Ex parte Hill

• Decision Date: 20 May 2015
• Docket Number: No. 05–15–00053–CR,05–15–00053–CR
• Parties: Ex Parte Anthony Hill
• Court: Texas Court of Appeals

464 S.W.3d 444

Ex Parte Anthony Hill

No. 05–15–00053–CR

Court of Appeals of Texas, Dallas.

Opinion Filed May 20, 2015
Rehearing Overruled June 17, 2015

Brian Higginbotham, Susan Hawk, Dallas, TX, for appellant.

Michael Ware, Ft. Worth, TX, Terri Hammond Moore, Dallas, TX, for appellee.

Before Justices Francis, Lang –Miers, and Whitehill

OPINION

Opinion by Justice Francis

Anthony Hill pleaded guilty to shooting a man during a robbery and was sentenced to forty-five years in prison. Months later, the complainant died, allegedly from complications of the gunshot wound he received during the aggravated robbery. Thereafter, the State indicted Hill for capital murder.

Hill filed an application for writ of habeas corpus in which he asserted, among other things, violations of the double jeopardy protections afforded by the United States and Texas constitutions.¹ Specifically, he argued his subsequent prosecution for capital murder was barred by his previous conviction for aggravated robbery. After a hearing, the trial court agreed and barred the prosecution.

The State appealed, contending the trial court's ruling is erroneous because Hill's case falls under a longstanding exception to the double jeopardy bar allowing for a subsequent prosecution on a more serious charge when additional facts necessary to sustain that charge have not occurred—in this case, the complainant's death. For reasons set out below, we agree with the State. We reverse the trial court's order and remand for further proceedings consistent with this opinion.

An applicant seeking habeas corpus relief must prove his or her claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006) ; Ex parte Scott, 190 S.W.3d 672, 673 (Tex.Crim.App.2006) (per curiam). In reviewing the trial court's order granting habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling, and we will uphold the trial court's ruling absent an abuse of discretion. See Kniatt, 206 S.W.3d at 664. We afford almost total deference to the trial courts determination of the historical facts that the record supports. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App.2007). We likewise defer to the trial courts application of the law to the facts if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. See id. If the resolution of the ultimate question turns on an application of legal standards, we review the determination de novo. See id.

The Fifth Amendment's Double Jeopardy Clause protects an accused against a second prosecution for the same

464 S.W.3d 446

offense after acquittal, a second prosecution for the same offense after conviction, and being subject to multiple punishments for the same offense. U.S. Const. amend V ; Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ; Littrell v. State, 271 S.W.3d 273, 275 (Tex.Crim.App.2008). The Fifth Amendment is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The Texas Constitution's prohibition against double jeopardy provides substantially identical protection to the Double Jeopardy Clause of the United States Constitution. See Tex. Const. art. I, § 14 (West 2007) ; Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex.Crim.App.1997).

When two offenses arise under different statutes, the two offenses are considered the same offense for purposes of applying the double jeopardy prohibition if all of the statutory elements of one offense are included within the statutory elements of the other offense. See Whalen v. United States, 445 U.S. 684, 693–94, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) ; Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Thus, the State may not convict a defendant for an offense when the defendant has been convicted already of a lesser-included offense arising from the same event. Brown, 432 U.S. at 161, 97 S.Ct. 2221 ; Ex parte Amador, 326 S.W.3d 202, 204 (Tex.Crim.App.2010).

The indictment that formed the basis of the aggravated robbery conviction provides that Hill, while in the course of committing theft, caused serious bodily injury to the complainant by shooting him with a firearm. The indictment for capital murder alleges that while in the course of committing or attempting to commit robbery, Hill caused the death of the complainant by shooting him with a firearm. The State concedes the aggravated robbery is a lesser-included offense of capital murder as alleged in this case and thus satisfies the Blockburger test. Compare Tex. Penal Code Ann. § 19.03(a)(2) (West Supp.2014), with Tex. Penal Code Ann. § 29.03 (West 2011).

Because aggravated robbery is a lesser-included offense of capital murder, Hill contends prosecuting him for capital murder exposes him to double jeopardy because he would be both tried and punished twice. Hill cites numerous authorities supporting the general proposition that a defendant may not be convicted of both greater and lesser offenses arising from the same event. In all of Hill's authorities, however, the greater and lesser offenses were completed and available as potential charges at the time of the defendant's trial. See, e.g., Littrell, 271 S.W.3d at 274 ; Bigon v. State, 252 S.W.3d 360, 363 (Tex.Crim.App.2008).

The State asserts it may try Hill for capital murder because an “exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.” Brown, 432 U.S. at 169 n. 7, 97 S.Ct. 2221.

The United States Supreme Court recognized this exception to the general double jeopardy rule in Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). Diaz was convicted of assault and battery and fined after beating and kicking the victim. Id. at 444, 32 S.Ct. 250. After Diaz's conviction, the victim died, and Diaz was tried and convicted of homicide. Id. The case proceeded to the United States Supreme Court to consider the application of the provision against double jeopardy contained within the Philippine Civil Government

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