation unit were under 23 hour lock-up and were shackled when they left their cells. Even after being placed on disciplinary detention, appellant was not denied his one hour per day outside of his cell. Though cut off both from use of the phone and visits from the outside during the fifteen day detention, appellant was not cut off from contact with his attorney during that time. Appellant received his regular meals during the fifteen day detention, but could not order coffee, candy or cigarettes from the commissary. Except for chapel, appellant could not participate in the programs offered by the Detention Center to inmates confined in administrative segregation.

As mentioned above, appellant combined both cases in a single argument in the pre-trial hearing. He asserted that his administrative hearing was similar to the assessment of controlled substances taxes in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). Appellant argued that both were administrative actions which were punitive in nature and represented an attempt by the government to impose multiple punishments for the same criminal offense. Appellant offered Kurth Ranch as the basis for his arguments under both the federal and the state constitution. At the pre-trial hearing, he did not offer a separate basis for relief under the provisions of Art. I, § 14. The trial court overruled appellant's pre-trial motions. Appellant sought appeal from that decision.

II. THE DECISION OF THE COURT OF APPEALS

On appeal, appellant argued that the Double Jeopardy Clauses of the Fourteenth Amendment of the U.S. Constitution and Article I, § 14 of the Texas Constitution barred the State from prosecuting him for aggravated assault of a jail guard because appellant had been previously punished for that assault by officials of the Bexar County Adult Detention Center. In his brief before the court of appeals, appellant relied upon Kurth Ranch to argue under the Federal Constitution that the facts of his case warranted double jeopardy protection, whereas under the Texas Constitution appellant only argued in very general terms that Art. I, § 14 provided more protection than did its Federal counterpart. The San Antonio Court of Appeals overruled appellant's points of error. Hernandez v. State, 904 S.W.2d, at 813.

The Court of Appeals noted that Texas courts and their federal counterparts have consistently held that "disciplinary sanctions imposed by prison officials for crimes committed within the prison do not bar subsequent prosecution for those crimes in a court of competent jurisdiction." Hernandez, at 810; and cases cited therein. The San Antonio Court disagreed with appellant's argument that Kurth Ranch implicitly overruled these lines of cases. They believed Kurth Ranch modified Halper's ⁶ double jeopardy analysis "only insofar as tax statutes are concerned" and that the Court did not contemplate Kurth Ranch 's application to prison disciplinary sanctions or other civil or administrative actions. The San Antonio Court agreed with a statement made by the U.S. District Court for the Eastern District of Wisconsin that

"This Court cannot depart from a rule uniformly established by federal and state courts simply because dicta contained in a Supreme Court opinion, dealing with facts and issues wholly unrelated to the present dispute, could be read to require a different result."

Garrity v. Fiedler, 850 F.Supp. 777, at 779 (E.D.Wis.1994). The San Antonio Court then applied Halper 's test to determine if the disciplinary sanctions served only as a "deterrent or retribution" without any remedial elements. Hernandez v. State, 904 S.W.2d, at 811.

The San Antonio Court of Appeals concluded the State has a "sound remedial interest 'to encourage good conduct and to maintain order in the prison'." They were not deterred from this conclusion by the fact that "these remedial concerns require 'punishing' individuals for violent and disruptive behavior." Hernandez v. State, 904 S.W.2d, at 812; and cases cited therein. The San Antonio Court explained they would not determine if a sanction constituted punishment from "the defendant's perspective, since 'even remedial sanctions carry the sting of punishment'." Hernandez v. State, supra; citing United States v. Halper, 490 U.S., at 447, 109 S.Ct., at 1901. Applying Halper, the San Antonio Court found the disciplinary sanctions imposed upon appellant did not constitute punishment because they were not grossly disproportionate to the remedial goals of maintaining order and discipline in the prison system. In addition, the San Antonio Court believed that the inherent necessity to withdraw or limit many privileges or rights of prisoners in the interest of properly administering a prison in order to maintain institutional security is a tradition that the Supreme Court did not intend to alter with its decisions in Halper and Kurth Ranch. Hernandez v. State, 904 S.W.2d, at 812-813.

The San Antonio Court also rejected appellant's state constitutional argument. They noted that Art.I, § 14 generally afforded the same protection as did the Fifth Amendment. They also stated that even after Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991), many of the state's courts of appeals still found the State was not barred by Art. I, § 14 from trying an inmate when he has already been punished for the same conduct in a prison disciplinary proceeding. The Court of Appeals then concluded the Texas Constitution did not protect appellant from being tried for aggravated assault after he had already been subjected to a 15-day disciplinary detention. Hernandez v. State, 904 S.W.2d, at 813. Appellant sought review from this Court.

III. THIS COURT'S DECISION.

A. The Fifth Amendment.

In his petition, appellant urges this court to reverse the decision of the San Antonio Court of Appeals that, under the Fifth Amendment, the disciplinary sanctions did not bar appellant's prosecution for aggravated assault. Appellant argues the San Antonio Court failed in its attempt to distinguish Kurth Ranch from the...