Ex Parte Legrand, 14-08-00515-CR.
| Citation | 291 S.W.3d 31 |
| Decision Date | 21 April 2009 |
| Docket Number | No. 14-08-00515-CR.,14-08-00515-CR. |
| Parties | Ex parte Trudy Lynn LEGRAND. |
| Court | Court of Appeals of Texas |
Timothy A. Hootman, Houston, for appellant.
Kevin P. Keating, Houston, for state.
Panel consists of Justices YATES and GUZMAN, and Senior Justice PRICE.*
Appellant, Trudy Legrand, received a new trial following a conviction for Class B misdemeanor theft, but she maintains that double-jeopardy and due process principles bar the State's efforts to re-try her. The trial court denied appellant's request for habeas corpus relief. We affirm.
On May 7, 2006, the State filed a criminal information (the "first information") against appellant, charging her with theft of property valued at more than $50 but less than $500, a Class B misdemeanor. See Tex. Penal Code Ann. § 31.03(a), (e)(2) (Vernon Supp. 2008). Although the information alleged theft of only two items — one DVD and one video game — from a Wal-Mart store, the State insists that appellant stole several more items, as well. Apparently, however, the trial court forbade the State from introducing evidence or otherwise commenting on appellant's alleged theft of property other than that specifically named in the charging instrument.1
Notwithstanding that ruling, the prosecutor specifically remarked during the State's opening statement that, in addition to the two items identified in the information, "[t]here were many other items taken[.]" Thereafter, the record also contains several further references to appellant's theft of "other merchandise." Appellant requested a mistrial on at least three occasions, arguing that the State violated the trial court's pre-trial exclusionary ruling. Appellant's requests were denied. After the jury convicted appellant of the charged offense, however, the trial court granted a new trial to appellant, stating "[T]he third time that [appellant] demanded a mistrial, I should have granted it[.]"2
The State then filed a new information (the "second information") charging the appellant with Class A misdemeanor theft, and dismissed the first information. Appellant moved to quash the second information and argued that, by increasing the charges after appellant obtained a new trial, the State acted with prosecutorial vindictiveness. The State then dismissed the second information, and filed another information (the "third information") that again charged appellant with Class B misdemeanor theft. Appellant filed a petition for a writ of habeas corpus, contending that, pursuant to double-jeopardy principles, the State could not re-try her for theft.
Following an evidentiary hearing, the trial court denied appellant's requested relief. On appeal, appellant contends that jeopardy and due process principles bar the State's efforts to re-try her because (1) the case was dismissed after jeopardy attached; (2) the State goaded her, through its misconduct at trial, into requesting a new trial; and (3) by vindictively increasing the charges in response to appellant's request for a new trial, the State violated her due process rights.
One who applies for a writ of habeas corpus carries the burden of proving her allegations by a preponderance of the evidence. Ex parte Alakayi, 102 S.W.3d 426, 430 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). We review the trial court's decision to deny habeas corpus relief for an abuse of discretion, and will consider the facts in the light most favorable to the court's ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim. App.2006). We afford almost complete deference to the trial court's determination of historical facts supported by the record, especially when those factual findings rely upon an evaluation of credibility and demeanor. Ex parte Tarlton, 105 S.W.3d 295, 297 (Tex.App.-Houston [14th Dist.] 2003 no pet.). We apply the same deference to review the trial court's application of law to fact questions, if the resolution of those determinations rests upon an evaluation of credibility and demeanor. Id. However, if the outcome of those ultimate questions turns upon an application of legal standards, we review the trial court's determination de novo. Id.
The Fifth Amendment to the United States Constitution guarantees that a person shall not "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The prohibition against double jeopardy protects an accused from a second prosecution for the same offense following a conviction or acquittal, as well as multiple punishments for the same offense. See Ex parte Kopecky, 821 S.W.2d 957, 958 (Tex.Crim.App. 1992). This constitutional protection also embraces a defendant's "right to have his trial completed by a particular tribunal." United States v. DiFrancesco, 449 U.S. 117, 128, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980).
Appellant's first issue arises from the State's dismissal of the first information following conviction and the granting of a new trial. Appellant argues that, because the State dismissed the first information after jeopardy attached, she cannot be retried. The State responds that appellant remains under "continuing jeopardy" because the conviction was set aside for reasons other than sufficiency of the evidence.
Subject to the trial court's consent, the State is free to dismiss a criminal action at any time. See Code Crim. Proc. Ann. art. 32.02 (Vernon 2006). However, depending on the timing of the State's motion for dismissal, the Fifth Amendment may bar a subsequent prosecution following dismissal of the charging instrument. See Brown v. State, 900 S.W.2d 805, 807 (Tex.App.-San Antonio 1995, pet. ref'd). Generally, if dismissal occurs before jeopardy attaches, double jeopardy does not bar a later prosecution. Proctor v. State, 841 S.W.2d 1, 4 (Tex.Crim.App.1992). By contrast, if the State dismisses an information after jeopardy has attached, it may not thereafter prosecute the defendant for that offense for which she was earlier placed in jeopardy of conviction. See Ex parte Goodman, 152 S.W.3d 67, 71 (Tex. Crim.App.2004). In that event, "the State loses the opportunity to try that charge forever." Brown, 900 S.W.2d at 807.
Double-jeopardy considerations come into play only after a defendant was placed in jeopardy a first time. Ex parte George, 913 S.W.2d 523, 525 (Tex.Crim. App.1995). Here, because appellant was tried by a jury, jeopardy attached when the jury was empaneled and sworn. See Goodman, 152 S.W.3d at 71 n. 6. Appellant concludes, then, that because the State dismissed the first information after the jury was empaneled and sworn, she cannot be re-tried for the same offense. We disagree with appellant's application of the general rule in this case.
When, as here, a trial proceeds to verdict and the conviction is set aside,3 a subsequent trial is not automatically jeopardy-barred. Ex parte Mitchell, 977 S.W.2d 575, 578 (Tex.Crim.App.1997) (citing Ball v. United States, 163 U.S. 662, 669, 16 S.Ct. 1192, 41 L.Ed. 300 (1896)). That is, although the Double Jeopardy Clause prevents a new trial if the conviction was reversed for insufficiency of the evidence, it does not bar retrial of a defendant whose conviction was set aside because of an error in the proceedings leading to conviction. See Burks v. United States, 437 U.S. 1, 10-11, 14, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Mitchell, 977 S.W.2d at 578. Under the theory of "continuing jeopardy," a defendant may be retried after her conviction was reversed on appeal, because the proceedings against her never ceased. Mitchell, 977 S.W.2d at 579. The doctrine has been held to apply "where criminal proceedings against an accused have not run their full course." Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). In those scenarios, the new trial can be regarded as "an enlarged, fact-sensitive part of a single, continuous course of judicial proceedings." Id. at 309, 104 S.Ct. 1805.
Appellant acknowledges the concept of "continuing jeopardy" but contends that, in this case, it ceased to apply after the State's dismissal of the first information. Apparently in support of this claim, appellant cites several cases which state the general rule that the State's dismissal of a criminal action after jeopardy attaches may operate as a bar to further prosecution. See Crist v. Bretz, 437 U.S. 28, 29-30, 37-38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); State v. Florio, 845 S.W.2d 849, 852 (Tex.Crim.App.1992); Proctor, 841 S.W.2d at 3-4; State v. Torres, 805 S.W.2d 418, 423 (Tex.Crim.App.1991) (Clinton, J., concurring); McElwee v. State, 589 S.W.2d 455, 457, 460 (Tex.Crim.App.1979). However, these authorities are not analogous to the case at bar.
None of the cases cited by appellant involve the filing of a new information in a "continuing jeopardy" situation, that is, following a conviction that was set aside post-trial. That factual distinction is critical. As the United States Supreme Court explained:
The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury. That interest was described ... as a defendant's "valued right to have his trial completed by a particular tribunal." It is an interest with roots deep in the historic development of trial by jury in the Anglo-American system of criminal justice. Throughout that history there ran a strong tradition that once banded together a jury should not be discharged until it had completed its solemn task of announcing a verdict.
Regardless of its historic origin, however, the defendant's "valued right to have his trial completed by a particular tribunal" is now within the protection of the constitutional guarantee against double jeopardy, since it is that "right" that lies at the...
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